Hunt and Commissioner of Superannuation
[2003] AATA 793
•13 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 793
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/628
GENERAL ADMINISTRATIVE DIVISION ) Re JULIE HUNT Applicant
And
COMMISSIONER FOR SUPERANNUATION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Mr W.G. McLean, Member
Associate Professor J. Maynard, Member
Date13 August 2003
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(Sgd) Joan Dwyer
Senior Member
SUPERANNUATION – application for extension of time of 11½ years to request reconsideration of decision made at applicant’s request allowing her to cancel an election to preserve her superannuation rights – whether “a person . . . dissatisfied” in view of fact that decision was made in accordance with her request – reliance by applicant on alleged non-compliance by Commissioner with requirements of the Act in making decision – difficulty in obtaining accurate evidence as to financial circumstances – balancing of factors relevant to exercise of discretion – decision affirmed
WORDS AND PHRASES – “a person . . . dissatisfied”
Superannuation Act 1976 ss 137(1) and (3), 154(2), 157(1) and (3)
Superannuation (Cancellation of Elections) Regulations (Statutory Rules 1978 No 201)
Comcare v A’Hearn (1993) 119 ALR 85
Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1987) 71 ALR 73
Bray and Finch v Workers Rehabilitation and Compensation Corporation and Stanley (1994) SASR 218
Broadbridge v Stammers (1987) 76 ALR 339
McCallum v Commissioner of Taxation (1997) 75 FCR 458
Chalk v Commissioner for Superannuation (1994) 33 ALD 420
Lucic v Nolan (1982) 45 ALR 411
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
R v Taylor [1915] 2 KB 593
REASONS FOR DECISION
13 August 2003 Mrs Joan Dwyer, Senior Member
Mr W.G. McLean, Member
Associate Professor J. Maynard, Member1. This matter arises under the Superannuation Act 1976 (“the Act”). Ms Hunt seeks an extension of time of approximately 11½ years in which to request reconsideration under s 154(2) of the Act, of a decision made by the Commissioner of Superannuation (“the Commissioner”) on 19 April 1988. The Commissioner granted Ms Hunt’s application to cancel an election she had made on 30 August 1985, when she left her employment with the Australian Public Service, to preserve her superannuation rights under the Act. Ms Hunt claims to be dissatisfied with that decision on the grounds that it was made too readily, and was not in compliance with the Act, and was not in her best interests. The effect of the cancellation of the election to preserve her benefits was that Ms Hunt was paid the amount of $21,409.65 (T18 p33) by way of refund of contributions. She used that sum in the purchase of a flat in Melbourne, so that she required a smaller mortgage than would otherwise have been required. She now wishes to repay that sum and rejoin the Commonwealth Superannuation Scheme (“CSS”).
2. In September 1999 Ms Hunt learnt that she may be able to rejoin or, as she put it, “reactivate my membership of” the CSS, thus avoiding the effect of the decision to cancel her election to preserve benefits. She enquired of the Commonwealth Superannuation Office (“ComSuper”), by fax dated 1 October 1999, as to her entitlements if she were a member of the CSS. Initially her enquiry was treated as an application to make a late election under s 137(1) of the Act. Ms Hunt added further information in a letter dated 26 October 1999. The application to make a late election was refused by a delegate of the Commissioner on 26 February 2000.
3. The reasons of the Commissioner’s delegate alerted Ms Hunt to the fact that there may have been some irregularities in the way her request to cancel her election had been dealt with on 19 April 1988. First, the reasons made reference to a requirement for “special circumstances”. Secondly, they stated that the Commissioner’s delegate in 1988 had made the decision to allow Ms Hunt to cancel her election, “after having regard to those matters which were prescribed and such other matters considered relevant”.
4. Ms Hunt wrote to ComSuper on 29 February 2000 asking three relevant questions (T19):
Page 3 of the attachment to your letter to me of 25 February refers (in the first point [b]) to ‘special circumstances’ – what were they?
The following point [c] refers to ‘matters that are prescribed’ – are there any and if so what are they?
‘Other matters considered relevant’ are also mentioned in that point [c]. What were they (if any)?
5. On 1 March 2000 a reply was sent to Ms Hunt. On 6 March 2000 Ms Hunt wrote seeking review of the cancellation decision. On 14 August 2001 solicitors acting on her behalf sought a review of the cancellation decision. That required an extension of time. She was refused an extension of time on 18 September 2001 and that refusal was confirmed on 20 May 2002. This Tribunal is now reviewing the confirmed decision of 18 September 2001 refusing the extension of time. The Tribunal’s jurisdiction is conferred under s 154(6) of the Act.
6. Mr G. Moore of Counsel appeared for Ms Hunt. Mr J Neely, a solicitor with the Australian Government Solicitor, appeared for the Commissioner. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Ms Hunt gave evidence.
7. The issues raised by this matter are unusual. First, in our experience, it is rare for a person who has made an election to preserve superannuation rights to seek to change that election. Secondly, Ms Hunt, having obtained a refund of contributions as she requested, and having used it for the purpose she planned, seeks to reinstate her election for preservation of superannuation rights. The third unusual factor is that it is contended on Ms Hunt’s behalf that the Commissioner's decision to allow her to cancel her election of preservation rights did not comply with the provisions of the Act, and thus should not have been made. That raises different considerations to the usual matters arising in the exercise of a discretion as to whether to grant an extension of time under the Act.
RELEVANT LEGISLATIVE PROVISIONS AND THE FACTS RELEVANT TO THEIR APPLICATION TO THIS MATTER
8. Ms Hunt left her employment with the Australian Public Service on 30 August 1985 to take up an appointment with the Victorian Public Service Board. Section 137(1) and (3) of the Act provided, as at 30 August 1985:
137 (1) Where a person ceases to be an eligible employee and, upon so ceasing, is not entitled to pension under this Act or invalidity benefit in accordance with section 69, 72 or 73, he may, not later than 21 days after he so ceases to be an eligible employee, elect, by notice in writing to the Commissioner, that this Division apply in relation to him.
. . .
(3) Subject to sub-section ( 4) an election under this section is of no effect unless the person who made the election gives notice in writing to the Commissioner within 21 days, or within such further period as the Commissioner allows, after the expiration of the period that is the prescribed period in relation to him -
(a) stating whether he was employed at the expiration of the prescribed period and, if so, the name and address of his employer; and
(b) stating whether he was at the expiration of the prescribed period a member of the superannuation scheme applicable in relation to that employment and, if so, specifying the scheme concerned.
. .. .
9. The effect of electing “that this Division apply in relation to him”, was that a person who ceased to be an “eligible employee” on leaving Commonwealth employment, retained rights to a transfer value to be paid into another superannuation fund, or to deferred benefits payable on invalidity, death or attaining retirement age or to a refund of contributions.
10. On 30 August 1985 Ms Hunt elected to preserve her superannuation rights under s 137(1) of the Act. On 3 December 1985 the Commissioner wrote to Ms Hunt explaining the effect of her election to preserve benefits (T7). Attachment C, to which reference will be made later in these reasons, gave Ms Hunt estimates of the amounts of pension and refund of accumulated contributions to which she would become entitled on retirement at ages 35, 48 and 60. They indicated that she would be entitled to a substantial government financed annual pension on retirement at age 60 by way of refund of accumulated contributions. Earlier projected retirement dates carried smaller but still significant entitlements.
11. The next relevant legislative provision is s 157(3) of the Act. As at 19 April 1988, the date of the decision to cancel Ms Hunt’s election under s 137(1), s 157(3) provided, so far as relevant:
(3) Where:
(a) a person makes an election . . . under section . . . 137 or 139A;
(b) the person who made the election, . . . makes an application to the Commissioner not later than 3 months after the day on which the election is made or the day on which this sub-section comes into operation, whichever is the later, or within such further period as the Commissioner, in special circumstances, allows, requesting that the Commissioner cancel the election; and
(c) the Commissioner, having regard to such matters (if any) as are prescribed and such other matters as he considers relevant, is satisfied that the election should be cancelled,
the Commissioner may direct that the election shall be cancelled and, if he so directs, this Act has effect as if the election had not been made. (emphasis added)
12. Ms Hunt’s request to cancel her election was made in an undated letter received by the Commissioner on 25 February 1988. Ms Hunt wrote to the Office of the Commissioner for Superannuation as follows (T11):
In relation to my deferred benefit in the Commonwealth Superannuation Scheme (Ref. No. 22763148), I hereby apply to resign from the Scheme due to changed financial circumstances.
13. On 19 April 1988 the Commissioner wrote to Ms Hunt advising her as follows (T12):
I refer to your letter received 25 Feb 1988 concerning the cancellation of your election to preserve your superannuation rights.
2. The delegate of the Commissioner for Superannuation has approved your application and a refund of your accumulated contributions will be forwarded as soon as possible.
14. The only evidence before the Tribunal as to the circumstances which led to Ms Hunt writing her letter seeking “to resign” from the CSS and to the decision granting her request for a refund of contributions came from Ms Hunt. She wrote in her letter of 26 October 1999 (T16):
In 1985, I left Canberra to take up an appointment with the Public Service of Victoria. Your records show that, at the time of my resignation from the Commonwealth Public Service in 1985, after nineteen years of service, I signed a form electing to preserve my superannuation rights. I did not seek advice at that time – I was busy with a new job and I have some recall of being sent the form from Canberra with a ‘you need to sign it immediately’ message. I therefore elected to preserve, as the safe choice.
About eighteen months later, I rang Geoff Vantoff at the Commonwealth Superannuation Board to enquire whether I could access my contributions to assist me to buy a place to live in Melbourne. I had worked briefly with Mr Vantoff at the Public Service Board in Canberra.
During that phone conversation, Mr Vantoff confined himself to procedural aspects of accessing the contributions. There was no discussion of options, or the financial ramifications. In particular, there was no discussion that, if I withdrew my contributions, I would forego what were, in effect, employer-funded superannuation provisions.
As a result of that ‘phone conversation in 1987, (sic) I wrote to the CSB seeking to resign from the Commonwealth Superannuation Scheme. The resignation was accepted and my contributions refunded on 22 April 1987 (sic). The refund was put towards the purchase of a flat (see attached) where I lived from early May 1987 (sic) (following a 60 day settlement period) until I sold it to buy (and move into) my current home. This transaction also, of course, involved a mortgage loan, as shown on the attached (detailed bank records from that time no longer exist).
I have recently become aware from a colleague who has a preserved benefit, of the true nature of the preservation scheme. I have also become aware that some people who gave up their entitlement to deferred benefits, have applied to the CSB and had the entitlement reinstated. I am therefore applying to you seeking a decision to reinstate my preserved benefit.
The “Geoff Vantoff” referred to by Ms Hunt in her letter was the Commissioner for Superannuation at the relevant time. There is an error as to the year in the letter. The application to cancel the election and the decision to allow that cancellation were made in 1988 not 1987.
15. The request, which was treated as a request to make a late election for deferred benefits under s 157(1) of the Act, was refused on 23 February 2000 (T18). Section 157 (1) of the Act provides:
157. (1) Notwithstanding anything contained in this Act, where an election under this Act is made by a person after the expiration of the period allowed by or under this Act for the making of the election, and the Commissioner is satisfied that in all the circumstances of the case it is desirable that the election should be recognized, the Commissioner may direct that the election be treated as if it had been made within the period allowed and the election shall have effect accordingly.
16. The reasons of the Commissioner’s delegate (T18) stated that he was not satisfied that it was desirable to recognise the election made by Ms Hunt on 1 October 1999. It was those reasons which, as set out in paragraph 3 above, alerted Ms Hunt to the possibility that there may have been some irregularities in the way her request to cancel her election to preserve benefits had been treated in 1988.
17. On 6 March 2000, Miss Hunt provided further details as to the steps leading to the Commissioner’s decision to allow her to cancel her election to preserve benefits and obtain a refund of contributions. That was in a letter seeking reconsideration of the decision not to allow her to make a late election to preserve her superannuation entitlements(T21). Her letter raised doubts as to whether there had been compliance with the Act by the person who made the decision allowing her to cancel her election to preserve benefits. Ms Hunt wrote:
I am applying for re-consideration of the delegate's decision not to allow the re-establishment of my entitlement under the Superannuation Act 1976. Details and reasons are as follows:
1. The delegate, on the top of page 4 of his decision, cites Section 1 of the Guidelines (referring to whether an applicant has understood the choices). These guidelines seem to apply to someone understanding their entitlement at the time they elected to "preserve" or not. This has been used to connect something that was sent to me in 1985, to what I might have recalled about my entitlements in 1987.
2. I signed the election form in August 1985 at short notice. Nevertheless, my "election" was to "preserve" as the seemingly safe choice. I was then sent information in December 1985 - it accompanied a procedural form that I have recently been sent an example of for information along with a copy of the Information sent to me in 1985.
3. When I rang the Commonwealth Super. Board in 1987 to seek advice about accessing my contributions, I was told that I could do so in case of hardship. I was surprised that my circumstances could be considered to qualify (I was seeking my contributions to put towards the purchase of a flat so as to have a smaller mortgage) but I was prepared to defer to the experts.
4. I was also advised in that 'phone call of 1987, to write to the Commonwealth Super. Board using the words "changed financial circumstances" - that advice was given to me by the person who I presume then went on to make the decision based on those words. I was also advised that I would need to say that I resigned.
5. What was said, and not said, in that 'phone call gave the impression that all that was at stake were my Contributions, and that if I was lucky the Board would refund them to me.
6. It is an issue that when I made that 'phone call to the Commonwealth Super. Board in 1987, I was speaking to someone who I knew at the time and trusted. Perhaps I should have been referred to a Case officer.
7. In my case, the legislation required the Board to only act "in special circumstances". There were no special circumstances.
8. The delegate, on page 5 of his decision of 23 February 2000, states that I cancelled my election to "preserve". In fact, the legislation clearly shows that the Board was the decision-maker. To transfer onto me the responsibilities of the decision-maker is not appropriate.
I am seeking your consideration of whether my case was properly dealt with in 1987, and whether the process was sufficient. (emphasis added)
18. Ms Hunt received a reply dated 3 August 2000 (T22), telling her that her letter of 6 March 2000 had been accepted as a request for reconsideration of the decision not to allow or recognise her late election of 1 October 1999 to preserve her superannuation rights. Ms Hunt replied two days later (T23), pointing out that the letter of 3 August 2000 referred only to a late election. She added:
I understand that the Commissioner has the power to rule invalid the 1987 decision on my case. I will assume of course that you will be putting all of this to the Board.
19. Ms Hunt received a reply dated 28 August 2000 telling her that in reconsidering the request for a late election, “the appropriateness of the delegate’s decision to cancel your original preservation election will also be addressed.” She promptly replied (T25), reiterating her view that the decision to allow her to cancel her election did not comply with the Act. Her letter included the following passage:
The 1987 (sic, should be 1988) decision in my case does not meet the requirements of the legislation. If a decision doesn’t conform to the legislation, then surely it does not exist. The legislation was intended to protect people like me. This means that my 1985 ‘election to preserve’ should still be in existence.
20. On 13 February 2001 Ms Hunt was advised by letter that the Commonwealth Superannuation Board of Trustees No 2 (“the Board”) had decided to affirm the decision made on 23 February 2000.
21. On 9 March 2001 Ms Hunt lodged an application seeking review of the decision of the Board by this Tribunal. However, on submission from the respondent, the Tribunal decided on 10 August 2001 that the decision made on 23 February 2000 and affirmed by the Board on 13 February 2001 was not reviewable by this Tribunal, as the Tribunal does not have jurisdiction to review decisions of the Board. Board decisions are reviewable by the Superannuation Complaints Tribunal under the Superannuation (Resolution of Complaints) Act 1993.
22. On 14 August 2001 Ms Hunt’s solicitors wrote to the Commissioner pointing out that Ms Hunt had asked to have the cancellation decision of 19 April 1988 (wrongly referred to in the letter as dated 23 March 1988) reviewed, but had not succeeded in having such a review (T37). The solicitors asked for a decision to be made on Ms Hunt’s application for review of the decision of 19 April 1988, which had allowed her to cancel her election to preserve benefits, so as to receive a refund of her contributions to the Scheme.
23. On 18 September 2001, an officer from ComSuper wrote to Ms Hunt’s solicitors (T39) advising that a delegate had decided not to allow Ms Hunt an extension of time under s 154(2) of the Act, until 1 October 1999, in which to request reconsideration of the cancellation decision of 19 April 1988. The officer pointed out that under s 154(2) of the Act a request for reconsideration should be made within 30 days of the decision first coming to the notice of the person affected by the decision. Ms Hunt was advised that she could seek reconsideration of the decision not to allow the extension of time.
24. Section 154(2) of the Act provides:
(2) A person affected by a reviewable decision who is dissatisfied with the decision may, by notice in writing given to the Commissioner within the period of 30 days after the day on which the decision first comes to the notice of the person, or within such further period as the Commissioner allows, request the Commissioner to reconsider the decision. (emphasis added)
25. By letter of 17 October 2001, Ms Hunt’s solicitors sought a reconsideration of the decision refusing to allow an extension of time in which to review the cancellation decision (T42). That letter contains a thorough and perceptive legal analysis. Mr Moore recognised that, and relied on it as his opening address during the hearing.
26. On 20 May 2002 the decision not to allow the extension of time sought by Ms Hunt to request reconsideration of the cancellation decision was confirmed by the Acting Commissioner. This application seeks review by this Tribunal, under s 154(6) of the Act, of the decision of 18 September 2001, not to allow an extension of time to review the cancellation decision of 19 April 1988, as confirmed by the decision of 20 May 2002.
CONSIDERATION OF THE ISSUES
27. The crux of the applicant’s case is that she should be granted an extension of time to review the Commissioner’s decision of 19 April 1988, because that decision should not have been made.
28. Ms Hunt claims that the Commissioner, in April 1998, erred in two respects in granting her application to cancel her preservation election. First, it is contended that the Commissioner, under s 153(3) of the Act, had power to allow a period further to the three months specified in s 153(3)(b) to request cancellation of an election, “in special circumstances”, and there were no special circumstances. Secondly, it is contended that in considering the application for cancellation, the Commissioner was bound under s 153(3)(c) to have regard to “such matters (if any) as are prescribed and such other matters as he considers relevant”. The Superannuation (Cancellation of Elections) Regulations (Statutory Rules 1978 No 201) set out prescribed matters for the purposes of paragraph 157(3)(c) of the Act. The prescribed matters were:
(a)the availability of all information relevant to the making of the election to the person who made the election …; and
(b)the understanding that the person who made the election … had of the nature of the election and the consequences of making the election….
29. It was contended for Ms Hunt that the Commissioner failed to have regard to the prescribed matters. The extension Ms Hunt seeks is an extension from 30 days after the decision of 19 April 1988 came to her notice, until she sought review of the cancellation decision. We note that in the respondent’s amended Statement of Facts and Contentions, the respondent conceded that the relevant date was 1 October 1999, when Ms Hunt sought information as to how she might “reactivate” her membership in the CSS. Consequently, the respondent agreed that the relevant period was 11½ years. We might, if we had been asked to determine the issue, have held that Ms Hunt did not seek to review the decision of 19 April 1988 until 6 March 2000. But nothing turns on the difference in dates. We have, in reaching our decision, adopted the respondent’s concession.
30. Section 154(2) provides that there is a period of 30 days in which “a person affected by a reviewable decision who is dissatisfied with the decision” may request the Commissioner to reconsider the decision. It also provides that the Commissioner may allow a “further period”. It contains no indication as to the factors which the Commissioner should take into account in deciding whether or not to allow a further period.
31. As pointed out in the respondent’s amended Statement of Facts and Contentions, paragraphs 38-42, the principles relating to the discretion whether or not to grant an extension of time are generally accepted to be as explained by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305 and Comcare v A’Hearn (1993) 119 ALR 85.
32. Before considering the application of those principles, it is necessary to consider whether Ms Hunt is a person to whom s 154(2) applies. Is she “a person affected by a reviewable decision who is dissatisfied with the decision” within the meaning of that term in s 154(2)?
“A person . . . . dissatisfied”
33. The meaning of that term was not raised by Mr Neely in the respondent’s Statement of Facts and Contentions. However, it was raised during the hearing and the Tribunal gave leave to the parties to deliver written submissions on the meaning of the term “a person . . . who is dissatisfied with the decision”. The respondent’s further submission was received on 3 March 2003, the applicant’s further submission in reply was received on 5 March 2003.
34. The respondent submitted at paragraphs 3 and 4 of the Commissioner’s further submissions:
3.In context, the words ‘a person affected by a reviewable decision who is dissatisfied with the decision’ do not include a person who was satisfied with a reviewable decision when notified of the decision, but who later becomes dissatisfied with the decision. The provision only applies to a person dissatisfied with a reviewable decision when notified of the decision, and who then has 30 days in which to request the Commissioner to reconsider the decision, unless a further period is allowed.
4.The prima facie requirement in subsection 154(2) is that a person who ‘is dissatisfied’ with a decision must request reconsideration of the decision within 30 days of being notified of the decision. As a matter of logic, such a person cannot be a person who at some later stage becomes dissatisfied with a decision made at his or her request. A literal interpretation of the provision, according to which the provision may also apply to a person dissatisfied with a reviewable decision, at whatever point the person became so dissatisfied – including several years after the expiration of the 30 day time limit would be to strain the language of the provision.
35. The respondent went on to submit that by applying a purposive rather than a literal approach to the construction of s 154(2) of the Act, the Tribunal should construe the words “a person . . . dissatisfied” as not capable of applying to a person “who was in fact satisfied with the subject decision when the decision was made, because the decision was the very decision s/he had requested”.
36. The applicant’s further submissions accepted that it is well established in Australian law that a purposive approach to statutory interpretation is to be preferred to a literal approach. But the applicant submitted that what the respondent was seeking to persuade the Tribunal to do, was to add the word “adverse” into s 154(2) of the Act so that the opening words would read:
A person affected by an adverse reviewable decision who is dissatisfied with the decision . . .
37. Further the applicant submitted that a purposive construction of s 154(2) of the Act would recognise that it is a beneficial provision and would construe it so as to give the fullest relief which the fair meaning of its language will allow.
38. The point is an interesting one, and there is little authority to assist us in deciding the meaning to be given to the words “a person . . . dissatisfied”.. Ms Hunt was satisfied with the decision made on 19 April 1988, when it was made. In fact it was the very decision she requested. She took the benefit of the decision by using the lump sum refund of contributions in the purchase of her home. But by 1 October 1999, she realised that it would be advantageous to her to refund that lump sum so that she would again become entitled to deferred benefits under the Act. She claimed to be dissatisfied with the decision on the ground that she had not realised that she was forgoing the employer’s contributions when she applied to cancel her election for deferred benefits.
39. Expressions such as “person aggrieved” and “person who is dissatisfied” have been used in statutes dealing with rights of appeal or review for many years, see for example s 155(1) of the Justices Act 1958 (Vic) (“the Justices Act”) where “any person who feels aggrieved” by a conviction or order may seek to show a “prima facie” case of error or mistake by affidavit to a judge of the Supreme Court. Section155(4) of the Justices Act defines those words to include an informant “who is dissatisfied”. “Person aggrieved” has traditionally been the more widely used expression, but recently the term “person who is dissatisfied” has become more common.
40. In Bray and Finch v Workers Rehabilitation and Compensation Corporation and Stanley (1994) SASR 218, the Full Court of the Supreme Court of South Australia had to consider whether the appellants were “persons dissatisfied” within s 40 of the Freedom of Information Act 1991 (SA). The appellants were fellow workers who had provided information to Workcover. Workcover had decided to release a report containing their information in response to a Freedom of Information request. Bollen J, with whom King CJ and Mullighan J agreed, noted, at paragraph 14, that there was no decision on the meaning of “person dissatisfied” in s 40. He said “the expression “person aggrieved” is akin to the expression “persons dissatisfied”. He referred to the consideration by Gummow J of the expression “persons aggrieved” in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1987) 71 ALR 73 at 79-81 and by the Full Court of the Federal Court in Broadbridge v Stammers (1987) 76 ALR 339 at 341. However, neither of those authorities sheds any light on the question whether a person who has obtained a decision giving her exactly what she sought, but who has later become dissatisfied with the decision, can satisfy the requirement that she be “a person . . . dissatisfied with the decision”.. In Bray, the appellants were persons “adversely affected by the determinations”.
41. Their Honours, in Bray, gave a wide meaning to the words “a person dissatisfied”.. That was not the approach adopted by the Full Court of the Federal Court in McCallum v Commissioner of Taxation (1997) 75 FCR 458, although Hill J, dissented and described the majority view, at pp464-465, as producing injustice. The Full Court was considering whether a taxpayer, who had duly, objected to a taxation assessment, was entitled to challenge the disallowance of the objection, even though he had subsequently become a bankrupt, or whether it was only the trustee in bankruptcy who could prosecute an appeal. Section 14ZZ of the Taxation Administration Act 1953 gave a right to review to a person “dissatisfied” with a decision. Hill J held that the taxpayer could be “dissatisfied” notwithstanding that the assets, out of which the tax would be satisfied, had vested in the taxpayer’s trustee in bankruptcy. Another matter which Hill J considered gave the taxpayer “a source of dissatisfaction”, such that he should be able to review the objection decision, was the possibility that he may wish to pay out all creditors. Thus, Hill J held that the bankrupt taxpayer should be able to challenge the administrative decision that there is a debt. The majority rejected that analysis.
42. We have some doubt as to whether Ms Hunt is “a person . . . dissatisfied” with the decision of 19 April 1988 within the meaning of that term in s 154(2) of the Act. Lehane J in McCallum, in reasons with which Whitlam J agreed, said at p475:
It is not altogether easy to see that a test of dissatisfaction with a decision is likely to confer standing on a taxpayer to a more generous extent than a right of appeal does on a party to litigation adversely affected by an order made in it.
43. If that approach were applied, with its reference to a person being adversely affected by the decision, then Ms Hunt would probably not be “a person . . . dissatisfied with a decision” within the meaning of that term in s 154(2) of the Act. She certainly could not have appealed against a decision which gave her exactly what she requested. On the other hand, in the year 1999, Ms Hunt became dissatisfied with the decision she had earlier sought, which allowed her to obtain a refund of her contributions. It may be, as Mr Moore submitted, that her lack of dissatisfaction earlier is not material.
44. We propose to deal with this application for an extension of time on the basis that Ms Hunt is entitled to make her application under s 154(2) of the Act. However, we do not regard ourselves as finally deciding that she is “a person affected by a decision who is dissatisfied with that decision”, within the meaning of that language in s 154(2) of the Act. We consider that to be a significant issue which should be decided after more detailed submissions.
45. We turn therefore to consider the principles set out by Wilcox J in Hunter Valley. They are summarised in the headnote as follows:
(a)the fact that the applicant bears the onus of rebutting the prima facie rule that no . . . proceedings commenced outside the prescribed period will be entertained by the court by showing an “acceptable explanation of the delay” and that it would be “fair and equitable in the circumstances” to extend the time;
(b)any action taken by the applicant, apart from the actual making of an application for review . . . which continues to make the decision-maker aware that the finality of his decision is being contested;
(c)any prejudice to the respondent which may have resulted from the delay;
(d)any unsettling of people, other than the respondent, or of established practices;
(e)the merits of the substantial . . . application;
(f)considerations of fairness as between applicants and other persons in like positions: it is not only prejudice vis-á-vis the parties but against the wider public interest which must also be taken into consideration.
The Federal Court has clarified, in Comcare v A’Hearn (1993) 119 ALR 85, that an acceptable explanation of the delay is not a pre-requisite to success in these matters. However, it is still a relevant factor.
(a) an acceptable explanation of the delay
46. Ms Hunt’s explanation of the delay is unusual. It has two aspects. First, she did not seek review of the cancellation decision earlier because she was perfectly satisfied with the decision when she received it. According to paragraph 10 of her statement (A1) she remained satisfied with it for about 11½ years. She stated:
10.In or about September 1999, I became aware that it might be possible to reactivate my membership of the Commonwealth Superannuation Scheme and became aware of the nature of the preservation scheme and of the deferred benefits. I had found out that some people had had their membership and entitlement with the Fund reinstated.
47. Secondly, we find that Ms Hunt did not know she had any basis to seek review of the decision of 19 April 1988, until the decision sent to her by ComSuper, by letter of 23 February 2000, alerted her to possible non-compliance with the Act, in the making of the decision of 19 April 1988.
(b)any action taken by the applicant to make the decision-maker aware that the finality of the decision was being contested
48. There was no such action between 19 April 1988 and 1 October 1999.
(c)any prejudice to the respondent from the delay
49. This matter was adverted to in paragraph 11 of the applicant’s further submissions in reply as follows:
11.Finally, the Applicant notes the Respondent’s submission that:
“A consideration relevant to the application of the doctrine (of approbation and reprobation) is the fact that if the Applicant is allowed an extension of time, and the cancellation decision were (sic) then to be set aside, she would retain the benefit of the cancellation decision, while reacquiring rights in the CSS”.
In answer to this, the Applicant simply points to the fact that had her original contributions to the Scheme been preserved to date, the Applicant would have been entitled to significantly greater superannuation benefits in due course than she will be entitled to in the event that the cancellation of election decision is a (sic) set aside. In any event, the question of the application of the doctrine identified cannot be answered by reference to such a consideration.
50. There is confirmation of the accuracy of that submission in a comparison of the figures set out (at T7 p17 and at T15 p27) giving estimates of the deferred benefits payable to Ms Hunt on retirement at age 60. T7 is an attachment to a letter to Ms Hunt of 3 December 1985. At that stage she had elected to preserve her superannuation rights. She was advised that her deferred benefits on retirement at age 60 would be:
Age at
Retirement
(1)
Government Financed
Pension p.a.
$
(2)
Contributor Finance
Pension p.a.
$
(3)
Refund of Accumulated Contributions
$
60
90000.00
35000.00
359000.00
On age retirement the deferred benefit will consist of a Government and Contributor Financed Pension; i.e. (1) and (2). In lieu of the Contributor Financed Pension (2) an election may be made for a Refund of Accumulated Contributions; i.e. (3).
51. In the letter of 14 October 1999 from ComSuper, responding to Ms Hunt’s request for advice as to what her deferred benefits would be if she rejoined the CSS, she was advised as follows:
I have obtained details of the approximate value of the Commonwealth Superannuation Scheme (CSS) Deferred Benefit that would be available to you in the event that your late election to preserve your superannuation rights in the CSS is successful. The following table shows projected benefits calculated in current dollar values and are based on the following assumptions:
(a)the original refund of $21,409.65 was repaid on 1 November 1999; and
(b)an earning rate of 3% above the inflation rate was applied to that lump sum from the first payday occurring after the date on which the refund was repaid until such time as the deferred benefit becomes payable.
if deferred benefit paid at …
Age 55
Age 60
Age 65
Standard Indexed pension
$6,062.43 pa
$7,784.07 pa
$10,169.54 pa
PLUS
Option 1
Additional Non-indexed Pension purchased with your Member Component
$2,424.97 pa
$3,113.63 pa
$4,067.82 pa
Option 2
A lump sum of your Member Component
$26,215.93
$31,136.30
$36,980.16
52. In considering those estimates it is appropriate to bear in mind that investment returns have fallen since 1985 and therefore the estimates of that date, which were made on the basis of a current interest rate of over 13%, may have been unduly optimistic. However, even if allowance is made (for current lower interest rates,) it seems that Ms Hunt’s benefits, if she succeeds in her substantive application, will be less than they would have been, if she had not sought to cancel her election to preserve her superannuation benefits.
53. The respondent, in paragraphs 54 to 56 of the respondent’s Amended Statement of Facts and Contentions, submitted as to prejudice:
General prejudice
54.The Act provides a system whereby rights of persons to seek reconsideration of decisions, as well as the time limits in which to seek reconsideration of such decisions, are well established. It is in the public interest that those procedural time limits should be enforced unless the merits of the particular application warrant an extension: Commissioner for Superannuation v Boardman (1994) 50 FCR 236 at 245
55.In particular, the respondent submits that it would be against the public interest for the Commissioner to be required to review the cancellation decision, which was made at an applicant’s request so that she could access her accumulated member contributions, many years after the decision was made, when there is no reasonable explanation for the delay. This is particularly so given that the cancellation decision gave the applicant use of her accumulated member contributions, whereas members who elect to preserve their benefits upon ceasing employment are not able to access their member contributions until retirement.
Evidentiary
56.If the application for an extension of time is accepted, the delegate may consider evidence of the applicant’s financial circumstances in 1988 to be relevant to the exercise of the discretion whether to (sic) his or her review of the cancellation decision, as well as evidence from Mr Vantoff of the advice he gave to the applicant. In view of the significant lapse of time, it may be difficult now for the applicant to provide satisfactory evidence of her financial situation in 1988, and Mr Vantoff would be unlikely to be able to recall a conversation he had more than 14 years ago.
54. There is some validity to the assertion of administrative prejudice or difficulty, if matters believed to have been finally dealt with can be too readily reopened at any time. However the more significant prejudice relates to the lack of satisfactory evidence as to Ms Hunt’s financial circumstances in 1988, in view of her evidence on the issue and her statement, in her letter of 26 October 1999 (T16), that detailed bank statements were no longer available.
55. The fact that administrative prejudice is not as significant as may be expected was explained by the respondent’s representative in Chalk v Commissioner for Superannuation (1994) 33 ALD 420. Davies J said at pp 426-427:
“Mr Chalk has in fact served approximately 35 years going back to 1957. If his service between 1957 and 1976 were not recognised, the employer could have an undue gain. The late return of the contributions may not be a matter of concern. In his reasons for decision, the Commissioner's delegate, Mr R.C. Whithear, who has had long experience in these matters, explained:-
"If a late election is allowed, Mr Chalk will have had the use of his refunded contributions (or, at least, the net amount if any tax was paid on them) from 1976, and the Superannuation Fund will have been deprived of their use; and to that extent there is an element of advantage to him and of disadvantage to the fund in such a course. On the other hand, he will not have the advantage of receiving interest on his contributions over the period during which they were not in the fund."
Thus, because the moneys which would have to be repaid under s.138(11)(b) would not commence to accrue interest until repaid, it may be that no unfair advantage would result from a late election.”
That case is distinguishable because Mr Chalk had returned to his former employment with Telecom, and because Ms Hunt had first elected to preserve her benefits, but had then chosen to change her mind to obtain a refund of her contributions for a specific purpose. However, the passage is helpful in the way it draws attention to the fact that Ms Hunt would not be obtaining an “undue gain”, if she succeeded in the substantive claim. That would mean that she would refund her contributions, but the moneys “would not commence to accrue interest until repaid”.. On the other hand, she would have received some return over the years on the money she invested in the purchase of her flat.
(d)any unsettling of people or of established practices
56. There may well be some unsettling of people or of established practices if Ms Hunt is granted the extension of time she seeks. It may encourage other people who obtained a refund of contributions to test their rights to review the decision that allowed them to do so. The hearing of the substantive application may lead to some unsettling of established practices, if it is established that there was a practice of allowing people to cancel elections out of time, too readily, or without recourse to the prescribed matters. But the question which would have to be asked is whether that would be a cost which should be paid in order to allow review of a decision, which may not have been made in compliance with the Act. In this matter it is claimed that the decision, for that reason, may have been prejudicial to Ms Hunt's long term interests, although she did not realise that at the time.
(e) the merits of the substantial application
57. Hill J, in his dissenting reasons for judgement in McCallum, said at pp466‑467:
I am inclined to the view that “dissatisfaction” provides an even broader gateway than “aggrieved”.. That is not necessarily surprising, for the context of the ADJR Act is judicial review where the present context is, or includes, an administrative review of an administrative decision. What is required to satisfy any test of standing must be found in the context for which standing is required, and particularly the scope and purpose of the legislation in relation to which the issue of standing arises: cf Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250; at 260.
The purposes for which administrative review are conferred are various. First, administrative review is designed to ensure that so far as possible the correct or preferable decision is arrived at: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
58. The evidence before us was not as complete as it would be at a substantive hearing, but it did raise a case that the decision of 19 April 1988 did not comply with s 157(3) of the Act, and hence may not have been the correct or preferable decision. Such alleged non‑compliance relates both to the requirement that there be special circumstances, as provided in s 157(3)(b) of the Act, before allowing Ms Hunt to cancel her election out of time, and to the requirement, in s 157(3)(c), to have regard to prescribed matters.
59. On the other hand, the respondent raised the doctrine of approbation and reprobation, at paragraphs 14 and 15 of the respondent’s further submissions as follows:
14.The respondent further submits that if, contrary to the above submission, the Tribunal finds that the applicant was a person ‘who is dissatisfied’ with the cancellation decision when she wrote to the Commissioner on 1 October 1999 (T14), she was nevertheless precluded from exercising her legal right to request reconsideration of the cancellation decision by the doctrine of approbation and reprobation. This doctrine was referred to by Brennan J in The Commonwealth v Verwayen [1990] 170 CLR 394, in relation to the issue whether the Commonwealth was precluded from exercising its right to plead a defence available to it under the Limitation of Actions Act 1958 (Vict.). Brennan J stated at 421:
A doctrine closely related to election, and sometimes treated as a species of election, is the doctrine of approbation and reprobation. This doctrine precludes the person who has exercised a right from exercising another right which is alternative to and inconsistent with the right he exercised as eg, where a person ‘having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit’; Evans v Bartlam [1937] 2 All ER at page 652.
15.In the present matter, the applicant accepted the benefit given to her by the cancellation decision, being a decision made at her request, and she had the benefit of the decision. Therefore, if subsection 154 (2) applies to her, she is precluded from exercising another right which is alternative to and inconsistent with the right exercised, by requesting that the decision, made at her request, now be set aside. A consideration relevant to the application of the doctrine is the fact that if the applicant is allowed an extension of time, and the cancellation decision were then to be set aside, she would retain the benefit of the cancellation decision, while reacquiring rights in the CSS.
60. Mr Moore, in the applicant’s further submissions in reply, pointed out at paragraphs 9 and 10:
9.The Applicant notes that the Respondent neither sought nor obtained leave from the Tribunal to file and serve further submissions dealing with “approbation and reprobation”. The latter “defence” was not raised in the Respondent’s written Outline of Facts and Contentions. Nor was it addressed in the Respondent’s oral submissions to the Tribunal. The Applicant accordingly submits that paragraph 14 and 15 of the Respondent’s Further Submissions should not be received or considered by the Tribunal.
10.If, contrary to the Applicant’s submissions . . . the Tribunal is prepared to receive and consider the Respondent’s “approbation and reprobation” submissions, the Applicant submits that the “defence” cannot operate in the context of this application. The Applicant seeks leave to invoke a right of review expressly afforded to her by statute. Such a right is not inconsistent with the right originally invoked by her to apply for the cancellation of election decision. The two rights are self-evidently compatible with each other. Moreover, the Applicant seeks to invoke her rights under s.154(2) of the Act in circumstances where the cancellation of election decision was decided in the absence of any compliance by the Commissioner’s delegate with relevant legislative and regulatory requirements. Further, it is a decision which is very probably the result of a miscarriage of the exercise of a discretion. Accordingly no right in the relevant sense was afforded to the Applicant.
61. The issue of the possible application of the doctrine of approbation and reprobation, and the relevance of the contention that “the decision” was decided in the absence of any compliance by the Commissioner’s delegate with relevant legislative and regulatory requirements, are matters of substance. They show that the matters which would arise for determination on a substantive hearing are complex and the merits of the case are not clear.
62. The evidence before the Tribunal included a statement setting out the substance of the evidence Ms Hunt would give at the hearing (A1). She set out, in paragraphs 4, 5, 6, 7 and 8 of the statement, her account of the conversation she had with Mr Vantoff, who, as stated above, was the Commissioner for Superannuation in 1988.
63. The Tribunal was surprised that there was no evidence at the hearing from Mr Vantoff as to his recollection of that conversation, or as to whether he took any notes or received any information in his conversation with Ms Hunt. There is no evidence that he had any information which could have indicated that there were special circumstances, such that Ms Hunt should have been allowed an extended time, under s 157(3) of the Act, in which to apply to cancel her election. Nor was there any evidence from the respondent as to why no statement had been provided by Mr Vantoff. In fact there was no evidence as to whether Mr Vantoff was still available to be called as a witness in these proceedings.
64. The Tribunal was similarly surprised that Ms Hunt’s evidence was extremely vague as to the circumstances which had led her to apply to cancel her election to preserve her superannuation rights, so as to obtain a refund of contributions to reduce the mortgage on the flat she bought in Melbourne.
65. Ms Hunt asserted in her evidence that there were definitely no special circumstances such as financial hardship which could, or should, have led to her application for cancellation of her election being considered out of time. She claimed that what prompted her decision to seek to cancel her election to preserve her superannuation rights, was a discussion she had at work when she had complained about the size of her mortgage loan. It had been suggested to her that she should see about accessing her superannuation funds. She insisted that she had not been having difficulty meeting her repayments, that she had no other loans or large financial commitments, and that she was not needing to restrict her expenditure in order to make the payments due under the loan. She said that as well as being paid her salary as a consultant to the Public Service Board in Victoria, she was also receiving rent from the house she owned in Canberra, and she had the funds to go to dinners and shows, and to buy clothes and drive to Canberra for holidays as she wanted.
66. That evidence is hard to reconcile with her being prepared to abandon very substantial future financial benefits, of which she had been advised less than two and a half years earlier (T7), in order to reduce mortgage repayments. Nor is that evidence consistent with Ms Hunt's reference to “changed financial circumstances” in her letter of 22 February 1988 (T11), or with the reference to “hardship” in her fax of 1 October 1999 (T14).
67. There were other aspects of Ms Hunt’s evidence which we found unsatisfactory. Her vagueness about her financial affairs, and the fact that she did not know the amount of her mortgage, and gave no details as to her salary or her repayments in 1988, when she sought to obtain a refund of her contributions, seemed to us to show a somewhat casual approach to the hearing. The other matter which we found puzzling during the hearing, and which is even more puzzling when one reviews Ms Hunt’s letters on the file, is her portrayal of herself as a person who knew practically nothing about her rights and entitlements to superannuation. She had received the letter of 3 December 1985 (T7), and was employed at a comparatively senior level in the Commonwealth Public Service and then at a responsible level as a consultant to the Victorian Public Service Board.
68. We have concerns about the lack of any evidence from or concerning Mr Vantoff. We also have concerns about some aspects of Ms Hunt's evidence. An application for an extension of time is not the appropriate hearing to determine the substantial merits of a case. Fitzgerald J said in Lucic v Nolan (1982) 45 ALR 411 at p417:
…Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant’s case…
(f) considerations of fairness as between Ms Hunt and other persons, prejudice against the wider public interest
69. We consider that the unusual factor in this matter, namely the allegation that the Commissioner's decision was not made in compliance with the Act, distinguishes it from the bulk of cases where a late application is made to review a decision. However, we are troubled by the concept of a person who has already cancelled an election once and obtained exactly what she requested, namely a refund of contributions so as to reduce the mortgage on her home, many years later, seeking to refund the lump sum so as to obtain deferred benefits. That seems to be contrary to the scheme of the Act which requires the making of an election to have either a refund of contributions or deferred benefits. In that sense an extension of time would be contrary to the wider public interest.
CONCLUSION
70. The second aspect of factor (a) in the head note to Hunter Valley, namely whether it would be “fair and equitable in the circumstances”, to extend time is really the ultimate question on an application for an extension of time. We have given the application detailed consideration. We have derived assistance from the passage, to which Mr Neely referred, from Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at pp8‑10. McHugh J there explained the reasons for the existence of limitation periods and the approach to the grant of extensions of time. His Honour said:
…An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates”.. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
…
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. …
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced”.. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
71. We have concluded that Ms Hunt has not overcome the positive burden of demonstrating that the justice of the case requires the extension she seeks. First, the fact that the decision she seeks to review was not a decision adverse to her, but a decision which granted her request, and of which she took the benefit makes it hard for her to show that the justice of the case requires the exercise of the discretion in her favour. Even if Ms Hunt had sought review of the decision of 18 April 1988 within time, she would have faced some difficulty in reviewing a favourable decision.
72. Further, there is an issue as to whether the doctrine of approbation and reprobation applies. In R v Taylor [1915] 2 KB 593, Lord Reading CJ said at p607:
I feel some doubt whether a licensee can assert as against the Crown that the licence which he applied for and obtained and under which he has traded and which has not been declared void was void and so set up his own illegality. But be that as it may, I do not see how a party who has set up one contention in one Court and obtained an order on that contention and availed himself of it (this respondent actually obtained and traded under a renewal of this contention) can afterwards turn round in another Court and raise the opposite contention in order to obtain a decision from that second Court. To do that would, in the language of Bowen L.J. in Gandy v. Gandy (1), “be playing fast and loose with justice.” This is what this respondent seems to me to be doing, and I do not think that he can do it.
73. Similarly, in this matter we feel some doubt as to whether Ms Hunt can now rely on the alleged invalidity of the decision of 18 April 1988, having taken the benefit of that decision which was made at her request. That is a factor which makes it difficult for Ms Hunt to show that on balance the justice of the case requires the exercise of the discretion in her favour.
74. Other problems follow from the principle quoted by McHugh J, that, “where there is delay the whole quality of justice deteriorates”. Ms Hunt’s evidence at the hearing as to her financial circumstances was very unsatisfactory. There has never been a full statement of her financial circumstances as at 19 April 1988 and Ms Hunt did not seem able to recall or obtain those details. She wrote in 1999 that bank records were no longer available (T16). Without accurate information as to Ms Hunt’s financial situation in 1988, when she sought to cancel her election for preservation so as to obtain a refund of contributions, it would not be possible to feel confident that the correct or preferable decision could be made on a review of the decision of 19 April 1988.
75. We have decided, on balancing all the relevant factors, that the most crucial factor is the difficulty in obtaining evidence which has been lost or forgotten as to Ms Hunt’s circumstances in 1988. Ms Hunt’s evidence at the hearing tended to indicate that she had no need or reason to seek a refund of contributions in order to reduce her mortgage payments. As we have said we find that hard to reconcile with the fact that she did make that application on the ground of financial circumstances.
76. There is also a lack of evidence from Mr Vantoff, but in the absence of any explanation of that lack, we do not regard that as a factor indicating that there should not be an extension of time.
77. Overall we have concluded on balance that the evidence does not satisfy us that the justice of the case requires the grant of an extension of time.
78. The decision under review will be affirmed.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Grace Carney
Personal AssistantDate/s of Hearing 26 February 2003
Date of Decision 13 August 2003
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Ryan Carlisle Thomas
Counsel for the Respondent Nil
Solicitor for the Respondent Mr J Neely, Australian Government Solicitor
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