Hunt and Commissioner of Superannuation - [2001] AATA 735

DECISION AND REASONS FOR DECISION [2001] AATA 735

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/249-250

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JULIE HUNT
  Applicant
           And    COMMISSIONER FOR SUPERANNUATION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date10 August 2001
PlaceMelbourne

Decision      The decisions made on 23 February 2000 and 13 February 2001 are not reviewable by the Administrative Appeals Tribunal.
  .....…..Sgd. Mr J. Handley..........
  Senior Member
CATCHWORDS
Superannuation - Decision of delegate of CSS Board of Trustees to refuse time to allow application for late election - whether reviewable - AAT without jurisdiction - Decision of CSS Board of Trustees to affirm decision of Delegate - conceded this decision reviewable only under the Superannuation (Resolution of Complaints) Act & Superannuation Industry (Supervision) Act.
Administrative Appeals Tribunal Act 1975
Superannuation Act 1976 s.137
Superannuation (Resolution of Complaints) Act 1993
Superannuation Industry (Supervision Act) 1993

REASONS FOR DECISION

10 August 2001 Mr J. Handley, Senior Member

The applicant applied to review two decisions made by the respondent.
In application V20001/249, the applicant sought review of a decision made on 23 February 2000. Ms Hunt's solicitor recited the following "reasons" in the application made on 9 March 2001-
"The delegate failed to properly address the question of whether the decision of the delegate of the Commissioner for Superannuation in 1988 to cancel the applicant's election to preserve her superannuation rights was properly made or should be set aside.
The decision to allow the cancellation of the applicant's election to preserve her superannuation rights was made without proper investigation to determine that there were special circumstances and there were no special circumstances, and there was not sufficient or any consideration of the prescribed matters".

In an application to extend the time to lodge those proceedings the "reasons" for the application (to extend time) were recorded as follows-
"The applicant was advised by comsuper in the covering letter sent with a decision of the delegate that the avenue for review was to the CSS/PSS Board. There was no reference to appeal to the Tribunal. The applicant sought review by the CSS/PSS Board. A decision in that application was received on 15 February 2001. The applicant then sought legal advice having been self represented until that point and learned that the proper avenue for appeal against the delegates decision was to the Tribunal".

In application V2001/250, the applicant applied to review a decision made on 13 February 2001. The "reasons" for the application are recited as follows-
"The Board failed to properly address the question of whether the decision of the delegate of the Commissioner for Superannuation in 1988 to cancel the applicant's election to preserve her superannuation rights was properly made or should be set aside.
The decision to allow the cancellation of the applicant's election to preserve her superannuation rights was made without proper investigation to determine that there were special circumstances and there were no special circumstances, and there was not sufficient or any consideration of the prescribed matters.
The board considered the meaning of "special circumstances" but has failed to apply that analysis to the 1988 decision. If the same analysis had been applied there would have been a finding that there were no special circumstances justifying the cancellation, nor were there any matters that would have supported the exercise of the discretion in taking into account the prescribed matters".

Application V2001/250 was lodged within the period of time prescribed by the Administrative Appeals Tribunal Act 1975. The decision of 13 February 2001 is the decision received on 15 February 2001 referred to by the applicant in application V2001/249.
Both applications were listed for a Directions Hearing. The applicant sought an extension of time to lodge application V2001/249. That application was opposed by the respondent. Additionally the respondent submitted that this Tribunal was without jurisdiction with respect to both applications.
Documents were lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act. Having regard to the complexity of these applications, the history between Ms Hunt and the respondent is recited as follows-
The applicant was a Commonwealth employee who resigned with effect from 30 August 1985. On 10 September 1985 Ms Hunt forwarded an "Application for Refund of Accumulated Contributions/Lump Sum Benefit or Election for Preservation of Superannuation Rights" application form. That form was received by the respondent on 17 September 1985. (T3-5). The form was submitted by a personnel officer employed by the Department of Trade who was the employer of the applicant. The application form completed by Ms Hunt records that she elected to preserve her superannuation rights. The covering letter from the Department of Trade confirms that the application then made was to preserve superannuation rights (T-4 - 7).
On 3 December 1985 an officer of the Commissioner for Superannuation wrote to the applicant acknowledging her election to preserve superannuation rights, which was made following cessation of employment. The applicant was advised that she would be entitled to either a "transfer value", a "deferred benefit" or a "refund of accumulated contributions". The letter had a number of attachments which recorded the transfer value and the amount payable at that time and at the age of 60 (as a deferred benefit) (T-5 8-13).
On 10 December 1985 the applicant applied for "Preservation of Superannuation Rights" by forwarding an application form to the respondent. Notes accompanying the application form recite that the form is to be completed "by a person who has elected to preserve superannuation rights, under s.137 of the Superannuation Act 1976" (T-6-14).
On 4 February 1986 in apparent acknowledgment of receipt of the form requesting a preservation of superannuation rights, an officer of the Commissioner for Superannuation notified Ms Hunt that the "benefit to which you are entitled will be the deferred benefit as outlined in my letter of 3 December 1985".
On 22 February 1988 the applicant wrote to the respondent "in relation to my deferred benefit" and made application to "resign from the scheme due to changed financial circumstances" (T-9 - 17).
On 19 April 1988 an officer of the respondent wrote to the applicant approving her application (to resign from the scheme) and also advised that "a refund of your accumulated contributions will be forwarded as soon as possible" (T-10 - 18).
On 26 April 1988 the applicant wrote to the respondent acknowledging that her application to "cancel my deferred benefit" had been successful and requested advice as to the quantum of the refund. These benefits were eventually paid.
It would appear that there was no activity as between the applicant and the respondent until 1 October 1999 when the applicant then forwarded a letter by facsimile to the respondent which omitting relevant parts reads as follows-
"I recently became aware that I may be able to reactivate my membership of the relevant Commonwealth Superannuation Scheme. I was a Commonwealth Public Service Officer from 1966 to 1985 and then had a preserved benefit for a period. During the late 1980's I applied for and was granted payment of my contributions on the grounds of hardship.
…..
Could you please provide me with details of the provisions I would be entitled to if I were a member of the relevant Commonwealth Super Scheme.".
On 14 October 1999 an officer of the respondent wrote to the applicant advising that her above letter had "been accepted as an application to make late election under sub-section 137(1) of the Superannuation Act ……… for your late election to be accepted and for the preservation provisions of the legislation to apply to you a delegate of the CSS Board must formerly accept the election under sub-section 157(1)" (T-13-21).
On 26 October 1999 the applicant wrote to the respondent reciting her communication and correspondence with the superannuation commissioner during the 1980's and the reason why she resigned from the fund. The letter concludes-
"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 re-instate my preserved benefit". (T-14 - 24).
An officer of the respondent acknowledged the applicant's letter of 26 October and advised that
"your case will be submitted to the delegate of the Board within the next 2 to 3 weeks for consideration". (T-15-25).
On 23 February 2000 a decision was made pursuant to s.157(1) of the Superannuation Act by a delegate of the CSS Board of Trustees. The decision comprises 5 pages and records a history of the applicant's employment with the Commonwealth, a history of her claims and enquiries with respect to superannuation entitlements, a resitation of her reasons for making a late election to preserve superannuation benefits (as found in the letter of 26 October 1999) and a consideration of the respondents "guidelines" and the applicable legislation. The decision concludes-
"… I am not satisfied that in all of the circumstances of this case it is desirable that the election under sub-section 137(1) of the Act made by Ms Julie Mavis Hunt on 1 October 1999 should be recognised".
The determination is signed by "Michael David Lilley, the occupant of position number 2745, Executive Manager, Commonwealth Schemes Administration Branch, Commonwealth Superannuation Administration (ComSuper) and thereby delegate of the CSS Board of Trustees for the purposes of sub-section 157(1) of the Superannuation Act 1976 (the Act)". (T.16-30).
On 23 February 2000 an officer of the respondent also notified the applicant that if she was dissatisfied with the decision of the delegate she "may apply to the Board for reconsideration".
The applicant wrote to the respondent on 29 February requesting clarification of issues referred to in a letter of the respondent of 25 February. The letter of 25 February does not form part of the T-documents. (Alternatively, the applicant is referring to the respondent's letter of 23 February that may have been received on 25 February). It would seem the applicant asked for clarification of the terms "special circumstances", "matters that are prescribed" and "other matters considered relevant". (T18/32).
An officer wrote to the applicant on 1 March explaining the meaning and the relevance of these expressions as was understood by the respondent. (T19/34).
On 6 March the applicant applied to the respondent for reconsideration of the decision made by the delegate on 23 February. The letter details 8 numbered paragraphs (T21/36) of the reasons for the request for reconsideration and concludes-
"I am seeking your consideration of whether my case was properly dealt with in 1987 and whether the process was sufficient".
On 3 August 2000 an officer of the respondent wrote to the applicant and advised that the request for reconsideration "has now been accepted as a request for reconsideration of the decision not to allow your late election of 1 October 1999 to preserve your superannuation rights" (T23/39).
On 10 August an officer of the respondent wrote to the applicant and advised "the decision to be considered is your request for a late election, but in the process of examining that decision, the appropriateness of the delegates decision to cancel your original preservation election will also be addressed" (T25/41).
On 19 January 2001 the "reconsideration advisory committee" made a recommendation (T30/47).
"that the Board decide to affirm the decision made by a person authorised by the Commissioner for Superannuation on 23 February 2000 under sub-section 157(1) not to direct that the election made by Ms Hunt on 1 October 1999 under sub-section 137(1) be treated as if it had been made within the period allowed by that sub-section of the Act (T-30-54)".
On 12 February 2001 the CSS Board "noted" the report of the reconsideration advisory committee and accepted the recommendation not to affirm the decision of the authorised delegate of 23 February 2000 (T31/55).
On 13 February 2001 an officer of the respondent notified the applicant that she may again apply for reconsideration or she may have rights by way of complaint to the Superannuation Complaints Tribunal (T/33/63).
As may be seen by the above summary, application V2001/249 seeks to review the decision made by the delegate on 23 February 2000. Application V2001/250 seeks to review the decision of the board made on 13 February 2001.
Reasons For Decision
Application V2001/ 249
This application is to review the decision made by the delegate on 23 February 2000 (T-16).
The issue was whether the delegate failed to consider whether the Commissioners decision in 1988 to cancel the application to preserve was properly made or should have been set aside. It was alleged the decision to cancel was made because the Commissioner failed to consider whether there were any special circumstances (in 1988).
These reasons do not concern the merits of the delegates decision of 23 February 2000. The applicant concedes she is out of time to review it and seeks an extension of time pursuant to s.29 of the Administrative Appeals Tribunal Act 1975. On the other hand the respondent submits there is no jurisdiction to review.
Merit is a relevant factor when deciding whether to grant an extension of time, however for reasons, which follow, I am not satisfied there is a jurisdiction in the Administrative Appeals Tribunal to review this decision.
Section 154 of the Superannuation Act permits a review in the AAT of a "reviewable decision" which is defined at s.154(1) as follows-
"Reviewable decision means a decision of the Commissioner, or a Delegate of the Commissioner, under this Act, under the superseded Act or under the Regulations made under either of those Acts, and includes a decision of the Superannuation Board, or a Delegate of the Superannuation Board (other than a decision under section 141 of the superseded Act)".
The decision of 23 February 2000-

is described as a "Direction" and
was made pursuant to s.157 and
was made by a person who is described as a delegate of the CSS Board of Trustees (refer paragraphs 38(a) & 39) and
is not a decision, which confirms or revokes or varies a decision (an earlier decision) pursuant to s.154(4) and (6) because it-
determined that the application for a late preservation election should not be recognised.

Having regard to the decision made by the Delegate and to the elements constituting a reviewable decision under s.154(1) and a reconsidered decision under s.154(4), the decision is not reviewable in the AAT because,
a) it was not made by a delegate of the CSS Board of Trustees, it was not a decision of the "Commissioner" or the "Superannuation Board" or a "Delegate of the Commissioner" or a "Delegate of the Superannuation Board &
b) it did not confirm or revoke or vary an earlier decision but rather decided not to recognise a request for late preservation election.
At the time he made his decision on 23 February 2000, Mr Lilley was not a Delegate of the Commissioner for Superannuation. Mr Rule filed the delegation dated 3 April 1999 signed by the Commissioner. The Commissioner signed the delegation "pursuant to the delegation to me by the CSS Board…." I understand this to mean that the Commissioner has been delegated by the "Board" and she in turn has delegated her powers to other persons. Mr Lilley described himself as a delegate of the "CSS Board of Trustees" but I doubt this can be so. He is a person authorised by a delegated person to make decisions (refer delegation 3 April 1988). The Commissioner is the delegate. She did not make this decision.
Section 154 provides for a reviewable and reconsidered decision to have been made before the AAT is enlivened to review. The reconsidered decision must confirm, revoke or vary the primary decision.
Mr Lilley's decision is not within the type of decisions described in s.154. It was a decision made under s.157, in effect to consider (only) whether an extension of time should be granted to challenge the 1988 decision concerning late preservation election.
Whilst the 1988 decision was not before this Tribunal it would also not be reviewable (pursuant to s.154) because it was not a decision made upon reconsideration which confirmed, varied, or revoked (an earlier decision). It follows that there is also no jurisdiction to review that decision.
Application V2001/250
This application sought review of the decision made by the "Board" on 13 February 2001. Mr Moore and Mr Rule both submitted that if relief is not provided in application V2001/249, that this application is to be determined under the Superannuation (Resolution of Complaints) Act 1993. That is, it is to be determined by other legislation in another Tribunal.
I am satisfied that this concession is properly made and that the applicant's rights if any should be pursued at the Superannuation Complaints Tribunal.
The CSS Board, which made the decision on 13 February 2001, are "trustees of a fund". The board made a "decision" in relation to a "particular former member" of a "regulated superannuation fund". (refer section 3, 4 and 14 of the Superannuation (Resolution of Complaints) Act 1993 & section 10 and 19 of the Superannuation Industry (Supervision Act) 1993.
Conclusion
Having regard to the above reasons I am not satisfied that there is jurisdiction within this Tribunal to review either of the above decisions.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ........C. Irons ................................................
  Secretary
Date/s of Hearing   30 April 2001
Date of Decision  10 August 2001
Counsel for the Applicant         Gary Moore
Solicitor for the Applicant
Counsel for the Respondent    Mr J. Rule
Solicitor for the Respondent