Commissioner for Superannuation v Ashmore

STATUTORY FRAMEWORK 6 Section 157(1) of the Act provides that where an election under the Act is made by a person after the expiration of the period allowed by or under the Act for the making of the election, the Commissioner may direct that the election be treated as if it had been made within the period allowed and the election is to have effect accordingly. It is common ground that Ms Ashmore's request of 28 May 1993 should be treated as an election under s 137(1) of the Act made after the expiration of the period allowed by that provision for that election. Accordingly, s 157(1) required the Commissioner to exercise his discretion as to whether to direct that Ms Ashmore's election be treated as if it had been made within the period allowed by s 137(1). The Commissioner's delegate exercised that discretion unfavourably by the decision of 23 March 1994 ("the Late Election Decision"). 7 Section 154(2) of the Act provides that a person affected by a reviewable decision may, within the period of 30 days after the day on which the decision first comes to the notice of the person, or within such further period as the Commissioner allows, request the Commissioner to reconsider the decision. It is common ground that the Late Election Decision is a reviewable decision for the purposes of s 154(2). 8 Section 154(4) requires that, upon the receipt of a request to reconsider a decision, the Commissioner must reconsider the decision. The Commissioner may confirm or revoke the decision or vary the decision. Section 154(6) then provides that an application may be made to the Tribunal for review of a reviewable decision that has been confirmed or varied under s 154(4). For the purposes of such a review, the Tribunal must be constituted by three members, one of whom must be either a presidential member or a senior non-presidential member: s 154(7). The significance of that requirement will shortly become apparent.

ISSUES 9 Ms Ashmore's application to the Tribunal of 14 May 1999 was heard by a senior member of the Tribunal on 13 December 1999. Evidence was taken from Ms Ashmore and another witness, documents were tendered and submissions were made. However, the Tribunal, as then constituted, did not satisfy the requirements of s 154(7). Accordingly, after the conclusion of the hearing, the senior member contacted the parties and advised them that the Tribunal had not been properly constituted. 10 At a telephone directions hearing on 16 December 1999, the senior member proposed that the application be determined by a properly constituted Tribunal on the basis of the transcript evidence from 13 December 1999. The Tribunal, constituted by three members who satisfied the requirements of s 154(7), held a further hearing on 21 February 2000. The transcript of the earlier hearing was tendered, questions were put to the Commissioner's counsel and additional submissions were made by both parties. However, Ms Ashmore did not give oral evidence. The decision of 3 March 2000, affirming the Commissioner's decision not to extend time, was made following the hearing on 21 February 2000. 11 Ms Ashmore contended before the primary judge that the Tribunal, in its decision of 3 March 2000 erred in: · determining the matter on the transcript of the proceedings before the senior member sitting alone on 13 December 1999 without inviting Ms Ashmore to give further oral evidence; · failing to take into account relevant considerations, being the prejudice that would be suffered by Ms Ashmore if the Commissioner did not direct that Ms Ashmore's election of 28 May 1993 be treated as if it had been made within the period allowed by the Act. 12 The primary judge concluded that the use of only the transcript of the first hearing and the failure to ask Ms Ashmore to give further evidence before all members of the Tribunal as reconstituted constituted a denial of procedural fairness that warranted the decision of 3 March 2000 being set aside and the matter being remitted for re-determination by the Tribunal differently constituted. 13 The primary judge also concluded that the prejudice that would be suffered by Ms Ashmore if the discretion under s 157(1) were not exercised in her favour was a relevant consideration in determining whether to extend the time under s 154(2) within which to permit reconsideration of the request under s 157(1). His Honour found that no reference had been made by the Tribunal, in its reasons for its decision of 3 March 2000, to potential prejudice to Ms Ashmore as part of its consideration of whether time should be extended. His Honour considered that, while no explanation was given by the Tribunal as to why that matter was not considered, it was probable that the Tribunal either did not appreciate it could be considered or elected not to consider it. His Honour concluded that, in either case, the Tribunal erred in law.

PROCEDURAL FAIRNESS 14 Under s 39 of the Administrative Appeals Tribunal Act 1975, the Tribunal must ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case. Ms Ashmore contends, in effect, that the Tribunal failed to comply with s 39 because procedural fairness required that no member of the Tribunal form a negative view about Ms Ashmore's credibility without seeing her give evidence. 15 According to its reasons, the Tribunal concluded that Ms Ashmore had made an informed decision in 1988 to reject the option to preserve her benefits in the Scheme. It also concluded that, when her application to make a late election to preserve benefits was rejected on 23 March 1994, she made a conscious decision not to take the matter further. It was not until the decision of the Federal Court in Commissioner of Superannuation v Boardman (1994) 50 FCR 236 was brought to her attention that she determined to proceed further with her request to make a late election. In reaching those conclusions, the Tribunal rejected assertions made on oath by Ms Ashmore in her affidavit and in the course of her cross-examination. 16 The primary judge considered that it could be inferred from the Tribunal's decision that the senior member had formed a negative view about Ms Ashmore's evidence, having regard to the way she gave it orally. His Honour considered, however, that the other two members of the Tribunal could not have formed any view by observation and that it could not be assumed that, had they observed Ms Ashmore give evidence, they would have reached the same conclusion as the senior member. 17 It was accepted by the Commissioner that, in the absence of anything further, it would have been necessary for the Tribunal, properly constituted, to hear the matter afresh. However, the Commissioner contended that there was something further. He relied on the circumstances of the directions hearing of 16 December 1999 and Ms Ashmore's conduct after the incorrect composition of the Tribunal had become apparent and steps were taken to rectify the position. 18 After the senior member proposed at the directions hearing of 16 December 1999 that the matter be heard by a reconvened tribunal with the transcript of the previous hearing before it, counsel for Ms Ashmore said words to the following effect: "There is authority for the proposition that a matter should only proceed on the basis of transcript if there are no questions of credit arising." 19 The senior member replied with words to the following effect: "Matters of this kind inevitably involve an assessment of credit." There was then discussion between the senior member and counsel for Ms Ashmore, at the end of which counsel for Ms Ashmore said words to the following effect: "This may not be a problem if issues of credit only arise out of the documents but I would need to get instructions." 20 Counsel for the Commissioner then indicated that the Commissioner wished to proceed on the basis of the transcript and that, if Ms Ashmore had objection to that course, the Commissioner would want an opportunity to test those objections at a directions hearing. The senior member replied with words to the following effect: "If the applicant objects to proceeding on the basis of transcript then a new hearing will be arranged. I do not want to risk an appeal." The Tribunal then adjourned on the basis that Ms Ashmore would advise the Tribunal and the Commissioner of her response to the senior member's proposal. 21 On 16 December 1999, the solicitor for Ms Ashmore wrote to the senior member in the following terms: "We refer to the telephone conference held this morning. We are instructed that, in the circumstances, the Applicant is prepared to have this matter proceed on the basis that:

1. the Tribunal is reconstituted as a 3 member Tribunal; 2. the Tribunal make its determination upon the evidence tendered at the hearing on 13 December 1999 and upon the transcript of the hearing on that date. The Applicant is conscious that 2 of the members of the reconstituted Tribunal will not have had the benefit of seeing her give evidence. We are instructed that should the Tribunal form the view that it is appropriate that the Applicant be recalled to answer any questions the Tribunal has, she will make herself available for this purpose." 22 The primary judge took the view that Ms Ashmore had been put in "the invidious position of having to make to a decision about the future conduct of the review". His Honour considered that the final paragraph of the letter constituted a qualification on Ms Ashmore's preparedness to have the Tribunal make its determination on the basis of the transcript of the evidence at the hearing on 13 December 1999. He considered that the offer in the letter was for Ms Ashmore to make herself available to answer questions if the Tribunal was disinclined to believe things she had said in answer to questions that had already been asked. His Honour concluded that her agreement to the use of the transcript did not extend to use of only the transcript if her oral evidence was not going to be believed. The letter, of course, does not say that in terms. Thus, the question turns on the proper construction of the last paragraph of the letter of 16 December 1999. 23 The letter of 16 December 1999 stated that Ms Ashmore was prepared to have the Tribunal make its determination upon the transcript of the evidence at the hearing on 13 December 1999. Ms Ashmore's solicitors said that they were instructed that, should the Tribunal form the view that it was appropriate that she be recalled to answer any questions, she would make herself available for that purpose. The literal meaning of the paragraph is that Ms Ashmore would answer questions if the Tribunal formed the view that it was appropriate for her to do so. The literal language of the letter is incapable of being read as a statement that Ms Ashmore was prepared to have the Tribunal make its determination upon the transcript only if her oral evidence was not going to be believed. If that was the only basis upon which Ms Ashmore was prepared to have the Tribunal make its determination upon the transcript, that could have been said. There is nothing in the context in which the letter was written to justify construing its words in that way. 24 Indeed, the context leads to a contrary conclusion. It is understandable that Ms Ashmore may have decided not to undertake the ordeal of another round of cross-examination. Further, the senior member made it clear that he wished to avoid the possibility of an appeal arising out of the procedure that he was proposing. It was clear that if Ms Ashmore wished to give her evidence again, she would be permitted to do so. She elected not to do so. 25 Ms Ashmore was prepared to make herself available to answer questions. The only fair construction to be put on the final paragraph of the letter is an offer to provide answers that had not, to that point, been asked. There is no qualification of the nature read into the paragraph by the primary judge. The paragraph is simply not expressed, and cannot be construed, as such a qualification of her agreement for the matter to proceed on the basis that the Tribunal make its determination upon the transcript of the first hearing. His Honour erred in holding that it did.

Failure to consider relevant considerations 26 The only decision under review by the Tribunal was the Commissioner's decision under s 154(2) not to allow a further period within which to request reconsideration of the Late Election Decision. It was common ground that, in reviewing that decision, the Tribunal should have regard to the merits of the application under s 157(1). The question, however, is whether, in considering the merits of the application under s 157(1), the Tribunal was obliged to have regard to any prejudice that might be suffered by Ms Ashmore if the Commissioner did not exercise his discretion under s 157(1) favourably to her. 27 Section 157(1) does not specify the matters that must be considered by the Commissioner in making a decision under that section. Under the section, the Commissioner must be "satisfied that in all the circumstances of the case it is desirable that the election [out of time] should be recognized". 28 Where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him or her by the parties, to determine which matters he or she regards as relevant and the comparative importance to be accorded to matters which he or she so regards. The ground of failure to take into account a relevant consideration will only be made good if it be shown that the decision-maker has failed to take into account a consideration which he or she was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide - Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 at 375. 29 Ms Ashmore does not contend that there was an inherent requirement to have regard to any prejudice but says that, having regard to the way in which the matter was put to the Tribunal, it was incumbent upon the Tribunal to deal with the question of prejudice. In particular, Ms Ashmore says that the Tribunal should have had regard to: · her potential loss of financial benefit; · the exacerbation of the prejudice that would flow to Ms Ashmore by reason of the loss of that financial benefit in circumstances where she had been diagnosed with multiple sclerosis and her financial security was impaired. 30 Having found that Ms Ashmore had made a conscious decision in 1994 not to take the matter further, the Tribunal went on to say as follows: "34. There is nothing in the material before us which persuades us that there has been some supervening event which makes the correct or preferable decision one to permit [Ms Ashmore] to now make a late election. The mere fact perceived investment benefits have not materialised is, in our view, insufficient to tip the scales in this matter. That the decisions previously made by [Ms Ashmore] were made with full knowledge of her various options at the time render this case one where it cannot be said that it is desirable to permit a late election." That was said in the context of considering the merits of any question that might arise under s 157(1) of the Act. It answers Ms Ashmore's claim that the Tribunal should have had regard to her loss of benefit. 31 The question of prejudice to Ms Ashmore was raised before the Tribunal in her statement of facts and contentions dated 5 November 1999. Ms Ashmore's contentions in that statement included the following: "2. In exercising its discretion with respect to the Reviewable Decision, the Respondent should have had regard to the fact that: (a) s 154 is an instance of beneficial legislation which should be applied beneficially: (per Re Ward and Commissioner for Superannuation 36 ALD 287 at 290, citing Chalk v Commissioner for Superannuation (1994) 35 ALD 420 at 425); and (b) in exercising such discretions the focus should be upon the consequences of extending or refusing to extend time rather than to debate the reasons why the act was not done in time: (Ward; citing Chalk). 3. The consequences of a refusal to extend time are: (a) the Applicant suffers significant prejudice as she would be unable to seek review of the Original Decision and thus to obtain the benefits of preservation (see Annexure 'A'); and (b) the Respondent suffers no or minimal prejudice. 4. For this reason alone, the discretion should be exercised in favour of the Applicant." 32 Annexure "A" to that statement was a letter from the administrators of the Scheme saying, inter alia, the following: "Ms Ashmore ceased to be a member of the Commonwealth Superannuation Scheme (CSS) on 1 June 1988. At that time she elected to be paid a lump sum of her contributions to the scheme ($14,277.69) and the interest accrued on those contributions ($15,942.31). A total of $32,220. Had Ms Ashmore elected at the time to preserve the $32,220 in the CSS, she would have been able to claim her deferred benefit at age 55 but not later than age 65. It is estimated that at age 55 the CSS deferred benefit would be as follows: · Indexed pension $22,097 per annum PLUS either: · Non-indexed pension $8,839 per annum, or · Lump sum $95,556 gross." 33 Ms Ashmore's affidavit before the Tribunal included the following paragraphs: "60. On 15 March 1993, I had drinks at the Heritage Hotel in Brisbane with a close friend, Mr Jim Glaros, who worked at the Administrative Appeal Tribunal. A copy of a page from my diary for 15 March 1993 is behind Tab 21. I discussed with Mr Glaros my appointment to the Board and the Department's invitation (Tab 20) to contribute to the Scheme. We had a conversation to the following effect: He said: 'What did you do with your previous contributions?' I said: 'I decided to put my money into National Mutual after my financial adviser Phil Thompson convinced me to.' He said: 'I am extremely surprised by this and don't think it was a very clever thing for you to do in your situation because the advantage of the Government Superannuation Scheme is that you can receive a pension. I think that you should write to Comsuper to apply for reinstatement.' I said: 'I didn't know that option was available to me.' ……………………… 107. My financial security and well being are very important to me given my medical condition and my age. Further, I do not have any significant amount accumulated for retirement. I am not able to take out insurance without the need to complete a medical examination with the exception of a small policy I was able to secure while employed by Coopers & Lybrand, for $100,000 death & disability cover. Although I regularly respond to advertisements and apply for cover, I continue to be refused. In or about September 1992 I approached Dr Sandstrom to assist me in an application for mortgage protection insurance by the Commonwealth Bank of Australia in relation to my house in Brisbane… This cover was refused. 108. I have a policy taken out with Tower Insurance in relation to my business partner, Mr Brown. However, Mr Ivan Chait, the Insurance Broker, was unable to secure a similar policy for me. I have made adjustments to my will to provide the same cover for Mr Brown in lieu of an insurance policy." 109. Further, as a self employed person, I have no employer or other superannuation support apart from the monies I can afford to contribute from now on." 34 Ms Ashmore also said in her affidavit that she had not used the money she received from the Scheme and had done nothing with those monies since her resignation from the public service, apart from changing the fund in which they are deposited. She said that the moneys are presently with Norwich Union and that she was prepared to return them to the Scheme to obtain preservation. There was some evidence as to the value of Ms Ashmore's investments at various times with various bodies. It is not clear what the value of the investment with Norwich Union was at the time of hearing before the Tribunal.

impact of Ms ashmore's medical condition 35 In its reasons, the Tribunal referred to the fact that in 1979 Ms Ashmore had been diagnosed as suffering from multiple sclerosis and that, notwithstanding that diagnosis and its implications, she had taken an overseas appointment in 1983 as second secretary of the Australian Embassy, Dublin. While no other mention was made of Ms Ashmore's medical condition in the reasons, it is apparent that the Tribunal was mindful of that condition. 36 Reference was made to prejudice in the course of oral address to the Tribunal. Counsel for Ms Ashmore referred to his "primary submission" as being: "that… once one considers the relevance of [certain] authorities, the emphasis of what are the most important matters for the Tribunal to take into account is switched from what the [Commissioner] seems to refer to as underlying merits etc. to one of prejudice in terms of the extension of time." Later, counsel for Ms Ashmore said that: "[t]here should be a focus on the consequences… to both [Ms Ashmore] and [the Commissioner] as to whether or not there should be any extension of time granted rather than to debate the reasons why the act was not done in time." Those references could not be taken as raising an issue of the exacerbation of financial prejudice by reason of Ms Ashmore's medical condition. 37 After referring to legal authority counsel for Ms Ashmore went on to say: "The prejudice to [Ms Ashmore]is clear enough. If the extension of time is not granted, only the reviewable decision is not revoked or otherwise varied, [Ms Ashmore] will be unable to seek review of the original decision and thus to obtain the right to the preservation benefits. In terms of what the specific prejudice is, the amount of the preservation of benefits is set out in annexure A to [Ms Ashmore's] facts and contentions…The prejudice is to be seen in the light of the difficulties that [Ms Ashmore] faces in planning for her retirement and I refer the Tribunal to the affidavit of [Ms Ashmore], particularly paragraphs 107 and 108. In paragraph 109 [Ms Ashmore] sets out the fact of her self employment and additionally I would refer to paragraph 60..." The reference to the difficulties that Ms Ashmore might face in planning for her retirement, as referred to in paragraphs 107 to 109, might be taken as an oblique reference to her medical condition. The point of the submission appears to be that Ms Ashmore has had difficulty in obtaining insurance cover because of that condition. 38 However, that oblique reference must be considered in the light of the following exchange which occurred between the presiding member of the Tribunal and counsel for Ms Ashmore: "Counsel: Could I also point out that [Ms Ashmore] has invested the funds which she received in an account which is evidenced in her affidavit and has earned interest on that. Presiding Member: I mean, this is the crux of your case, though, isn't it? Let us get away from the extension of time in its substantial merits. Really, what has happened with your client is she made a bad investment and now wants to resile from it. Counsel: Yes, do you want me to… Presiding Member: Yes, I think it… Counsel: The merits, the merits of the substantive case? Presiding Member: Yes. I think we are all fairly well appraised of the extension of time arguments, although they will obviously recur again. I mean, it is a double interest matter, isn't it? First of all you have to persuade me that there should be an extension of time in which to reconsider and then even on the reconsideration, the matter of extension of time comes into it again. Counsel: Yes, certainly. I appreciate where you are going with that. I guess I would conclude at that point by saying that it is our submission that the extension of time itself should be granted merely on the basis of the comparison in respect of prejudices which are suggested, which does bring us directly, of course, to the merits of the substantive case. Does the Tribunal wish me to go through the reasons for the delay in relation to the extension of time… Presiding Member: Well, I think you'd better address it, yes." 39 The final reference to prejudice in the course of address was when counsel for Ms Ashmore said: "The reasons why the extension of time subsequently should be granted should primarily be looked at in terms of a comparison of the prejudices which I have been through." That does not raise anything new. 40 In the light of the statement of facts and contentions and the references to prejudice in the course of address, Ms Ashmore did not fairly make out that her medical condition constituted an exacerbation of the prejudice that she would suffer from the loss of financial benefit if she were not given the benefit of s 157(1). Therefore, the only question is whether the Tribunal's reference in paragraph 34, cited above in para [35], satisfies any obligation to have regard to the financial prejudice that Ms Ashmore would suffer. 41 The Tribunal's reference to "investment benefits" is a little obscure. However, it must be considered in the light of the contentions in Ms Ashmore's statement of facts and contentions, the evidence that was before the Tribunal and the submissions made to the Tribunal by her counsel. Paragraph 34 of the Tribunal's reasons must be read as a conclusion by the Tribunal that the possible financial prejudice that Ms Ashmore would suffer, if the discretion were not exercised in her favour, was insufficient to tip the scales in her favour, having regard to her informed decision in 1988 to reject the option to preserve her benefits in the Scheme. Thus, the merits of any application pursuant to s 157(1) were considered by the Tribunal. It took account of financial prejudice but concluded that it was not decisive. In the circumstances, no error on the part of the Tribunal in that regard has been demonstrated.

conclusion 42 The appeal should be allowed and the orders of the primary judge of 15 December 2000 should be set aside. In lieu thereof there should be an order that the appeal to the Federal Court be dismissed with costs. Ms Ashmore should pay the Commissioner's costs of the appeal.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sundberg, Emmett & Finkelstein.

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr J Clarke with Mr S Goodman

Date of Hearing: 18 May 2001. Final submissions filed 25 May 2001.