Wolstencroft and Commissioner for Superannuation - [2000] AATA 962

DECISION AND REASONS FOR DECISION [2000] AATA 962

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/887

GENERAL ADMINISTRATIVE DIVISION       )
           Re      NOEL WOLSTENCROFT
  Applicant
           And    COMMISSIONER FOR SUPERANNUATION
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date3 November 2000
PlaceBrisbane

Decision The Tribunal extends the time for the making of the application until 21 July 2000, being the date the Application for Review was lodged with the Tribunal.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time – relevant considerations – prejudice to respondent – respondent assisted delay.
Superannuation Act 1976 ss 137, 154, 157
Dickens v Commissioner for Superannuation (AAT Decision 9881 delivered 23 November 1994)
Beard v Commissioner for Superannuation [1999] AATA 502
Schofield v Commissioner for Superannuation (AAT Decision 10006 delivered 14 February 1995

REASONS FOR DECISION

3 November 2000 Deputy President DP Breen, Presidential Member

This was a request for an extension of time to lodge an application with the Tribunal to review a decision by a delegate of the Commissioner for Superannuation to refuse a late election for preservation of superannuation benefits under Section 157 of the Superannuation Act 1976.
The matter was heard by me on 13 October 2000 via video link. The applicant, Noel Wolstencroft, was represented by Mr Moore of Counsel instructed by Messrs Ryan Carlisle Thomas, Lawyers. Mr B Dubé of the Australian Government Solicitor's Office represented the respondent Commissioner. Oral evidence was taken from Mr Wolstencroft at the hearing.
Section 137 of the Superannuation Act provides the process by which a person can elect to preserve their superannuation benefits when they resign and cease to be an eligible employee. This Section requires that the election be made in writing to the Commissioner within 21 days of ceasing to be an eligible employee.
Section 157(1) of the Act provides as follows:
"Notwithstanding anything contained in this Act, where an election under this Act is made by a person after the expiration of the period allowed by or under this Act for the making of the election, and the Commissioner is satisfied that in all the circumstances of the case it is desirable that the election should be recognised, the Commissioner may direct that the election be treated as if it had been made within the period allowed and the election have effect accordingly."
It is this discretion which the applicant ultimately wants the Tribunal to exercise in his favour.
Mr Wolstencroft began working with Telecom in January 1959. He became an eligible employee under the Superannuation Scheme in September of that year. He took long service leave from July until the end of September in 1979. He then went on leave without pay from March 1980 and resigned on 7 August 1980. This period of leave was used to start a holiday retreat in country Victoria. Some time in August, Mr Wolstencroft filled in a form requesting a refund of his superannuation benefits. It was his evidence that, at the time, that is all be believed he was entitled to receive.
The business venture was not as successful as hoped and in August 1982 the applicant recommenced work with Telecom. In March 1983 the applicant again became an eligible employee.
Mr Wolstencroft claims that it was not until 1990 that he became aware of what preservation actually meant and that the option on the form he filled out in 1980 to preserve his benefits would have been open to him. In May 1990 he sent a letter to the Commissioner seeking to make a late election. Various pieces of correspondence were exchanged and on 8 September 1991 a delegate of the Commissioner rejected the claim for late election.
On advice from a staff member at the Commonwealth Superannuation Scheme, he appealed to the Administrative Appeals Tribunal. He was informed that the Tribunal did not have jurisdiction to review the matter as Section 154 of the Act required internal review to take place first, and his case was accordingly dismissed.
Mr Wolstencroft then applied for an internal review of the earlier decision in May 1992. A decision was finally made against Mr Wolstencroft in July 1994. With the decision, he was again sent a copy of Section 154 of the Act and a pamphlet about this Tribunal. Despite the fact that two years earlier the applicant had been told to seek internal review first before coming to the Administrative Appeals Tribunal, he believed he had exhausted his appeal opportunities to this Tribunal. He thought the only way he could pursue the matter would be through the civil courts with legal assistance. As such, he decided to leave the matter at that.
In around October 1999, Mr Wolstencroft's Union notified their members of a decision of this Tribunal which had accepted a very late election. This gave Mr Wolstencroft some hope that something could be done in his case without having to go through the courts. He contacted Union officials who told him to apply for a reconsideration of his case by the Commissioner. Through his Solicitors he did so but was told that he had exhausted his avenues of internal review and needed to take his case to the Administrative Appeals Tribunal. He lodged an application with the Tribunal on 21 July 2000. The extension of time requested is in the order of six years.
The first and main consideration to take into account when deciding whether to grant the extension of time, is the extent of prejudice the respondent is likely to suffer if the request is granted. It was conceded by the respondent that the level of prejudice is not great. Mr Dubé pointed out, however, that the purpose of the Superannuation Act is to facilitate the orderly collection, investment and payment of superannuation monies for eligible employees. While exceptions and alterations may be made, it is desirable that for the most part people comply with the guidelines set out in the Act. He also pointed out that the Commissioner would be prejudiced to some degree in the running of the case as they would have to try and find people who worked in the Personnel Section of the branch of Telecom where Mr Wolstencroft worked twenty years ago. Further, they would have to ascertain what their knowledge of superannuation entitlements were at that time. The Tribunal accepts that this will create some difficulties for the respondent and that these difficulties have been increased by the further six year delay in hearing the case. However, these difficulties are not insurmountable.
The next consideration is the reason for the delay in the lodgement of the application and the question of whether the applicant has been resting on his rights. It is the applicant's case that he did not appeal to the Tribunal because he believed he had exhausted his rights there. Mr Wolstencroft was not given a letter telling him the next step of appeal if he were unhappy with the decision. He was simply given a copy of Section 154 of the Act which sets out the two steps of review which may be taken. He was also given incorrect advice twice, in 1991 and 1999, as to which step in the review process he was supposed to be taking. Whilst the letter from this Tribunal in 1992 stated that internal review was required to be completed first, it did not specifically say that if Mr Wolstencroft was unhappy with that result he could come back to the Tribunal. After he pursued internal review, he was sent the same information on his appeal rights as he had been the first time, and he had been told then that the Administrative Appeals Tribunal had no jurisdiction.
The provision of a Section of the legislation to explain a person's appeal rights is entirely insufficient when dealing with lay people. Although a lawyer would understand the appeal process, a person in Mr Wolstencroft's position would be at a severe disadvantage. Even Union officials and staff members at the Commonwealth Superannuation Scheme's office were confused as to the correct order of review steps. While the respondent contends that Mr Wolstencroft should have known he could go back to the Administrative Appeals Tribunal as he was told the internal review step came first, that information was received two years before his internal review was concluded. The Tribunal accepts that Mr Wolstencroft received conflicting and confusing information from a number of sources, including the respondent, and that rather than resting on his rights he thought he had done all he could do in pursuing his claim. The length of time it took the respondent to consider the issue at both levels of internal review also contributed to Mr Wolstencroft's difficulty in managing his appeal effectively.
The decisions of Dickens v Commissioner for Superannuation (AAT Decision 9881 delivered 23 November 1994) and Beard v Commissioner for Superannuation [1999] AATA 502 make it clear that it will not be a sufficient explanation for delay if the applicant were simply waiting for a change in the law which would be more favourable to them. This was not the case here. Mr Wolstencroft does rely on the decision in Schofield v Commissioner for Superannuation (AAT Decision 10006 delivered 14 February 1995), which he became aware of in 1999, to show that his claim is not without merit. However, the case simply made it clear to Mr Wolstencroft that he had not exhausted his rights and that there was more he could do in respect of his claim.
The final issue to consider is the prospective merits of the case. This is not a consideration to which I give great weight as the Tribunal cannot expect the parties at this early stage of proceedings to place sufficient evidence to allow the Tribunal to make a reliable assessment of what the outcome is likely to be. This consideration simply requires the applicant to show that this is not a vexatious, frivolous or otherwise completely unmeritorious application. There are authorities going both ways in cases of this type and overall they show that the decision relies entirely on the facts of the individual case. There is some evidence to suggest that Mr Wolstencroft should have been on notice as to his option to preserve his benefits in 1980 and that he failed to look after his own interests. There is also evidence that Mr Wolstencroft was not aware that preservation applied to people in his position and that literature of the time which he could have had recourse to would not have left him any more enlightened as to his rights. Further, there is evidence that Mr Wolstencroft did not actually need the refund he received in 1980 and that if he had known he could preserve his benefits he would have done so. As such, this case is not frivolous, vexatious or so unmeritorious that it would be a waste of the Tribunal's time to list it for hearing.
On balance, the Tribunal is of the view that the extension of time should be granted. The claim is not without merit and the delay, although lengthy, has been contributed to by the respondent through their failure to give clear directions as to the appeal process. Given that the only prejudice suffered by the respondent will be the difficulties in finding witnesses twenty years after the event, it is only just for the applicant to be given an opportunity to have his case heard.
Accordingly, the Tribunal extends the time for the making of the application to and including 21 July 2000, being the date on which the application for review was lodged with the Tribunal.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  13.10.00
Date of Decision  3.11.00
Counsel for the Applicant        Mr G Moore
Solicitor for the Applicant         Messrs Ryan Carlisle Thomas
Solicitor for the Respondent    Mr B Dubé, Australian Government Solicitor's Office