Adams and Repatriation Commission

[2004] AATA 1233

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1233

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/563

VETERANS' APPEALS DIVISION		)
Re		GREGORY ADAMS

Applicant

And REPATRIATION COMMISSION

Respondent

PRELIMINARY DECISION

Tribunal Ms M J Carstairs

Date11 November 2004

PlaceBundaberg

Decision The Tribunal decides that the applicant’s application for review of a decision of the Repatriation Commission dated 5 May 1989 is a valid application and is not outside the time limits for seeking a review of the decision under the Veterans’ Entitlements Act 1986.

...........[Sgd]..........

M J Carstairs
  Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – Whether valid application – Whether applicant out of time – Applicant not properly served with decision – Applicant’s application valid and not out of time

Veterans’ Entitlements Act 1986 ss 34,135

Acts Interpretation Act 1901 ss 28A,29

WRITTEN REASONS FOR DECISION

24 November 2004 Ms M J Carstairs, Member   

1.      This is a hearing of a preliminary issue on an application made by Gregory Francis John Adams (the applicant) for review of a decision that commenced with a claim made by him on 14 July 1988 seeking an increase in the rate of disability pension being paid to him.  The question is essentially whether he is out of time to make such an application. 

2.      The Tribunal made a ruling on a preliminary point after a hearing in Bundaberg on 11 November 2004.  The respondent later requested written reasons for the preliminary ruling.

3.      Under the Veterans’ Entitlements Act 1986 (the Act) it is provided in s 135(5)(a) that an application for review of a decision of the Commission assessing a rate of pension may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with s34(2), but not otherwise.

4.      The matter was heard by the Veterans’ Review Board on 23 April 2004.  The applicant told the Veterans’ Review Board that he had never received a copy of the decision related to his 1988 claim until he came upon it after making a Freedom of Information application.  The Veterans’ Review Board considered the issue about whether, in all the circumstances, the Repatriation Commission’s decision dated 5 May 1989 had been properly served upon the applicant so that time commenced to run from the time that he could be expected to receive it in the ordinary course of the mail. 

5.      The Veterans’ Review Board decided that the copy of the decision dated 5 May 1989 had been properly served upon the applicant and he would have been expected to get it by 16 May 1989 calculated to take into account that it was accompanied by a covering letter dated 9 May 1989.  That set the date at 15 August 1989 relevantly for s135(5)(a) of the Act and so the application which they received in 2003 could not be entertained.  The Veterans’ Review Board affirmed the decision under review.

6. At the hearing of the preliminary issue the applicant gave oral evidence referring to the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 together with other materials which he had lodged and numbered ADA001 – ADA 0052.

7.      In the course of his evidence, the applicant referred, in particular, to the circumstances surrounding the document that is marked ADA11, dated 9 February 1989.  The applicant gave evidence that towards the end of 1988 or early 1989 he moved from Wagga Wagga to Wodonga.  At document ADA 009 and 0010 a change of address form dated 8 November 1988 showed his new address as Unit 1/26 Donnelly Avenue, Wodonga.  A previous address on ADA 009 was an address in Wagga Wagga.  Both of these forms showed that the applicant’s method of communicating the information about change of address was by telephone. 

8.      The document ADA 0011, also a change of address form where the information was provided by the applicant to the respondent  by telephone, showed as a “new address”, Unit 1/26 Donnelly Avenue, Wodonga and as the “previous address”, RAAOC Centre, Bandiana MIL PO 3694.  Underneath this part of the form it is stated unless otherwise indicated this address applies to correspondence and payments.  The change of address form of which ADA 009, 0010 and 0011 are examples, is a standard form where entries are made against pre-typed data areas, and there is no provision for a entering a “postal address”.

9.      The applicant gave evidence that when he was posted to Wodonga, he was undertaking duties as a transport driver and was on the road more frequently.  He was travelling frequently away from home, as was his de facto partner.  They had noted that mail would go missing from their residential address in Wodonga.  The applicant gave evidence that he had frequently used the military address to ensure that he received vital mail. 

10.     The applicant said that because of these issues he had telephoned to the Department of Veterans’ Affairs and had spoken to the officer who completed form ADA 0011, telling him that he needed to change his postal address to RAAOC Centre, Bandiana.  The applicant said that what seems to have happened was that instead of striking out ‘previous address’ on the document and replacing it with ‘postal address’ the officer has simply written in the new information onto the form, so that it appeared as the “previous address”.

11.     Under cross-examination, the applicant was asked why it was the case that, having subsequently received mail at the home address, the applicant had not then notified the Department that the wrong address was being used.  The applicant said that it may have been because he was busy or away at that time.  The applicant referred to other documents which he believed he also did not receive at the residential address even though in the T-documents that is the address that those documents bear (T4 page 23).

12.     The Tribunal took into account the oral and written evidence as well as the respondent’s Statement of Facts and Contentions (exhibit R1) and the applicant’s reply (exhibit A1).  This matter is affected both by the provisions of the Veterans’ Entitlements Act and by the operation of the Acts Interpretation Act 1901. 

13.     The Veterans’ Entitlements Act sets out in s34(2) that the Commission, in publishing its decision, shall cause to be served upon an applicant a copy of its decision and statement of reasons as well as the rights of the person to have the decision reviewed by the Veterans’ Review Board.  The question of service requires the application of the general provisions of the Acts Interpretation Act. 

14.     It is not in dispute that a person can elect to have a postal address as their address for service of documents.  In the Tribunal’s view the question here in dispute resolves into a simple issue of what was the address to which the decision of the respondent made on 5 February 1989, and the accompanying letter dated 9 February 1989 was required to be sent.  The Tribunal decides this issue in favour of the applicant.

15.     The Tribunal was satisfied that the applicant phoned to the Department on 9 February 1989 in order to give the information that he wished the RAAOC Centre, Bandiana to be recorded as his postal address.  The entries on this document otherwise makes no sense at all.  The applicant had recently moved to work at Bandiana and live at Wodonga.  The Bandiana address could not have been ‘previous address’ as the form indicates.  The only sense that can be made of the information is that the applicant was supplying a postal address which he was asking to have used for correspondence. 

16.     The Tribunal accepts Mr Stoner’s submission that it is understandable that in the course of the subsequent handling of the document that other officers accessing the file would have been misled by its contents and acted in good faith in addressing the decision to the applicant’s residential address in Wodonga.   However, as stated, the issue is a simple one.  The applicant phoned on 9 February 1989 requesting that correspondence be addressed to a particular postal address.  This was not the address that was used when sending out the notice of decision on 9 February 1989. 

17.     However inexplicable it may be that the applicant was not alerted to the wrong address being used when he subsequently received mail from the Department at his residential address and, indeed, that he never enquired the outcome of an application for increase in rate when he heard nothing for over 12 years, the provisions for service of notice are clear and operate to maintain his rights of review of the delegate’s decision.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:      Jan Lauriston.

.               Admin Assistant

Date/s of Hearing  11 November 2004 (Bundaberg)
Date of Decision  11 November 2004 (Bundaberg)
Written Reasons  24 November 2004
The Applicant appeared in person
For the Respondent                  Mr J Stoner, Departmental Advocate