Anthony Kent and Repatriation Commission
[2009] AATA 104
•10 February 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 104
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0708
VETERANS' APPEALS DIVISION ) Re Anthony Kent Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Senior Member Penglis Date10 February 2009
PlacePerth
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act, 1975 (Cth).
1. The reviewable decision dated 23 November 2007 is set aside.
2. In substitution therefore there be a decision that the applicant lodged his application for review within the 3 month period prescribed by section 136(1) of the Veterans’ Entitlements Act, 1986 (Cth) and that the Veterans’ Review Board thereby has jurisdiction to hear and determine the application for review.
3. The application for review be remitted for the Veterans’ Review Board to hear and determine on its merits.
....(sgd) Mr S Penglis...........
Senior Member
CATCHWORDS
Veterans Affairs – application to Veterans’ Affairs Board to review a decision of Repatriation Commission – application posted within requisite three months – respondent denied receiving it - held that the application was not “lodged” within the meaning of section 136(1) of the Veterans’ Entitlements Act 1986 unless it was in fact received – ss28A and 29 of the Acts Interpretation Act held not to assist the applicant - the proper conclusion to be drawn from all of the evidence was that the application was received by the respondent – reviewable decision set aside
LEGISLATION
Veteran’s Entitlements Act 1986 (Cth) ss 5T(1), 135(5)(c) and 136(1)
Acts Interpretation Act 1901 (Cth) ss 28A and 29
Australian Postal Corporation Act, 1989 (Cth) s90Q
CASES
Angus Fire Armour Australia Pty Ltd v Collector of Customs (1998) 19 FCR 477
Roberts and Repatriation Commission (1992) 27 ALD 408
REASONS FOR DECISION
10 February 2009 Mr S Penglis, Senior Member
Background
1. Most of the facts of this matter were not contentious. In essence, the respondent made a determination on 31 January 2007 to vary an earlier decision to pay disability pension at the special rate by cancelling the decision and reducing the pension to 90% of the general rate with effect from 4 January 2000.
2. A copy of the determination was provided to the applicant under cover of a letter signed by a delegate of the respondent and of the Secretary, Department of Veterans’ Affairs dated 31 January 2007. That letter stated, amongst other things “if you are dissatisfied with any aspects of my decision you should apply within three months of the date of this letter to the Veterans’ Review Board to have the decision reviewed. The Board’s address is . . . “
3. The applicant said that, upon receipt of that letter, he “was fully aware that I had only three months in which to appeal the decision” and that he contacted his accountant, Mr Kevin Judge.
4. By letter from Mr Judge to the Department of Veterans’ Affairs dated 20 February 2007, Mr Judge stated, amongst other things, that it was the applicant’s “intention to apply to the Veterans’ Review Board for a total review of this case. The application is expected to be lodged within one month”.
5. On 7 March 2007 the applicant downloaded a “Veterans’ Review Board application for review” from the internet. He completed it and said he posted it on 8 March 2007. This was therefore done well within three months after service on the applicant of a copy of the respondent’s decision.
6. I accept the applicant’s evidence, and find as a fact, that he posted the completed application for review on 8 March 2007. I say that because I accept the applicant to have been a witness of fact, and a reliable one. More to the point, however, the applicant gave evidence of having discussed the application with a well known and respected medical practitioner on that day or the day before. He offered to make that medical practitioner available to the Tribunal for questioning, if required.
7. The applicant’s evidence was that “it seemed to be taking some time for the Board or Department to get back to us with a date, however I assumed that it may be taking some time for the Department to get a hearing date to the Board or get their documentation together. I believe that it may have been some time in late July that I was contacted by the Department . . . regarding the application that I had sent them on the 8 March 2007, from memory they stated they had not received it. I then rang Robyn Davis and informed her that I had posted my application on 8 March 2007 because I was well aware that I only had a three month time limit to do so. I then forwarded her a copy with a covering letter dated 28 July 2007 and this was done by registered mail”.
8. Received into evidence was a copy of the applicant’s letter of 26 July 2007 to Ms Davis in which he wrote “I wish to advise that an application for review was posted to the Department of Veterans’ Affairs Perth office on 8 March 2007 a copy of which is enclosed”. That document bore a receipt stamp of the Veterans’ Review Board of 27 July 2007, and a date stamp of the Department of 3 August 2007. The despatch and receipt of the letter and application form in July is, of course, well outside the three month period prescribed by section 135(5)(c) of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) and thus was not relied upon by the applicant as satisfying that section, the applicant contending that he satisfied that section the application posted on 8 March.
9. By decision dated 23 November 2007, the Veterans’ Review Board decided that the applicant’s application for review which the applicant said he posted on 8 March 2007 had not been received by the respondent, and therefore had not been “lodged” for the purpose of section 136(1) and that, accordingly, the Veterans’ Review Board had no jurisdiction to hear and determine the application for review.
10. That is the reviewable decision which the applicant seeks the Tribunal to have the Tribunal review.
The Act
11. Section 136(1) of the Act provides that:
“(1) An application to the Board
(a) shall be in writing; and
(b)is to be lodged at an office of the Department in Australia in accordance with section 5T and is taken to have been made on a day determined under that section;
and may set out a statement of the reasons for the application.
12. Section 5T(1) mandates that the section regulates the lodgement of all claims, applications, requests or other documents under the Act. Subsection 5T(2) relevantly provides that:
“For the purposes of this Act, a claim, application, request or other document, other than a claim, application, request or other document that is approved by the Commission for electronic transmission and that is transmitted electronically:
(a) is taken to have been lodged at an office of the Department in Australia only if the claim, application, request or other document is:
(i) lodged at a place approved by the Commission for the purposes of this subsection; or
(ii)delivered to a person approved by the Commission for the purposes of this subsection; and
(b)is taken to have been so lodged on the day on which it is received at that place or delivered to that person.
13. Section 135(5)(c) of the Act provides that an application to the Board to review a decision of the Commission:
“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 subsection 34(2) but not otherwise.”
Did the applicant make an application to the board to review the Commission’s decision by posting an application on 8 March 2007?
14. A major hurdle the applicant must clear to succeed in his application is the decision of President O’Connor J in Roberts and Repatriation Commission (1992) 27ALD408.
15. That matter involved an application to the Administrative Appeals Tribunal to review a decision of the Veterans’ Review Board. In that decision President O’Connor J made the following observations:
·The word “made” where it appears in section 177(2)(a) of the Act was to be equated with the word “lodged” in the Administrative Appeals Tribunal Act 1975, and it meant “deposited and accepted”.
·It was the intention of Parliament, based on public policy, that veterans should not have an unlimited time in which to pursue their claims for review before the Veterans’ Review Board and the Administrative Appeals Tribunal.
·The time limit set by the Act must be complied with strictly.
16. President O’Connor J cited, with approval, the following passage of the decision of Northrop J in Angus Fire Amour Australia Pty Ltd v Collector of Customs (1988) 19 FCR 477(at pg 488/9):
“The word lodge, when used as a verb, has a number of meanings. In the Shorter Oxford Dictionary the relevant meaning is “a. To place, deposit”. A number of examples are set out including: “To put and leave in a place of custody or security 1666. To lodge money in the hands of a banker 1882. b. To deposit in court or with an official a formal statement of (an information, complaint, objection, etc).” Thus, in s68 of the Act, the word “lodged” is used in the sense of placing or depositing a document at the office of the registry or a deputy registrar. It appears to be the practice of the tribunal to allow this to be done by post. Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the registry. Thus, if an application is posted but not delivered to a registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the registry. Similarly, a document deposited on a counter at the office of a registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging”.
17. I respectfully agree with the views expressed by Northrop J and President O’Connor J. Section 135(5)(c) of the Act simply speaks of an application being “made within three months”. However, section 136(1) makes it clear that the application “is to be lodged in an office of the Department in Australia” and that such lodgement is to be “in accordance with section 5T”. I see no basis by which it could be said that, under any recognised canon of statutory interpretation, the mere posting of an application can constitute it being “lodged at an office of the Department”.
18. If that is not sufficient, section 5T puts it beyond doubt as it provides that, amongst other things, an application “is taken to have been lodged at an office of the Department in Australia” – being the precise words of section 136(1)(b) of the Act – if it is “lodged at a place approved by the Commission” or “delivered to a person approved by the Commission”. Moreover, subsection (b) speaks of any such application being taken to have been “so lodged” on the day on which “it is received at that place or delivered to that person”.
19. A document is “lodged at an office of the Department” within the meaning of section 5T or 136(1) of the Act when it is received by the Department, not when the same is posted.
20. For the applicant to succeed, therefore, the application for review had to have been received by the respondent within the requisite 3 month period.
21. Before turning to consider that issue, I note that, after the hearing of the matter, I invited the parties to make submissions as to what effect, if any, sections 28A and 29 of the Acts Interpretation Act 1901 (Cth) have on the matter.
22. Those sections provide as follows:
28A Service of documents
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:
(i)by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.
(2) Nothing in subsection (1):
(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
29 Meaning of service by post
(1) Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995.
23. The applicant made no submissions pursuant to that invitation. On behalf of the respondent it was submitted that as the Act required the application be received, neither s 28A nor s 29 of the Acts Interpretation Act affected the determination of the matter before the Tribunal as the Act “clearly evinces a clear and contrary intention to sections 28A and 29….” and that accordingly “the Veterans Entitlements Act Provision must prevail”.
24. Assuming, without deciding, that section 136 (1) of the Act “authorises or requires or permits a document to be served on a person, whether the expression “serve”, “give”, or “send” or any other expression is used” within the meaning of sections 28A and 29 of the Acts Interpretation Act, I am satisfied that, having regard to section 136 (1) (read with section 5T of the Act), and consistent with the tenor of the authorities to which I have referred, section 136 (1) evinces a contrary intention for the purposes of section 28A and 29 of the Acts Interpretation Act.
25. Accordingly, I do not consider the Acts Interpretation Act to assist the applicant.
Was The Application Posted By The Applicant On 8 March 2007 Received By The Respondent?
26. given that I have found that the applicant posted the application for review to the respondent on 8 March, then the most likely scenarios are either:
·it was delivered to the respondent
·It was returned to the applicant
·It was “lost” in transit
27. The applicant’s evidence, which I accept, was that it was not returned to him. I accept that, not only because the applicant said it and having regard to the views I have expressed as to his credibility, but because, if it had been returned to him, I have no doubt he would have re-posted it given that he was conscious of the three month time limit.
28. Moreover, as was pointed out on behalf of the applicant, section 90Q of the AustralianPostal Corporation Act, 1989 gives Australia Post legislative authority to open and examine the contents of envelopes if it needs to do so in order to deliver an article to the recipient or return the article to the sender. It was therefore submitted on behalf of the applicant that if he had incorrectly addressed the envelope (which he said he did not) I should proceed on the basis that Australia Post would have complied with the statutory obligation and dealt with the envelope, and its contents, accordingly. I accept that submission.
29. There are 2 notable features of this case which I consider to ultimately inform of the proper disposition of the matter. The first is that the respondent adduced no witness to give evidence as to either the searches which were undertaken by the respondent to determine if the applicant’s form had in fact been received by the respondent or as to its internal processes regarding the receipt and internal distribution of mail. Accordingly, the Tribunal was not able to satisfy itself that all appropriate searches had been undertaken or as to the adequacy of the respondents internal processes with respect to the receipt and internal distribution of mail.
30. Secondly, in a letter dated 22 August 2007 from the Senior Review Officer of the respondent to the Registrar of the Veterans’ Review Board, the Senior Review Officer wrote as follows:
“A thorough search of all possible relevant areas of the Department has failed to locate any trace of the “application for review” form dated 8 March 2007. These included the reviews area in Perth, the mail delivery area on the second floor, the correspondence attachments area of Bentley, the offices of the legal branch in Canberra, and the office of Director (of Reviews) in Melbourne. The only receipt of this form is dated 3 August 2007.
Although the Department now utilises a private contractor to handle its mail, which commenced operations in late March, all departmental correspondence is forwarded to the Department immediately. There was some initial problems in the early phases, however, a form as clear as to its intentions as the one now presented could be reasonably expected to be referred to the “reviews” area within a relatively short time”.
31. The letter evidences the fact of the respondent’s mail handing operations having been placed with a private contractor in respect of which “there were some initial problems in the early phases”. As no one gave evidence on behalf of the respondent, the applicant and, if it sought to do so, the Tribunal were denied the opportunity of enquiring as to what “the initial problems” were and the precise date in March in which they occurred (recognising that, if the private contractor did in fact commence “late March”, then the problems experienced with the contractor post date the date when the form posted by the applicant on 8 March could be reasonably be expected to have been received by the respondent).
32. Moreover, the opportunity was not afforded to the applicant (or the Tribunal if he wished to do so) to enquire as to why the respondent decided to utilise a private contractor to handle its mail and, in particular, whether it was a as result of problems it had experienced in the receipt of its mail.
33. The Tribunal notes that the letter from the Senior Review Officer to the Registrar of the Veteran’s Review Board refers to searches having been undertaken and the author’s observations that an application for review form could be reasonably expected to be referred to the ‘reviews’ area “within a relatively short time”. Whist that is some evidence of such matters, I consider it ought to have been led from a witness who the applicant (and the Tribunal if it wished to) could have questioned. The applicant’s inability to test such evidence necessarily limits the weight which ought be given to the letter as regards the respondents. It is akin to the tendering of a witness statement where the witness is not made available for cross examination.
34. The Tribunal recognises the difficulty inherent in proving a negative (i.e., proving something was not received). The point is, however, that by not calling any witnesses to give evidence on the point, the respondent has not adduced any evidence by which the Tribunal could properly conclude that the inference otherwise available to be drawn from its finding that the applicant posted the review form to the respondent, namely that the form would have been received by (therefore “lodged” with) the respondent in the ordinary course of mail, ought not be drawn.
35. Having regard to the totality of the evidence, the Tribunal finds that the form was in fact received by the respondent in the ordinary course of post, namely a matter of business days after 8 March 2007, such finding being available to the Tribunal having regard to its finding that the application form was in fact posted by the applicant properly addressed to the respondent, an inference which the Tribunal considers can probably be drawn that the letter would have been delivered to the respondent in the ordinary course of post, namely within a few business days after the date of its posting and probative evidence on behalf of the respondent to rebutt such an inference.
Is The Respondent Estopped From Ascertaining That The Application Was Not Lodged By The Applicant Posting The Application
36. Although that is sufficient to dispose of this matter in favour of the applicant, I note that the initial hearing of this matter was adjourned so as to provide the applicant and respondent with an opportunity of addressing, both by way of evidence and submissions, a concern which the Tribunal raised during the course of the hearing. That issue was whether some form of estoppel might arise against the respondent by reason of the wording of the application form which the applicant downloaded from the respondent’s website. The front page of the application refers to the existence of time limits and uses the expression “apply in writing for a review as soon as you can”, A subsequent sub-heading is “What happens after I lodge an application?” The page which is to be completed by an applicant reads “This form should be completed by the person who wishes to apply to the Veteran’s Review Board for a review of a decision of the Repatriation Commission. The completed application should be sent to any office of the Department of Veterans’ Affairs which will pass it to the Veterans’ Review Board …” Also on the form are the addresses of various state offices of the Department of Veterans’ Affairs which appear opposite a pictorial representation of an envelope.
37. The form does not inform the reader as to the fact that what needs to be done within the time limit is for the applicant to complete the form and for it to be received within that period by the respondent. Moreover, pictorial references to envelopes and the use of the wording “should be sent to any office” have the potential to lull an applicant into a false sense of security that sending an application by post is sufficient compliance with the Act.
38. During the course of the hearing the Tribunal informed Mr Ponnuthurai, Counsel for the respondent, that irrespective of the ultimate disposition of this application, the Tribunal hoped that the respondent will give careful consideration to recasting the application so that the importance of receipt is clearly communicated to the reader. If that is done, it should reduce the prospect of veterans wishing to appeal the respondent’s decision not clearly understanding what is required of them by law.
39. Returning to the matter at hand, the Tribunal questioned the applicant in this respect. The Tribunal’s questions and the applicant’s evidence, were as follows:
“MR PENGLIS: Now, Mr Kent, you gave evidence that you downloaded the application form from the internet?‑‑‑I did, sir.
Can you confirm that this is in the same format and wording, to the best of your recollection, as the form that you downloaded?‑‑‑It is. I downloaded the final page which is the Veterans’ Review Board Application For Review and read the first two pages on the internet and left those there.
All right. But there’s no dispute – you agree with what I’ve effectively been told by Mr Ponnuthurai that is document is what was on the website?‑‑‑Definitely, yes.
All right. And you read it. All right. What did you understand this document to be telling you to do?‑‑‑As it says, sir, it explains the ‑ ‑ ‑
I know what it says. I want you to tell me what you understood this document – in your own words what you understood this document told you to do – was telling you to do?‑‑‑It made me aware that I had to have this application within a three month period that’s specified and send it to the office of Department of Veterans’ Affairs at 140 St George’s Terrace.
All right. Now, you would have appreciated – did you appreciate that your document needed to be received by the respondent in that period?‑‑‑I was aware that they normally write back to you and advise that correspondence has been received.
I understand that but did you appreciate when you filled out your application form that the three month period was a reference to the document being received by the respondent?‑‑‑Yes, sir, yes. Yes.
Yes. All right?‑‑‑It had to be received within three months, yes.
All right. So you appreciated that posting wasn’t of itself sufficient?‑‑‑I was of the opinion that the posting was sufficient, sir.
All right, yes. Well, could you explain why you thought that?‑‑‑It tells me on the rear page to send the form – it actually says:
A completed application form should be sent to any office of the Department of Veterans’ Affairs.
Yes?‑‑‑And by send, I took that to mean posted.
Yes?‑‑‑If it had have said, “lodged or registered mail or otherwise”, I certainly would have sent it by other means but “sent” I honestly took it to believe just post it.
Yes. Well, you appreciated that you didn’t need to deliver it by hand that posting was an option. Correct?‑‑‑I beg your pardon.
You appreciated that you could deliver it by hand, didn’t you?‑‑‑I didn’t state that but I very well could have, yes.
No, well, I’m trying to – I’m not – I can read the form. I’m trying to understand – I’m trying to get into your head at the time. Do you understand? So I’m asking you questions. Did you at the time appreciate that – you’ve said that you could have posted it – did you appreciate that you could have also hand delivered it?‑‑‑I could have done, sir, yes.
Yes. And did you appreciate that it needed to actually get to its destination within the prescribed period?‑‑‑I did, sir, yes.
All right. And what was your belief as to what would happen to the letter after you had posted it or the application form after you had posted it?‑‑‑That it certainly would be delivered to the relevant department and my application would proceed.
All right. Mr Cooper, is there any questions you would like to ask the applicant and me to say yes or no for the transcript?
MR COOPER: No, sir, no.
MR PENGLIS: No. Mr Ponnuthurai.
MR PONNUTHURAI: Nothing from me, thank you, sir.
MR PENGLIS: No, thank you. All right, Mr Cooper.
MR COOPER: Yes, sir.
MR PENGLIS: Mr Kent, I’m sorry to do that to you. Thank you very much. Sorry, is there anything you want to say whilst you’re in the witness box?‑‑‑I can’t really add any more, I think than has already been said apart from the fact that I realise it’s an important document, I do have a lot riding on this and it’s not just a matter of something not being received. It’s very important and had I realised that it needed to be lodged or taken in personally or registered mail I would have done so. I was of the firm opinion that sending this document, as it states in the final page by Australia Post, it would have been there and certainly if I had thought it wasn’t going to I wouldn’t have done so.”
40. I find that the applicant appreciated that the application form needed to actually get to its destination within the prescribed period. He assumed that, having posted it on 8 March 2007, well prior to the expiration of the relevant three month period, it would have been delivered to its destination by Australia Post within the requisite period. He was aware it was a very important document and that it was open to him to deliver it by hand, or by registered mail.
41. Whilst I therefore consider it regrettable that the relevant form did not emphasise the importance of actual receipt sufficiently (or indeed at all), I am satisfied that the wording of the form did not positively mislead the applicant in the sense of causing him to adopt a course of action that, but for the wording of the application form, he would not have adopted, or alternatively causing him not to pursue a course of action which, but for his reading of the application form, he would have pursued.
42. I therefore find that, on the facts of this matter, no estoppel by misrepresentation can arise.
CONCLUSION
43. For the reasons given I am satisfied that the proper conclusion to be drawn from the evidence is that the completed application form was posted by the applicant on 8 March 2007 and that it was received by the respondent on a date unknown, but in the ordinary course of post, namely a few business days after it was posted on 8 March.
44. It follows therefore that the Tribunal is satisfied that the applicant’s application for review by the Veterans’ Review Board of the respondent’s decision dated 31 January 2007 was lodged for the purposes of section 136 (1) of the Act within the statutory three month period prescribed by the Act.
45. It further follows that the reviewable decision ought be set aside, that in lieu thereof there be a decision that the applicant lodged his application for review of the decision dated of 31 January 2007 within the three month period prescribed by the Act, that accordingly the Veterans’ Review Board has jurisdiction to hear and determine the substantive application and to remit the application for review to the Veterans’ Review Board to hear on its merits.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Penglis
Signed: ...(sgd) T Freeman...................
AssociateDate/s of Hearing 27 August and 12 December 2008
Date of Decision 10 February 2009
Appearing for the Applicant Mr B Cooper
Counsel for the Respondent Mr C Ponnuthurai
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