Reiffel and Commissioner for Superannuation
[2001] AATA 1031
•20 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1031
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/391
GENERAL ADMINISTRATIVE DIVISION )
Re Marlene Joyce Reiffel
Applicant
And Commissioner for Superannuation
Respondent
DECISION
Tribunal M J Sassella, Senior Member, Air Marshal I B Gration AO, Dr M D Miller AO
Date20 December 2001
PlaceCanberra
Decision The tribunal decides to set aside the decision of the Commissioner dated 20 September 2000 and to substitute its decision that the applicant is to be allowed a further period, that being the period from approximately 16 November 1993 to 14 December 1999, within which to request the Commissioner to reconsider the substantive decision..
............M Sassella (sgd)............
Senior Member
CATCHWORDS
SUPERANNUATION ACT – refund of accumulated contributions and lump sum – request extension of time to elect preserving superannuation benefits – extension not granted by respondent – application for reconsideration of decision – likely prospects of success relevant – no knowledge of late election available to preserve – compelling reasons for long delay to be shown – consider prejudice if extension granted – diligence in lodging request for reconsideration – cogent reasons for delay found – severe reduction of benefits if extension not granted – no agitation in other forums – extension of time granted for reconsideration of substantive decision
Superannuation Act 1976 - ss 3(1) "eligible employee" (a), (b), 137(1)(a), (3), 154, 157(1).
Re Ward and Commissioner for Superannuation (1995) 36 ALD 287
Re Carr and Commissioner for Superannuation (1985) 7 ALN N321
Re Dickens and Commissioner for Superannuation (unreported, Oral Decision of Mr MD Allen, Senior Member, in Canberra on 23 November 1994)
Re Ashmore and Commissioner for Superannuation [2000] AATA 159
Commissioner for Superannuation v Boardman (1994) 33 ALD 569
Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315
Comcare v A'Hearn (1993) 45 FCR 441
Mulheron and Australian Telecommunications Commission (1991) 14 AAR 42
Gallo v Dawson (1990) 93 ALR 479
Re Beard and Commissioner for Superannuation [1999] AATA 502
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
REASONS FOR DECISION
20 December 2001 M J Sassella, Senior Member, Air Marshal I B Gration AO, Dr M D Miller AO
Chronology
Ms Marlene Joyce Reiffel ("the applicant") was born on 9 February 1948 (T8). She was appointed to the Australian Public Service ("the APS") on 10 December 1965. She had been with the APS, probably commencing as a temporary since 17 May 1965 (T22). She became a contributor to the Commonwealth Superannuation Scheme ("the CSS") on 17 May 1965.
From 3 June 1977 until her resignation on 16 January 1980 the applicant worked nominally in the personnel operations section of the Department of Defence as an inspector class 8 (T22).
On 30 April 1979 the applicant commenced nearly two years of successive periods of maternity leave (T9). At T25, however, the applicant writes that she was on maternity leave and leave without pay with her first baby from September 1977 until mid-1978. She then returned for some months working on special projects until taking further maternity leave at the end of 1978 with her second birth. She resigned at the end of that leave. In the months leading up to January 1980 the applicant was living on a farm in Victoria (T18).
On 14 January 1980 she resigned from the APS (T7) with effect from close of business, 16 January 1980. On the same day she applied (T8) for a refund of accumulated contributions she had made to the CSS.
On 16 September 1983 (T11) the applicant rejoined the APS as a permanent officer and re-entered the CSS.
On 12 August 1991 the applicant lodged with the respondent a request for an extension of time in which to elect to preserve the superannuation benefits accumulated between 1965 and 1980 (T11), the subject of her previous election to seek a refund of contributions and a lump sum benefit. Such a request was made under s 137(1) of the Superannuation Act 1976 ("the Act").
On 15 November 1993 the respondent decided (T23) to reject the applicant's request for an extension of time ("the substantive decision"). This decision was taken under s 157(1) of the Act. Notice was sent to the applicant (dated 16 November 1993 – T24).
On 14 December 1999 the applicant requested from the respondent an extension of time in which to seek reconsideration of the substantive decision (T25). Such reconsideration should be requested within 30 days of receipt of notice of the decision.
On 23 June 2000 the respondent's delegate decided to refuse under s 154(2) of the Act the request of the applicant for an extension of time to seek reconsideration ("the reconsideration refusal decision") (T30). Reasons were sent to the applicant on 28 June 2000 (T31).
On 17 July 2000 the respondent provided the applicant (T33), at her request, with copies of the tribunal's decision in Re Ward and Commissioner for Superannuation (1995) 36 ALD 287, the respondent's "guidelines applicable to late elections for preservation of superannuation rights under section 157(1) of the Superannuation Act 1976" ("the guidelines" – T5) and the extension of time guidelines used by "the Board".
On 14 August 2000 the applicant sought reconsideration of the reconsideration refusal decision (T34). The applicant provided reasons why she should be assisted in T34 and T37.
On 20 September 2000 the respondent personally decided to affirm the delegate's reconsideration refusal decision (T37).
On 18 October 2000 the applicant lodged with the tribunal an application for review of the respondent's decision of 20 September 2000 (T1). It should be noted that the sole question for the tribunal is whether the respondent should permit the applicant to have a reconsideration of the substantive decision. Should the applicant succeed in this application the respondent might reconsider the substantive decision and nevertheless decide that on the merits the applicant should not be permitted her late election. The applicant could then consider an appeal on the merits to the tribunal if she wished.
Decision under review
The respondent provided very full reasons for her decision in T37. She made the following points of substance.
The Commissioner acts under s 154(4) of the Act in reconsidering the reconsideration refusal decision.
Section 154(2) of the Act makes it clear that the legislature intended requests for reconsideration to be lodged normally within 30 days.
The tribunal in Re Carr and Commissioner for Superannuation (1985) 7 ALN N321 identified eight factors as "relevant in deciding whether [the applicant] should be allowed the further period of time for her request". These were:
reasons for failure to lodge the request for reconsideration within the 30 days allowed by Parliament for making the request;
adequacy of information provided to an applicant as regards the refusal decision and the right of review when the original decision was provided to the applicant;
diligence shown by an applicant in lodging the request for reconsideration;
administrative difficulties in reconsidering the decision due to the absence or inadequacy of relevant evidentiary material after such a lapse of time;
nature of the decision to be reconsidered and the consequences of the decision on an applicant's rights or obligations under the legislation;
extent of the applicant's knowledge of the relevant legislative provisions and her awareness that the decision involved a discretionary element the exercise or non-exercise of which might affect the ultimate decision;
length of further time sought by the applicant;
possible prejudice to the CSS if the extension of time is allowed and administrative difficulties inherent in such a decision.
In Re Dickens and Commissioner for Superannuation (unreported oral decision of the tribunal handed down by Mr M D Allen, SM, Canberra, 23 November 1994) the tribunal said that the likely prospects of success in the substantive matter should an extension be granted are also relevant.
As regards the reasons for requesting reconsideration more than 30 days after notice of the decision the applicant had made several arguments.
First in T28 (1 March 2000) the applicant said there were several errors in the reasons for the 1993 substantive decision (T23) but she did not appeal at the time because these points were only some amongst multiple arguments put by the delegate. She did not think they would result in a changed decision. Second, she had later learned of the decision of the tribunal in Ward (supra) and of the guidelines and decided to seek reconsideration. Third, in T34 the applicant's solicitor elaborated. The applicant had been unable to think of any further arguments to support her case in 1993 and she had assumed that ComSuper had properly considered the matter and made a valid decision. She had not sought legal advice but, even if she had, the guidelines were not then available. Ms Reiffel was not in a position to know she had a reasonably strong case for seeking late election to preserve her superannuation rights. Later (in T36) the solicitor wrote that the applicant knew of the 30 days time limit but did not know what specific issues she had to address to persuade ComSuper to change its decision. The availability of guidelines had changed that.
The respondent did not find this convincing. Prior to the publication of the guidelines in 1996, applications for late election were considered on their merits and on the available evidence. Thus, the respondent considered that the presence or absence of guidelines was not a material consideration.
The respondent went on to argue as follows.
The applicant was well aware of the option of seeking reconsideration but chose consciously not to do so because she lacked professional guidance and considered she was unlikely to be successful if she did appeal. She said she had identified errors in the material sent to her in 1993. She might reasonably have wished to bring these errors to attention. This would have prompted her to seek reconsideration. The case was like Re Ashmore and Commissioner for Superannuation [2000] AATA 159 in that she had "accepted the decision"; she had "given up". Ms Reiffel was aware of her right of review. She was uncertain as to the sustainability of her case.
As regards the extent of the applicant's knowledge of the relevant legislative provisions and her awareness that the decision involved a discretionary element the exercise or non-exercise of which might affect the ultimate decision, it was noted that the applicant was notified that she could request reconsideration (T24). She was provided with a copy of s 154 of the Act which indicated the terms for seeking reconsideration and that the decision was discretionary.
As regards the length of further time sought to be allowed, this was more than six years, as compared to the 30 days allowed under the legislation. A compelling reason for so long an extension would have to be shown. That was not demonstrated here.
As regards possible prejudice to the CSS if the extension is allowed and the inherent administrative difficulties no extra costs would bear on the CSS fund. However, the right of ComSuper and the Commonwealth Government to consider such a stale matter as finalised after so long a period would be prejudiced if an extension is granted.
As regards the merits of the case the Commissioner listed the applicant's arguments in favour of allowing her a late election. These, and the Commissioner's response to them, were:
The delegate had said that her leave pre-resignation was for only 8½ months whereas she had been absent from September 1977 until her resignation except for a few months spent doing special projects in 1978. She had been absent from operational personnel for quite a long time prior to resignation. The Commissioner appeared to note this but did not comment on its weight or relevance.
During her second period of maternity leave and until rejoining the APS in 1982 the applicant had lived on a farm in Victoria and was not involved with the office or in a position to be aware of updated personnel matters. The Commissioner appeared to note this but did not comment on its weight or relevance.
The applicant was aware of preservation as an option. However, she did not appreciate that it was available to young women leaving the APS following maternity leave. She assumed that it was relevant to senior people close to retirement. It was generally accepted in the department's personnel area that young people resigning took their superannuation contributions. Further to this the Commissioner noted supporting evidence:
· Mr R Zatorski, a former personnel officer in the Department of Defence wrote on 17 January 2000 (T26) that they had access to little material on preservation at the relevant time. What there was was of no practical use. He confirmed the belief in the personnel section that preservation was for older public servants, not for younger staff. He believes that only older staff were directed to the Superannuation Board to seek advice. He expected that the applicant was given no such advice.
· Ms C Butcher, also a former Defence personnel officer, wrote on 4 April 2000 (T29) that she believed that pamphlets on all retirement/resignation options, including preservation, existed at the relevant time and these included circulars on preservation. Preservation was not considered by most people for a variety of reasons, including the belief that preservation was of benefit only to older employees approaching retirement age and was not viable for younger staff. There was little understanding of superannuation in the wider community. The APS was a career service. An employee who stayed until retirement received a pension. A person who left earlier took his or her superannuation contributions.
The Commissioner accepted that evidence and concluded that it was a common belief amongst personnel operatives at the time (the early 1980s) that preservation had nothing to offer younger officers exiting from the APS. However, she wrote (T37/69), "I consider such belief was simply consistent with the environment at the time in which the emphasis on superannuation was less than it is today. Moreover, it was a decision for Ms Reiffel, then aged 31, to make taking into account a range of factors unique to her circumstances". The Commissioner addressed the fact that Ms Reiffel made no inquiries of personnel staff before electing to take her contributions. The Commissioner cited Commissioner for Superannuation v Boardman (1994) 33 ALD 569 for the proposition that the absence of inquiry is irrelevant where it is shown that such inquiry would not have resulted in the receipt of accurate advice. However, the Commissioner noted that Ms Reiffel could have sought advice from ComSuper.
The election form ("form S2A") completed by the applicant upon her resignation (T8) did not explain preservation and the applicant was not given any further information at the time of signing of the documents. The Commissioner considered that the applicant understood that her completion of the form would result in the return of her contributions. She specified on the form that she wanted payment of an expected refund directed to her home address.
Her circumstances approximate those in the Ward case (supra). Her circumstances should be reassessed in terms of the guidelines in Ward (supra). The Commissioner addressed the statements in this case to the effect that different considerations of justice apply to an APS employee who has made a mature and considered decision to move to the private sector and take a different career path as compared to an applicant who has demonstrated a commitment to a consistent career in the public sector but who, because of pregnancy or family care needs, or the vagaries of legislation requiring resignation and reappointment, finds himself or herself seeking an exercise of the s 157 discretion. In Ward (supra), the applicant had transferred from a full-time to a part-time APS position in circumstances where she was not allowed to continue to contribute to the CSS fund. In the present case the applicant had two years and eight months out of the APS before resuming as a temporary officer in September 1982. The Commissioner wrote, "while Ms Reiffel remained in the Public service until her retrenchment in March 2000 and in this sense it would appear that she 'has demonstrated a commitment to a consistent career in the public sector', I do not consider that Ms Reiffel's case is sufficiently comparable with Re Ward [supra] to warrant the 'different' 'considerations of justice' considered by the Tribunal to apply in that case".
The applicant used the returned contributions to reinvest in a business venture (T34). She thus made provision for her retirement, a matter of advantage to her under the 1996 guidelines. Later the applicant's representative said the money was used to reduce the mortgage over the farm property, the farm being the relevant business. The Commissioner noted a lack of documentary evidence as to the use of the funds. She said she found it difficult to be persuaded that the applicant would have opted for preservation in lieu of access to the lump sum.
The Commissioner concluded that, even applying the guidelines, she was not of the view that a prima facie case exists that the applicant would be likely to succeed in having the delegate's decision of 15 November 1993 revoked if it were reconsidered.
The Commissioner decided not to grant the applicant's request for an extension of time in which to seek reconsideration.
Relevant legislation
The relevant legislation is found in the Superannuation Act 1976 ss 3(1) "eligible employee" (a), (b), 137(1)(a), (3), 154, 157(1).
Superannuation Act 1976
SECT 3
Interpretation(1) In this Act, unless the contrary intention appears:
…
eligible employee means:(a) a person who, immediately before the commencement of this Act, was an employee for the purposes of the superseded Act and has continued to be, and is, such an employee;
(b) a person who is a permanent employee;
…
SECT 137
Election that Division apply137. (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
…
(2) If a person makes an election for the purposes of this section within 1
month before he or she ceases to be an eligible employee, the election has effect as if it had been made on the day after he or she ceased to be an eligible employee.
PART XI - MISCELLANEOUS
Table of Provisions
SECT 154
Review of decisions of the Commissioner154. (1) In this section:
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975;
"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);"Superannuation Board" means the Superannuation Board established by the superseded Act.
(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.
(3) There shall be set out in the request the reasons for making the
request.
(4) Upon receipt of the request, the Commissioner shall reconsider the
decision and may confirm or revoke the decision or vary the decision in such manner as the Commissioner thinks fit.
(5) Where the Commissioner confirms, revokes or varies a decision, the
Commissioner must, by notice in writing served on the person who made the request, inform the person of the result of the reconsideration of the decision and the reasons for confirming, revoking or varying the decision, as the case may be.
(6) Applications may be made to the Administrative Appeals Tribunal for
review of reviewable decisions that have been confirmed or varied under subsection (4) and for review of decisions of the Superannuation Board, or delegates of the Superannuation Board, made under section 141 of the superseded Act.
(7) For the purposes of such a review, the Tribunal shall, subject to
subsections 21 (1A) and 23 (1) of the Administrative Appeals Tribunal Act 1975, be constituted by a presidential member and 2 non-presidential members, of whom at least one shall be an eligible employee or a pensioner, or by 3 non-presidential members, of whom at least one shall be an eligible employee or a pensioner and at least one shall be a senior non-presidential member.
(8) In subsection (7):
(a) a reference to an eligible employee includes a reference to a person who is a member of the superannuation scheme established by the Trust Deed referred to in section 4 of the Superannuation Act 1990 as subsequently amended under section 5 of that Act; and
(b) a reference to a pensioner includes a reference to a person who is in receipt of a pension under that superannuation scheme.
…
SECT 157
General provisions applicable to elections under Act
(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.
…
Hearing and appearances
The tribunal convened a hearing in this matter in Canberra on 3 December 2001. Mr H Selby of counsel represented the applicant. Mr B Dubé from the Australian Government Solicitor's office represented the respondent. The applicant was the only witness and she gave her evidence by teleconference from Weipa in Queensland.
The tribunal had access to the following documentary evidence:
Exhibit TD1 – Section 37 Statement and associated documents, 20 November 2000. T prefix references are taken from this exhibit.
Exhibit A1 – Statement of applicant as regards her financial matters at the time of her first resignation, 26 March 2001.
Exhibit A2 – Applicant's statement of facts and contentions, 12 January 2001.
Exhibit R1 – Respondent's outline of submissions, 26 November 2001.
Findings on material questions of fact with reference to the evidence and other materials in support of those findings
The tribunal finds that the applicant is affected by s 137 of the Act in that :
she is a person who ceased to be an eligible employee (as defined in s 4(1) of the Act) who was not deemed to have retired involuntarily and was not entitled to a pension under the Act or an invalidity benefit under ss 69, 72 or 73 of the Act (s 137(1) of the Act); and
she ceased to be an eligible employee when she resigned on 16 January 1980 (T7); and
she elected (albeit out of time) by notice in writing to the Board that that Division 3 of Part IX of the Act was to apply to her (T11).
However, contrary to s 137(1) she so elected not within 21 days of ceasing to be an eligible employee. She elected on 12 August 1991, some 11 years and 7 months after ceasing to be an eligible employee (T11).
The tribunal finds that the applicant was affected by s 157(1) of the Act in that she made her election after the expiration of the period allowed.
The tribunal notes that under s 157(1) the Commissioner decided not to treat that election as if it had been made within the period allowed (T23). The Commissioner was not satisfied "that in all the circumstances of the case it [was] desirable that the election should be recognised". As explained earlier, this was the substantive decision.
The tribunal notes that the applicant on 14 December 1999 sought reconsideration of the substantive decision under s 154(2) of the Act (T25) and that this was refused under the same provision because it was not sought within the required 30 days of receipt of notice of the decision (T30, T31). Section 154(2) permits the Commissioner to grant an extension of time. The tribunal has already set out why the Commissioner's delegate, and then the Commissioner took this decision.
It has been suggested that the criteria relevant to whether an extension of time should be granted may be those established in either or both of two sources. The Commissioner cited Carr (supra) and Dickens (supra) for the proposition that there are nine relevant criteria. The respondent in Ex R1 relied on the more general authorities on extensions of time, Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315, Comcarev A'Hearn (1993) 45 FCR 441 and Re Mulheron and Australian Telecommunications Commission (1991) 14 AAR 42. The applicant in Ex A2 seemed to rely more on the Carr (supra) and Dickens (supra) cases. At the end of the day it does not much matter which authorities are applied. Both strings of authorities address fairly similar issues.
The tribunal has decided to utilise Carr (supra) and Dickens (supra) as these cases relate specifically to preservation election appeals.
Reasons for failing to lodge the request for reconsideration within the 30 days allowed by Parliament for making that request as of right.
According to her evidence, the applicant's central reason for not electing to preserve her superannuation entitlements in 1980 was the belief she, and others in her experience in personnel sections, held that preservation was not designed for younger employees leaving the APS. In her late application for preservation (T11) she said that she was not given adequate information as to the availability, for her, of preservation at the time of her resignation. The delegate who made the substantive decision (T23) rejected this argument. He found it difficult to accept that Ms Reiffel, as one who he believed, wrongly as it turned out, had worked a matter of only eight and a half months previously in a personnel section did not know or remember anything about the preservation rights of employees. The delegate wrote at some length about why he thought that, contrary to her recollection in 1991, the applicant would have known more, or could have taken more care to find out, about preservation in 1980.
Ms Reiffel now says that, while there were some inaccuracies in the delegate's reasons, she did not think that calling attention to them would result in a change in the substantive decision. This appears fair comment. The respondent argued in Ex R1 that this is not an acceptable explanation. The respondent relied on the High Court decision in Gallo v Dawson (1990) 93 ALR 479 where McHugh J said at page 481,
"In the present case, the applicant sought to explain her delay in seeking an extension of time by claiming that her decision to appeal 'depended on the careful assessment of the possibilities of my claim, which needed reference research involving a lot of work and time as it would to a non professional'. This claim was made without furnishing any details as to the time spent in research or the nature of the research upon which the applicant was engaged or when it was that she decided to appeal. Secondly, the applicant did not assert that she had failed to lodge her appeal because she was unaware of the 21-day time limit for lodging a notice of appeal. Indeed, the terms of her affidavit suggest that she made a conscious decision not to appeal until she satisfied herself that she could succeed in appeal."
The tribunal sees the present case as different. Ms Gallo considered that she had a right of appeal but she wanted to maximise her chances of success by conducting research before lodging the appeal. The applicant here had effectively written the case off as hopeless until learning incidentally, years later, of grounds of potential challenge that had been crystallised in helpful guidelines which the tribunal had called for in the Ward case (supra).
The respondent relied also on the tribunal's decision in the Dickens case (supra). However, the tribunal was influenced in that case by the fact that the applicant had access to legal advice when she decided to refrain from appealing. Ms Reiffel had no legal representative.
The respondent cited also Re Beard and Commissioner for Superannuation [1999] AATA 502, but that was a case where the applicant, who failed to apply to the tribunal for review within the statutory time frame, thought that the decision under potential review was wrong, but he did not appeal because he thought he had limited chance of success, did not want to go through the process and wanted to put the issue behind him and get on with life. The tribunal does not see Ms Reiffel's case as similar. She thought the decision under potential review was correct, even if made assuming certain data that had not been correct.
The applicant then says that her understanding of the grounds of possible challenge of a decision to disallow a late election changed after the Ward (supra) decision and with the promulgation of the guidelines.
The respondent in Ex R1 has suggested that there was little new in the Ward (supra) decision, that it was simply one of a string of decisions on late election resolved on the basis of the merits of the particular case. This may be so, but it was this case, which dealt with an employee who resigned and then returned to the APS much as the applicant had done, that the applicant heard about. There is no evidence that she had followed the tribunal's decisions on late election and was aware of the earlier cases. It must also be significant that, for whatever reason, ComSuper decided to publish the guidelines after Ward (supra).
The guidelines (T5) may have given the applicant some hope. They are significant in several respects in what they record by way of implied or explicit criticism of aspects of the earlier administration of preservation.
They imply that form S2A (T8) was inadequate.
They seem to accept that an employee seeking advice from ComSuper or the "personnel area of the applicant's employer" would be given accurate information. The applicant has been able to establish at least a prima facie case that, in her employing department in 1980, there was considerable ignorance of preservation (T26, T29). She knew what her colleagues there knew about it. There was no need for her to inquire and, if she had done so, she would have been told that preservation was not for her.
They suggest that where the superannuation contributions repaid to an applicant were invested for the applicant's long-term benefit rather than used for immediate consumption, the application would be preferred.
The tribunal notes that there is no requirement in s 157(1) of the Act for special or extraordinary circumstances to exist before an extension of time can be granted. In the tribunal's view the applicant has advanced satisfactory reasons for failing to lodge her request for reconsideration within 30 days and it so finds.
The diligence of the applicant in lodging her request for reconsideration
The applicant lodged her request for reconsideration on 14 December 1999 (T25). She stated that she had at that time only recently become aware of Ward (supra) and of the guidelines when she lodged her request. There was no precise evidence put to the tribunal as to when Ms Reiffel first found out about the guidelines and how soon after she sought her reconsideration. However, the respondent did not impugn her assertion that she acted promptly. She certainly acted efficiently in tracking down and obtaining statements from her ex-colleagues, Mr Zatorski and Ms Butcher, with whom she had worked almost 20 years before. The tribunal finds that the applicant was diligent in lodging her request for reconsideration.
Adequacy of the information conveyed to the applicant as to the basis of the substantive decision and her entitlement to request reconsideration when the substantive decision was notified to her
The tribunal finds that on 16 November 1993 the respondent provided adequate advice of the basis for the substantive decision and of the possibility of seeking reconsideration in T23 and T24.
Extent of the applicant's knowledge of the relevant provisions of the legislation and of her awareness that the decision in question involved a discretionary element the exercise or non-exercise of which might affect the ultimate decision
The tribunal detects from the applicant's documentation in the Section 37 Statement and attached materials that her knowledge of superannuation and relevant aspects of the superannuation regime was not based on the primary legislation. Rather it was based on the materials produced to assist and advise non-lawyers. Additionally, the evidence suggests that her understanding in 1980 was based also on the office folklore about preservation.
By 1991 she had been exposed to discussions on the new Commonwealth superannuation scheme, the Public Sector Superannuation Scheme ("the PSS"), which exists alongside the CSS (T11). Preservation is a central element of the PSS and it is entirely credible that in those sessions there would have been reference to preservation under the CSS and the problems surrounding late elections. Thus, by 1991, the applicant was probably aware of the discretionary elements involved, even if not aware of s 157(1) of the Act. However, by September 1991 (T12) the respondent had provided the applicant with a copy of the relevant legislation. An intelligent reading of s 157(1) indicates that the decision is discretionary. The applicant is a very intelligent person as was indicated in her evidence before the tribunal.
The tribunal finds that by 1993, when she was notified of the decision to permit a late election, she was aware that the substantive decision involved the exercise of discretion.
Possible prejudice to the benefits scheme established by the Act if the time for reconsideration is extended as requested
The Commissioner did not see a risk of extra costs accruing against the CSS fund. Her suggestion was that the respondent would lose the right to regard such an old matter as settled. This raises an issue discussed at length by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, most notably in McHugh J's judgment.
The tribunal considers that a balance has to be struck between the interest of the decision-maker in finality on one side, and the interest of the individual pressing his or her claim on the other. Each interest merits consideration and neither is decisive. It would appear axiomatic that the stronger the claimant's explanation for delay and the stronger his or her chances of success on the merits, the stronger will be the influence of the claimant's interest. On the other hand, the existence of some form of measurable prejudice affecting a respondent will increase the influence of the respondent's interests.
In the present case the tribunal can identify little if any prejudice to the respondent if an extension of time is granted. It is partly a result of the failure of ComSuper's predecessors to publicise effectively the option of preservation that has resulted in the applicant's various requests. It would seem inappropriate that the decision-maker can argue for finality of actions where those actions emanate from imperfections in the administration of a scheme for which the decision-maker is now responsible.
The tribunal is aware of the considerable effort already expended by the respondent, for which the respondent deserves praise, to address merits issues in T37 (pp 67-71). If an extension of time is granted much of the necessary work required to inquire into the merits would appear to have been done recently already.
The tribunal finds that there is no prejudice to the benefits scheme such as would prevent the grant of an extension of time.
Administrative difficulties in reconsidering the decision due to the absence or inadequacy of relevant evidentiary material after such a lapse of time
The respondent in Ex R1 argued that the orderly administration of the superannuation scheme is prejudiced by an employee's failure to comply with time limits prescribed under the Act. It is said to be especially prejudicial to have to devote considerable resources to investigating events which occurred over 20 years ago, as is the case here. It was also suggested that prejudice could flow from the likely destruction of files and so forth.
It appears to the tribunal that the respondent has access to all the relevant files and evidentiary materials. This appears from the Section 37 documentation.
The tribunal has some sympathy with the respondent's argument as to the orderly administration of the scheme. However, the applicant's situation has been caused at base by certain apparent deficiencies in the administration of the scheme in and before 1980. It would seem appropriate that some administrative inconvenience might be borne in order to try and resolve the resulting problems.
The tribunal finds that there is no basis for this consideration to affect adversely the applicant's request for an extension of time.
Nature of the decision of which reconsideration is requested and the consequence of the decision upon the applicant's rights or obligations under the legislation
This appears to refer to the importance of the decision to the applicant and the degree of prejudice she will suffer if her application is rejected. The tribunal finds that the potential consequences for the applicant if she cannot agitate a challenge to the substantive decision is indeed significant. She has been denied credit for some 15 years of membership of the CSS in the substantive decision. This has had the effect of severely reducing the level of superannuation pension she could expect to receive upon retirement if the matter cannot be remedied.
Length of the further time requested
The tribunal finds that the length of time involved if an extension is granted is more than six years, a period grossly longer than the statutory period of 30 days. In the tribunal's view this subtracts from the applicant's case but the effect of the delay is in turn influenced by the applicant's reasons for delaying. The tribunal has already discussed these and has found them to be cogent.
Merits of the substantive case
The respondent has addressed this matter comprehensively in T37. The respondent sought to argue that the merits of the applicant's case for a late election are weak. The tribunal's assessment is that the applicant has an arguable case on the basis of the guidelines and the decided cases. Certainly it is not a foregone conclusion that her case will succeed. However, no such level of potential success is required in addressing this criterion.
The tribunal finds that the applicant has an arguable case for a variation or setting aside of the substantive decision.
Whether the applicant rested on her rights
This is a factor mentioned in Mulheron (supra) and the Hunter Valley case (supra) and which is not explicitly picked up in the Carr (supra) and Dickens (supra) cases. An applicant can gain some moral advantage in an extension of time matter if he or she has agitated the issues in a forum other than the tribunal, court or agency from which he or she is seeking the extension. The respondent argues in Ex R1 that the applicant took no action in relation to the substantive decision to alert the respondent that she considered it wrong despite not seeking reconsideration. The tribunal finds this to be the case. It is not, however, necessarily fatal to the applicant's case for an extension and the explanation for her delay also helps explain why she did not agitate in alternative forums.
Other factors
The respondent in Ex R1 also addresses the issues of "wider prejudice" and "fairness of granting the extension of time as between the applicant and other persons". These factors are mentioned in the Mulheron (supra) and Hunter Valley (supra) cases. The respondent's strongest argument is that there are others who have sought reconsideration and applied to the tribunal for decisions on the merits who have acted within time and lost their cases. The applicant, by delaying her request, may be seen to have gained an advantage. This argument does not fit well with other arguments by the respondent that the Ward case (supra) did not establish new principles, that it synthesised the earlier cases, and that the previous cases were all decided on their merits. As the tribunal understands it, the Ward case (supra) and the guidelines are regarded by the respondent as simply making the policy rules more transparent.
The tribunal finds that these broader factors are not necessarily fatal to the applicant's case, especially in view of the particular circumstances disclosed in her explanation for her delay.
Conclusion
On the basis of the above analysis the tribunal has decided to grant the applicant an extension of the time to 14 December 1999 within which she was able to request reconsideration of the substantive decision. Whilst it is true that not every finding in relation to the relevant factors favoured the applicant, the tribunal was primarily impressed by the facts that she had a reasonable explanation for her delay, there was no substantial prejudice to the respondent, and she has an arguable case on the merits.
Decision
The tribunal decides to set aside the decision of the Commissioner dated 20 September 2000 and to substitute its decision that the applicant is to be allowed a further period, that being the period from approximately 16 November 1993 to 14 December 1999, within which to request the Commissioner to reconsider the substantive decision.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member, Air Marshal I B Gration AO and Dr M D Miller AO
Signed: A Stephens .....................................................................................
AssociateDate of Hearing 3 December 2001
Date of Decision 20 December 2001
Counsel for the Applicant Mr H Selby
Solicitor for the Applicant Pamela Coward & Associates
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Australian Government Solicitor
5
0