Ashmore v Commissioner for Superannuation [2000] FCA 1816

FEDERAL COURT OF AUSTRALIA

Ashmore v Commissioner for Superannuation [2000] FCA 1816

ADMINISTRATIVE LAW – superannuation – late election to preserve benefits in Commonwealth Superannuation Scheme – decision not to recognise late election – decision not to grant extension of time in which to request reconsideration of late election decision – jurisdiction of Administrative Appeals Tribunal under s 154 of Superannuation Act 1976 (Cth) – procedural fairness – Tribunal reconstituted with three members after hearing before one member at which applicant gave oral evidence – one but not the other two members observed applicant's demeanour – applicant's oral evidence rejected – whether Tribunal was obliged to recall applicant to observe her give oral evidence – error of law – whether Tribunal was obliged to consider prejudice caused by not allowing extension of time Superannuation Act 1976 (Cth) ss 137, 154, 157 Administrative Appeals Tribunal Act 1975 (Cth) ss 23B, 25, 33(1), 43(1)

Lees v Comcare (1999) 29 AAR 350 applied McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284 referred to Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 considered Fletcher v Commissioner of Taxation (1988) 19 FCR 442 applied Aldridge v Booth (1988) 80 ALR 1 referred to D'Antuono v Minister of Health (1997) 80 FCR 226 referred to Barendse v Comptroller-General of Customs (1996) 136 FLR 243 referred to Bolton v Bolton [1949] 2 All ER 908 referred to Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464 referred to Brennan v Brennan (1953) 89 CLR 129 referred to Teubner v Humble (1963) 108 CLR 491 referred to Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 referred to Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384 referred to Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 referred to Hartley v O'Loughlin [1999] VSC 138 referred to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 referred to Omran v Australian Postal Commission (1991) 14 AAR 51 referred to Omran v Australian Postal Commission (1991) 15 AAR 232 referred to Mayors, Councillors and Citizens of the City of Brighton v Selpam Pty Ltd [1987] VR 54 considered Munday v Munday [1954] 1 WLR 1078 referred to In re D (Minors) [1973] Fam 179 referred to Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 applied Chalk v Commissioner for Superannuation (1994) 50 FCR 236 applied Commissioner for Superannuation v Boardman (1994) 50 FCR 236 applied Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 applied Comcare v A'Hearn (1993) 45 FCR 441 referred to Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129 referred to Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550 referred to Telstra Corporation Ltd v Razmovski (1994) 36 ALD 22 referred to Comcare v Smith (unreported, Federal Court of Australia, von Doussa J, 5 March 1997) referred to Ruggeri v Telstra Corporation Ltd (unreported, Federal Court of Australia, Ryan J, 4 July 1996) referred to CAROLYN ASHMORE v COMMISSIONER FOR SUPERANNUATION N 294 OF 2000 MOORE J 15 DECEMBER 2000 SYDNEY