Reiffel and Commissioner for Superannuation - [2001] AATA 1031

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…

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: [2001] AATA 1031
Decision Date: 20 December 2001

CaseChat Overview and Summary

In the case of Reiffel and Commissioner for Superannuation, the applicant sought an extension of time to elect preserving superannuation benefits, which was not granted by the respondent. The applicant then applied for reconsideration of the decision, with the sole question for the tribunal being whether the respondent should permit the applicant to have a reconsideration of the substantive decision. The tribunal needed to determine whether the applicant had cogent reasons for the delay in requesting reconsideration, and if granting the extension would prejudice the Commissioner for Superannuation.

The key legal issues the court had to decide included whether the applicant's reasons for requesting reconsideration more than 30 days after notice of the decision were sufficient, the diligence shown by the applicant in lodging the request for reconsideration, and the consequences of the decision on the applicant's rights or obligations under the legislation. Additionally, the court had to consider the extent of the applicant's knowledge of the relevant legislative provisions and her awareness that the decision involved a discretionary element.

The tribunal found that the applicant had cogent reasons for the delay in requesting reconsideration, as she was not aware of the specific issues she had to address to persuade the Commissioner to change its decision, and the availability of guidelines had changed that. The applicant's solicitor had elaborated that the applicant had been unable to think of any further arguments to support her case in 1993 and had assumed that the Commissioner had properly considered the matter and made a valid decision. Furthermore, the tribunal considered that the severe reduction of benefits if the extension was not granted, and the lack of agitation in other forums, supported the granting of an extension of time for the reconsideration of the substantive decision.

In conclusion, the tribunal granted the extension of time for the reconsideration of the substantive decision, taking into account the applicant's cogent reasons for the delay, the consequences of the decision on her rights or obligations under the legislation, and the lack of prejudice to the Commissioner for Superannuation. The Commissioner for Superannuation may now reconsider the substantive decision, and the applicant could then consider an appeal on the merits to the tribunal if she wished.

Orders

Orders of the court

Full text does not contain this section.

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

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. 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. 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.

Ratio Decidendi

Legal Principle Established

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.