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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read DESMOND FRANCIS RALPH and REPATRIATION COMMISSION and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] AATA 881
Decision Date: 14 November 2011

CaseChat Overview and Summary

Desmond Francis Ralph brought a case against the Repatriation Commission concerning the timing of his application for an increase in pension. The central issue revolved around whether the application was lodged before or after his 65th birthday, which was a critical factor in determining his eligibility for the pension increase. The matter was heard and determined by the relevant tribunal in Australia.

The primary legal issue before the tribunal was to ascertain the exact date on which Mr Ralph’s application for an increase in pension was lodged. The dispute hinged on whether the relevant date for determining the lodgement of the application was the date it was posted or the date it arrived at the designated office. This distinction was crucial because the application needed to be submitted before Mr Ralph’s 65th birthday to qualify for the pension increase. The tribunal had to decide whether the date of postage or the date of arrival should be considered the effective date of lodgement.

In its reasoning, the tribunal examined the evidence provided regarding the posting and receipt dates of the application. It found that the date of lodgement was determined by the date the application arrived at the designated office. Consequently, the tribunal concluded that Mr Ralph’s application was effectively lodged on 1 May 2009. Given this determination, the tribunal ruled that the application was made within the required timeframe, thus resolving the eligibility issue in Mr Ralph’s favour. The matter was then listed for further hearing to address any remaining issues or to proceed with the pension increase application.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

VETERANS’ APPEALS DIVISION		)
Re		DESMOND FRANCIS RALPH