Bond and Repatriation Commission - [2001] AATA 247

DECISION AND REASONS FOR DECISION [2001] AATA 247

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/750

VETERANS'      APPEALS      DIVISION         )
           Re      ANTHONY WILLIAM BOND
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. T. C. Brassil, AM, Member

Date26 March 2001
PlaceMelbourne

Decision The Tribunal decides the application for review to the Board was within the statutory time limit and hence the Tribunal has jurisdiction to hear an application for review of the merits decision of the Board dated 19 April 2000.

.….(Sgd) J. T. C. Brassil...........
Member
CATCHWORDS
VETERANS' AFFAIRS – whether a reviewable decision – service of documents – place of residence or business – post office box a place of residence
Veterans' Entitlements Act 1986 ss 34(2), 135(4)
Acts Interpretation Act 1901 ss 28A(1), 29(1)
Repatriation Commission v Gordon & Ors (1990) 21 ALD 145
Meyza v Repatriation Commission (1997) 44 ALD 540
Re Roberts and Repatriation Commission (1992) 26 ALD 611

REASONS FOR DECISION

26 March 2001 Mr J. T. C. Brassil, AM, Member

This is an application to determine whether the Tribunal has jurisdiction to deal with a claim by Anthony Bond in respect to primary cerebellar degeneration. On 19 April 2000 the claim was determined by the Veterans' Review Board (VRB) as being out of time and also rejected as not defence-caused.
The applicant was not present at the hearing on 7 September 2000 but was represented by Mr Phil Trigar of counsel. The respondent was represented by departmental advocate, Mr Robert Douglass.
The documents prepared pursuant to section 37 of the Administrative Appeals Act 1975 ('the T documents") were available for reference in the hearing.
Facts
The applicant was a serving member of the Australian Army from 5 February 1975 still serving when his application for acceptance of the relevant condition was rejected by the Repatriation Commission on 28 July 1995.
His application, made on 3 August 1994, was for Ataxia, Cerebellar Atrophy and Gout. In respect to Gout the Commission declined to accept the condition on 18 November 1994. The first two conditions were considered together under the re-classification of "primary cerebellar degeneration" and rejected in a decision dated 28 July 1995 as no causal connection with his defence service was established.
This decision was communicated to the applicant by post on the same date addressed to him at his recorded postal address of "PO Box 868 Sutherland 2232".
The officer concerned with this notification, Mr Stephen Oakes, confirms that the letter, according to departmental records, was returned marked either "return to sender" or "left address" (T11, page 42) but the returned envelope is not on the relevant departmental file.
Mr Oakes reported (T11) that:
"As far as action taken to establish his new address is concerned, I recall trying his work phone number at Dept of Defence Moorebank (as his claim form had no home number/address) and being advised of his transfer to Melbourne; I subsequently attempted to reach him at the phone number suggested and, after being mucked around a good deal, was told that he was in the bush on manoeuvres for several weeks and not contactable. I would have left a message for him to contact me."

He continued:

"…I imagine I checked his personal details on the mainframe a few times in case he did the right thing and gave us advice about his change of address; this obviously did not occur and, as I had several other things to worry about, I would not have continued to pursue this indefinitely."

Enquiries to Australia Post had indicated that the applicant did not renew his PO Box at Sutherland when his lease concluded on 10 February 1995.
The applicant's solicitors contacted DVA early in 1998 on his behalf. He claims to have first become aware of the 28 July 1995 decision on 8 July 1998. He applied for review on 27 July 1998 after consultation with his solicitors. His address on this application was PO Box 78, Nicholson, Victoria, 3882.
After two VRB hearings, in between which further enquiries were made, it was decided on 19 April 2000 that the application, received some three years after the decision was made, was out of time and also, even if accepted as a valid application, the merits were determined. It was decided that the claim was not related to the applicant's defence service.
Issues before the Tribunal
The threshold issue is whether the application for review was out of time. If the application was not made within 12 months after service of a copy of the decision it would be out of time thus the issue is whether service was effected, or could be deemed to have been effected, on the applicant by the actions taken in 1995 and if not from which date would the period of 12 months run.
Legislation
The Veterans' Entitlements Act1986 ("the Act") provides at section 135 for review of decisions of the Repatriation Commission by the VRB and the relevant subsection determining the time allowed for an application is as follows:
"135(4) Subject to sub-sections (5) and (5A), an application under subsection (1) or (2) to the Board to review a decision of the Commission may be made within 12 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."
In this case subsections (5) and (5A) do not apply and there is no contention that subsection 34(2) was contravened but it should be noted that that subsection uses the expression "cause to be served" in relation to the documents.
The issues of service of documents and service by post are dealt with in the Acts Interpretation Act 1901 ("the AIA") and the relevant subsections are:
"28A(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:
(a)       on a natural person:
(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)       …
…
29(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)       …

Submissions

Mr Douglass on behalf of the respondent submitted that the application for review, dated 27 July 1998, was out of time and hence not a valid application. He conceded that one of the letters to the Department of Veterans' Affairs (DVA) on behalf of the applicant could be construed as a fresh claim and DVA would be (Transcript page 4 at 4) "…under an obligation to consider that claim again and would backdate".
He submitted that this was an application for a pension and the time limit was determined pursuant to subsection 135(4) of the Act which was "12 months after service" and the VRB was constrained by the last phrase "but not otherwise". In his submission this was a mandatory limitation.
That the provision was "mandatory" not "directory" followed from the decision of O'Connor J in Re Roberts and Repatriation Commission (1992) 26 ALD 611 ("Roberts"). Even though this case concerned an appeal from the Board to the Tribunal there is no substantial difference in the various jurisdictional provisions. O'Connor J held that time limits must be adhered to strictly.
He submitted further that subsection 34(2) did not preclude service by prepaid post even though personal service may be preferable. This was found by Spender J in Repatriation Commission v Gordon & Ors (1990) 21 ALD 145 at 152 ("Gordon").
He referred to section 29 of the AIA as being applicable to the service by the respondent as required by subsection 34(2) of the Act wherein service is "deemed to be effected by properly addressing, pre-paying and posting the document". It was his submission that this had been done in this case and the letter returned to the respondent because the last known address of the applicant was a post office box no longer leased by the applicant. This was his only address notified to the Commission in his claim. He appears to have moved his address without notifying the DVA.
He submitted that Spender J in Gordon made the clear distinction at the end of page 153 when dealing with section 29 of the AIA that in dealing with whether the letter was delivered pursuant to this subsection "non-receipt is not the same as non-delivery".
Mr Douglass submitted that this was a claim for a pension and Mr Bond seemed to be quite uninterested in the outcome of that claim for three years. He did not consider it anyway necessary to inform DVA after he had moved. If the Tribunal finds that service in this was not effected it means that DVA is expected to track its clients around Australia if they choose not to notify their whereabouts. Mr Bond had clearly rested on his rights for three years before approaching the Department again.
If the application was not valid, and that remains the submission of the respondent, it could however, Mr Douglass submitted, be regarded as a fresh claim. As the applicant's solicitors had prior contact with DVA regarding the decision on 22 May 1998 or, if it can be traced, the earlier letter they claim was sent on 12 March 1998 then the fresh claim could date from the earliest date and any pension would be backdated for three months prior to the claim being received.
Mr Trigar, on behalf of the applicant, submitted that the Tribunal had jurisdiction both on the merits and on the question of jurisdiction. He referred the Tribunal to Meyza v Repatriation Commission (1997) 44 ALD 540 ("Meyza") which dealt with issues of the Tribunal's jurisdiction and, in particular, with the Board finding it did not have jurisdiction in certain circumstances.
Mr Douglass conceded that the Tribunal had jurisdiction to decide the jurisdictional issue before it.
Mr Trigar submitted that both Gordon and Meyza make it clear that the AIA provisions apply to the issues of service in this matter.
He submitted that subsection 28A(1)(a) required the document is served "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". Then this service by post is pursuant to subsection 29(1) "deemed to be effected by properly addressing prepaying and posting the document as a letter" and further "unless the contrary is proved" service is deemed to have been effected "at the time the letter would be delivered in the ordinary course of post".
He referred to the decision of the Board of 1 June 1999 (T9, page 33) which recorded that the first indication of an address in Nicholson is on a request under the Freedom of Information Act 1982 lodged by the applicant on 25 November 1997.
The Commission had acted, in his submission, on the basis that a post office box was the applicant's "place of residence or business". It was submitted that a post office box cannot be construed as a residential address. That construction is not what is intended in the relevant subsections of the AIA. There are factual questions to be decided, what was served, where it was served, whether that could be a residential address and whether that was the address last known to the Department.
Mr Trigar submitted that the respondent had not served the documents relating to the decision made on 28 July 1995 on the applicant either at his last known residential address nor at his place of business which was as a serving member of the Australian Army. The applicant had only received these documents after his FOI application. He submitted that this application for review was within the statutory time limit which would run from 8 July 1998.
In response Mr Douglass submitted that if it was held that posting to the post office box was not in compliance with the provisions of the AIA then it should be determined whether provision of an acceptable residential address on the application is a necessary condition for it to be a valid application.
Consideration of the Issues
In this matter it is common ground that the provisions of the relevant subsections of the AIA require that service of documents must be properly addressed, prepaid and posted to the last known place of residence or business of the applicant.
There was no evidence available to show how the documents were addressed but the copy presented (T6, page 24) was addressed to Mr Anthony W Bond, PO Box 868, Sutherland 2232 and it was stated by the departmental advocate that it was departmental practice to send the decisions in window envelopes thus the postal address would be what was on the first page of the decision documents. There was no evidence of posting, either place or time. There was evidence (T11) from Mr Oakes that it had been returned but the envelope had not been retained, contrary to the usual practice in these circumstances, and he was not sure what notation was on the envelope. However he reported his consequential attempts to make contact with the applicant.
In view of Mr Oakes' evidence the Tribunal is satisfied on the balance that the documents relating to the decision were addressed, prepaid and posted. The question remains whether the document was properly addressed.
To be "properly addressed" thus satisfying subsection 29(1) the address used would need, pursuant to subsection 28A(1)(a), to be addressed to the applicant's last known place of residence or business.
The application (T4) completed by Mr Bond on 1 August 1994 has a space in Section 1 for "Residential Address" as well as "Postal Address" but only the latter was filled in by the applicant (T4, page 17). It is common ground that the application was accepted in that form and it is marked thereon "Acknowledged". In Section 2, "About your service details" the applicant filled in his service number "312129", his unit as "DNSDC" and enlistment date as 5/2/1975 then noted he was "still serving".
It is therefore the view of the Tribunal that the Commission would have adequate knowledge of the "place of business" of the applicant or a ready capacity to obtain it. Mr Oakes showed this as he was able to find a telephone number in Victoria which was apparently the base to which Mr Bond had been transferred some time previously. We were informed that he was "out on manoeuvres" at the time of the telephone call which the Tribunal understands is an activity engaged in with some regularity by members of the defence force. The requirement of the AIA for service does not include a telephone message but either personally or by post.
Consequently the Tribunal is of the view that no attempt was made to serve the documents at his place of business.
The remaining issue is whether the documents were served at the applicant's last known "place of residence". They were served, on the submission of the respondent, by posting to the post office box recorded on the application as the applicant's "postal address". It is the submission on behalf of the applicant that the post office box is not the applicant's place of residence.
The Tribunal prefers a strict adherence to the requirements for service. The respondent submitted that the Tribunal should follow O'Connor J in Roberts in strict adherence to time limits in the Act and the Tribunal agrees. It would be inconsistent to be other than strict in interpreting the "place of residence" as required in subsection 28A(1) of the AIA.
In making this finding it is not necessary to consider the "non-receipt" and "non-delivery" conflict raised in Gordon.
The original application to the Commission did not have a residential address entered but it is not the view of the Tribunal that it is invalidated because of that omission. The respondent did not raise the issue then with the applicant and has rested on the matter all this time. The Act is beneficial in nature and it would be unfair to invalidate the application because of an administrative omission that the respondent did not seek to correct at the time.
After consideration of all matters put to it in this matter, the Tribunal finds that the Commission decision of 28 July 1995 was not properly served on the applicant at his last known place of residence or business. Further it finds that the application for review on 27 July 1998 was received within the statutory time limit.
Having found that the VRB had jurisdiction, it follows that the Tribunal is not fettered in its review of the VRB decision of 19 April 2000.
Conclusion
The Tribunal decides that the application for review was a valid application and that the Tribunal has jurisdiction to review the VRB decision of 19 April 2000 on the merits of the application.
I certify that the forty-five (45) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J. T. C. Brassil, AM, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  7 September 2000
Date of Decision  26 March 2001
Counsel for the Applicant        Mr P. Trigar
Solicitor for the Applicant         Ryan Carlisle Thomas
Solicitor for the Respondent    Mr R. Douglass, departmental advocate