DESMOND FRANCIS RALPH and REPATRIATION COMMISSION

[2011] AATA 881

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 881

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2010/3627

VETERANS’       APPEALS      DIVISION		)
Re		DESMOND FRANCIS RALPH

Applicant

And REPATRIATION COMMISSION

Respondent

PRELIMINARY DECISION

Tribunal: Ms Regina Perton, Member

Date:14 November 2011

Place:Melbourne

For reasons given orally at the hearing, the Tribunal determines that the application for increase in pension was lodged on 1 May 2009. 
The matter is to be listed for further hearing.

[sgd] Regina Perton

Member

VETERANS’ AFFAIRS – date of lodgement of application for increase in pension – whether lodged before or after the applicant’s 65^th birthday – whether date of postage of application relevant - date of lodgement determined by date of arrival at designated office.

Acts Interpretation Act 1901 ss 28A, 29
Evidence Act 1995 s 160
Veterans’ Entitlements Act ss 5T, 15

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Re McGowan and Repatriation Commission (1994) 37 ALD 215
Re Clough and Repatriation Commission (1997) 44 ALD 457

Repatriation Commission v Gordon (1990) 26 FCR 569

REASONS FOR DECISION

14 November 2011 Ms Regina Perton, Member

1.       The Tribunal provided oral reasons for its decision at a hearing of this application on 14 November 2011. The applicant’s solicitor requested written reasons for the decision. 

2.       Desmond Ralph celebrated his 65^th birthday on 23 April 2009.  A few weeks before his birthday, he decided to lodge an application for a special rate pension on the basis that his war-caused disabilities, for which the respondent had accepted liability, had prevented him from continuing his employment.  He sought the assistance of a Returned and Services League (RSL) advocate, Mr John Meehan, in completing the form. Mr Ralph took the form to his doctor for the completion of a relevant part of a form, and returned the form to the RSL.  Mr Ralph and the RSL advocate believed that the form was posted to the Department of Veterans’ Affairs (DVA) in sufficient time for it to reach DVA before his birthday.  Unfortunately, DVA’s records indicate that the application arrived on 1 May 2009.

3.       The date of lodgement is important in this matter because there are different statutory requirements for persons who are no longer working, depending on whether the application was lodged before or after their 65^th birthday.  In Mr Ralph’s case, he was no longer working on that birthday and that makes it difficult for him to meet statutory requirements for a special rate of pension. 

4. Mr Ralph’s solicitor submitted that the lodgement requirements set out in section 5T of the Veterans’ Entitlements Act 1986 (the Act) should be read in conjunction with sections 28A and 29 of the Acts Interpretation Act 1901 (AI Act) which deal with service of documents by post. Mr Ralph and Mr Meehan gave oral and written evidence. Mr Michael North, a volunteer who assists with administrative tasks including the mail at the Noble Park RSL, also gave oral evidence. All three of them firmly believed that the application was posted on 16 April 2009. Unfortunately, the mail book, in which the despatch would have been recorded, was destroyed when the RSL’s Noble Park office was flooded. In any case, even if the mail book had been available, it would not have assisted Mr Ralph because of the lodgement provisions in the Act.

5. In its oral decision, the Tribunal determined that the lodgement requirements in sections 5T and 15 of the Act were clear and specific and that the provisions in sections 28A and 29 of the AI Act were not applicable. In order to reflect, as closely as possible, its oral decision, the Tribunal has chosen to provide an extract from the record of its oral reasons. A transcript of the oral reasons for decision, as provided by the recording company, Auscript Australasia Pty Ltd, is set out below. Transcription errors have been left in.

EXTRACT OF TRANSCRIPT OF PROCEEDINGS   [3.23 pm]

MS PERTON:…One of the first issues I have to look at it is what date I believe that the application was received at the Department of Veterans’ Affairs.  I accept your comments, Mr Di Marchi, that we haven’t gone through a whole lot of issues about the procedures at DVA when mail comes in, however, it is common practice for a date stamp to be applied on the day correspondence is received at a particular agency, be it federal, state or local.  And there is no evidence to the contrary that it wasn’t received on 1 May at the department.  As Mr Purcell said, it hasn’t been challenged that that was the date that the document actually was received by DVA in relation to the application of the claim.  The main issues I have to look at in this are the requirements in section 15(3) that for an increase in pension an application must be made in writing on the relevant form and lodged at an office of the department in Australia or with an authorised person. 

And section 15(3) has to be viewed in conjunction with section 5T which says that a claim is lodged only – and the word “only” appears in 5T – only on the day it was received at an office of the commission and is taken to have been lodged on the day on which it is received at that place.  Mr Di Marchi, you suggested that I follow a couple of cases and I have read through these cases that were suggested to me in the statement of facts and contentions as well as the one today.  One of them was McGowan v Repatriation Commission which was a 1994 case by Senior Member Lewis.  I must say, that when I read that case you would have believed that that would be something that would support the present application because, although it’s slightly different, it concerned an application for review with the Veterans’ Review Board where the preliminary question for the AAT was whether it had been properly lodged at the VRB.  So it is not about the date of lodgement of the original application, but whether the applicant’s letter seeking appeal from the VRB was or wasn’t received. 

While Senior Member Lewis in this decision basically said it would be unfair to have more onerous requirements on the non-government party that, in fact, in effect, is what sections 5T and 15 stipulate.  This happens in this jurisdiction and many other jurisdictions.  There are many cases where people miss out on social security benefits on a huge amount.  Just to give an example, there used to be a pension bonus if you worked beyond 65 and if you didn’t have an application in on a certain date and you hadn’t lodged your intent to work beyond 65 I’ve seen cases where people have missed out on hundreds of thousands of dollars in that.  There are similar provisions with immigration matters and there are quite a range of matters where I think the requirements on the applicant are far more onerous than the requirements on the agency.  So as you know I’m not required to follow other tribunal decisions as a precedent and I don’t believe that that decision in McGowan v Repatriation Commission is an appropriate one to follow.  I also looked at Repatriation Commission v Gordon which dates back to 1990 which was cited in McGowan. 

It concerned findings as to whether the VRB could deal with a case where Mr Gordon hadn’t received the commission’s decision about a particular application.  He had an application before the VRB and it turned out that he hadn’t seen the decision about an earlier disability he had.  And the issue was service of the decision document on Mr Gordon by the commission.  Again, I don’t believe that is a parallel issue to the one confronting Mr Ralph.  Mr Di Marchi also cited the High Court decision of Fancourt v Mercantile Credits which was a 1983 Queensland case involving a hire purchase contract.  The issue in question in that matter was service of certain document on Mr and Mrs Fancourt who had bought farm machinery under Queensland law and it was now subject to repossession.  The issue in that one is whether the documents had been sent to them in accordance with the contract in the legislation, and whether an address care of the post office in their area was an appropriate address and whether the documents were, in fact, sent to them; that was in dispute. 

Again, I think this concerns a different issue than the lodgement of the actual claim in the current matter.  There are other decisions about lodgement dates that go in a different direction to McGowan and one of the cases I gave you just before we resumed this afternoon was Clough v Repatriation Commission, a decision by Deputy President McMahon, where the issue of dispute was the lodgement of a claim before a cut-off date, 1 June 1994, which resulted in changed provisions with the imposition of statements of principles.  Deputy President McMahon made the firm finding that, notwithstanding preliminary inquiries and correspondence with DVA before 1 June 2004, the actual claim form in question was received by the department after July 2004.  DP McMahon found that the provisions of section 14(3), which are the same wording as 15(3), meant it was the actual claim form and date of receipt by the department that is the relevant date which disadvantaged Mr Clough.  I think that case is much more parallel to the present situation faced by Mr Ralph. 

I agree with your submission, Mr Di Marchi, that the department is not claiming non-delivery but it’s the date of delivery of the documents.  But, as I said earlier, there is no evidence that there was an alternative date for receipt of the document by the department and there is no evidence it was stamped with the wrong date.  We heard evidence today from both Mr Mee and Mr North about what the usual practice was at Noble Park’s RSL office.  It is fantastic we have got volunteers such as those people doing these matters and they do seem to have a system in place.  But in this instance there was little we could do to, in fact, prove that the letter had been put in the mailbox on that particular day, unfortunately due to the floods and so on.  It may have been; it may not have been.  The error could have been at the post office; it could have been a bag of mail that wasn’t sorted.  There could have been all sorts of things happening around at the time and unfortunately we are not in a system to do any tracking of what happened to that letter.

There are good reasons for sending things by ordinary post, cost being one of them and the fact that something like I have read about 98 per cent of mail is delivered within the periods in the Acts Interpretation Act, but there is always some mail that can go astray and we have certainly heard from both Mr North and Mr Mee and that in the past there has been some mail go missing from the Noble Park RSL.  And, certainly, I think that is something we have all become aware of that can happen.  However, whether the Noble Park office put the claim in the post on 16 April or 26 April, or some over date, is really not the key issue.  It’s the date that the document was received by the department that is the relevant date.  In retrospect there are lots of things one would do differently, Express Post, all sorts of things, but it hasn’t happened and so we can’t change it.  We don’t know whether Mr Ralph would have succeeded in his actual application if it had have been received before 23 April.  He might have;  he might not have.  That is something that we can’t change. 

As I said, Mr North might have not been in on a particular day;  anything could have happened, but we are never going to, I think, get to the bottom of what actually transpired on 16 April, 26 April or what decision, but I think it’s quite clear that the document was received, the claim form was received by the department on 1 May.  One of the issues is, as I said before, the word “only” in section 5T is clear because it says:

For the purposes of this Act a document that is not transmitted electronically – and there are special provisions for electronic transmission – is taken to have been lodged at an office of the department only if the claim, application, request or other document is:  (i)  lodged at a place approved by the commission for the purposes of that subsection –

and you haven’t heard that the place that it was sent to was not approved or that there was some other place it got delivered to –

and –

and there is the word “and” after (a)(i) –

is taken to have been so lodged on the day on which it is received at that place.

So this provision is harsh.  It, in my view, is a specific provision which means that regardless of the Acts Interpretation Act section, this particular section in 5T(2) says:

…it is lodged in an office in Australia only –

…The word “only” appears there and that word “only” to me is the crunch in which way I have to go in this matter.  So it’s not an ambiguous statutory provision with the word “only” in there or allowing for a date of dispatch of a form issue.  It is clear on its face the Acts Interpretation Act provisions may well be relevant to other documents but not to the actual claim form lodgement day.  I wish I had better news for you, Mr Ralph.  I wish there was a provision that would allow me to have some discretion of the pre-65 and post-65 lodgement, particularly in this era where it is becoming much more fuzzy when retirement is, we are getting rid of age discrimination, we are putting up the pension age for both men and women and yet we have got these sort of provisions in place that, I think, perhaps don’t quite fit with modern work and employment practices.  So my finding is that section 5T and 15(3) are abundantly clear.  It is about lodgement and I cannot, unfortunately, take the very creative arguments that I think Mr Di Marchi has raised in an attempt to assist you, I can’t have them replace the unambiguous phrase in the section 5T.

So, I’m very sorry that I have to make this ruling but in my mind it’s quite clear that that is the only ruling I can make in this particular matter, much so, as I would have, frankly, preferred to have given a beneficial provision and preferred to allow you to pursue your claim.  That is really all I can say.  So from hereon in it’s a matter of where the case goes to from here.

MR DI MARCHI:   Madam, could I ask you a question ­ ­ ­

MS PERTON:   Yes, certainly.

MR DI MARCHI: ­ ­ ­ in relation to the Acts Interpretation Act, you mention that. What about section 160 of the Evidence Act?

MS PERTON:   I think that it’s not – it doesn’t displace the provisions in section 5T.  I think section 5T is clear and unambiguous and clearly states that it’s the date it’s lodged at an office of the department.

MR DI MARCHI:   And, madam, in relation to the onus on the applicant, you mentioned that there was no challenge on the question of the date of receipt by the department, but ­ ­ ­

MS PERTON:   Yes.

MR DI MARCHI: ­ ­ ­ our statement of facts and contentions was all about this. They don’t – we say that the date of receipt should have been according to the interpretation of the Act to be four working days clear from the ­ ­ ­

MS PERTON:   I don’t accept that argument.

MR DI MARCHI:   ­ ­ ­ date of receipt.

MS PERTON:   Yes.  I don’t accept that argument.  I think the word “only” in ­ ­ ­

MR DI MARCHI:   Yes.

MS PERTON:   ­ ­ ­ 5T and “only” in – if I just grab 5T again.  I’m certainly happy to clarify that…I think the wording in 5T(2) is very clear.  It:

…is taken to have been lodged with an office of the department in Australia only if the claim –

and I will just use the word “claim” –

is lodged at a place approved by the commission for the purposes of this subsection. 

Let’s forget about (ii) because that’s not relevant.  And (b):

…and is taken to have been so lodged on the day on which it is received at that place.

Not on the day on which it is deemed to have been received, but on the day it is actually received.  So in line with other statutes which are pretty harsh on a lot of these things, whether we’re talking social security it’s the day a written application is received, not the day it’s sent off in the post;  this is line with the sort of provisions parliament has made in a huge range of statutes.

MR DI MARCHI:   Yes.

MS PERTON:   And I think this one is no different to that, and the word “only” to me is an important issue in that, and the fact that it says on the day it is received at that place, not deemed receipt or not anything else.  So I don’t think that the Acts Interpretation Acts provisions, even if it was sent on – whether it was sent on the 26^th or the 16^th – can mean that I can do it any earlier.  I looked through all this.  I certainly wanted to interpret this beneficially for Mr Ralph because I think it’s not through his own doing.  You know, he has got no – it’s no fault on his part.  He did it – he sought advice from the RSL.  Whether the glitch was at the RSL, whether it was Mr Mee having a whole lot of documents buried and not finding it later, whether it was because Mr North didn’t host it, whether they didn’t clear the particular post office box when they should, whether there was a bag of mail that sat around at the Dandenong exchange, whether there was some mail that fell between the cracks in the local post office.  You know, it could be any of those things and we will probably never get to ­ ­ ­

MR DI MARCHI:   It could be that it sat at the DVA office for a week too.

MS PERTON:  …that’s not an issue that has been raised, that their practice is any different again to any government agency, and I would think that normally applying that stamp to a document is sufficient proof that that was the day it was received at that office.

MR DI MARCHI:   We’ve had no evidence, madam, in relation ­ ­ ­

MS PERTON:   Well, I’m satisfied on the balance of probabilities that it was received on 1 May and that date stamp is sufficient

MR DI MARCHI:   Because of the stamp on the document.

MS PERTON:   The date stamp on it, it would have been recorded on their system.  Their decisions all say “received on 1 May”… So I am satisfied that it was received on that day.  I think the application of the ­ ­ ­

MR DI MARCHI:   Yes.

MS PERTON:   ­ ­ ­ date stamp is sufficient for me to believe it was lodged on that day.  There has been no suggestion previously, as Mr Purcell said, that it was received on any date other than 1 May, the factual issue with the department, so that wasn’t an issue that was raised when we’re talking about deemed postage, so I’ve got no reason to have a belief that it was received on any date other than 1 May 2009.

MR DI MARCHI:   But, madam, the whole ­ ­ ­

MS PERTON:   I’m not going to be changing my opinion, Mr Di Marchi.

MR DI MARCHI:   I’m not suggesting that you do, madam, but the whole thrust of this case has been that it was actually mailed on 16 April.

MS PERTON:   Yes, I understand that.  But whether it was sent on the 15^th, the 16^th, the 17^th, the 18^th, the 20^th is irrelevant.

MR DI MARCHI:   Yes.

MS PERTON:   What is relevant is the date that it was received by the department.  That is the only relevant date – had I been in your position, and given Mr Ralph’s situation, I think that it’s a valid argument to attempt, however, I think that the statute is clear and I think that the provision is clear.

MR DI MARCHI:   I understand your decision now, madam.  Thank you for the clarifications…

…

…

DECISION

6.       For reasons given orally at the hearing, the Tribunal determines that the application for increase in pension was lodged on 1 May 2009. 

7.       The matter is to be listed for further hearing.

I certify that the seven [7] preceding paragraphs are a true copy of the reasons for the decision herein of:
Ms Regina Perton, Member

Signed: .......Dianne Eva...
  Associate

Date of Hearing  14 November 2011
Date of Decision  14 November 2011
Date of Written Reasons           13 December 2011
Counsel for the Applicant          Mr D De Marchi

Solicitor for the Applicant           De Marchi & Associates 
Counsel for the Respondent     Mr G Purcell

Solicitor for the Respondent     Advocacy Branch, Department of Veterans’ Affairs