FEDERAL COURT OF AUSTRALIA

Kestel v Superannuation Complaints Tribunal [2010] FCA 1300

THE COURT ORDERS THAT:

1.    The application filed on 2 November 2010 be dismissed.

2.    Each party pay their own costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This application concerns s 14(3) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Act). Section 14(3) is 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 may only make a complaint under this section to the Tribunal within that period.

2    The facts may be stated briefly. The applicant is a person who has an interest in her husband’s death benefit. The second respondent is the trustee of the fund from which that benefit is to be paid. The second respondent decided to pay the benefit to the applicant in trust for the benefit equally of the three children. The deceased’s parents objected to this decision. The second respondent requested information from the applicant for the purpose of determining the objection. In response the second respondent received a letter from a solicitor dated 22 October 2009. This letter identified itself as relating to:

Estate of the late #### Kestel

Account Numbers: #### (Asgard Superannuation Account)

#### (Asgard Employee Superannuation Account)

3    The solicitor’s letter continued as follows:

We advise that we act for Danniielle Kestel in this matter and she has handed us your letter dated the 29th September, 2009.

As requested in your letter we now enclose the following:

…

If you require any other information, do not hesitate to contact ####.

4    It is apparent that other correspondence between the second respondent and the solicitor followed relating to the objection.

5    On 18 March 2010 the second respondent sent to the solicitor a letter advising that it affirmed its original decision. This letter also advised as follows:

If you wish to do so, you have 28 days (from receipt of this letter) to provide notice of an objection to the Superannuation Complaints Tribunal…

6    This letter bears a handwritten notation of receipt by the solicitor on 22 March 2010. The solicitor wrote to the second respondent on 29 March 2010 stating that:

We refer to your letter dated the 18th March 2010 and have referred it to our client for her instructions. We expect that she will lodge a Notice of Objection to the Superannuation Complaints Tribunal…

7    On the same day, 29 March 2010, the solicitor forwarded the letter to the applicant stating:

In the circumstances, we consider that you should lodge an objection to the Superannuation Complaints Tribunal as soon as possible and within the time limit allowed.

If you wish us to assist you in relation to such an objection, please provide us with your instructions.

8    The solicitor lodged an objection with the Superannuation Complaints Tribunal (the first respondent) on 22 April 2010 under cover of a facsimile stating:

We act for the complainant in this matter…

9    On 29 April 2010 the Superannuation Complaints Tribunal advised the solicitor that, on its calculation, the solicitor received the second respondent’s letter of 18 March 2010 on 24 March 2010 with the consequence that the prescribed period under s 14(3) of the Act expired on 21 April 2010. The complaint, however, was not lodged until 22 April 2010. Accordingly, the Superannuation Complaints Tribunal had no jurisdiction to deal with the complaint.

10    In response to a further letter from the solicitor to the effect that the applicant had not received the notice until after 29 March 2010, the Superannuation Complaints Tribunal said that:

…as there had been no revocation of the authority communicated to the Trustee, it is reasonable to expect that the Trustee would send all notices to your office…

11    As the denial of jurisdiction has been held not to constitute a “determination” giving rise to a right of appeal within the meaning of s 46 of the Act (see Ray v Superannuation Complaints Tribunal [2004] FCA 1120 and Kowalski v Superannuation Complaints Tribunal [2010] FCA 473), the applicant by the present application seeks (amongst other things) a declaration to the effect that the Tribunal has jurisdiction and, thereby, is bound to deal with the complaint.

12    If the receipt by the solicitor of the letter of 18 March 2010 constituted the giving of notice to a person within the meaning of s 14(3) then, in accordance with that section, the prescribed period for the making of a complaint expired on 19 April 2010. The complaint would have been lodged out of time. If the receipt by the solicitor of the letter of 18 March 2010 did not constitute the giving of notice to a person within the meaning of s 14(3), the requirements of that section were satisfied, at the earliest, on 30 March 2010 with the consequence that the prescribed period expired on 27 April 2010. The complaint would have been lodged within time.

13    The applicant contended that the giving of notice to the solicitor did not satisfy s 14(3) as: - (i) under s 14(3) the “person” was the applicant, (ii) the Act does not deem the giving of notice to some other person to be the giving of notice to the person, (iii) under s 23 of the Act a person may not be represented before the Tribunal without leave and thus it would be anomalous for the giving of notice to another person to be deemed to satisfy s 14(3), (iv) the legal effect of the giving of the notice (that is, the commencement of the prescribed period for making a complaint) makes the situation analogous to the service of court proceedings where personal service is required and service may be effected on a solicitor only where the solicitor expressly conveys that they have instructions to accept service, (v) the authority of a solicitor does not include the receipt of documents unless the solicitor is on the record in Court proceedings or has expressly indicated that they have instructions to accept service (which was not done in this case), (vi) the fact that the second respondent’s actions were “reasonable” is immaterial, and (vii) in other cases trustees have forwarded the notice direct to the applicant, whilst giving the solicitor a copy of the notice.

14    Both respondents entered a submitting appearance.

15    The real point in the applicant’s contentions is (v) above (relating to the solicitor’s authority). If the solicitor had authority to receive the notice then the giving of the notice to the solicitor was the giving of notice to the person within the meaning of s 14(3) of the Act. This is a consequence of the doctrine of agency. The Act must be assumed to have been drafted in recognition of the existence of this basic common law doctrine. There is nothing in the Act to suggest that giving of a notice under s 14(3) cannot be effected by the giving of such notice to a duly authorised agent. The issue, accordingly, is whether the solicitor was so authorised (as the Tribunal concluded).

16    Although the facts in IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205 are different from the present case, this decision contains a useful summary of earlier decisions and the principles for which they stand. Hence:

(1)    In Singer v Trustee of the property of Munro & Anor (bankrupts) [1981] 3 All ER 215 at 218 Walton J said that:

It is, of course, a common fallacy to think that solicitors have an implied authority on behalf of their clients to receive notices. They may have express authority so to receive them, but in general a solicitor does not have any authority to accept a notice on behalf of his client.

(2)    On the same basis it cannot be said that a solicitor has authority other than in respect of the matter in which the solicitor holds instructions. Thus, in Saffron Walden Second Benefit Building Society v Rayner (1880) 14 Ch D 406 at 409, James LJ said:

I have had occasion several times to express my opinion about the fallacy of supposing that there is such a thing as the office of solicitor, that is to say, that a man has got a solicitor not as a person whom he is employing to do some particular business for him, either conveyancing, scrivening, or conducting an action, but as an official solicitor, and that because the solicitor has been in the habit of acting for him, or been employed to do something for him, that solicitor is his agent to bind him by anything he says, or to bind him by receiving notices or information. There is no such officer known to the law. A man has no more a solicitor in that sense than he has an accountant, or a baker, or butcher. A person is a man’s accountant, or baker, or butcher, when the man chooses to employ him or deal with him, and the solicitor is his solicitor when he chooses to employ him and in the matter in which he is so employed.

(3)    This principle was applied by the New South Wales Court of Appeal when it rejected an argument to the contrary as follows in White v Illawarra Mutual Building Society Ltd [2002] NSWCA 164 at [128]:

The fact that a client might be accustomed to retain the services of a particular solicitor or firm of solicitors in matters of a particular type does not constitute that solicitor or that firm of solicitors the client’s standing agent to receive notice of material facts…

(4)    To the same effect in Midland Bank plc v Serter [1995] 1 Fam Law R 1034 at 1046-1047 it was said:

… a solicitor, like any other agent, may be instructed specifically to act for a party for one particular purpose in relation to a transaction, but not to act for him generally for other purposes. Thus it is only knowledge which he acquires when carrying out that part of the transaction in which he is instructed to act as agent which is to be imputed to the party who for that purpose is his principal …

17    Consistent with these principles in IVI v Baycrown at [35] it was said that:

A solicitor is a professional person capable of performing a range of services on behalf of a client, but he or she need not necessarily perform across that entire range with respect to any one transaction.

18    Accordingly, in IVI v Baycrown the Queensland Court of Appeal rejected the proposition that a solicitor nominated as the purchaser’s solicitor in a contract for sale was, for that reason alone, authorised to receive notice of revocation of the offer from the other party without an express conferral of authority on the solicitor to receive such communications. However, and as footnote 8 to the reasons for judgment discloses, the result would have been different had there been “a chain of correspondence passing between the solicitors acting upon instructions for each party. In such a case there can be no doubt of the authority of the solicitor who has actually been instructed to conduct the negotiations” (citing, by way of contrast, Magripilis & Anor v Baird & Anor [1926] St R Qd 89 at 91 and 96; Kent v Hogarth [1995] QCA 472 at [9]-[10] per Pincus JA; Wright v Somerton [2004] QSC 231 at [5]).

19    The difficulty for the applicant in the present case is that the solicitor advised the second respondent that he acted for the applicant “in this matter”. The matter was identified as the superannuation funds under which the death benefits were to be paid. Correspondence thereafter was forwarded to (and from) the solicitor in his capacity as such on behalf of the applicant. In these circumstances, I am unable to accept that the solicitor did not have authority from the applicant to receive all communications from the second respondent relating to the matter. Notification of the decision under s 14(3) of the Act was a communication relating to the matter. Accordingly, the solicitor was authorised to be given that notice. By operation of the doctrine of agency the notice was thus given to the applicant within the meaning of s 14(3) when the solicitor received the letter.

20    Other evidence supports this conclusion about the solicitor’s authority. For example, after receipt of the letter the solicitor communicated with the second respondent but did not suggest that he had no authority to be given the notice under s 14(3). The applicant did not give evidence that she had not given the solicitor such authority. The solicitor did not give evidence that the applicant had not given him such authority, choosing to rely instead on the terms of his communications as identified above. Those communications require the inference of authority to be drawn.

21    The principle that a solicitor’s authority may relate to one or more but not other aspects of a transaction cannot be called in aid on the facts of this case. Given the terms of the solicitor’s initial communication to the second respondent it must be inferred that his authority related to the whole of “the matter” described. Having so described his retainer, and thereafter acted in accordance with it by sending to and receiving from the second respondent various communications, it cannot be accepted that the solicitor was not authorised to be given the notice under s 14(3) of the Act. On these facts, a lack of authority would not be inferred unless, for example, the solicitor or applicant had notified the second respondent that the solicitor was not authorised to be given the decision under s 14(3) of the Act. In other words, on the facts of this case, there would be no inference of lack of authority merely because the solicitor did not expressly advise the second respondent that he was authorised to be given the notice under s 14(3).

22    The fact that other trustees may notify both the solicitor and the complainant does not lead to any different result. That practice presumably has the advantage of avoiding the issue of the solicitor’s authority but cannot change the facts of, or result in, the present case.

23    For these reasons, the complaint was not lodged within the prescribed period under s 14(3) of the Act and the Tribunal lacked jurisdiction to deal with the complaint. The application, accordingly, must be dismissed.

Associate:

Dated:    25 November 2010