BARRY DACHS and REPATRIATION COMMISSION
[2012] AATA 336
•5 June 2012
[2012] AATA 336
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0200
Re
BARRY DACHS
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
Decision
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 5 June 2012 Place Bateman's Bay, NSW The decision under review is affirmed.
………………………….[sgd]………………………..
PROFESSOR RM CREYKE, SENIOR MEMBERCatchwords
PRACTICE AND PROCEDURE - appeal – Veteran’s Review Board - whether application for review out of time - service and execution - service by mail - strict time limit in Veterans’ Entitlements Act 1986 (Cth) s 135
VETERANS' AFFAIRS - disability pension - special rate of pension - deterioration of injuries – defence-caused conditions
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 5T, 9A, 15, 70A, 135(5), 136
Acts Interpretation Act 1901 (Cth) s 29(1)
Evidence Act 1995 (Cth) s 160
Cases
Re Roberts and Repatriation Commission (1992) 27 ALD 408
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
History
The veteran, Mr Barry Dachs, had an accepted claim for disability pension for a number of conditions. By 2010, pension was payable at 100 per cent of the general rate. On 18 June 2010, he applied for an increase to his disability pension for conditions described as ‘severe deterioration of spine impairment, both knees, hips, thumb, right shoulder’. He sought pension at the intermediate or the special rate, or that he be granted the extreme disablement adjustment.
On 16 March 2010, the Repatriation Commission (Commission) accepted his claim for the conditions described as lumbar spondylosis, thoracic spondylosis, osteoarthrosis of the right shoulder and osteroarthrosis of thumb of the left hand as being defence-caused, with effect from 18 March 2010. The Commission assessed his pension to continue at 100 per cent of the general rate.
As the onset of the condition of osteoarthrosis of both hips occurred after 30 June 2004, in accordance with the terms of ss 9A and 70A of the Veterans’ Entitlements Act 1986 (Cth) (VEA), that claim is being considered under the Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA).
On 29 June 2011 Mr Dachs sought review by the Veterans’ Review Board (Board) of the decision of the Department. On 20 October 2011, the Board found it had no jurisdiction to review the merits of the decision since it was lodged out of time and it had no option but to affirm the decision under review. On 17 January 2012, Mr Dachs sought further review by the Tribunal. The matter was heard in Bateman’s Bay, New South Wales, on 28 May 2012.
Legislation
Lodgement of an application for review by the Veterans’ Review Board (Board) is governed by sections 5T, 135, 136 of the Veterans’ Entitlements Act 1986 (Cth) (Act). Other relevant legislation is found in the Acts Interpretation Act 1901 (Cth) ss 28A, 29(1) and the Evidence Act 1995 (Cth) s 160 which define what is meant by ‘service by post’.
IssueS
The only issue is whether the Board was correct in its finding that it had no jurisdiction to review the application for review by Mr Dachs.
BACKGROUND
Mr Dachs served in the Australian Army. Accordingly he had defence service. For the purposes of this application his eligible service was from 30 November 1976 to 30 June 2004. He was discharged from the Army in December 2006, aged 50 years. At that time he was in receipt of disability pension at 100 per cent of the general rate. He applied to the Commission for an increase to his rate of pension for the conditions listed in paragraph 2 of these reasons, and due to general deterioration of his existing defence-caused conditions.
Mr Dachs’s contention is that he notified the Department of Veterans’ Affairs (Department) of his projected change of address from Canberra, ACT to Burrill Lake, NSW, including that he would be at his new address ‘at the end of March’. Mrs Dachs said she phoned the case officer repeatedly in early March 2011, and left messages, to provide the change of address information. Mrs Dachs also noted that she left requests that, if possible, the decision be delivered to them before their move occurred. Notwithstanding that advice, the Department sent the decision to Mr Dachs’s new address on or about 16 March 2011.
Mrs Dachs advised that the couple received the decision on 25 March 2011 when they arrived at their new address and picked up their mail. As a consequence, Mr Dachs did not receive the decision until that day. The couple also acknowledged that they did not attend to their mail for the next week. The process of the removal of their effects and animals (the couple has three dogs and five cats), unpacking boxes, a task with which the removalists had not assisted, and the fact that it was raining for their first period in their new home, meant they were distracted. In addition, Mr Dachs had been ill and Mrs Dachs had been concerned with finding and arranging appointments for him with a doctor, an osteopath and a chiropractor.
The letter from the Commission notifying Mr Dachs of the decision stated: ‘The time limit for lodging an application to the VRB is 3 months from when you are deemed to have … received advice of my decision’ (emphasis in letter). The couple acknowledged at the hearing that they realised they had missed the deadline for seeking review by the Board. Their hope was that some discretion might be exercised in their favour, given the circumstances of the timing of the delivery of the decision during the inevitably demanding removal process, the fact that Mrs Dachs had specifically asked the Department, if possible, to post the decision to them at their Canberra address if it was made before they were due to leave, and the failure of the Department to do so.
Mr Dachs also contended that since he did not receive notification until 25 March 2011, their application for review to the Board should not have had to be received by the Board until 25 June 2011. Even if that contention was accepted, Mr Dachs did not lodge his application for review to the Board until 29 June 2011, also outside the time limit. Nonetheless, he argued that since the Board in its reasons had said that the reference in the legislation to ‘date of receipt’ in practice included ‘an allowance of several days for postal administration’, the same leniency should have applied to their application for of review, not least because two of the days after 25 June 2011 were days of a weekend.
Consideration
Section 34(2) provides that when the Commission has made a decision relating to an application for an increased rate of pension, the Commission shall ‘cause to be served’ on the veteran
… a copy of its decision and of the statement relating to the decision made by it … together with particulars of the right of the person on whom it is served to have the decision reviewed by the Board.
Section 135(5) of the VEA states, as relevent:
135 (5) An application under subsection (1), (2) or (3) to the Board to review a decision of the Commission:
(a) assessing a rate of pension or increased rate of pension;…
(c) refusing to increase the rate of a 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 subsection 34(2), but not otherwise.
That section requires that an application for review must be made within three months ‘after service on the person to whom the decision relates’. The time limit is a strict one.[1] As O’Connor J, when President of the Tribunal, said in Re Roberts and Repatriation Commission:
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.[2]
[1] Re Roberts and Repatriation Commission (1992) 27 ALD 408 at [30] .
[2] Id at [25]
There was no dispute that the Commission sent a letter to Mr Dachs advising him of the decision on his claim and that letter was dated 16 March 2011. Nor was there any dispute that the letter was sent to the Burrill Lake address of Mr Dachs. That letter was received 9 days after the decision was made when Mr and Mrs Dachs accessed their mail after arriving in Burrill Lake. There was also no dispute that Mr Dachs’s application to the Board for review was lodged with the Board on 29 June 2011.
What is meant by ‘service’ is not defined in the Act. Accordingly, the default provisions in the Acts Interpretation Act 1901 (Cth) (AIA) which apply to Commonwealth legislation are applicable. Section 28A of the AIA provides:
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:
… (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.
‘Service by post’ is defined in section 29 of the AIA as follows:
(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 (Cth)).
Section 160 of the Evidence Act 1995 (Cth) raises a rebuttable statutory presumption that a prepaid letter is delivered by the fourth working day after being posted.
The effect of these provisions is that where a decision is sent by post, the decision is deemed to have been received on the date the decision would ordinarily be taken to be delivered, that is, on the fourth working day after being posted. There is an exception if the person to whom the letter is addressed proves on the balance of probabilities that the letter was not received on that day.
That means that although no evidence was provided as to when the letter containing the decision was actually received at Mr Dachs’s postal address at Burrill Lake, the decision was deemed to be served on Mr Dachs on 20 March 2011. The three month time limit began on that date. Mr Dachs’s application to the Board was not lodged with the Board until 29 June 2011, that is, 9 days after the time limit expired.
Even if Mr Dachs’s contention was accepted that the time should have begun to run on 25 March 2011, the date he actually received the decision, his application for review was not received by 25 June 2011. As the time limit for the application for review is strict, his application was out of time.
The fact that the time limit is a strict one, also means that the reasons Mr and Mrs Dachs provided to the Tribunal for their delay in lodging their application for review cannot be taken into account to excuse their delay.
Section 5T, in conjunction with section 136 of the Act, provides for the lodgement of all applications for review by the Board. Together these provisions require that an application must be in writing and must be lodged ‘at an office of the Department’. The date of lodgement is taken to be ‘made’ on the day the document was received at the Department.[3] O’Connor J in Re Roberts and Repatriation Commission found that for the purposes of an application for review, the word ‘made’ (which appears in section 135(5) of the Act, was to be equated with the word ‘lodged in the Administrative Appeals Tribunal Act 1975 (Cth), and meant ‘deposited and accepted’.
[3] Act ss 5T, 136.
Conclusion
Mr Dachs did not lodge his application until 29 June 2011, that is, outside the time limit of three months prescribed in section 135(5) of the Act. That means the application was out of time. That also means that the Board was correct in its finding that it had no jurisdiction to consider the substantive application for review by Mr Dachs. Nor is the Tribunal in any better position than the Board. Accordingly the Tribunal upholds the decision of the Board and affirms the decision of the Commission under review.
Mr Dachs is aware that he is able to lodge a further application to the Repatriation Commission in respect of his claim that his pension is payable at a rate higher than 100 per cent of the general rate. That claim can be lodged 28 days after receipt of this decision, assuming he does not appeal to the Federal Court.[4] He was also advised that if he claims there was maladministration by the Department in sending the decision prematurely to his new address, he can lodge a complaint with the Commonwealth Ombudsman’s office.
[4] Act s 15(5), (6).
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member. ..............................[sgd]..... .....................................
Associate
5 June 2012
Date(s) of hearing 28 May 2012 Applicant In person Advocate for the Respondent Tim O'Reilly Solicitors for the Respondent Department of Veterans' Affairs
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