Seymour and Commissioner for Superannuation - [2003] AATA 532

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 532
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/265

GENERAL ADMINISTRATIVE DIVISION )

Re ARTHUR SEYMOUR

Applicant

And

COMMISSIONER FOR SUPERANNUATION

Respondent

DECISION

Tribunal
Mrs Joan Dwyer, Senior Member
Mr C Ermert, Member
Dr P Fricker, Member

Date6 June 2003
PlaceMelbourne

Decision
The Tribunal sets aside the decision under review and in substitution decides to extend the time allowed, under s 154(2) of the Superannuation Act 1976, to seek reconsideration of the decision made on 5 November 1992 to 9 October 2000.

(Sgd) Joan Dwyer
Senior Member

SUPERANNUATION – Commonwealth Superannuation Scheme – application for review of decision refusing an extension of time under s 154(2) of the Act to seek reconsideration of a decision of the Commissioner made 5 November 1992 refusing to recognise a late election under s 157(1) of the Act - application to change election so as to preserve benefits more than 4 years after resigning – application refused – no request for reconsideration within time allowed – request made almost eight years late ‑ whether in the interests of justice that time to seek reconsideration be extended
Superannuation Act 1976 s 137(1) and ss 154(1), (2), (3), (4) and (6), s 157(1)
Re Moorhouse and Commissioner for Superannuation (AAT 12001, 2 July 1997)
Hunter Valley Developments Pty Ltd and Ors v Minister for Home Affairs and Environment (1984) 58 ALR 305
Comcare v A’Hearn (1993) 119 ALR 85
Chalk v Commissioner for Superannuation (1994) 33 ALD 420
Commissioner for Superannuation v Ashmore [2001] FCA 666
Commissioner for Superannuation v Boardman (1994) 50 FCR 236
Wolstencroft and Commissioner for Superannuation (2001) 34 AAR 71
Comcare v A’Hearn (1993) 45 FCR 441
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commissioner for Superannuation v Boardman (1994) 123 ALR 239
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Re Stege and Commissioner for Superannuation [2001] AATA 1022
Commissioner for Superannuation v Boardman (1994) 33 ALD 569
Lucic v Nolan (1982) 45 ALR 411
Re Charles and Commissioner for Superannuation, (1993) 18 AAR 61
Re McKnight and Commissioner for Superannuation (1998) 49 ALD 84
Re Morgan and Commissioner for Superannuation (unreported W92/200, 12 March 1993)
Re Schofield and Commissioner for Superannuation (AAT 10006, 14 February 1995)
REASONS FOR DECISION

6 June 2003
Mrs Joan Dwyer, Senior Member
Mr C Ermert, Member
Dr P Fricker, Member

BACKGROUND
1. This is an application under s 154(6) of the Superannuation Act 1976 (“the Act”), for review of a decision of the Commissioner for Superannuation ("the Commissioner") made 9 April 2001 and confirmed on reconsideration on 10 February 2002. The reviewable decision refused Mr Seymour an extension of time, under s 154(2) of the Act, in which to seek reconsideration of a decision of the Commissioner made under s 157(1) of the Act on 5 November 1992, refusing Mr Seymour’s application to make a late election to preserve superannuation rights under s 137(1) of the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2003] AATA 532
Decision Date: 6 June 2003

CaseChat Overview and Summary

The matter before the tribunal involved Seymour and the Commissioner for Superannuation. Seymour sought to challenge a decision made by the Commissioner regarding his superannuation entitlements. The dispute was heard by the Administrative Appeals Tribunal (AAT), a body with jurisdiction to review decisions made under the Superannuation Act 1976.

The central legal issue before the tribunal was whether the time limit for seeking reconsideration of the Commissioner's decision should be extended. Under section 154(2) of the Act, a person can apply for reconsideration of a decision within 28 days from the date of the decision. However, Seymour applied for reconsideration well beyond this period, raising questions about the tribunal's discretion to extend the time limit. The tribunal had to consider whether the delay was justified and whether extending the time limit would be in the interests of justice.

In deciding the matter, the tribunal considered the principles of natural justice and the need for flexibility in administrative law. The tribunal found that while the delay was significant, there were mitigating factors that warranted an extension of time. These factors included the complexity of the case, the potential for substantial prejudice to Seymour if the application were dismissed, and the absence of any prejudice to the Commissioner. The tribunal exercised its discretion under section 154(2) to extend the time limit, finding that it was just and equitable to do so in the circumstances. As a result, the tribunal set aside the Commissioner's decision and extended the time for reconsideration to 9 October 2000.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution decides to extend the time allowed, under s 154(2) of the Superannuation Act 1976, to seek reconsideration of the decision made on 5 November 1992 to 9 October 2000.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		ARTHUR SEYMOUR