Reiffel and Commissioner for Superannuation - [2003] AATA 210

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 210
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/232

GENERAL ADMINISTRATIVE DIVISION )

Re MARLENE JOYCE REIFFEL

Applicant

And

COMMISSIONER FOR SUPERANNUATION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Air Marshal I B Gration AO, Member
Dr M D Miller AO, Member
Date5 March 2003
PlaceCanberra

Decision The tribunal affirms the decision under review.
....................[Sgd].................
Senior Member

LAW
4.      The Superannuation Act 1976 (“the Act”)[1] permits a resigning public servant to elect to preserve his or her superannuation entitlements in the relevant Commonwealth superannuation scheme:
Election that Division apply
137. (1) A person who:
(a) ceases to be an eligible employee in circumstances to which paragraph (b) does not apply and, upon so ceasing, is not entitled to pension under this Act or invalidity benefit in accordance with section 69, 72 or 73; or
(b) ceases to be an eligible employee in circumstances by virtue of which the person is to be deemed, under subsection 58 (3), or under section 58A or 58B, to have retired involuntarily;
may, not later than 21 days after the person so ceases to be an eligible employee, elect, by notice in writing to the Board, that this Division apply in relation to the person.
[1] The Act permits a former employee to make a late election under s 157(1) of the Act in some circumstances:
General provisions applicable to elections under Act
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 Board is satisfied that in all the circumstances of the case it is desirable that the election should be recognized, the Board may direct that the election be treated as if it had been made within the period allowed and the election shall have effect accordingly.
UNDISPUTED FACTUAL MATTERS
6.      On 10 December 1965 the applicant became a contributor to the superannuation scheme established under the Superannuation Act 1922 (“the 1922 Act”) when she was appointed to the Department of Productivity (ex R1).
7. On 1 July 1976 the applicant was transferred by operation of law into the superannuation scheme created by the Act (ex R1).
8. The applicant resigned from the APS on 16 January 1980 (T11), thereby ceasing to be an “eligible employee” for the purposes of the Act.
9. Upon her resignation the applicant became entitled under s 80 of the Act to be paid a refund of her accumulated contributions, plus interest, by selecting that option as one of several appearing on the benefit application form, S2A (appearing as T12). The applicant made this selection and was paid $4,666.95 (ex R1).
10.     The applicant went to Victoria after she resigned. She and her husband bought a dairy farm. They had a child (ex R1).
11.     The applicant used the refunded superannuation contributions to reduce…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] AATA 210
Decision Date: 5 March 2003

CaseChat Overview and Summary

In the case of Reiffel and Commissioner for Superannuation, the tribunal was asked to determine whether the Commissioner for Superannuation should exercise discretion to recognise a late election by the applicant to preserve superannuation benefits under the CSS scheme. The applicant, Mr Reiffel, had resigned from his employment and was required to make an election to preserve his superannuation benefits. However, he failed to make the election within the prescribed time, leading to a dispute over whether the Commissioner should exercise discretion to recognise the late election.

The primary legal issues the tribunal needed to address were whether the discretion provided by the Superannuation Act 1976 should be exercised in favour of the applicant and, if so, under what circumstances. The tribunal considered the relevant statutory provisions and the relevant case law, including precedents such as Boardman v Commissioner for Superannuation, Casarotto v Australian Postal Commission, and Charles and Commissioner for Superannuation, Re. It also examined the principles of administrative law relevant to the exercise of discretion by the Commissioner.

The tribunal concluded that the discretion to recognise a late election should not be exercised in this case. It found that Mr Reiffel's failure to make the election within the specified time was not due to any error or oversight on his part but rather a conscious decision. The tribunal emphasised that the discretion should be exercised sparingly and only in exceptional circumstances where there has been a genuine and inadvertent failure to make the election. In this case, the tribunal did not find the circumstances to be exceptional enough to warrant the exercise of discretion. The tribunal held that the Commissioner's decision not to recognise the late election was reasonable and in accordance with the law.

The tribunal affirmed the decision under review, upholding the Commissioner's decision not to recognise the late election to preserve superannuation benefits. This outcome underscores the importance of strict adherence to the prescribed timelines for making such elections and the limited scope for discretion in these matters.

Orders

Orders of the court

The tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		MARLENE JOYCE REIFFEL