Nuri Yuksel v SAS Trustee Corporation

Nuri Yuksel v SAS Trustee Corporation - [2010] NSWIRComm 3 - NSWIRComm 2009 case summary — Zoe

[16]

In view of the evidence available, it is hard to see how the matter can be determined in your favour. If you now still have any queries about this matter, please let me have your written advice within 28 days of the date of this letter. 9 Mr Yuksel started proceedings on 20 May 2009 to appeal the decision of the STC. The matter came before Schmidt J on 3 June 2009 and was adjourned to allow an opportunity for the parties to conciliate. There was no resolution reached in conciliation. 10 At a mention on 17 June 2009, the matter was adjourned to obtain a Turkish interpreter for the appellant, and to allow for the appellant's requests of a solicitor from the New South Wales Law Society's Pro Bono Panel to receive a reply. 11 The file was then referred to me and put in for mention on 2 July 2009. At this mention the appellant informed the Court he could have no representation from a Legal Aid office until a hearing date of the claim was set. A hearing date was set for 7 December 2009. Orders were made in the form of directions and a timetable for the parties to file documents which were to be relied upon and any written submissions to be filed. 12 When the matter was called on for hearing on 7 December 2009, the appellant made a further application for an adjournment to enable him to make further efforts to obtain a solicitor. The matter had been previously adjourned on 2 July 2009 for this same reason. The file and documents tendered by the appellant revealed the appellant had made an application to Legal Aid, New South Wales for a solicitor around 11 February 2009 and was provided with assistance for negotiation purposes only. However, the appellant was later refused legal aid by letter on 27 March 2009. An application was also made to the Law Society of New South Wales Pro Bono Scheme on or around 9 June 2009. However, this was also denied by letter on 1 September 2009. There was also evidence the appellant had attended upon another solicitor. As the appellant had had ample opportunity to obtain a solicitor between the date of initial adjournment, 2 July 2009 and the date of hearing on 7 December 2009, the application for an adjournment was refused.

[19]

Consideration 18 The appellant presses this claim after 25 years and revealed in evidence he began it when he was short of money. 19 In Jovic v SAS Trustee Corporation [2007] NSWIRComm 102, Marks J, in dealing with the question of memory after a long period said at [7]: . . . I bear in mind the observations concerning the difficulty in proving what occurred many years ago made by the New South Wales Court of Appeal in McMurtrie v Commonwealth of Australia [2006] NSWCA 148. At [5] the Court said: 5 The difficulties in proving the precise terms or effect of a conversation that occurred a long time ago are well expressed by McLelland CJ in Eq. in Watson v. Foxman (1995) 49 NSWLR 315 at 318-9 as follows: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

[23]

I find this is a clear admission by the appellant that he cannot now remember whether the benefit was paid to him or not. He simply does not recall. 21 The evidence persuades no one at STC or Pillar Administration can shed any further light on the matter. Pillar was not the administrator for the NSW Retirement Fund in 1982. The only contemporary records are before me. No cheque records or bank statements are available, all presumably having been destroyed beyond the five to eight year limit in accordance with statutory time limitation. 22 The appellant, likewise, cannot locate any bank records to substantiate the fact that he was not paid the benefit. There were at that time no Commonwealth Rules preventing the payment of superannuation each time a member left employment and the NSW Retirement Benefits Act 1972 did not permit superannuation to be preserved. As a Trust Fund, the New South Wales Retirement Fund would have been audited from time to time. A reconciliation carried out of the bank balance with the amount shown in the accounting records would also have been conducted periodically. It would be highly unlikely an un-presented cheque would not have come to light at some time. On the other hand, if a cheque was never drawn, the microfiche record would show an entry must have been made in the appropriate accounting records, and a reconciliation or audit would in all probability, have brought the matter to the attention of those responsible for administering the Fund. 23 The more specific search of all documents led to the respondent's submission as follows: … the Respondent had in place mechanisms to deal with lost, unpresented or stale cheques. The records clearly demonstrate that procedures existed for the tracking of moneys and the keeping of records of unclaimed money. It is submitted that had the cheque never been received by Mr Yuksel, it would over time have been recorded as a stale cheque and followed up. If, as was submitted by Mr Yuksel, the cheque was put in the SAFE, these procedures would have likewise led to action being taken in respect of the unpresented or stale cheque. 24 The Court is satisfied every effort has positively been taken by the respondent to assist Mr Yuksel. Mr Yuksel has not been able to establish his case to the requisite standard of proof required from an appellant. 25 I find it was more likely than not, it can be inferred, the appellant was paid the benefit on 22 October 1982 given the notations on the records still available. The respondent contends that on the balance of probabilities, the letters "SOFE" in the two boxes headed "Posted", mean "Sent Out Full Entitlement". The documentation gives foundation for such an inference. 26 The respondent also raised a jurisdictional bar to suit. The respondent contended: 1. An appeal can only lie to the Industrial Relations Commission in Court Session pursuant to s.88 of the Superannuation Administration Act 1996 (the Act) from a determination of STC or an STC disputes Committee made under s.67(1) of the Act.

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