Nuri Yuksel v SAS Trustee Corporation

CATCHWORDS: APPEAL - Superannuation appeal pursuant to s 88 of the Superannuation Administration Act 1996 - claim for payment of accumulated superannuation funds plus interest not received since 1982 - appellant does not meet requisite standard of proof - no evidence the monies were not paid - contra-evidence from which it could be inferred monies were paid - no STC decision to appeal - appeal dismissed - no order as to costs

Superannuation Administration Act 1996 LEGISLATION CITED: Retirement Benefits Act 1972 Unpaid Money Act 1995

CASES CITED: Jovic v SAS Trustee Corporation [2007] NSWIRComm 102

Mr N Yuksel (Appellant in person) LEGAL REPRESENTATIVES: Mr R S Blume, Solicitor, SAS Trustee Corporation (Respondent)

• 10 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: KAVANAGH J Friday 5 February 2010

Nuri YUKSEL v SAS Trustee Corporation Application by Nuri Yuksel to appeal against the decision of the SAS Trustee Corporation given on 11.2.2009

JUDGMENT [2010] NSWIRComm 3 1 Nuri Yuksel filed, on 20 May 2009, an appeal pursuant to s 88 of the Superannuation Administration Act 1996 (NSW) citing: I am appealing against the decision that the amount of $658.73 in 1982 under the then NSW Retirement Fund was paid to me by cheque(s) in October 1982; and the Respondent will not pay that $658.73 to me.

History 2 The appellant was born 11 August 1944. He commenced employment with the State Rail Authority (SRA) on 26 August 1971 and his employment with the SRA was terminated on 29 June 1982. 3 On 21 October 1982, according to primary documents made available by Railcorp (formerly the SRA), Mr Yuksel's Retirement Fund Benefit with the SRA was calculated as $658.73. 4 On 4 April 2008, some 26 years after his termination, the appellant wrote to the respondent, the State Super SAS Trustees Corporation (known as the STC and the corporation which had taken over the SRA's superannuation liabilities) inquiring as to whether: … I have any superannuation monies leftover from my employment at the SRA... I do not know if any such monies were given to me when I left SRA's employment. 5 On 3 June 2008, Mr Yuksel made a Freedom of Information Application requesting documents that related to his: "accumulated superannuation monies during [his] employment with SRA ...".

Arising from the Freedom of Information application, Railcorp informed Mr Yuksel, on 20 June 2008, it was unable to locate the requested documents, however, he was provided with documents pertaining to his employment history which were still in Railcorp's possession. 6 The appellant's file relating to his superannuation from the NSW Retirement Fund and the State Rail Authority along with a Termination of Employment document which was attached, suggested Mr Yuksel had been entitled to a payout of $658.73 on termination. 7 On 7 October 2008, the appellant lodged a complaint against STC with the Superannuation Complaints Tribunal, claiming the STC had erred in its conclusion that the monies had been paid to him. This application was denied by the Superannuation Complaints Tribunal as follows: Section 4A of the Superannuation (Resolution of Complaints) Act 1993 states that the Tribunal is unable to deal with exempt Public Sector Funds, unless they choose to come under the relevant legislations. The State Authorities Super Scheme (SASS) NSW Public Super Fund has not chosen to come under the relevant legislation. The Fund's letter of 30 September 2008 advised you of its dispute resolution procedures. You should contact the Fund for further information on lodging a complaint.

In advising that the Tribunal is unable to deal with your complaint, the Tribunal is not forming any view on the reasonableness or fairness of the decision of the Fund. Instead, the Tribunal is conveying its inability to proceed with your complaint because of Jurisdictional constraints contained in the legislation governing its operations. 8 The appellant then wrote, on a number of occasions, to Pillar Administration, the administrative body of STC, requesting the payment of his $658.73. He also requested a copy of the files which, it was asserted, demonstrated the monies had been paid. He received a copy of that documentation on or around 20 November 2008. The respondent, on 20 November 2008, wrote to the appellant: Dear Mr Yuksel

We refer to your letter dated 5 November 2008 to Mark Bendall regarding your superannuation benefit from the NSW Retirement Fund.

Following a review of your matter, please find attached a copy of your benefit calculation sheet which shows that your benefit of $658.73 was calculated, checked and authorized on 21 October 1982 for payment to you in accordance with section 30(d) of the NSW Retirement Benefits Act 1972 (the Act) following the termination of your employment on 29 June 1982. Payment was made by voucher no. 12330 on 22 October 1982 on urgent request and was sent to your current address.

Under the fund's legislation, a benefit could not be preserved so you were paid your benefit upon your employer's advice of your termination of employment, in accordance with the Act. Whilst the sincerity of your claim is not doubted, medical research indicates that memory of matters that happened many years ago can deteriorate with age. It is noted that in your letter of 4 April 2008 you stated that you worked at the SRA till 1980 (you actually worked till June 1982) and you did not know if you had been paid your benefit, while on 5 November 2008 you were "absolutely adamant" that you did not receive the benefit.

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.

The Hearing 13 The appellant was self represented in Court but was assisted by a Court approved Turkish interpreter. He tendered a bundle of documents from which documents the above history of the matter has been gleaned. The appellant submitted: … I won't need to prove anything. They have to prove they owe me money. 14 Mr R.S. Blume, Solicitor, Manager, Dispute & Appeals appeared on behalf of the SAS Trustee Corporation. It was Mr Blume who had ensured all the appropriate searches were conducted to assist in the resolution of this matter. He relied upon documentation and submissions. The application for the order of monies was opposed.

Submissions 15 The appellant claims he never received the cheque for payment of his superannuation. He also contends the onus is on the respondent to prove the issuing and clearance of the cheque payments. 16 The respondent submits the documentation discovered from the NSW Retirement Fund records reveal that the monies were paid by cheque and posted by 22 October 1982. This is evidenced, they contend, by a note on the Benefit Calculation Sheet that reads "Urgent. Out by 22/10/82". It is submitted the benefit was therefore authorised for payment on 21 October 1982. The respondent claims the "urgent" marking would have been considered appropriate as the appellant had left his employment nearly four months earlier. 17 Mr Blume relies upon the documents of the New South Wales Retirement Fund (obtained by him from files) which show the calculation of the appellant's superannuation benefit to be $658.73 payable in one lump sum. The calculations were prepared and authorised to be paid on 21 October 1982. The number "12330" on the document is possibly the cheque number or the authorisation to pay record. The documentation bears a notation to the effect "Urgent. Out by 22/10/82". The respondent submitted this notation was, on the balance of probabilities, made because of the lapse of time from the 29 June 1982 termination date to the October processing of the benefit. It was suggested the notation could also have arisen from an inquiry/complaint made by the appellant as to why his benefit had not been paid to him on termination.

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.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s52 of the Trade Practices Act 1974 (Cth) (or s42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case.

In Jovic, Marks J went on to note at [8]: The above extract was referred to in similar vein by Schmidt J in this Court in Leckie v Crockett and ors (No 2) [2007] NSWIRComm 42 at [140]. 20 I accept Mr Yuksel has since formed a belief he was not paid the benefit. However, in one of his letters dated 4 April 2008 the appellant, stated: I do not know if any such monies were given to me when I left SRA's employment.

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.

2. A dispute within the meaning of the Act, can only arise as to whether there is any entitlement at all, and if so, the amount thereof. "Disputes" are defined in s.23E of the Police Regulation (Superannuation) Act 1906.

3. There is not and there has never been any dispute that the Applicant was at the date of his dismissal on 29 June 1982, entitled to be paid the sum of $658.73, in default of which he was entitled to commence proceedings in what is now the Local Court.

4. Neither STC nor its Delegate, the STC Dispute Committee, has made any decision pursuant to s.67(1) of the Act, which would give a right of appeal to this Honourable Court. 27 Relevantly, s 67 of the Superannuation Administration Act 1996 states: (1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations.

(2) Regulations made for the purposes of subsection (1) may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that: (a) was responsible for the payment of benefits under an STC scheme of which the employee was a member or to which the employee was a contributor, and (b) has ceased to be responsible for the payment of benefits under that scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127, be determined, not by STC or an STC disputes committee, but by the trustee of the new superannuation scheme.

(3) In determining a dispute, STC, an STC disputes committee or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence.

And further, s 88 states: (1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission ).

(2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows. 28 Neither the STC nor its delegate, the STC Disputes Committee, has made any decision, pursuant to s 67 (1) of the Superannuation Administration Act 1996, which would give rise to the jurisdiction of this Court. The STC has assisted in finding documents but has made no decision. It is not responsible for the payment of SRA benefits back to 1982. There is no evidence that Mr Yuksel could be aggrieved by any act of the STC which would be appealable to an STC Disputes Committee. Therefore, given there is no decision of the STC, there is no right of appeal to the Court. 29 I am satisfied the Court has no jurisdiction to hear this appeal. I am further satisfied even if the Court had jurisdiction, the appeal would fail on its merits.

Orders 30 I make the following orders: 1. Appeal dismissed. 2. No order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.