Jones v Superannuation Complaints Tribunal

Counsel for the Second Respondent: Mr P Britten-Jones

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 92 of 2011

JUDGE: BESANKO J DATE OF ORDER: 4 NOVEMBER 2011 WHERE MADE: ADELAIDE

1. The applicant made his complaint dated 5 January 2009 to the Superannuation Complaints Tribunal within the prescribed period for the purposes of subsections 14(3) and 14(4) of the Superannuation (Resolution of Complaints) Act 1993 (Cth). THE COURT ORDERS THAT:
2. The parties be heard as to whether an order in the nature of a writ of mandamus be made, costs and any other orders. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 92 of 2011

JUDGE: BESANKO J DATE: 4 NOVEMBER 2011 PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The second respondent to this proceeding is the trustee of a fund and it made a decision of a type described in subsection 14(3) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) ('the SRC Act'). The applicant had a right under subsection 14(2) of the SRC Act to complain to the Superannuation Complaints Tribunal ('the Tribunal') that the decision of the second respondent 'is or was unfair or unreasonable'. However, he was required to make his complaint to the Tribunal within a prescribed period of time and the Tribunal could not deal with a complaint not made within the prescribed period (subsection 14(3) and 14(4)). 2 In this proceeding the applicant seeks a declaration and a writ of mandamus in relation to a decision of the Tribunal dealing with his complaint to it about the second respondent's decision. The Tribunal determined that it did not have jurisdiction to deal with the applicant's complaint under subsections 14(3) and (4) because the complaint had not been made within the prescribed period. Regulation 5 of the Superannuation (Resolution of Complaints) Regulations 1994 provides that the prescribed period is 28 days. 3 The applicant challenges the Tribunal's decision. He submits that whether the complaint was made within the prescribed period is a jurisdictional fact which this Court determines for itself. He submits that if the Court determines that the complaint was made within the prescribed period then a declaration to that effect should be made and an order in the nature of a writ of mandamus should be made directing the Tribunal to inquire into the applicant's complaint. The applicant's claim for relief proceeds on the basis that he has no right of appeal under s 46 of the SRC Act (see Ray v Superannuation Complaints Tribunal (2004) 138 FCR 548; Kowalski v Superannuation Complaints Tribunal [2010] FCA 473). 4 The Tribunal has filed a submitting appearance, save and except in relation to costs. The second respondent, Statewide Superannuation Fund Pty Ltd, has appeared and it opposes the applicant's claim for relief. It does not dispute that the question of whether the applicant's complaint was made to the Tribunal within the prescribed period is a jurisdictional fact and a fact that this Court determines for itself.

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.

ISSUES ON THE APPLICATION 29 The second respondent paid the benefit to Ms Heuritsch on 24 November 2008. It is not suggested by the second respondent that the payment meant that the Court could not grant the relief sought by the applicant. 30 Subsection 14(3) of the SRC Act provides as follows: If a person has been given a written notice by the trustee of a fund setting out: (a) the trustee's decision in relation to the person's objection to the payment of a death benefit; and (b) the prescribed period within which the person must complain to the Tribunal about the decision; the person can only make a complaint under this section to the Tribunal within that period. 31 Subsection 14(4) provides that the Tribunal cannot deal with a complaint that must be made within the prescribed period if the complaint is not made within that period. 32 The second respondent's letter dated 13 October 2008 set out the information relevant to the particular case which is identified in paragraphs (a) and (b) of subsection 14(3). It was addressed to Ms Rebecca McDougal of Moore Law at 10 Albyn Terrace, Strathalbyn. 33 Leaving aside the effect of any particular statutory provision, I do not think that there can be any doubt that the applicant authorised Moore Law to send and receive on his behalf correspondence with the second respondent and that notice to Moore Law should be treated as notice to the applicant. The correspondence between Moore Law and the second respondent before 13 October 2008 establishes that fact, as does the evidence of the applicant and Ms McDougal. Furthermore, it is part of the applicant's case that he was given written notice within subsection 14(3) of the SRC Act when the second respondent sent the letter dated 13 October 2008 by email to Moore Law on 10 December 2008. 34 Was the applicant given written notice within subsection 14(3) of the SRC Act by the second respondent's letter to Moore Law dated 13 October 2008? The second respondent relies on s 29 of the AI Act which is in the following terms: (1) Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. (2) This section does not affect the operation of section 160 of the Evidence Act 1995. 35 This section is engaged only where the relevant Act authorises service by post. There is no question here of the SRC Act requiring service by post. There is no express provision in the SRC Act authorising service by post. There was a suggestion by the second respondent that the reference in subsection 14(3) to the giving of a written notice included authority to serve the written notice by post. That submission was not developed and the second respondent did not refer to any authorities on the point. I do not think the submission is correct. It seems clear enough that the use of the word 'give' (or for that matter the words 'serve' or 'send') do not of themselves authorise service by post and that resort must be had to s 28A of the AIA: Repatriation Commission v Gordon (1990) 26 FCR 569; Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths, 2011) para 6.53-6.55. There are many cases of Commonwealth legislation where a provision in the legislation itself authorises service by post: see, for example, Corporations Act 2001 (Cth) s 109X, Income Tax Assessment Act 1936 (Cth) s 222AOF (recently repealed). Subsection 14(3) of the SRC Act is not an example of such a provision. 36 For the conclusion to be reached that the SRC Act authorises service by post, reference must be made to another section of the AI Act. That section is s 28A which provides relevantly: (1) For the purpose of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then unless the contrary intention appears, the document may be served: (a) on a natural person: (i) … (ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; 37 A contrary intention to that in s 28A of the AI Act does not appear in the SRC Act. It follows that service by post is authorised by the SRC Act for the purposes of subsection 29(1) of the AI Act by reason of the operation of s 28 of the AI Act. However, it is service by post of a restricted nature. It is only service by post to the last known residential or business address of, in this case, the applicant (see Newsnet Pty Ltd v Patching [2011] NSWSC 690 at [21] where White J noted that a facsimile sent to a party's solicitors did not comply with the requirements of s 28A). The second respondent's letter dated 13 October 2008 was not addressed in that way as it was addressed to Ms McDougal of Moore Law. If it matters (and I am not sure it does) the second respondent appears to have been aware of the applicant's residential address as its letter to the applicant dated 21 August 2008 was addressed to the applicant at what appears to be his residential address. 38 I was referred by the second respondent to the decision in Kestel v Superannuation Complaints Tribunal [2010] FCA 1300. That case does not assist in determining the proper construction of s 28A of the AI Act. It is unclear whether the point I am presently addressing could have been raised in that case. It is clear that it was not raised. 39 This is a somewhat unsatisfactory conclusion because, as I have said, the applicant authorised Moore Law to send and receive on his behalf correspondence with the second respondent. Nevertheless, it is the conclusion which follows from the words of the two sections in the AI Act. It means in this case that while the second respondent could have served its written notice under subsection 14(3) of the SRC Act by post it could only do so if the letter was addressed to the applicant at his residential address. I should add that the applicant is unemployed and there is no suggestion that he had a business address. 40 It follows that the applicant is entitled to the declaration he seeks. I will hear the parties as to whether I should also make an order in the nature of a writ of mandamus directed to the Tribunal. 41 This conclusion is sufficient to dispose of the proceeding. However, it is convenient for me to set out the factual findings I would have made had I decided that the SRC Act authorised service by post on Ms McDougal of Moore Law. 42 I found the second respondent's evidence of its system for posting letters convincing and I am satisfied that the letter dated 13 October 2008 was properly addressed (subject to my earlier conclusion), prepaid and posted by the second respondent. Equally, I found Moore Law's evidence of its system in relation to incoming mail impressive and such as to be likely to eliminate, as far as possible, incoming mail going astray. I would have found that in so far as it is open to a person to prove non-delivery under s 29 of the AI Act, the applicant had done so. These conclusions mean that I would conclude that the letter went astray at some point after posting but before delivery. 43 This conclusion means that the question about the proper construction of s 29 of the AI Act referred to but not resolved by the High Court in Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 96-97 would need to be addressed. That question is whether a party who is said to have been served with a document is restricted to proving a different time of service (that is, different from in the ordinary course of the post) or may, by proving non-delivery establish that service itself was not effective. There have been a number of cases which have alluded to the two possible interpretations: Re Rustic Homes Pty Ltd (1988) 49 SASR 41 ('Re Rustic Homes Pty Ltd') (von Doussa J favouring the latter view); Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107; Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd (2005) 188 FLR 373 ('Derma Pharmaceuticals Pty Ltd'); Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176; Soong v Deputy Commissioner of Taxation (2011) 278 ALR 538. 44 Had it been necessary to do so I would have been disposed to follow R v County of London Quarter Sessions Appeal Committee, Ex parte Rossi [1956] 1 QB 682, Re Rustic Homes Pty Ltd and Derma Pharmaceuticals Pty Ltd (among other cases) and hold that proof of non-delivery means that the second respondent cannot rely on s 29 of the AI Act to deem that service has been effected. That conclusion would support the making of the declaration.

CONCLUSIONS 45 The applicant is entitled to the declaration he seeks. I will hear the parties as to whether I should also make an order in the nature of a writ of mandamus, costs and any other orders. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.