Henderson and Commissioner for Superannuation

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009]AATA 160

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5990

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DIANNE HENDERSON

Applicant

And COMMISSIONER FOR SUPERANNUATION

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date13 March 2009

PlaceCanberra

Decision The application for an extension of time in which to lodge an application is rejected.

.............[Signed].................................

Mr S. Webb, Member

7.      It is plain enough from the cases that such principles should not be applied rigidly. Consideration must be given to the legislative context. What is required is the careful consideration of all relevant factors, weighing the related evidence, to determine whether it is fair and equitable in the particular circumstances to grant an extension of time. In that consideration prescribed limitation periods must be taken into account as the general rule, with any extension of time being an exception to the general rule.[7]

[7] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

8.      The present issue to be determined arises in relation to the Administrative Appeals Tribunal Act 1975 (AAT Act), and it is in that context that the discretion to extend time must be considered. Generally, the time for making an application for review of a decision under the AAT Act is limited to 28 days following the date on which the decision was given to the person.[8] There is discretion to extend the time if it is reasonable to do so in the circumstances.[9] The time limit and the discretion are not modified by operation of the Superannuation Act 1976 (Superannuation Act). I note that provision is made in the Superannuation Act for an election to preserve superannuation rights and benefits outside the 21 day period that is generally applied, if it is desirable to do so.[10] It appears that in 1992 and 1995 the Commissioner decided not to exercise this discretion in Ms Henderson’s case. Those decisions are the subject of Ms Henderson’s substantive application for review and are not presently for determination, although the prospective merits of the substantive application is a relevant matter to have regard to.

[8] Administrative Appeals Tribunal Act 1975, s 29(2).

[9] Administrative Appeals Tribunal Act 1975, s 29(7).

[10] Superannuation Act 1976, s 157(1) with reference to subs 137(1).

9.      Ms Henderson has given an explanation why she did not lodge an application to the AAT within the prescribed 28 day period in 1995. One can understand the circumstances she describes but she has not given any explanation as to why she did not contact the Tribunal at the time to explore her options. One may reasonably expect that a person such as Ms Henderson, with tertiary qualifications and almost 10 years experience as a Commonwealth employee, would have explored her options within the prescribed time if she intended to pursue the matter as she now asserts. She did not. Ms Henderson’s explanation for the ensuing 13 year delay is not one that is compelling or that propels me to…