Jones v Superannuation Complaints Tribunal

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FEDERAL COURT OF AUSTRALIA

Jones v Superannuation Complaints Tribunal [2011] FCA 1255

Citation: Jones v Superannuation Complaints Tribunal [2011] FCA 1255
Parties: ROBERT CARLTON JONES v SUPERANNUATION COMPLAINTS TRIBUNAL and STATEWIDE SUPERANNUATION PTY LTD ACN 008 099 223
File number: SAD 92 of 2011
Judge: BESANKO J
Date of judgment: 4 November 2011
Catchwords:

ADMINISTRATIVE LAW — application for declaration and writ of mandamus in relation to decision of Superannuation Complaints Tribunal that it did not have jurisdiction to hear the applicant’s complaint pursuant to s 14 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (‘SRC Act’) because the applicant’s complaint had not been made within the prescribed period — where parties accepted that whether complaint was made in prescribed period was jurisdictional fact which Court determines for itself

STATUTORY INTERPRETATION — where s 14(3) of SRC Act provided for applicant to be given written notice by the trustee of a superannuation fund of its decision in relation to the payment of a death benefit — where letter giving written notice was posted to applicant’s solicitors who had corresponded with trustee on his behalf — where letter was not received by applicant’s solicitors — where applicant not advised of trustee’s decision until after expiry of prescribed period calculated from date of letter — whether applicant had been given written notice — whether s 29 of the Acts Interpretation Act 1901 (Cth) (‘AI Act’) applied to s 14(3) — whether s 14(3) authorised or required a document to be served by post — whether s 28A of the AI Act applied — whether s 28A authorised service by post on the applicant’s solicitors — whether non-delivery had been proved

Held: The Court declared that the applicant’s complaint had been made within the prescribed period.  
Legislation: Acts Interpretation Act 1901 (Cth) ss 28, 28A, 29
Corporations Act 2001 (Cth) s 109X,
Income Tax Assessment Act 1936 (Cth) s 222AOF
Superannuation (Resolution of Complaints) Act 1993 (Cth) subs 14(2), (3), (4)
Superannuation (Resolution of Complaints) Regulations 1994 Reg 5
Cases cited: Derma Pharmaceuticals Pty Ltd v HSBC Bank Australia Ltd (2005) 188 FLR 373, cited
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87, cited
Kestel v Superannuation Complaints Tribunal [2010] FCA 1300, cited
Kowalski v Superannuation Complaints Tribunal [2010] FCA 473, cited
Newsnet Pty Ltd v Patching [2011] NSWSC 690, cited
R v County of London Quarter Sessions Appeal Committee; Ex parte Rossi [1956] 1 QB 682, cited
Ray v Superannuation Complaints Tribunal (2004) 138 FCR 548, cited
Re Rustic Homes Pty Ltd (1988) 49 SASR 41, cited
Repatriation Commission v Gordon (1990) 26 FCR 569, cited
Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176, cited
Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107, cited
Soong v Deputy Commissioner of Taxation (2011) 278 ALR 538, cited
Pearce DC and Geddes RS, Statutory Interpretation…
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Details
Case
[2011] FCA 1255
Decision Date

CaseChat Overview and Summary

In Jones v Superannuation Complaints Tribunal, the applicant sought a declaration and a writ of mandamus from the court, arguing that his complaint to the Superannuation Complaints Tribunal (SCT) was made within the statutory period. The dispute arose from the SCT's decision that it lacked jurisdiction to hear the applicant’s complaint due to it being filed beyond the prescribed period under the Superannuation (Resolution of Complaints) Act 1993 (Cth). The court was tasked with determining whether the complaint was indeed made within the statutory timeframe, a matter that both parties agreed was a jurisdictional fact to be decided by the court itself.

The primary legal issue before the court was whether the applicant had been given written notice of the trustee’s decision as required by section 14(3) of the SRC Act. This hinged on interpreting sections 14(3), 28A, and 29 of the Acts Interpretation Act 1901 (Cth) ('AI Act'). The applicant argued that since the letter was not received by his solicitors, he had not been given the requisite written notice within the prescribed period. The court had to decide if the failure to deliver the letter meant that the statutory period could not commence until the applicant was actually notified of the trustee’s decision.

The court found in favour of the applicant. It concluded that the non-delivery of the letter meant that the second respondent could not rely on section 29 of the AI Act to deem service complete. Therefore, the statutory period for lodging a complaint with the SCT did not begin until the applicant was actually notified of the trustee’s decision, which was well within the prescribed period. The court's reasoning was grounded in the principle that proof of non-delivery prevents the use of deemed service provisions, thereby supporting the applicant's contention that his complaint was timely.

The court declared that the applicant’s complaint had been made within the prescribed period. The court further ordered that the parties be heard regarding the issuance of a writ of mandamus, costs, and any other orders. This decision underscored the importance of actual notice in statutory timeframes and highlighted the court's role in interpreting jurisdictional facts.

Orders

Orders of the court

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

Background

Background to the litigation

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 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. For the most part the facts are not in dispute. The following is taken from the affidavit of the applicant. 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. 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.