Commissioner of Superannuation v Dennis Lloyd Adams [1997] FCA 787 (18 August 1997)

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - Superannuation - Appeal from Administrative Appeals Tribunal - Preservation of superannuation benefits - Election outside prescribed period - Discretion to recognise late election - Whether decision to permanently leave the Public Service a disentitling factor - Tribunal develops "Framework" for late election case - Whether Framework consistent with legislation - Alleged failure to give real and genuine consideration to relevant matters - Alleged relevant matters excluded from Tribunal's consideration - Superannuation Act 1976 (Cth) ss137 and 157.

Chalk v Commissioner for Superannuation (1994) 50 FCR 150 (considered)

Commissioner for Superannuation v Boardman (1994) 123 ALR 239 (considered)

Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 (applied)

COMMISSIONER FOR SUPERANNUATION v DENIS LLOYD ADAMS

No ACTG 43 of 1996

FINN J

CANBERRA

18 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
AUSTRALIAN CAPITAL TERRITORY	) No ACTG 43 of 1996
	)
DISTRICT REGISTRY	)
	)
GENERAL DIVISION	)

BETWEEN:	COMMISSIONER FOR SUPERANNUATION
	Applicant
AND:	DENIS LLOYD ADAMS Respondent

JUDGE:	FINN J
PLACE:	CANBERRA
DATED:	18 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The Applicant pay the Respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
AUSTRALIAN CAPITAL TERRITORY	) No ACTG 43 of 1996
	)
DISTRICT REGISTRY	)
	)
GENERAL DIVISION	)

BETWEEN:	COMMISSIONER FOR SUPERANNUATION
	Applicant
AND:	DENIS LLOYD ADAMS Respondent

JUDGE:	FINN J
PLACE:	CANBERRA
DATED:	18 AUGUST 1997

REASONS FOR JUDGMENT

The single issue in this appeal by the Commissioner for Superannuation ("the Commissioner") is whether the Administrative Appeals Tribunal ("the Tribunal"), in formulating a "framework within which a late election application [under s137(1) of the Superannuation Act 1976 (Cth) ("the Act")] should be approached", disabled itself from the proper exercise of the discretion conferred by s157(1) of the Act when it decided that a late election made by Mr Adams should, by virtue of s157(1), be treated as if made within the time for making an election prescribed by s137(1) of the Act.

The Factual Setting

This can be stated briefly though additional factual matters will need to be referred to later in these reasons.

(i) Beginning in May 1969 Mr Adams, as an employee of the then Post Master-General's Department, was accepted as a contributor to the superannuation fund established by the Superannuation Act 1922 . As an "eligible employee" (the Act, s3) he continued to make contributions under the Act of 1976.

(ii) In March 1988 Mr Adams commenced leave without pay from his then employment with the Commonwealth. He began work as a life insurance agent with National Mutual. And with effect from 28 June 1988 he resigned from the Public Service. He had rendered some 19 years of service.

(iii) His letter of resignation contained the statement that "Papers necessary to roll over my superannuation funds are attached". This referred to certain Australian Tax Office forms.

(iv) The departmental officer who received the letter and its forms, sent Mr Adams the form (Form S2R) appropriate to secure a roll-over of his superannuation funds. That form in fact required an election to be made between a `refund of contributions' and a `preservation of superannuation rights'. The latter of these gave deferred access to a component of employer contributions. The first two pages of the Form S2R explained this difference and the various elections that could be made. These pages were not sent to Mr Adams.

(v) On 15 August 1988 Mr Adams signed the form electing a refund of contributions that was to be rolled over into a fund managed by National Mutual. The refund received was in the order of $25,000.

(vi) In 1992, as a result of discussions with a friend, he became aware of the preservation option. On 18 May 1992 he wrote to the "Preservation Department, Australian Government Retirement Benefits Office", seeking advice on the preservation of benefits option. This letter was treated as a late election under s137(1) of the Act.

The Statutory Setting

Section 137(1) of the Act provides:

"A person who:

(a) ceases to be an eligible employee in circumstances to which paragraph (b) does not apply and, upon so ceasing, is not entitled to pension under this Act or invalidity benefit in accordance with section 69,72 or 73; or

(b) ceases to be an eligible employee in circumstances by virtue of which the person is deemed, under subsection 58(3), to have retired involuntarily,

may, not later than 21 days after the person so ceases to be an eligible employee, elect, by notice in writing to the Commissioner, that this Division apply in relation to the person."

Mr Adams, as I have noted, was an eligible employee. The Division referred to governs the entitlement of an employee to (inter alia) a "deferred benefit" which for present purposes encompassed the preservation of benefits option to which I have referred.

For its part s157(1) provides:

"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 shall have effect accordingly."

Though the relevant election to be made in this case was under s137, the discretion, the exercise of which gave rise to this appeal, is that conferred on the Commissioner by s157(1).

The Setting of the Tribunal's Decision

There is an unusual dimension to the Tribunal's decision to which I need refer. In 1994, both the Full Court of this Court in Chalk v Commissioner for Superannuation (1994) 50 FCR 150, and von Doussa J in Commissioner for Superannuation v Boardman (1994) 123 ALR 239 gave decisions on the s157(1) discretion in the context of a late s137(1) election.

The Tribunal devoted a major part of its reasons to an analysis of the reasoning in these two cases. It explained its purpose in so doing thus (Reasons, para 73):

"Firstly, we consider that a consideration in more detail of the reasoning in the Federal Court decisions will reveal more of both the philosophy underpinning those decisions and of how the Court has reacted to commonly advanced arguments. Secondly, we desire to stress that this philosophy requires a distinct shift in approach to late election cases. In the second respect, we have been concerned that the Commissioner and indeed the legal representatives of applicants have continued, after the Federal Court decisions and after Ward, to present submissions which do not take account of this shift."

The Tribunal then went on (in Reasons, para 74) to state its "own view of the framework within which a late election application should be approached". It will be necessary to set out in full the terms of that framework below.

Having considered the submissions of the parties and having expressed its conclusion, the Tribunal ended its Reasons in the following way:

"92. We conclude by drawing to the attention of the Commissioner the remarks of the Tribunal in Re Ward at 293:

`Promoting amendments to the Act is probably no longer feasible in view of the establishment of a later scheme. There appears to be scope, however, for the development of appropriate guidelines outlining matters for consideration in the exercise of the discretion. The decision-maker's freedom to decide can not, of course, be fettered and guidelines can not be applied blindly. However if they are developed after appropriate consultation, for example with unions and other consumer groups, and are preceded by appropriate debate, the tribunal would normally respect them in appropriate cases: Re Secretary, Department of Social Security and Diepenbroeck (1992) 27 ALD 142; 15 AAR 411.'

93. We do not know just how many more `late election' cases are in the pipeline. If the number is such as to require the respondent and/or this Tribunal to devote a significant amount of resources to dealing with them, then we urge the respondent to publish guidelines. In their absence, the Commissioner should not be surprised if the Tribunal' s approach reflects judgments which are different to whatever judgments are made by the Commissioner."

I draw attention to these matters for this reason. The Reasons in this matter were prepared, manifestly, to serve several purposes. One was the orthodox purpose of the Tribunal itself making the s157(1) decision on the material before it. Another was to send a clear message both to the Commissioner and to "legal representatives of applicants" that account had to be taken of the two Federal Court decisions to which I have referred and of the "distinct shift in approach to late election cases" these necessitated. And a third was to urge the Commissioner to publish guidelines for "late election" decisions - guidelines informed, presumably, by the Tribunal's own "framework".

I will later return to these multiple purposes.

The "Framework"

This is expressed in the Tribunal's Reasons in the following twelve propositions:

"(1) Section 137(1) states a time limit which the Act contemplates should be observed, but it cannot be read as a statement that a final choice must be made `at the outset', for s157(1) clearly allows a late election.

(2) An employee should adduce evidence and argument as to why this limit in s137(1) might be lifted by the decision-maker recognising a late election under s157(1). Once evidence is adduced, the decision-maker or the Tribunal must be positively satisfied that it is desirable to recognise the late election.

(3) The desirability or otherwise of so doing is to be assessed in the light of all the circumstances of a particular case as they exist at the date when the decision-maker or Tribunal exercises the discretion under s157(1).

(4) The ultimate touchstone of whether in a particular case it is desirable to recognise a late election is what is `fair in order to do justice between the person who seeks to make the late election, and the requirements of the administration of the Fund' (Boardman per von Doussa J at 247).

(5) An assessment of what is desirable in this sense is to be approached having regard to the fact that this is beneficial legislation, that is, legislation for the benefit of eligible employees.

(6) So far as concerns costs or other detriments to persons other than the eligible employee, there must be clear evidence of these costs and of their magnitude. The judgments in both Chalk and in Boardman reveal that arguments concerning such costs advanced by the Commissioner often lack weight.

(7) So far as concerns the benefits to the eligible employee, account should be taken of the facts that, first, the entitlement to a consideration by a decision-maker of an exercise of the discretion in s157 is an incident of an employment relationship, and, secondly, the benefits obtained by the recognition of a late election were incidents of that relationship which will be restored by the late election. To elaborate this second point, we observe that by a late election, an employee would obtain some benefit to which he or she was at an earlier point entitled by virtue of their employment but which entitlement had been lost by the failure of the employee to elect within the period prescribed by s137(1). When a decision-maker or this Tribunal assesses whether it is just to allow a late election, it is appropriate to appreciate that what the employee will obtain is a benefit which he or she had lost at an earlier point. Justice to an employee may require that he or she be able to late elect to retrieve those lost benefits. We take this to be a critical aspect of an approach which considers "the consequences of extending or refusing to extend time" (Chalk at 456).

(8) But s157(1) does not operate to confer a right to restoration of these benefits, and regard must be had to the circumstances of each case. Without being exhaustive, but to give some guidance to decision-makers, we should state some other standpoints we think it appropriate to adopt in late election cases.

(9) Where the employee made a conscious and informed decision not to elect to preserve her or his entitlements, then this will be a factor disentitling the employee to the exercise of the discretion in s157(1) in a way which is favourable to the employee. To determine whether a choice was conscious and informed, regard should be had to whether the employee was aware of the full extent of what could be preserved, including the component of the employer's contributions. On the other hand, lack of such knowledge may not be determinative of this issue, for all of the circumstances surrounding the employee's failure to elect to preserve within the period stipulated in s137 may suggest that the employee would not have elected to preserve benefits even if fully aware of the nature of those benefits. Such circumstances would include the need of the employee at the time for access to the funds and the use to which those funds were put. On the other hand, even if the employee does make a conscious and informed decision not to elect within the period in s137, an exercise of the discretion in her or his favour may be warranted if "the facts which the employee took into account when he or she decided not to elect subsequently turned out differently" (Chalk at 456).

(10) On the other hand, if there is clear and cogent evidence that an employee was positively misinformed as to her or his options concerning election, then this would be an entitling factor.

(11) Except in circumstances as noted in the preceding paragraphs 9 and 10, we think that little if any weight attaches to the circumstances in which and the reasons why an employee did not make an election within the time prescribed in s137(1).

(12) A decision-maker and this Tribunal should also attach weight as a disentitling factor any unexplained delay between the time the employee became aware of her or his opportunity to late elect under s157 and the time in which the application for late election was made. This is, however, a matter to be weighed together with other relevant considerations."

The Tribunal concluded the exposition of its "framework" with this.

"75. The significance of what we say lies, we think, in the emphasis we give to the points made at paragraphs 7,9,10 and 11. The other points reflect well accepted standpoints for approaching the exercise of the discretion in s157(1)."

The Challenge to the Tribunal's Decision

The essence of the Commissioner's appeal to this Court is not that the material before the Tribunal was such that a favourable exercise of discretion was impossible, but that, having adopted its framework, it "filtered" the facts through it with the consequence that it failed to give real and genuine consideration to some relevant matters or else it excluded them from its consideration of the circumstances of the case.

As I understand them the applicant's submissions are developed in this way. First, notwithstanding some suggestions to the contrary both in the framework and in the Tribunal's Reasons more generally, the "significant" paragraphs of the framework (paras 7,9,10 and 11) contrive in advance by force of para 11 the weight to be given what are relevant considerations, or else precludes real and genuine consideration of these.

The Commissioner's submissions then go on to illustrate this by reference to the manner in which the Tribunal considered:

(a) the reasons for, and circumstances of, Mr Adams' original decision to have a refund; and

(b) its treatment of his decision permanently to leave the public service - a decision not resiled from.

For convenience in exposition I will, first, refer generally to aspects of the framework; then, in turn, to each of the two illustrations referred to in the preceding paragraph; and finally, to the general challenge made to the framework and its alleged use in the matter.

(i) Comments on the framework

As they encapsulate the contending views as to the force of the framework, it is appropriate here to restate the framework's paragraphs 8 and 11:

"(8) But s157(1) does not operate to confer a right to restoration of these benefits, and regard must be had to the circumstances of each case. Without being exhaustive, but to give some guidance to decision-makers, we should state some other standpoints we think it appropriate to adopt in late election cases.

(11) Except in circumstances as noted in the preceding paragraphs 9 and 10, we think that little if any weight attaches to the circumstances in which and the reasons why an employee did not make an election within the time prescribed in s137(1)."

Mr Hanks, for the Commissioner, has submitted that para 11 in its words "little if any weight" contains a "proposition of tantalising ambiguity" for it would appear to be a statement by the Tribunal that "no weight should be given to other considerations" (save those referred to in paras 9 and 10).

Mr Nash, for Mr Adams, has for understandable reasons focussed in contrast on para 8: this, he submits, is "not the language of setting in concrete". In any event, he submits that when one has regard to paras 9 and 10 then, fully informed consent (para 9) and misleading apart (para 10), the Tribunal is saying correctly that the reasons and circumstances for non-election within 21 days as required by s137(1) will be of little assistance in deciding whether to make a favourable exercise of discretion under s157(1).

I would have to say I do not regard the second of Mr Nash's submissions as at all containing a self-evident proposition. But whatever may be the virtues or vices or the framework - and I will comment on this below - it is necessary to divine first the extent to which (if at all) it informed and possibly contrived the Tribunal's decision in this matter. For this reason I now turn to the two matters of illustration relied upon by the Commissioner.

(ii) The reasons for, and circumstances of, Mr Adam's decision

(a) Additional factual material

To understand the nature of the objection taken, it is necessary to provide additional detail of the facts found by the Tribunal that are relevant to this issue.

(a) Mr Adams intention at the time to roll over his refund into a fund operated by his new employer, National Mutual, reflected his concern to maintain a retirement fund.

(b) When Form S2R was sent to Mr Adams, pages 1 and 2 of it (which explained the significance of the choices to be made by him) were not included.

(c) The pages of Form S2R that were sent to Mr Adams contained the instruction to read pages 1 and 2 before completing the form, the form itself providing explicitly for a "Formal Election" between "Refund of contributions" and "Preserve superannuation rights".

(d) By reading the form, Mr Adams was introduced to the notion of preservation of superannuation rights but he did not know about preservation and what it meant nor did he make inquiry about the meaning of preservation from the officer who sent him the S2R form and with whom he spoke before completing the form and did not because at that time "his mind was fixed on bringing about a roll-over of his funds".

(e) Before resigning he had made inquiries of his work managers and also of other work colleagues about his superannuation options.

(f) His past dealings with the Commissioner's office did not show that he knew he could have obtained advice from that quarter.

(g) Mr Adams did not make an informed choice to reject preserving his superannuation rights but there was no element of unfairness to him in the way that this occurred stemming from any behaviour of another public servant.

(b) The Tribunal's conclusions on the reasons for, and circumstances of, Mr Adams' decision

At no point in its treatment of the parties' submissions or in its "Conclusion" did the Tribunal refer to the framework. Insofar as they bear on the present issue, the submissions for Mr Adams were dealt with in this way:

"78. Secondly, it was submitted that the applicant had not been indifferent to his rights and had made appropriate inquiries. As put by Mr Selby, `he took steps to get information from people whom anybody in his situation might reasonably be expected to get advice from' (E64). We accept this description of what the applicant did. He had been employed in the Wagga CES for some 10 years at the time he resigned, and, given that there were no designated personnel officers in that office, he consulted his office managers. We do not think that his past dealings with the Commissioner of Superannuation were such as to have put him on notice that he should seek advice from an office which administered the Superannuation Scheme.

79. We have taken into account that on reading the S2R form the applicant would have noticed the reference there to preservation. But, as we have said, the circumstances - especially the lack of information in that form about what preservation meant - were such that whatever degree of neglect can be attributed to the applicant does not warrant a view that it would be unjust to exercise the discretion favourably towards the applicant.

80. Thirdly, as stated in the applicant's Statement of Facts and Contentions, "the applicant had no immediate need of the refunded moneys. He rolled over the whole amount into an NM account and his actions then and subsequently demonstrate a propensity to plan and save for retirement" [T2/4; T42/119; T51/131].

81. We accept as self evident that the applicant used the refunded moneys to plan for his retirement. This seems to be regarded in itself as a favourable factor, perhaps on a view (which we accept) that there is a public interest in an employee who has resigned continuing to plan for retirement.

84. In the fifth place, Mr Selby addressed the significance if any to be attached to the fact that the applicant resigned from the Public Service with no intention of ever returning to it. He acknowledged that in some decisions of this Tribunal, there might be found support for a proposition that this circumstance was a disentitling factor. He submitted however that "it is impossible in this day and age to say that simply because a person choses to sever their ties with one employer and go off to make their career elsewhere that that should de-bar them or disentitle them from a claim for something that they had previously accrued" (E84).

85. As a matter of assessing the fairness of permitting late election we accept this submission. There is nothing on the face of the Act to warrant drawing a distinction between those who intend to leave the Public Service permanently and those who do not. Nor is anything in the analysis in Chalk and Boardman which compels us to have regard to such a consideration."

Correspondingly the Tribunal rejected the Commission's submissions (a) that Mr Adams did not make appropriate inquiries; and (b) that he filled out the form while aware of the right to preserve. In the latter case the Tribunal emphasised it did not attach much weight to the knowledge acquired from the form as it did not make it very clear that, by preserving, the employee would preserve the employer contribution.

Finally it noted that:

"[The Commissioner] relied heavily on an argument that the applicant had not enquired because by late June 1988 at least he had decided to roll-over the money he would obtain from the Superannuation Scheme. We think that too much is made of the fact that the applicant had decided to roll-over these funds. Clearly, he did so decide, but that does not indicate a lack of interest in the preservation option because we find that he was unaware of that option until to the point he would have read about it when he looked at the S2R form. We point out again that that form did not properly inform the applicant about what preservation entails."

(c) The Appellant's submissions

Focussing primarily upon para 11 of the framework, the Commissioner has made two distinct attacks upon the Tribunal's reasons. First it is claimed that by adopting the framework, the Tribunal treated as irrelevant, or gave no real consideration to (cf Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-13), three matters relevant to Mr Adams' failure to make an election within the time prescribed by s137(1) and that were relevant to the s157(1) discretion. These were -

(a) his omission to make inquiries from accessible and informed sources about the nature of the preservation option;

(b) his commitment to roll over his refunds in the context of his decision permanently to leave the Public Service; and

(c) his intention not to resume employment with the Commonwealth.

In combination, so it is submitted, these were capable of supporting a conclusion that, though put on notice, Mr Adams was "careless of his rights". They were thus relevant considerations.

The second line of attack related to the Tribunal's findings on the inquiries both made and not made by Mr Adams. In particular it was submitted that no real consideration was given (a) to evidence indicating that in 1972, 1976 and 1982 he had sought advice from, and had received responses from, the Commissioner's office; and (b) to his failure to obtain explanation from the officer who provided him with Form S2R and with whom he spoke before completing it. Both matters were said to be relevant to the question whether he had acted reasonably in the circumstances leading to his failure to make a timely s137(1) election.

The inference I am asked to draw is that the Tribunal did not enter on the matters referred to in either of the above attacks on its Reasons because both related to matters which para 11 of the framework deemed to be of "little if any weight".

(d) Conclusion

The inference referred to above is one I am not prepared to draw. Indeed there are considerable grounds for thinking that, having formulated its framework, the Tribunal wisely did not apply it. As I have noted there is no explicit textual indication that it did.

More importantly in the finding that it made, and in its treatment of the parties' submissions, it clearly regarded as relevant and of more than "little if any weight", considerations relating "to the circumstances in which and the reasons why an employee did not make an election within the time prescribed in s137(1)": cf para 11 - considerations, moreover, that went beyond those noted in paras 9 and 10 of the framework. I refer in particular to the findings made as to (i) the reasonableness of inquiries made and to his alleged culpability in the matter; and (ii) his "Propensity to plan and save for retirement": see paras 78-81 of the Reasons (set out above).

As I noted above, the burden of the dual attack on the Tribunal's Reasons depends critically on the inference I am asked to draw that matters were not treated as relevant or else not given genuine consideration because of para 11. If that inference is not drawn then, at best, the errors assigned to the Tribunal's reasoning relate to "the facts of the matter and the conclusions to be drawn from them": Hindi v Minister for Immigration and Ethnic Affairs, above, at 16; and if there be errors in that, it is not for this Court to correct them given that appeals from the Tribunal are limited to questions of law. As I have indicated I am not prepared to infer that the Tribunal was so constrained by para 11. In consequence I reject these challenges to the Tribunal's decision.

(iii) The decision permanently to leave the Public Service

In paras 84-85 of its Reasons (set out above) the Tribunal was not prepared for the purposes of the s157(1) discretion, to draw a distinction between employees who intend to leave the Public Service permanently and those who do not.

Having referred to observations of von Doussa J in Boardman's case, above, at 246 and of Davies J in Chalk's case, above, at 156 that admit of the s157(1) discretion being exercised to allow for the combination of periods of broken service, the Commissioner has submitted that it must be a relevant although not decisive consideration against the exercise of the discretion that the applicant has not resumed, and intends not to resume, service with the Commonwealth.

For my own part I would have to say that I do not consider the intention an employee has at the time of resigning as being of relevance beyond being an intention then to resign. In this I agree with the conclusion expressed by the Tribunal in para 85. If that employee later resumes Commonwealth service (whatever his or her previous intention on resigning) and makes a late election, the s157(1) discretion is properly to be exercised in light of that circumstance as the observations in Boardman's case and Chalk's case referred to (but not quoted) above make plain. But that there may be a favourable approach taken to such a person, provides no reason at all for the adoption of a positively unfavourable policy against a person who, though not resuming Commonwealth employment, nonetheless makes a late election. No other reason for adopting such a policy was suggested to me save that an intention permanently to resign should be treated as a "cutting of the umbilical". As I earlier indicated it is the intention to resign as such which has this effect.

The real difference between the two situations, in my view, is that in the case of resumed employment there ordinarily will be an additional consideration or considerations (ie prior service, its duration, the reasons for the prior resignation, etc) beyond the fact of resignation itself that will be relevant to the exercise of the s157(1) discretion.

I reject this basis of challenge to the Tribunal's decision.

(iv) Conclusions on the Framework

I earlier suggested that the Tribunal appears wisely not to have applied - or else not to have applied rigidly - the provisions of the framework and particularly of para 11. I pass by without further comment the attempt in para 11 to assign in advance the weight to be given for its purposes to considerations other than those referred to in paras 9 and 10. Equally I would have to say that I agree with the submission that para 11 is ambiguous - and made the more so both because of the qualification in para 8 and because of the oracular - and I would suggest hardly complete - quality of para 9. I say hardly complete because, as I have found, the Tribunal properly had regard to considerations not referred to in paras 9 and 10 yet which seemingly were to be given "little if any weight" under para 11 if it were to be applied according to its terms.

Insofar as the present appeal is concerned, the conclusion I have arrived at is that the framework did not actually deflect the Tribunal from its proper role of giving real and genuine consideration to the material before it, or, to put the matter in a slightly different way, from taking account of the considerations raised that were relevant to the s157(1) discretion.

Having said this, and in light of my earlier conclusions, I would dismiss the appeal. It is appropriate though, to add this much.

The Tribunal quite properly drew attention to the need for those involved in s157(1) decisions and in challenges thereto, to have regard to the effect of the decisions in Boardman and Chalk. Equally, it quite properly drew the need for guidelines to the Commissioner's attention. Where, however, it created difficulties was in formulating its own "framework" - not because it was inappropriate for it to provide guidance for the future, but because it erected a superstructure of propositions on the reasoning of the decisions in those two cases which was simply not adequate to the breadth of the discretion conferred by s157(1). It is for this reason, perhaps, that it took account of considerations not referred to in the framework. It is for this reason, likewise, that subsequent decision-makers who rely upon the framework may find their decisions open to successful challenge in this Court.

I dismiss the appeal with costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 14 August 1997

Counsel for the Applicant: P Hanks

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: I Nash

Solicitor for the Respondent: Creaghe Lisle Solicitors

Dates of Hearing: 19 May 1997