Richards v South Australian Superannuation Board (Super SA) - [2018] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
RICHARDS v SOUTH AUSTRALIAN SUPERANNUATION BOARD (SUPER SA)
[2018] SADC 119
Reasons for Decision of Her Honour Judge Schammer
29 November 2018
ADMINISTRATIVE LAW
INTERPRETATION - GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS
Appeal against the decision of the South Australian Superannuation Board whereby the Board determined it did not have power to consider the appellant’s claim for invalidity insurance benefits under the Triple S Scheme, as she had not provided the Board with written notice of her intention to claim such benefits within two years after the termination of her employment as required by Regulation 58(13) of the Southern State Superannuation Regulations 2009.
Whether the Board had the power to extend that two year time limit under s 29(2) of the Southern State Superannuation Act 2009.
Whether that two year time limit can and should be extended under either s 45 or s 48 of the Limitation of Actions Act 1936.
Held:
1.       Extending the time for the institution of this Appeal to 13 February 2018.
2.       Affirming the decision of the Board made on 28 May 2014.
3.       Appeal dismissed.
Southern State Superannuation Act 1994 ss 34, 48; District Court Act 1991 ss 42C, 42E, 42F, 42G; Limitations of Actions Act 1936 ss 45, 47, 48; Southern State Superannuation Act 2009 ss 22, 25, 29, 30; Southern State Superannuation Regulations 2009 reg 6(4), sub-reg 6(4)(a)(i)(C), sub-reg 6(4)(a)(i), regs 6(6), 28(1), 55(1)-(4), 55(6), 58, 58(11), 58(12)(a), 58(12)(a)(i), 58(12)(a)(ii), 58(13), 58(14), 62C(1), 62C(3), referred to.
Ory v Betamore Pty Ltd (1993) 60 SASR 393; R v Kearney, Ex parte Jurlama (1984) 158 CLR 426; Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 171 ALR 523; Bull v Attorney-General (NSW) (1913) 17 CLR 370; Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; IW v City of Perth (1997) 191 CLR 1; The Queen v Di Fazio; Ex parte General Motors-Holdens Limited (1979) 20 SASR 559; General Motors-Holdens Ltd v Di Fazio (1979) 141 CLR 659; Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury)(No 3) [2018] SAET 76; Harrison v Jltski Pty Ltd as Trustee for Trenwith Family Trust [2017] SADC 20; Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson (1995) 184 LSJS 147; Forrest v Kelly (1991) 32 FCR 558; Herbert Berry Associates Ltd v Inland Revenue Cmrs [1977] 1 WLR 1437; Cheney v Spooner (1929) 41 CLR 532, considered.

RICHARDS v SOUTH AUSTRALIAN SUPERANNUATION BOARD (SUPER SA)
[2018] SADC 119
Introduction

This is an appeal by Rosanne Gai Richards (the appellant) against a decision of the South Australian Superannuation Board (the Board) made on 28 May 2014, communicated to her by letter dated 3 June 2014.
At all material times, the appellant was a member of the Triple S scheme (the scheme) and held four units of standard cover for death and total and permanent disability insurance.
In 2007 the appellant was diagnosed with multiple sclerosis. As a result of her deteriorating health the appellant provided notice of her retirement, which was accepted, effective as of 26 January 2011.
On 15 October 2013, the appellant made a claim for total and permanent disablement entitlements (invalidity insurance benefits) under the scheme (claim).
The claim was received on 25 October 2013. The claim was not considered on the basis that it was not made within the relevant time limit, namely two years after the termination of the appellant’s employment, as required by Regulation 58(13) of the Southern State Superannuation Regulations 2009 (the Regulations) (initial decision).
The appellant was dissatisfied with the initial decision and made an appeal to the Board against the initial decision.
The Board considered the appeal at a meeting on 28 May 2014. The Board declined the appeal as the claim had not been made within the two-year time limit and it determined it had no power to extend that time limit (decision).
The appellant seeks to appeal the decision.
For the following reasons, I affirm the decision of the Board and dismiss the Appeal.
The Right of Review
As the Appeal was brought prior to 5 July 2018, the respondent conceded that it was properly made to the Administrative and Disciplinary Division of this Court pursuant to s 25 of the Southern State Superannuation Act 2009 (the Act).
Section 42E of the District Court Act 1991 (DCA) states:
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal –
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Pursuant to s 42F DCA:
The Court may, on an appeal –
(a)affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Further, s 42G DCA states:
(1)The Court may, on an appeal, make any ancillary or consequential order that the Court considers appropriate.
(2)However, no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.
The Appeal
The Appeal is drafted as an appeal against both the decision and the confirmation of that decision on 24 January 2018.
By letter to the appellant’s solicitors dated 24 January 2018 the Board simply reiterated the basis for its decision made on 28 May 2014. This letter did not of itself constitute a decision of the Board.
The Appeal was lodged on 13 February 2018, therefore well outside of the relevant three-month time period provided by s 25(1a) of the Act.
Pursuant to s 42C DCA, the Court has the discretion to extend the time fixed for the institution of an appeal, even if that time has ended.
The respondent did not oppose the making of an order by this Court extending the time within which the appellant may lodge the Appeal pursuant to s 42C DCA. I exercise my discretion to do so.
By the Appeal the appellant contends:
1.The decision is wrong in fact and in law;
2.In ignoring its power to extend the time limit for the making of the claim (the time limit), the Board’s exercise of its decision-making powers had miscarried; and
3.She has been denied natural justice by the Board’s refusal to extend the time limit.
The Appellant seeks an order setting aside the Board’s decision and ordering that the claim be accepted by the Board, such that the appellant is entitled to invalidity insurance benefits and interest.[1]
[1] As I have dismissed the Appeal, I have not considered in detail the question of interest. However, in my view the powers of the Court as set forth in s 42G(1) DCA (but not s 42F) extend to the making of an order for interest, it being an ancillary or consequential order within the subject matter of the proceedings and it being appropriate in the circumstances.
The Appeal is opposed.
The Appeal was heard on 17 August 2018. A Case Book was tendered and received by me.
In addition to oral submissions I have received and considered the Appellant’s Written Submissions dated 9 August 2018, the Respondent’s Summary of Argument dated 13 August 2018 and the Appellant’s List of Authorities dated 17 August 2018.
There are three main limbs (or bases) to the Appeal, namely that:
1.The Board has the power to extend the time limit pursuant to s 29(2) of the Act (the first argument);
2.The time limit is, in any event, extended by operation of s 45 of the Limitation of Actions Act 1936 (LAA) for those periods during which the appellant was under a legal disability (the second argument); and/or
3.The Court has the power to extend the time limit pursuant to s 48 LAA (the third argument).
I note that it was submitted, as a general proposition, that s 42E(2)(b) DCA required this Court to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’. Notwithstanding this, the Court is required to determine the Appeal in a manner that is in accordance with the application of established legal principles.[2]
[2] Ory v Betamore Pty Ltd (1993) 60 SASR 393 at 414.
Legislative Scheme
The Southern State Superannuation Act 1994 (the old Act) established the Triple S contributory superannuation scheme for persons employed by the state public sector and in doing so it contained the detailed prescriptive scheme rules.
Section 34 of the old Act dealt with members’ rights following termination of employment on invalidity. The section provided for an entitlement to invalidity benefits and stipulated that a person claiming to have an entitlement to such benefits must, within six months after the termination of their employment, give written notice to the Board of such claim.
Section 48 of the old Act dealt with the ‘Resolution of Difficulties’ and provided, inter alia, that the Board had the power to waive or extend a time limit under the Act in particular circumstances.
In 2009 the old Act was the subject of substantial amendment.
Counsel for the appellant referred to Hansard with respect to the tabling of the Southern State Superannuation Bill in April 2009. It is clear that the principal purpose of the Bill was to amend the old Act so as to remove from it the prescriptive scheme rules, and for those rules to be prescribed in subordinate legislation. This was to enable amendment at short notice in response to changing industry standards and Commonwealth legislative requirements. It was not intended there be any impact on members’ accrued entitlements.
The Bill provided for extensive regulation making powers, being wide enough to cover matters as required, by having the scheme’s prescriptive rules in the regulations, rather than in the Act itself.
The Act
The Act repealed the old Act, with a commencement date of 1 August 2009.
At the relevant time, s 22 of the Act stated:
(1)The following is to be provided through the Triple S scheme on terms and conditions prescribed by regulation:
(a)     invalidity insurance, death insurance and income protection for members;
(b)     death insurance for spouse members.
(2)...
(3)Regulations made for the purposes of this section-
(a)     may provide:
(i)for different amounts of invalidity or death insurance depending on a person’s age or occupation, or whether the person was employed on a full time, part time or casual basis, or any other relevant factor;
and
(ii)for annual increases in the amount of invalidity or death insurance for the benefit of persons who wish to have annual increases in their insurance; and
(iii)for the amount of premiums to be fixed by the Board; and
(b)     may make different provision according to the various classes of members, matters or circumstances to which they are expressed to apply; and
(c)     may provide that specified members or spouse members, or members or spouse members of a specified class, cannot apply for, or are not entitled to, invalidity insurance, death insurance or income protection.
Section 30 of the Act stated:
(1)     The Governor may make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of the Act.
(2)     Without limiting the generality of subsection (1), regulations may be made in relation to-
(a)administration of the scheme; and
(b)…
(c)…
(d)…
(e)benefits and how and when they are paid or dealt with; and
(f)…
(g)…
(3)     Regulations under this Act may-
(a)be of general application or limited application; or
(b)make different provision according to the matters or circumstances to which they are expressed to apply; or
(c)provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or the Board.
…
Section 29 of the Act dealt with the ‘Resolution of Difficulties’ in the same terms as was provided for in s 48 of the old Act. It provided:
(1)If, in the opinion of the Board, any doubt or difficulty arises in the application of this Act or the regulations to particular circumstances or the provisions of this Act or the regulations do not address particular circumstances that have arisen, the Board may give such directions as are reasonably necessary to resolve the doubt or difficulty or to address the circumstances (but only insofar as the Board determines it to be fair and reasonable in the circumstances) and any such direction will have effect according to its terms.
(2)If, in the opinion of the Board –
(a)     a time limit under this Act or the regulations should be extended in particular circumstances; or
(b)     a procedural step under this Act or the regulations should be waived in particular circumstances,
the Board may extend the time limit (even if it has already expired) or waive compliance with the procedural step.
(3)In determining whether to take action under subsection (2), the Board should have regard to–
(a)     in a case under subsection (2)(a)-
(i)the length of delay that has occurred; and
(ii)the explanation for the delay; and
(iii)any hardship that will occur if the time limit is not extended; and
(iv)the extent to which it will cause any unfairness if the time limit is not extended; and
(v)any other relevant factor;
…
(4)Subsections (2) and (3) do not derogate from any other provision of this Act or the regulations that makes specific provision for the extension of time.
(5)…
(My emphasis)
The Regulations
Pursuant to Regulation 28(1), subject to that regulation, each member of the scheme is entitled to basic invalidity insurance regardless of the member’s state of health.
Regulation 58 deals specifically with members’ entitlements to invalidity insurance benefits.
The respondent does not dispute that the appellant is totally and permanently incapacitated from employment such that she is, prima facie, entitled to invalidity insurance benefits, but for the fact her claim was made out of time.
As such, Regulation 58(12)(a)(ii) must be applicable, namely that the appellant terminated her employment for a reason caused by her incapacity and the Board is satisfied that she has been incapacitated for all kinds of work for a period of at least six months since that termination and that the incapacity is likely to be permanent.[3]
[3] Noting that otherwise the appellant does not fulfill the criteria as per Regulations 58(11), 58(12)(a)(i) or 58(12a) and, prima facie, would not otherwise be entitled to invalidity insurance benefits.
At the relevant time, Regulations 58(13) and (14) stated:
(13)A member referred to in subregulation (12) and (12a) who claims to be entitled to benefits under this regulation, or a person acting on his or her behalf, must within 2 years after the termination of the member’s employment, give written notice to the Board claiming that the member is entitled to benefits under this regulation.
(14)The time limit of 2 years referred to in subregulation (13) may not be extended under any circumstances.
The First Argument
The appellant conceded that pursuant to Regulation 58(13) any claim for invalidity insurance benefits must be made within two years after the termination of the member’s employment, by way of the giving of written notice to the Board, and that the appellant’s claim was not made within the time limit.
The appellant submitted that notwithstanding the express wording of Regulation 58(14), the Act expressly provided for the Board, in its discretion, to extend the time limit pursuant to s 29(2) of the Act, and that it should have done so in this instance.
There were several aspects to this argument.
The appellant submitted that s 29(2) of the Act was a remedial provision and that it therefore should be interpreted broadly. In this respect s 29(2), (3) and (4) of the Act were distinguished from s 29(1) and s 29(5) – which were clearly procedural in nature.
It was submitted that s 29(4) of the Act was clearly a ‘saving’ provision, such that if there was any apparent conflict between s 29(2) and any other provision, s 29(2) should not be read in such a way as to take away ‘from other rights’. It was submitted that this was both the beneficial and obvious construction of that sub-section.
In this respect it was noted that Regulations 55(6) and 62C(3) both gave the Board power to extend other time frames in certain circumstances and that what s 29(4) of the Act did was to make it clear that s 29(2) was ‘in addition to and does not derogate from’ the rights and powers conferred by those other two provisions.
It was submitted that by its express wording, s 29(4) of the Act should be interpreted to mean that the power in s 29(2) to extend time did not diminish or take away from or undermine any other provisions for the extension of time, rather than provisions for the refusal of extension of time. It was argued that as Regulation 58(14) was a specific provision intending to prevent an extension of time, it was the exact opposite of the type of provision s 29(4) was attempting to preserve.
In the alternative, the appellant submitted that if s 29(2) of the Act was interpreted narrowly and subject to Regulation 58(14), then s 29(2) must override that regulation, the regulation being delegated legislation, the terms of which were clearly incompatible with an assumption conveyed by the empowering act. It was submitted that insofar as Regulation 58(14) was inconsistent with s 29(2) of the Act, the regulation should be disregarded and/or was beyond power.
It was submitted that when those provisions in the Act which authorised the making of regulations were carefully analysed,[4] they did not extend to the making of regulations which took away from the substantive rights of members or deprived members from what were their statutory (and contractual) entitlements.
[4] Specifically s 22(3), s 30(2)(a) and s 30(2)(e) of the Act.
The Board determined that despite it having the power to extend certain time limits pursuant to s 29(2) of the Act, s 29(4) operated so as to prevent it from doing so in this instance, as Regulation 58(14) expressly prohibited the extension of the time limit under any circumstances.
The respondent submitted that the Act and the Regulations clearly contemplated that although certain time limits could be extended in particular circumstances, any application for invalidity insurance benefits was required to be made within two years of the deemed date of the termination of the member’s employment and that such time limit could not be waived or extended.
The respondent submitted that there was no ambiguity or uncertainty in the drafting of the Act and the Regulations. It was submitted that the use of the word ‘for’ in s 29(4) of the Act did not confine its interpretation in the manner as contended by the appellant, rather what was meant by that section was that the powers as set forth in s 29(2) did not detract from or take away from any specific provision(s) in either the Act or the Regulations which dealt with, or were related to, the issue of the extension of time. As Regulation 58(14) expressly stated that the time limit could not be extended under any circumstances, the Board interpreted s 29(4) of the Act as effectively meaning that s 29(2) did not apply in that instance.

Further it was submitted that Regulation 58(14) was within power. As with all commercial relationships of this type, there was a necessity to provide time limits so as to provide certainty, having regard to the various obligations of the scheme. It was submitted that Regulation 58(14) related to the substantive rights of members to make claims under the scheme, and thus fell clearly within the broad power conferred under s 30(1) of the Act.
Discussion
The respondent conceded that s 29(4) of the Act was a remedial provision as submitted by the appellant.[5]
[5] T 50.25-38.
As such, insofar as any ambiguity exists, the provision should be construed beneficially and in a manner favourable to those who may benefit from it.[6] In this respect ‘ambiguity’ extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful.[7]
[6] R v Kearney, Ex parte Jurlama (1984) 158 CLR 426 at 433.
[7] Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc (2000) 171 ALR 523 at [116].
However, this means ‘not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.’[8] The interpretation to be adopted ‘must be restrained within the confines of the actual language employed and what is fairly open on the words used’.[9] The interpretation must not be unreasonable or unnatural.[10]
[8] Bull v Attorney-General (NSW) (1913) 17 CLR 370, at 384, per Isaacs J.
[9] Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638.
[10] IW v City of Perth (1997) 191 CLR 1 at 12.
Further, it is only if more than one interpretation is available or if there is uncertainty as to the meaning of the words used that the beneficial approach is to be adopted.
In interpreting s 29(4) of the Act, it is important to consider the purpose of the provision and its context.
In its very title, s 29 of the Act is designed to empower the Board with the ability to resolve difficulties or doubts which arise in its administration of the scheme, having regard to particular circumstances which arise from time to time.
Extremely broad powers are given to the Board by virtue of s 29(2) and s 29(3) to extend time limits and/or waive procedural steps in certain circumstances. In the exercise of its discretion to extend a time limit under s 29(2), the Board is to have regard to those matters specified in s 29(3)(a)(i)-(iv), in addition to ‘any other relevant factor’.[11]
[11] Section 29(3)(a)(v).
Further, there is nothing restrictive in s 29(3)(a) – for example, there is no specific requirement for the Board to take into account the ‘justice’ of the decision and its impact on persons other than the claimant.[12]
[12] Unlike s 48(3b) of the LAA.
Indeed, the only qualification on the broad powers given to the Board under s 29(2) and (3) is, potentially, that set forth in s 29(4).
If, as the appellant contends, s 29(4) is to be read as meaning that the power granted in s 29(2) and (3) is not to take away from or detract from (‘derogate from’) those other powers the Board has, as set forth in the Act and the regulations to extend (rather than not extend) time limits, (‘for the extension of time’), then what work does s 29(4) in fact do in those circumstances, given the breadth of the language used in s 29(3)(a)(v)?
Counsel for the appellant argued that there were two provisions in the regulations which gave the Board power to extend time limits (that is, provisions for the extension of time) and that s 29(4) was intended to preserve that power, in addition to that set forth in s 29(2) and (3).
Those two regulations are Regulations 55(6) and 62C(3).
Regulation 55(6) gives the Board power to extend the three-month time limit with which a member is required to give an election to preserve various components of their account,[13] if it is of the opinion that such limitation period ‘would unfairly prejudice a member’.
[13] As specified under Regulations 55(1)-(4).
Regulation 62C(3) gives the Board power to extend the three month time limit with which a ‘PPS 3 member’ who retires before age 55 is required to give an election to preserve various components of their account,[14] if it is of the opinion that such limitation period ‘would unfairly prejudice a member’.
[14] As specified under Regulation 62C(1).
Insofar as it may be argued that in determining whether there will be ‘prejudice’ in this context involves different considerations to a determination of whether there will be ‘unfairness’ if a time limit is not extended (as referred to in s 29(3)(a)(iv)), there can be no doubt that ‘prejudice to a member’ is ‘any other relevant factor’ for the purposes of s 29(3)(a)(v).
There is no other provision in the Act or the Regulations which empowers the Board to extend any other time limit.
As such, adopting the appellant’s interpretation of s 29(4) leaves that provision with no work to do.
Regulation 58(14) is not the only provision in the Act or Regulations which prohibits an extension of a relevant time limit.
Pursuant to Regulation 6(4)(a)(i)(C), where a member is employed on a casual basis and they become incapacitated for work as envisaged by Regulation 6(4)(a)(i), the member must give written notice to the Board claiming an entitlement to invalidity benefits under Regulation 58 within two years after the date upon which they became incapacitated.
Regulation 6(6) states:
The time limit of 2 years referred to in subregulation (4)(a)(i)(C) may not be extended under any circumstances.
Both Regulation 58 and Regulation 6(4) deal with members’ entitlements to invalidity insurance benefits. The effect (or purpose) of Regulations 58(14) and 6(6) is to impose a strictly enforced time limit on the claiming of such benefits in the context of the commercial arrangements which exist between the scheme and its members. These are ‘insurance benefits’ – for which a small premium is paid by the member.
The scheme has many thousands of members whose interests, as a whole, must be protected by the Board. From a commercial perspective, as in all insurance arrangements, there is a necessity for there to be a degree of certainty as to the liabilities faced by the scheme with respect to invalidity insurance at a point in time, with the time limits in Regulations 58 and 6(4) specified to assist in achieving such certainty.
The purpose served by Regulations 58(14) and 6(6) is to assist the Board in its calculation of appropriate insurance premiums by putting in place a strict, but reasonable, time frame in terms of when such benefits can be claimed and therefore paid. The fact that the six-month time limit within which a member could provide notice of such a claim which existed in the old Act was extended to two years, but with the addition of a prohibition on any extension of this longer period, gives further indication as to the legislature’s intent.
It is in this context that s 29(4) of the Act is to be interpreted.
Counsel for the appellant argued that insofar as there was any incompatibility or inconsistency between s 29 and Regulation 58(14), the delegated legislation must give way.[15] Further, it was submitted that parliament would not impinge or take away a person’s common law rights in the absence of the most express and deliberate of language.[16]
[15] Appellant’s Written Submissions at [13].
[16] T 19.29-38.
Albeit a remedial provision, s 29(2) does not seek to enforce any common law rights, rather its purpose is to assist the Board to resolve difficulties that arise in its administration of the scheme.
The intention of the legislature was for the scheme to be prescribed within the Regulations.
Having regard to the Act and Regulations considered as a whole, the only work s 29(4) of the Act can do is to ensure that s 29(2) and (3) do not detract or take away from any other provision in the Act or Regulations which relates to, or is in regard to, or is about (‘for’) the extension of time, such that it does not detract from what is specifically provided for in Regulations 58(14) and 6(6).
Section 30(1) of the Act gives the Governor the power to make regulations that are necessary or expedient for the purposes of the Act. Without limiting this, s 30(2) expressly refers to regulations in relation to ‘benefits and how and when they are to be paid or dealt with’. Insofar as Regulation 58(14) imposes an inability upon the Board to extend the strict time limit imposed on the procedural steps that must be complied with by a member claiming to be entitled to invalidity insurance benefits, it relates to when benefits are to be paid.
As such, I find:
1.Regulation 58(14) is not beyond power.
2.There is no inconsistency or incompatibility between s 29(4) of the Act and Regulation 58(14).
3.By its proper interpretation, s 29(4) of the Act sets forth the intention of the legislature that the very broad powers conferred on the Board pursuant to s 29(2) and (3) are not to detract from, nor take away from, the operation of Regulation 58(14).
4.The Board does not have any power pursuant to the Act or Regulations to extend the two-year time limit as set forth in Regulation 58(13).
If I am wrong about this, and Regulation 58(14) is beyond power, such that s 29(2) of the Act does empower the Board to extend the time limit, the Board ought to have exercised that power, and accepted the claim, having regard to the broad criteria set forth in s 29(3) of the Act.
The relatively short delay in the giving of written notice by the appellant to the Board (some nine months), in combination with the debilitating and deteriorating nature of her health, including during the two-year time limit,[17] provide an appropriate basis for the same, together with consideration of the unfairness that will be caused to the appellant if the extension is not granted.
[17] As summarised at [142]-[168].
The Second Argument
In the alternative to the first argument, the appellant submitted that for periods during the two years immediately after the termination of her employment, and therefore during the two-year time limit pursuant to Regulation 58(13), the appellant was a person ‘under a legal disability’ within the meaning of the LAA.
As such the appellant submitted that s 45(1) LAA was applicable, such that the two-year time limit should be extended by the periods during which that disability existed or continued. It was submitted that the effect of the same would be to extend the time limit pursuant to Regulation 58(13) to, at least, the date the appellant provided written notice of her claim for invalidity benefits (15 October 2013).
Section 45 LAA states:
45—Persons under legal disability
(1)Where the time for bringing an action or proceeding is limited by this Act, or any other Act or law, and the person who is entitled to bring the action or proceeding is under a legal disability, the time for bringing that action or proceeding shall, subject to subsection (3) of this section, be extended by the period or periods for which the disability exists or continues after the time at which the right to bring the action or proceeding arose.
(2)For the purposes of this section a person is under a legal disability in relation to an action or proceeding while he remains a child or while he is subject to a mental deficiency, disease or disorder by reason of which he is incapable of reasoning or acting rationally in relation to the action or proceeding that he is entitled to bring.
(3)No period of limitation shall be extended by this section to more than thirty years from the time at which the right to bring the action or proceeding arose.
The Third Argument
In the alternative, the appellant argued that this Court had power to extend the time limit under Regulation 58(14) pursuant to s 48 LAA.
Section 48 LAA states:
48—General power to extend periods of limitation
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that—
(a)     the court has jurisdiction to entertain; or
(b)     the court would, if the action were not out of time, have jurisdiction to entertain.
(3)This section does not—
(a)     apply to criminal proceedings; or
(b)     empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time…
…
(4)Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
(5)Proceedings under this section may be determined by the court at any time before or after the close of pleadings.
(6)This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.
Does either s 45 or s 48 LAA apply to the time limit?
Section 45 LAA only applies to time limits applicable to ‘the bringing an action or proceeding’.
Section 48 LAA only applies to time limits for:
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action. [18]
[18] Noting s 48 does not apply to ‘criminal proceedings’.
The LAA defines ‘action’ to include ‘legal proceedings of all kinds’. It does not define the word ‘proceeding’.
The appellant argued that the time limit in Regulation 58(13), insofar as it was directed towards governing the period in which a member was required to provide written notice of their claim to entitlement to invalidity insurance benefits, was a time limit relating to the doing of any act or taking of any step in an action, or with a view to instituting an action. It was submitted that what the appellant was seeking to do was to enforce a statutory right to insurance benefits, being the equivalent to a person claiming an entitlement to workers compensation benefits under a statutory scheme.
It was submitted that the various steps in that process, including the notification of the claim, submission of materials, assessment and review, were all steps that were part of a ‘legal process’, such that the lodging of notice of a claim for such benefits fell within the definition of an action, it being a step in a ‘legal proceeding’, or, at the very least, a step in a ‘proceeding’.
By extension it was argued that the provision of written notice of a claim as contemplated by Regulation 58(13) was ‘the bringing of a proceeding’.
The respondent submitted that Regulation 58(13) did not limit the time for the bringing of an ‘action’ or a ‘proceeding’, nor was it a time limit for instituting an ‘action’, doing any act or taking any step in an ‘action’ or doing any act or taking any step with a view to instituting an ‘action’, such that neither s 45 nor s 48 LAA were applicable.
The appellant relied on a number of authorities which she claimed supported both the second and third arguments.
The Queen v Di Fazio; Ex parte General Motors-Holdens Limited[19] and General Motors-Holdens Ltd v Di Fazio[20] concerned an application for unfair dismissal made by an employee in the Industrial Court of South Australia. The application was not made within 21 days of the dismissal as required by s 15(1)(e) of the Industrial and Arbitration Act 1972-75 (IAA).
[19] (1979) 20 SASR 559.
[20] (1979) 141 CLR 659.
The issue was whether a Magistrate had power to extend that time limit after it had expired, having regard to the wording of that section, which stated, by way of summary, that the Industrial Court’s jurisdiction to hear such disputes was only invoked if the application was made within that 21-day time limit.
Both the Supreme Court of South Australia and the High Court accepted that (then) s 48 LAA could apply to the application, it being both a ‘proceeding’ under the IAA and therefore an ‘action’ (insofar as it was a ‘legal proceeding’).
Counsel for the appellant placed particular reliance on what was said by Mason J in General Motors-Holdens Ltd v Di Fazio,[21] namely:
The expression ‘cause of action’ frequently signifies an antecedent right asserted by a plaintiff. However, in the context of a general provision dealing with limitations of actions and applicable to ‘all actions’ except those mentioned in s 47(2), it should be given the wider meaning ‘cause of complaint’. Moreover, the width and generality of the statutory definition of the word ‘action’ indicate that the provisions are not restricted to actions in which the plaintiff seeks to enforce an antecedent legal right. Quite obviously they extend to proceedings in which the making of the order sought is the source of the right sought to be established (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett).
(Citation excluded)
[21] (1979) 141 CLR 659 at 668.
However, in this passage Mason J was addressing an argument as to whether s 48 LAA applied to a limitation which conditioned the exercise of jurisdiction by a court and found that it did.
In my view, this passage does not assist in determining the meaning of the term ‘proceeding’ in the context in which it is used in s 45(1) LAA.
In Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury)(No 3),[22] an issue for determination was whether s 48 LAA encompassed steps taken in the workers compensation claims process and in particular steps taken in a worker’s disputed claim for medical expenses.
[22] [2018] SAET 76.
Hannon J noted that what the applicant was in fact seeking was an extension of time to take a step in an action arising from an initial claim brought before the Tribunal by him for compensation with respect to a workplace injury.[23] It was in this context that he stated:[24]
The jurisdiction of the Tribunal is to deal with a reviewable decision. Under s 103 of the Act, a disputed decision is to be dealt with under Part 3 of the South Australian Employment Tribunal Act 2014 (“the SAET Act”). As is clear from Part 3 Division 1 of the SAET Act, such matters are “proceedings for a review of a decision”.[25] Under r 11(c) of the South Australian Employment Tribunal Rules 2017 (the Rules), “proceedings” under a relevant Act which are not resolved by conciliation are assigned to the South Australian Employment Court. The proceedings assigned in this matter arose from a disputed claim for “loss of wages and medical expenses”. I consider such proceedings fall within the meaning of the word “action” in s 48(1) of the LA Act.
[23] [2018] SAET 76 at [33].
[24] [2018] SAET 76 at [32].
[25] Section 28(1) SAET Act.

Harrison v Jltski Pty Ltd as Trustee for Trenwith Family Trust[26] involved the determination of whether an application for review of a minor civil action to the District Court was an ‘action’ within the meaning of the LAA, despite it not being an ‘appeal’.
[26] [2017] SADC 20.
In determining that s 48 LAA applied to such an application, Millsteed J referred to what was said by Cox J in Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson, albeit in the context of the Supreme Court Rules namely:[27]
Section 48 operates where any Rule prescribes the time within which any step must be taken in any legal proceedings, and s 48 would apply in the circumstances of an appeal from the District Court to the Supreme Court, governed by the Supreme Court Rules.
There is a curiosity about a Court being asked to use s 48 to extend time in circumstances where the Court’s own Rules provide that an appeal has lapsed and can only be revived in particular circumstances. But s 48 is clear in that it applies to the Rules of Court of the Supreme Court. Section 48(6) does not prevent the use of s 48 in circumstances such as this because it only applies so as not to derogate from any other provision under which a Court may extend or abridge the time prescribed by a Rule (Dunn v Wilkinson (1979) 22 SASR 129). The purpose of s 48 is to ameliorate the hardship caused to a party who might be barred from approaching the Court by reason of strict time limits (R v Di Fazio (1979) 20 SASR 559). The statute, therefore, can be used for the purpose of ameliorating the hardship caused to a party by the inflexibility of a Rule of Court, where it would be in the interests of justice that the hardship be averted. (My emphasis)
[27] (1995) 184 LSJS 147 at 153-154.
In Calvaresi and Rota Forma Pty Ltd v Lawson and Lawson[28] the Supreme Court was asked to determine whether an appeal of a decision made by the District Court to the Supreme Court constituted a step taken in legal proceedings, and found that it did so.
[28] (1995) 184 LSJS 147.
Discussion/Findings
The time limit set forth in Regulation 58(13) relates specifically to the period during which a member of the scheme must give written notice to the Board claiming an entitlement to invalidity insurance benefits under the scheme.
None of the authorities relied upon by the appellant involved similar factual circumstances to those which present in the within matter. All of the decisions relied upon by the appellant related to time limits pertaining to applications or claims lodged in a court or tribunal, or applications lodged ancillary to such legal proceedings.
None related to time limits pertaining to an administrative step, being a first step in a claims process which may ultimately result in the institution of legal proceedings, but were yet to do so.
Counsel for the appellant submitted that the provision of written notice by the appellant under Regulation 58(13) was a ‘step’ in the legal process of the appellant asserting her statutory right to invalidity insurance benefits. As such it was submitted that in the giving of such notice the appellant was either ‘bringing an action or proceeding’, or ‘doing any act, or taking any step in an action’, akin to Hannon J’s reasoning in Sacco.
I do not accept that argument.
The circumstances as they presented before Hannon J can be distinguished from the within matter, as the time limit in question was fundamentally related to legal proceedings already lodged by the applicant in SAET under the Return to Work Act 2014.
Regulation 58(13) is directed towards governing the time limit applicable to an administrative step in the appellant’s claim for insurance benefits. While the scheme is a creature of statute, a member’s entitlements therein are the product of several factors, and in the case of entitlements to invalidity insurance benefits, in accordance with the terms of a commercial contract entered into between the member and the Board. In this respect, they can be distinguished from a worker’s entitlements to statutory benefits under the Return to Work Act 2014.
The authorities confirm that the appellant’s appeal of the decision to this Court pursuant to s 25 of the Act is a legal proceeding. As such, s 48 LAA provides power to extend the time limit during which the appellant was entitled to lodge this appeal.
However, when the appellant gave notice of her intention to claim invalidity insurance benefits the appellant was not doing so with a view to bringing an ‘action’ (as defined), rather what she was doing was taking the first step required to lodge her invalidity insurance claim. This procedural step does not involve the ‘bringing’ of an action, which must require the formal lodging of legal process.
The time limit in Regulation 58(13) does not limit the time for instituting an ‘action’, rather it relates to the timing of an administrative step in the claims’ process. Similarly, the time limit does not limit the time for doing any act or taking any step in an action, or doing any act or taking any step with a view to instituting an action, the claims process not being a ‘legal proceeding’ of any kind.
The word ‘proceeding’ has many alternative meanings depending on its context and use.
Historically, the term ‘proceeding’ was given a narrow interpretation to mean the invocation of jurisdiction of the court by process other than a writ,[29] or an application by a suitor to a court in its civil jurisdiction for its intervention or action.[30]
[29] Herbert Berry Associates Ltd v Inland Revenue Cmrs [1977] 1 WLR 1437.
[30] Cheney v Spooner (1929) 41 CLR 532.
This traditional legal meaning has been extended, albeit in specific legislative contexts. For example, in Forrest v Kelly,[31] the Federal Court considered that in the context of s 19(1) of the Extradition Act 1988 (Cwth), it extended to mean the steps and procedures that take place before an investigating magistrate, even if the task of the magistrate was administrative as distinct from legal or judicial (in that case, the making of an extradition order upon application of the DPP).
[31] (1991) 32 FCR 558.
In that case an issue was whether the relevant ‘proceedings’ had commenced before the commencement of that Act.
In addressing that issue the Full Court stated:[32]
It is true, as the appellant contends, that criminal proceedings are ‘commenced’ well before trial. In R v Hull (1989) 16 NSWLR 385 at 390 Gleeson CJ spoke of criminal proceedings being ‘initiated’ by arrest, information or the issue of a summons. In Allerton and Craig v R (1991) 53 A Crim R 33 at 39 the Court of Appeal treated his Honour’s words as guidance in determining the point of time at which criminal proceedings are ‘instituted’. We are content to take the same course in relation to the word ‘commenced’ and to agree that it might properly be said that proceedings were commenced against the appellant when the Hawaii grand jury found an indictment against him. But the relevant definition in the Repeal and Consequential Provisions Act does not refer to the commencement of proceedings simpliciter…
[32] (1991) 32 FCR 558 at 576.
Although the LAA does not define the term ‘proceeding’, the very nature of the LAA, it being the Limitation of Actions Act, together with the terms of the LAA when considered as a whole, make it clear the LAA is concerned with time limits relating to the time by which a person may seek to enforce a legal right or cause of action by commencing proceedings in a court of law.
Further, I note what was said by Williams AJ in The Queen v Di Fazio wherein he stated:[33]
I am unable to see that there is any significance in the change of language from “criminal action” in s 47 to “criminal proceedings” in s 48 for to me they mean the same thing. In any event it seems to me that the use of the phrase “criminal proceedings” in s 48(3)(a) indicates that the section was intended to apply to more than actions strictly so called and to extend to legal proceedings of all kinds, otherwise there was no need to exclude criminal proceedings specifically.[34]
(My emphasis)
[33] (1979) 20 SASR 559 at 571-572.
[34] Noting the use of the same terminology in s 47 and s 48 LAA in its current terms.
Further, if the LAA is carefully analysed, it uses the terminology ‘actions’ and ‘proceedings’ interchangeably insofar as they refer to the enforcement of legal rights arising from the existence of a cause of action.[35] In my view making an administrative notification of an intention to claim invalidity insurance benefits under the Act and Regulations is not the ‘bringing of a proceeding’ as contemplated by the LAA. It is at least one step removed from the same.
[35] See, for example, use of terminology in the heading at Part 2 compared with s 4, definition of ‘equitable proceedings’ in s 25, s 32, s 33 and s 37 regarding ‘defamation proceedings’.
In my view, having regard to the relevant authorities, the earliest a ‘proceeding’ could be said to have been brought is when the appellant issued this appeal.
As such, in my view, irrespective of whether or not the medical evidence supports a finding that the appellant was a person under a legal disability during the relevant period pursuant to s 45(2) LAA, s 45 LAA has no application, as the time limit is not a limit relating to ‘the time for bringing an action or proceeding’.
Further, s 48(1) LAA does not apply, as the time limit imposed by Rule 58(13) is not a time limit for either instituting an ‘action’ (as defined in the LAA); or doing any act, or taking any step in an ‘action’; or doing any act or taking any step with a view to instituting an ‘action’.
If either s 45 or s 48 LAA apply to the time limit, should it be extended?
If I am wrong, and either s 45 LAA or s 48 LAA applies so as to provide the basis for this Court to intervene and extend the time limit, I consider it prudent to consider whether, in any event, the appellant meets the criteria to enable an extension of the time limit under either section.
‘Legal Disability’
Pursuant to s 45 LAA, if the appellant is a person ‘under a legal disability’, then the time limit is to be extended by the period or periods for which the disability exists or continues after the time at which the right to bring the action or proceeding arose. I will assume, for present purposes, the relevant date is therefore the date of termination of the appellant’s employment as the Director of the Lockleys Pre-School, 26 January 2011.
Pursuant to s 45(2) LAA, the appellant is a person ‘under a legal disability’ if she is ‘subject to a mental deficiency, disease or disorder by reason of which she is incapable of reasoning or acting rationally in relation to the action or proceeding that she is entitled to bring.’
This is a very high threshold, having regard to the use of the word ‘incapable’ (rather than, for example, ‘significantly impaired’).
In considering how s 45(2) LAA should be interpreted, it is of note that it is a principle of long standing that the law presumes every person to be sane and, in modern times, the principle has been expressed as a presumption that a person of full age is capable of managing his or her affairs.[36] It follows that a person who asserts legal incapacity must prove it.[37] The appellant must prove she is a ‘person under a disability’ within the meaning of s 45(2) LAA.
[36] Murphy v Doman(2003) 58 NSWLR 51 at [36] per Handley JA, Owners ofStrata Plan No.23007 v Cross (2006) 153 FCR 398.
[37] Dalle-Molle v Manos (2004) 88 SASR 193 at [17].
The purpose of s 45 LAA is to ensure that those persons who do not have capacity, whether by reason of age or because they are of unsound mind, are protected in terms of the preservation of their legal rights.
Lack of capacity is usually denoted by a person’s inability to understand the nature of an event or transaction when it is explained.[38] If, as the appellant claims, her claim for invalidity insurance benefits is the relevant ‘action or proceeding’, then the issue for determination must be, was the appellant at any relevant time incapable of reasoning or acting rationally with respect to that claim.
[38] Slaveski v State of Victoria & Ors [2009] VSC 596; Owners ofStrata Plan No.23007 v Cross (2006) 153 FCR 398; Dalle-Molle v Manos (2004) 88 SASR 193 at [16].
Although not directly relevant, some guidance can be had from decisions dealing with testamentary capacity. In the following passage from Banks v Goodfellow[39] Cockburn CJ, delivering the judgment of the court, said:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
[39] (1870) LR5QB 549 at 565.
In Thomas v Nash,[40] Doyle CJ summarised the law pertaining to testamentary capacity. He stated:[41]
In relation to the question of testamentary capacity, issues for me are whether Mrs Nash knew the effect of the will, whether she knew the nature and extent of her estate, whether she was aware of those who might be thought to have a claim upon her bounty, and the basis for such a claim, and whether she was in a position to evaluate those claims and make a decision. Her memory is relevant because she had to have the ability to remember these matters. Her state of health is relevant because her physical and mental health might affect her testamentary capacity.
[40] (2010) 107 SASR 309 at [70]-[77].
[41] (2010) 107 SASR 309 at [76].
Further, Doyle CJ noted that while the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.[42]
[42] (2010) 107 SASR 309 at [72].
Applying these observations to the within case, relevant considerations are; was the appellant at any relevant time unable to understand and remember, if explained to her, the nature and extent of her potential claim and whether she was in a position to evaluate the same and make a decision as to how to proceed.
Medical Evidence
There are numerous medical certificates and reports pertaining to the appellant’s health during the relevant period included in the Case Book. In addition, the appellant relied on an affidavit sworn by her on 8 February 2018 and an affidavit sworn by her daughter, Mardi Rose Johns on 1 May 2018 to support the contention that she was a person ‘under a legal disability’ during part of the relevant period (and/or the necessary criteria for an extension of time under s 48 LAA).
I note the respondent submitted that, if necessary depending on my findings, the issue as to whether the appellant was at any time a person ‘under a legal disability’ was a matter which could be referred to the Board to consider. My findings hereunder necessarily are based only on my assessment of the material presented as part of the appeal.
The appellant is aged 65 (DOB: 18 April 1953).
In 2007 the appellant was diagnosed with Multiple Sclerosis (MS), with her two major problems being relevant to deterioration in left leg mobility and fatigue. She reduced her employment hours to part-time and ceased work in January 2011, after finding that she was required to take increasingly more days absence from her employment. The appellant was suffering significant side effects from her medication, Avonex, including severe migraines and nausea, which coupled with ongoing mobility issues and problems with short-term memory and multi-tasking led to her decision to retire.^[43]
[43] Report of Ms Allicia Kitchen dated 12 July 2013, Case Book pp 55-57.
In 2011 the appellant underwent a routine MRI for her MS. The MRI revealed the presence of two right middle cerebral artery aneurysms. The appellant’s Gosford based treating neurologist, A/Prof Heard, referred her to Dr Nazih Assaad, a Neurosurgeon based at the Macquarie University in North Ryde, NSW. Dr Assaad noted that although the aneurysms were small, one was irregularly shaped and the appellant’s history of very severe headache with associated nausea and vomiting in 2009. At his recommendation, the appellant underwent micro-surgery to clip the aneurysms at the Macquarie University Hospital on 9 November 2011.[44]
[44] Reports of Dr Nazih Assaad dated 17 October 2011 and 14 November 2011, Case Book pp 49-51.
Shortly prior to surgery the appellant was troubled by pain and blood discharge from her right ear while travelling by plane between Adelaide and Sydney for the purposes of specialist examination. She required ear suction treatment to the external auditory canal wall of her right ear, performed by Dr John Ling on 27 October 2011.[45]
[45] Report of Dr John Ling dated 27 October 2011, Case Book p 86.
During micro-surgery to treat the cerebral aneurysms a third aneurysm was detected, meaning that surgery took eight hours, rather than four to six hours, as had been anticipated.[46]
[46] Report of Dr Bethan Sutton dated 26 January 2017, Case Book p 88.
Dr Assaad reviewed the appellant on 19 December 2011, at which time he noted she was continuing to make a very good recovery from surgery and her wound had healed well. He made arrangements for her to be reviewed 12 months later with a follow up CT angiogram.[47]
[47] Report of Dr Nazih Assaad dated 19 December 2011, Case Book p 89.
In early 2012 the appellant noticed a ‘pursatile whooshing sound’ in her head and a blocked right ear canal, thought related to the effects of that surgery. She was referred by her general practitioner, Dr James Doherty to Dr John Ling,[48] who referred her further to Dr Tom Wilkinson.
[48] Letter from Dr James Doherty to Dr John Ling dated 10 February 2012, Case Book pp 90-91.
Dr Wilkinson noted the appellant was tender over the right tempero-mandibular joint (TMJ) and he constructed a bite splint to treat what he considered was a pre-surgery habit of teeth clenching which had subsequently persisted and worsened. He also recommended ongoing physiotherapy.[49]
[49] Report of Dr Tom Wilkinson dated 27 February 2012, Case Book p 92.
The ‘whooshing’ sound persisted, resulting in Dr Doherty referring the appellant back to see Dr Assaad, as a result of which she was admitted to the Macquarie Hospital in July 2012 under Dr Assaad’s care for investigations of pulsatile tinnitus in the right ear. At that time, a six-vessel cerebral angiogram did not show any evidence of the presence of a dural AV fistula and a CT of the petrous temporal bone did not reveal any abnormalities in the inner or middle ear cavities. The appellant was also reviewed by Dr Andrew Wignall, ENT Surgeon, who recommended repeating audiology and ophthalmology testing. Dr Assaad reported that as at 14 July 2012 the appellant’s pulsatile tinnitus had largely subsided.[50]
[50] Reports of Dr Nazih Assaad dated 14 July 2012, Case Book pp 94-96.
In October 2012, the appellant was reviewed by A/Prof Heard in conjunction with undertaking an angiogram. He took a history from her at that time that she considered her MS symptoms were gradually deteriorating; she felt more fatigue, her legs felt stiffer and she had developed mild paraesthesiae and heaviness in her right foot. She was quite anxious.[51]
[51] Report of A/Prof Heard dated 18 October 2012, Case Book p 97.
A/Prof Heard arranged for the appellant to undertake a further MRI to determine if she had any current active disease. He reported the MRI showed her condition was ‘completely stable’ and did not recommend any change in medication. He also noted the difficulties managing the appellant’s ongoing care, given she was a resident in South Australia.[52]
[52] Report of A/Prof Heard dated 21 December 2012, Case Book p 99.

In late 2012 Dr Doherty referred the appellant to A/Prof Koblar, Neurologist based in Woodville, for the ongoing management of her MS. A/Prof Koblar thought her diagnosis was consistent with relapsing remitting MS, although he noted there was a suggestion she may have secondary progressive MS with continued weakness in her left leg. He suggested a trial change in medication.[53]
[53] Report of A/Prof Simon Koblar dated 27 November 2012, Case Book p 98.
The appellant made application for a Disability Support Pension some time prior to mid-2013, which application was not initially successful and was then the subject of an appeal (the results of which are unknown).
In support of that appeal the appellant obtained reports from her treating neurophysiotherapist, Mr James McLoughlin dated 11 July 2013,[54] Ms Allicia Kitchen, Service Coordinator for the Multiple Sclerosis Society of SA dated 12 July 2013[55] and Dr James Doherty dated 23 July 2013.[56]
[54] Case Book pp 52-54.
[55] Case Book pp 55-57.
[56] Case Book pp 58-60.
Mr McLoughlin noted that in the previous three years the appellant had experienced a marked decline in mobility and fatigue, had suffered several falls and heat sensitivity. He also described the appellant as suffering associated secondary low back pain and left knee cartilage degeneration related to her impaired walking pattern. He described the appellant’s level of fatigue as ‘severe’ and despite participating in a rehabilitation program, noted she was still suffering daily fatigue. In addition, she was experiencing worsening of spasticity and weakness, impacting on her walking endurance and balance and required a walking stick. He was concerned at her ability to mobilise safely in the community and her physical capability to work 15 hours a week.
Mr McLoughlin also noted the appellant’s complaints of problems with working memory and concentration, which may impact on her ability to learn new skills and recommended neuropsychological assessment.
Ms Kitchen described the appellant as suffering two heavy falls in June 2013, which had aggravated her left knee and hip problems. She noted the appellant’s belief that at that time she was still recovering from the surgery to clip the cerebral aneurysms and was experiencing cognitive deficits, such as short-term memory issues and ongoing tinnitus.
She thought it unlikely that the appellant’s level of functioning would improve and believed she would never be able to achieve a baseline ability to work 15 hours per week due to the severe and unpredictable nature of her symptoms.
Dr Doherty also noted that her condition would not improve, but would deteriorate and stated that in the last 12 months the appellant had ‘deteriorated significantly in several aspects of her normal neuromuscular functioning’.[57] In this respect he noted that weakness and disability in her gait which had previously predominantly affected her left leg had significantly extended to her right leg, as a result of which she could not walk unaided, significantly impacting on her ability to work and to travel to and from work. He also noted a decline in the appellant’s cerebral functioning making it very difficult for her to learn new tasks.
[57] Case Book p 59.
Both Dr Doherty and A/Prof Koblar provided brief ‘pro-forma’ reports in support of the appellant’s application for invalidity insurance benefits.[58]
[58] Report of Dr Doherty dated 9 October 2013, Case Book pp 17-18; report of A/Prof Koblar dated 3 September 2013, Case Book pp 19-20.
Dr Doherty described the appellant as suffering from MS with functional consequences described as:[59]
Markedly impaired walking gait, marked reduction in speed + endurance. Moderate increased falls risk. Insensitivity of lower limbs – increased risk of accidental injury. Heat insensitivity, fatigue, associated cognitive impairment.
[59] Case Book p 17.
He stated that she was not expected to be able to return to any form of work and her life expectancy was likely shortened by approximately 10 years.
A/Prof Koblar described the appellant as suffering relapsing remitting MS, with hemiparesis and left leg weakness. He referred to the three cerebral aneurysms and noted ‘no consequence’ since surgery in November 2011. He stated ‘Not likely to return to any work. This is a degenerative disease and the 100% disability is definite’.[60]
[60] Case Book p 19.
A/Prof Koblar also described the appellant as suffering neurological function decline, with a worsening of her results on the ‘Modified Fatigue Impact Scale’ from 4 in 2010 to 6 in 2013.[61]
[61] Case Book p 20.
In a report dated 29 November 2013, Ron Smith, Consultant retained by the respondent, stated that it was reasonable to be guided by the opinions expressed by both Dr Doherty and A/Prof Koblar, namely that the appellant ‘is more than 60% permanently incapacitated for all kinds of work due to an incurable medical condition that will inevitably compromise the Claimant’s capacity for independent living’.[62]
[62] Case Book p 25.
Other evidence
In her affidavit sworn 8 February 2018, the appellant deposed to her medical history as including the unexpected urgent craniotomy to clip the cerebral aneurysms, secondary pulsatile tinnitus, worsening TMJ dysfunction and ‘severe anxiety impairing my capacity to manage my affairs’.[63]
[63] Appellant’s Affidavit at [4], Case Book p 107.
She described there being two time periods when, due to a combination of her conditions, it was ‘impossible’ for her ‘to mentally and physically manage (her) affairs and to make rational decisions about taking defending or settling proceedings’ being the periods from 17 October 2011 to 27 February 2012 and from 12 June 2012 to 21 December 2012. She deposed to being heavily reliant on her daughter during these periods, who she described as attending specialist and other medical appointments with her and helping her manage her ‘multiple medical issues and disability’.[64]
[64] Appellant’s Affidavit at [7]-[8], Case Book pp 107-108.
In an affidavit sworn on 1 May 2018, the appellant’s daughter, Mardi Johns, who is a legal practitioner operating her own law firm in Victoria and holds a Bachelor Degree in Behavioural Science, has deposed in detail as to periods during January 2011 to January 2013 at which time she considers her mother was ‘under a legal disability’ as defined in s 45(2) LAA.[65]
[65] Case Book pp 124-130.
By way of summary, Ms Johns has described her mother’s ability to function on a day to day basis as being significantly impacted due to a combination of her MS, cerebral aneurysms and severe anxiety, causing her significant fatigue. She describes the appellant as having difficulty absorbing information and gathering her thoughts, requiring her assistance and attendance at medical appointments (so as to ensure relevant information was being comprehended and acted upon) and impacting significantly on her mother’s ability to make decisions and on her judgment.
It is apparent that Ms Johns provided the appellant with both physical and emotional support associated with the very stressful decision to undergo surgery with respect to the cerebral aneurysms, and practical assistance in the six-week period immediately following that surgery. She noted that the appellant’s MS symptoms appeared to deteriorate markedly following that surgery and in addition the appellant developed the ‘whooshing’ sensation in her ears, together with difficulty fully opening her mouth. She noted her mother was very worried about the former symptoms being indicative of a serious complication from her neurosurgery. It transpired that the appellant’s symptoms were consistent with the progression of her MS, which caused the appellant much distress and overwhelmed her. She noted her mother had had difficulty in understanding the report of A/Prof Heard dated 21 December 2012, wherein he described her condition as ‘completely stable’ when her mother very much believed otherwise.
Ms Johns expressed the opinion that her mother ‘was suffering severe and debilitating anxiety throughout the relevant period, such that she was not capable of making rational decisions about her management, or, for that matter, her affairs in general’. She said although at times her mother would put on a ‘brave face’, she did not observe ‘any period of time during which she could be considered to have been capable of making rational decisions about taking, defending and settling proceedings’. In this respect, she highlighted her position as both a legal practitioner and someone who had ‘daily contact’ with the appellant during the relevant period.[66]
[66] Ms Johns’ Affidavit at [12]-[13], Case Book pp 129-130.
Findings/Observations
None of the medical and other reports in the Case Book describe the appellant, at any time during the relevant period, as suffering ‘severe and debilitating anxiety’, or any ‘mental deficiency, disease or disorder’ by reason of which she was, at any relevant time ‘incapable of reasoning or acting rationally in relation to any action or proceeding she was entitled to bring’.
A/Prof Heard described the appellant as being ‘quite anxious’ in terms of the progression of her MS,[67] but none of the other reports make mention of her suffering anything which may amount to a ‘specific mental deficiency, disease or disorder’.
[67] Report dated 18 October 2012, Case Book p 97.
I do not doubt that the appellant was under a particular degree of stress, compounded by her fatigue and mobility issues, while contemplating both the ongoing progression of her MS and the difficult decision associated with undertaking surgery with respect to the cerebral aneurysms. I also accept that on some days she is likely to have been very overwhelmed and emotionally confused about the progression of her condition and what may be the appropriate treatment options. However, there is simply no medical evidence to support the observations made by Ms Johns,[68] or to support a finding that the appellant was ‘under a legal disability’ during the relevant period (except while actually undergoing surgery in November 2011).
[68] As described in Ms Johns’ Affidavit at [12]-[13].
Indeed, there is ample evidence that the appellant was, with the support of her daughter, able to make very important and numerous decisions relating to the treatment and surgical management of her medical condition during the claimed periods of ‘legal disability’. Such decisions are arguably of much greater complexity than that relating to making of a claim for invalidity insurance benefits.
Ms Johns provided considerable physical and emotional support to her mother during the relevant period. Although it is not entirely clear from her affidavit, it seems likely that other than during the period immediately prior to and subsequent to the surgery in November 2011, and for short periods associated with her mother’s attendance at particular medical appointments, the appellant resided in Adelaide, while her daughter resided in Victoria. There is no medical evidence to support a finding that the appellant required any assistance to attend to day to day activities during those periods when her daughter was not residing with her and she was otherwise living alone. Having regard to the appellant’s restricted mobility, the fact that much of her treatment was undertaken interstate in New South Wales (for reasons which remain unclear) means she is likely to have required physical support to attend these interstate appointments, in any event.
Further, although it is possible Ms Johns has some experience in dealing with clients in her legal practice who are under a disability, assisted by her studies in Behavioural Science, I am concerned that any expertise she may have in expressing such an opinion (which expertise is not detailed, but expressed only in general terms), may be influenced by her obvious and understandable concern for her mother.
In the absence of further medical evidence, I cannot be satisfied on the balance of probabilities that, other than during the immediate period prior to and after the surgery in November 2011, which must have been both very physically and emotionally difficult times for her, the appellant met the criteria as set forth in s 45(2) LAA. As such, the period during which the appellant was ‘under a legal disability’ (as defined therein), did not exceed more than several weeks.
As such, on the present status of the material, if contrary to my findings s 45 LAA applies, the time limit can only be extended by the period or periods during which that disability existed or continued, meaning the time limit cannot, in any event, be extended to the date the appellant provided written notice to the Board of her intention to claim invalidity insurance benefits (15 October 2013).
Justice of Case
However, if contrary to my findings s 48 LAA applies to the time limit, having regard to the nature of the appellant’s medical condition which prompted her resignation, the additional complications of the surgery in November 2011 and the relatively short period of delay in the appellant providing written notice of her claim, I am satisfied the justice of the case requires an extension of the time limit to a date up to and including 15 October 2013.[69]
[69] Noting s 48(3)(b) LAA does not apply as the time limit is not a limitation of time prescribed by the LAA.
Equitable Relief
It was also submitted by the appellant that equity should intervene on the basis that the appellant is a person of ‘diminished capacity’ and therefore at a particular disadvantage, such that the Board should be prevented from unconscientiously taking advantage of her failure to comply with Regulation 58(14).[70]
[70] Appellant’s Written Submissions at [17].
There is no medical evidence that at the time the appellant entered into the scheme she was a person of diminished capacity.
Further, even if it was established that the appellant was at any time during the relevant two-year limitation period a person of such diminished capacity, the Board simply did not have the power to extend the time limit set forth in Regulation 58(13). In refusing to do so it was not unconscientiously taking advantage of the fact the appellant may have been in a position of disadvantage.
There is no basis to grant any equitable relief.
Orders
1.Extending the time for the institution of this Appeal to 13 February 2018.
2. Affirming the decision of the Board made on 28 May 2014.
3. Appeal dismissed.