THE FACTS
5 The applicant tendered three affidavits, one sworn by himself, one sworn by his solicitor in 2008, Ms Rebecca McDougal of Moore Law, and one sworn by a clerk employed by Moore Law in 2008, Mr Xavier Moore. Only Mr Moore was required for cross-examination.
6 For the most part the facts are not in dispute. The following is taken from the affidavit of the applicant.
7 The applicant's son, Mr Travis Jones, was a member of a number of superannuation funds, five of which provided death benefits. Mr Travis Jones died in a motor vehicle accident in early 2008. He was 24 years of age. The deceased's mother is Ms Vicki Heuritsch. The applicant and Ms Heuritsch separated in about 1987 or 1988 and they were subsequently divorced.
8 The second respondent is the trustee for the Statewide Superannuation Trust and Mr Travis Jones was a member of that fund. The second respondent decided to pay the death benefit arising on the death of Mr Travis Jones to the deceased's mother 'as an interdependent'. By letter dated 21 August 2008 the second respondent advised the applicant of its decision. In September 2008 the applicant engaged a firm of solicitors, Moore Law, to advise and represent him in relation to objecting to the decision of Statewide Superannuation Pty Ltd (among others) and subsequently in lodging complaints with the Tribunal. Two other superannuation funds had decided to pay the death benefits equally to the applicant and Ms Heuritsch, and the latter had lodged a complaint with the Tribunal in relation to those decisions. From September 2008 to 25 September 2009 Ms McDougal of Moore Law had the care and conduct of the applicant's superannuation matters.
9 On 11 September 2008, Ms McDougal, on behalf of the applicant, wrote to the second respondent advising it that the applicant objected to the determination of the second respondent as set out in the letter from the second respondent dated 21 August 2008. The letter also provided information in support of the applicant's objection. On 17 September 2008 the second respondent wrote to Ms McDougal advising her of its obligations as trustee and asking Ms McDougal to provide certain information to it. On 26 September 2008 Ms McDougal responded to that letter and provided information in support of the applicant's contentions. The letter concluded in the following way:
We would be pleased to provide additional information or clarification of the contents herein if required. We look forward to receiving your further notice of proposed benefit payment.
10 On 13 October 2008 the second respondent sent a letter to Ms McDougal. It advised Ms McDougal that as trustee it had considered all of the additional information requested from all potential beneficiaries. The letter stated that after giving the matter careful consideration the second respondent had decided to pay the deceased member's superannuation death benefit of approximately $132,000 to Ms Heuritsch. The letter concluded in the following way:
If you are dissatisfied with this decision, you may be entitled to take your complaint to the Superannuation Complaints Tribunal ('SCT') as provided in the Superannuation (Resolution Complaints) Act 1993. Details of your rights under the Act are attached. If you choose to make a complaint to the SCT, you must do so within 28 days of receipt of this notice.
11 I interrupt the narrative at this point to say that this letter and whether it was posted and delivered to Moore Law are important issues in the proceeding.
12 In dealing with the applicant's complaint, the Tribunal decided that this letter was given to the applicant by the second respondent and that the applicant did not make a complaint to the Tribunal within the prescribed period of 28 days. The applicant's case is that the letter was either not posted by the second respondent or not delivered to him.
13 There is no dispute that Ms McDougal did not receive the second respondent's letter dated 13 October 2008 before 10 December 2008. By 9 December 2008 Ms McDougal had become concerned that she had not received any further correspondence from the second respondent since its letter dated 17 September 2008. She contacted the second respondent by telephone and she spoke with a Mr Joseph Barone. Mr Barone informed her of the second respondent's decision and of the fact that the benefit had been paid to Ms Heuritsch on 24 November 2008. On 9 December 2008 Ms McDougal contacted the Tribunal's administration by telephone and was told that the 'time limits would not apply' to the Statewide complaint. On 10 December 2008 Mr Barone of the second respondent emailed to Ms McDougal the second respondent's letter dated 13 October 2008.
14 By letter dated 23 December 2008, Moore Law, on behalf of the applicant, made a complaint to the Tribunal in relation to the decision by the second respondent. The complaint was received by the Tribunal on 5 January 2009. The applicant contends that he was given notice of the decision of the second respondent on or about 10 December 2008 and that his complaint was made within the prescribed period of 28 days.
15 The Tribunal rejected the applicant's contentions. After referring to s 29 of the Acts Interpretation Act 1901 (Cth) ('AI Act') and the facts, the Tribunal said:
34. Accordingly, on balance, the Tribunal is not persuaded that the deemed delivery should be rebutted and accordingly, the letter of 13 October 2008 is deemed to have been delivered to the Complainant's representative on or about 16 October 2008.
35. The effect of this is that, for the Tribunal to have jurisdiction to hear the complaint, the Complainant had to lodge his complaint with the Tribunal within 28 days of the date of receipt by him or his representative. The Complainant's complaint about the decision was lodged on 5 January 2009, well outside the prescribed period.
16 The facts to this point were established by the affidavit of the applicant. As I have said, the applicant was not required for cross-examination. I accept his evidence.
17 In her affidavit Ms McDougal deposed to the fact that she is a solicitor and that she was admitted as a practitioner of the Supreme Court of South Australia in 2003. She was employed as a solicitor by Moore Law between May 2007 and September 2009. From September 2008 onwards she had the care and conduct of matters concerning the superannuation entitlements of the applicant's deceased son. Ms McDougal was able to give direct evidence of a number of events in the period from September to December 2008. Those events have already been referred to in my summary of the applicant's evidence and, as there is no dispute about them, I will not repeat them by reference to Ms McDougal's evidence. Ms McDougal said that during the time she was employed by Moore Law the firm had a practice of electronically scanning all incoming mail as it was opened. The electronic copy was emailed to the solicitor who had the conduct of the matter and the solicitor saved the correspondence to the appropriate electronic file. The hard copy of the correspondence was then placed in the relevant solicitor's incoming mail tray and once it was dealt with by the solicitor it was placed on the paper file. At the time Ms McDougal worked for Moore Law there were five solicitors and four support staff. She said that if a solicitor or other staff member received a scanned copy of a letter by mistake that person would forward the email to the correct solicitor. Ms McDougal said that she did not receive the letter from the second respondent dated 13 October 2008 in any format until receiving the email from Mr Barone on 10 December 2008. She said that at about that time in December 2008 she undertook a number of searches for the letter. She reviewed her email programme on her office computer and ascertained that there was no email containing the letter. She also reviewed the electronic files and there was no electronic copy of the letter saved in the electronic file for the applicant. She reviewed the paper file, her desk and incoming mail tray. She did not find any copy of the letter. She sent an email to each employee in the Moore Law office regarding the letter and spoke with some staff directly about the letter. She did not receive a response from any employee informing her that they had received the letter. Finally, Ms McDougal said that the applicant was provided with a copy of the letter from the second respondent dated 13 October 2008 under cover of a letter from Moore Law dated 16 December 2008.
18 As I have said, Ms McDougal was not required for cross-examination. I accept her evidence.
19 Mr Xavier Dominic Moore is a solicitor employed by Moore Law. He was admitted as a practitioner of the Supreme Court of South Australia in March 2010. Prior to that time, he was employed by Moore Law as a clerk. In late 2008, he was studying law online. He was also working as a clerk at Moore Law. During the months of October to December 2008 one of his daily duties was the collection and distribution of mail delivered to Moore Law by Australia Post. He did not do this every day and on some days it was undertaken by other staff members. However, he said that he would collect and distribute the mail nearly every day. Mr Moore described the practice whereby the postman would deliver mail to the premises of Moore Law at 10 Albyn Terrace, Strathalbyn. He described the process whereby the mail was opened and then placed in separate piles for each solicitor. Each item of mail was taken to the photocopier and then emailed directly to an email address. The hard copy would then be placed on the relevant solicitor's desk. Mr Moore could not recall the particular days between 13 and 29 October 2008 that he collected and distributed the mail. He believes that if on any particular day he did not do so and it was done by another staff member then that staff member would have adopted the practice referred to above. Mr Moore did not recall opening an envelope containing a letter dated 13 October 2008 from the second respondent and addressed to Ms McDougal. He did say:
Given the amount of mail received by Moore Law, I would not say that, if I'd seen such a letter, I would now remember it.
20 Mr Moore described the practice that he would have adopted had an envelope containing such a letter been received at Moore Law. He said that on 9 December 2008 Ms McDougal asked him to search through the email box of every staff member's computer and the Moore Law general administration email addresses for a letter dated 13 October 2008 from the second respondent. Mr Moore said that he reviewed every email received by those computers that had been sent by the photocopier and contained a scanned letter. He did not see a copy of the letter in any email. He did not find any record of the letter having been scanned.
21 Mr Moore was cross-examined by the second respondent about the possibilities of the letter having been delivered to Moore Law but then having gone astray. Mr Moore was a straightforward and honest witness and I accept his evidence so far as it goes.
22 The second respondent tendered two affidavits of Mr Joseph Barone and one affidavit of Mr Peter Headland. Both Mr Barone and Mr Headland were cross-examined by the applicant.
23 Mr Barone was the inquiries and complaints officer for the second respondent in 2008 and 2009. He has since retired. Mr Barone deposed to the circumstances surrounding the second respondent's decisions. He said that having considered the letter from Moore Law dated 26 September 2008 he recommended that pursuant to its discretion under the trust deed the second respondent should pay 100 per cent of the deceased's superannuation death benefits to Ms Heuritsch on the basis of her interdependent/financially dependent relationship with the deceased at the time of his death. On 10 October 2008 the chief executive officer approved his recommendation on behalf of the trustee. Mr Barone referred to the letter dated 13 October 2008. He said that an identical letter was also sent to Ms Heuritsch on the same day in accordance with the second respondent's usual practice. Both letters were sent by standard post in a Statewide window-faced envelope. Mr Barone said that the practice that he adopted when sending a letter was that he would place each letter in a window-faced envelope, seal the envelope and place it in a communal mail tray that is collected by a mail room attendant twice per day. This person attends to posting the mail in the mail tray. To the best of Mr Barone's knowledge the letter was posted to Ms Rebecca McDougal in a window-faced envelope with the address of Moore Law featuring on the letter. Mr Barone said that he had reviewed the file in connection with the deceased member and that it did not contain any unclaimed mail and that he was not otherwise aware of the letter having been returned. He described the procedure that would have been adopted had the letter been returned. Mr Barone deposed to the fact that on 12 November 2008 Mr Headland, the compliance officer with the second respondent, checked with the Tribunal as to whether it had received any written complaint from the applicant and was advised that no such complaint had been received. On 24 November 2008 the second respondent paid the benefit to Ms Heuritsch. Mr Barone deposed to the fact that a copy of the letter was held in the deceased member's file and that that was in accordance with the second respondent's practice.
24 Mr Barone deposed to the fact that Mr Headland reported to him and that they worked closely together. Mr Headland prepared and sent correspondence such as the letter dated 13 October 2008. Mr Headland consulted Mr Barone 'ahead of preparing a letter, which was in a standard form'. Mr Barone approved the sending of the letter but he did not sign it or send it.
25 Mr Barone was a straightforward and honest witness and I accept his evidence so far as it goes.
26 Mr Headland is the compliance officer for the second respondent. At the relevant times he reported to Mr Barone. He prepared and signed the letter from the second respondent to Moore Law dated 17 September 2008. He also prepared and signed a letter of the same date to Ms Heuritsch advising her of the applicant's objection. He prepared the letter dated 13 October 2008 to Ms McDougal of Moore Law and 'a similar letter' to Ms Heuritsch. He described the process associated with sending the letter dated 13 October 2008:
The process I engage in with all correspondence is that I print the letter and attend to signing it. After it has been signed, I photocopy the letter and place the copy on the file whilst I place the original in a window-faced envelope. Statewide's letters are formatted in such a way that the address on any given letter falls squarely into the window of the envelope. Having placed the original letter in the envelope, I place all letters in a delivery tray adjacent to my desk that is collected by Statewide staff twice daily. This process is that which is engaged in by me for all letters being posted and it is the process I engaged in, when sending the letter of 13 October 2008 to Moore Law.
27 Mr Headland deposed to the fact that if the letter dated 13 October 2008 to Moore Law had been returned to the second respondent it would have come to his attention and as far as he was aware the letter was not returned to the second respondent.
28 Mr Headland was a straightforward and honest witness and I accept his evidence so far as it goes.