Dor and Veterans' Review Board and Repatriation Commission (Party Joined)
[2006] AATA 767
•8 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 767
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/479
VETERANS’ APPEALS DIVISION ) Re CORNELIS DOR Applicant
And
VETERANS’ REVIEW BOARD
Respondent
And REPATRIATION COMMISSION
Joined Party
DECISION
Tribunal Deputy President P E Hack SC Date 8 September 2006
Place Brisbane
Decision The decision under review is affirmed. ................Signed.................
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – dismissal of appeal before Veterans’ Review Board – failure to provide written reasons for not being ready to proceed to the Board within required 28 days – applicant’s representative claimed to have posted completed forms within time – evidence does not satisfy that written statement provided in the manner specified – Tribunal affirms the decision under review
Veterans’ Entitlements Act 1986 ss 155AA(1), 155AA(4)(d), 155AA(5), 155AC
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Nair v Minister for Immigration and Multicultural Affairs [2001] FCA 249; (2001) 107 FCR 60
Re Adams and Veterans’ Review Board (1992) 16 AAR 307
REASONS FOR DECISION
8 September 2006 Deputy President P E Hack SC Introduction
1.The applicant, Mr Cornelis Dor, seeks a review of a decision of the respondent, the Veterans’ Review Board, made on 1 July 2005. That decision was one made pursuant to s 155AA(5) of the Veterans’ Entitlements Act 1986 to dismiss the applicant’s application to the Board for a review of an earlier decision of the Repatriation Commission.
2.Consistently with authority[1] the Board does not contest the applicant’s case but has put on evidence to assist in resolving the factual issues that arise. The Commission has been joined as a party to the proceedings and has acted as contradictor.
[1] R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35-6.
Background
3.On 8 November 2001 the applicant lodged an application for a disability pension. That claim was refused by the Commission by letter dated 23 May 2002. An application seeking a review of that decision to refuse was lodged with the Board on 16 May 2003. The application indicated that the applicant had arranged to be represented by Mr David Smock of the Redland Bay Vietnam Veterans Group. On 3 September 2003 the Board sent to the applicant (with a copy to his representative) a letter seeking the lodgement of a Certificate of Readiness or advice on when the application would be ready for hearing. Mr Smock apparently telephoned the Board the following day and advised that he was “[s]till gathering evidence”. Similar letters were sent by the Board on 24 February 2004, 23 August 2004 and 22 February 2005. The letter of 24 February 2004 evoked from Mr Smock a response on 26 February 2004 that the matter was still not ready and that he would advise the Board when it was.
4.By 19 May 2005 more than two years had elapsed from the date of receipt of the application from the applicant. Thus the standard review period, as that expression is used in s 155AA(1) of the Veterans’ Entitlements Act, had expired. On that day a delegate of the Principal Member of the Board sent to the applicant a written notice, in the form of a letter, pursuant to s 155AA(4). That sub-section operates where the standard review period has expired. It empowers the Principal Member to give written notice requesting an applicant to provide, within 28 days after receipt of the notice, a written statement indicating that the applicant was ready to proceed or a written statement explaining why the applicant was not ready to proceed.
5.The records of the Board indicate that on 24 May 2005 Mr Smock contacted the Board and advised that the applicant was “awaiting another claim”. According to the note he was advised that “the forms” were required to be sent back within 28 days. The reference to “the forms” is, I infer, a reference to the Form 1 – Response to s 155AA notice and Form 2 – Authorisation under Section 155AC noted in the letter of 19 May 2005 as having been sent with that letter.
6.It is necessary now to set out s 155AA(5). It is in these terms:
If the applicant does not provide a written statement under paragraph (4)(c) or (d) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal.
7.According to the Board nothing was received from the applicant within that period and on 1 July 2005 the Principal Member dismissed the application in reliance on s 155AA(5) of the Veterans’ Entitlements Act.
8.Mr Loftus, who is the Acting Registrar of the Board, has provided an affidavit in which he sets out the procedure adopted by the Board when giving notification to applicants under s 155AA(4). The written notice is sent to the applicant, accompanied by a reply-paid envelope addressed to the Board’s post office box address. A copy is sent to the representative of the applicant where there is one. So far as is presently material the notice sent to the applicant included the following:
It is now over two years since your application was lodged and I consider that you should be ready to proceed at a hearing. Therefore, in accordance with subsection 155AA(4) of the Veterans’ Entitlements Act 1986, I am writing to request that you provide within 28 days after you receive this notice, a written statement that you are ready to proceed or reasons why you are not ready to proceed at a hearing. Form 1 is enclosed for this purpose. The statement must be signed by you and sent to me at the above address (or you may use the enclosed prepaid envelope).
The address given at the top of the letter was “Level 8, Bank of Queensland Centre, 259 Queen Street, Brisbane, QLD 4000 ∙ GPO Box 349, Brisbane 4001”.
9.Mr Loftus also explained that the copy sent to the representative would be in identical form except that the reference to the representative on the second page of the letter would have been highlighted. The representative would not have been sent the prepaid envelope referred to in the body of the letter. The affidavit of Mr Loftus details, as well, the processes adopted by the Board for the receipt of mail, and to ensure that it is dealt with properly, and the fact that, in relation to this matter, a search has revealed no trace of the receipt of any written response to the Board’s letter of 19 May 2005. Mr Loftus was not aware of any other occasion where it had been suggested that correspondence sent to the Board had not been received. Mr Loftus’ evidence, which was not challenged to any great extent, satisfies me that the Board did not receive any response to that letter either from the applicant or from his representative, Mr Smock.
10.The case for the applicant is that Mr Smock sent those forms, completed, to the Board on 3 June 2005 and prior to the expiry of the period of 28 days. Accordingly, it is said, the applicant complied with s 155AA(5) by providing a written statement under s155AA(4)(d) and the Board was wrong to dismiss the applicant’s application for a review of the decision by the Commission.
Was a Written Statement Provided
11.In Nair v Minister for Immigration and Multicultural Affairs[2] the Full Court of the Federal Court was called upon to consider s 312(2) of the Migration Act 1958 (Cth). That section required a registered migration agent to “provide to the [Migration Agents Registration] Board” certain information. That step followed notification from the Board to the agent pursuant to s 301 of the need to renew the registration. The Court at [40] concluded that:
… the estimate required by s 312(2)(c) of the Migration Act is “provide[d] to the Board” if the agent concerned supplies the information in the manner specified in the notification given by the Board to the agent in accordance with s 301.
[2] [2001] FCA 249; (2001) 107 FCR 60.
12.Given the parallels between the legislation in issue in that case and s 155AA of the Veterans’ Entitlements Act it seems to me that I should give an equivalent meaning to “provide” in the present case. Thus, in my view, the critical question, where I am satisfied that the written statement was not received by the Board, is whether it was “provided” to the Board in this sense, despite the non-receipt.
13.The letter of 19 May 2005 required the applicant to provide a written statement informing the Board that the applicant was ready to proceed or, if not, reasons why the matter was not ready. It specified the manner in which that information could be provided – by completion of a signed Form 1 – and it specified two ways in which the completed document could be sent to the Board. It could be sent to the Board “at the above address” or it could be sent using the prepaid envelope enclosed with the letter. The applicant says, in terms, that his representative supplied the information in the manner specified by posting it to the Board at P.O. Box 349, Brisbane, one of the addresses given in the letter.
14.The evidence of Mr Smock does not satisfy me that that was, in fact, done.
15.It is necessary to consider that evidence. I must say that I find Mr Smock’s evidence on the critical issues to be unreliable. He was vague about the details of his dealings. He did not, initially, bring with him his file of his dealings on behalf of the applicant. The matter was stood down to enable him to retrieve the file. He was cross-examined further once he had produced the file. The file contained a document which, he said, recorded significant events from and following receipt of the Board’s letter of 19 May 2005. The fifth entry says “3 JUN 05 Posted back back [sic] to VRB by D.S.” I am unable to accept his evidence that this entry was made contemporaneously with the events described. It seems to me, having regard to the content of the document, that it was more likely compiled after this matter became contentious. I do not accept Mr Smock’s evidence to the contrary.
16.Mr Smock’s statement, Exhibit 2, was filed following a direction made on 11 August 2006 for the filing of witness statements relied upon by the applicant. It is almost entirely devoid of detail. It makes reference to a telephone conversation with a representative of the Board on 24 May 2005. The fact, and content, of that conversation is not in issue. It continues:
The correspondence was posted on to the VRB on 3 JUN 05 in a Redlands RSL prepaid envelope.
17.The “correspondence” referred to by Mr Smock was, he said, the completed Form 1 and Form 2. In his oral evidence Mr Smock agreed that he had no particular recollection of what he had done on this occasion; his evidence was more about what he “would have done” i.e. his usual practice. He was initially unable to recall whether he had received a copy of the letter of 19 May 2005 from the Board. Once he had retrieved his files he was able to produce a letter (Exhibit 7) marked in a way that satisfies me, having regard to the evidence of Mr Loftus, that he did receive a copy of the 19 May 2005 letter.
18.Initially Mr Smock said that he had received copies of the documents by facsimile from the applicant once the applicant had signed and dated them. The copy of the Form 1 produced by Mr Smock shows that the applicant was not ready for a hearing and provides a reason for that. It was signed by the applicant and dated 25 May 2005. The balance of the handwriting on the document is acknowledged by Mr Smock to be his writing. The copy of Form 2 is also signed by the applicant and dated 25 May 2005. Again Mr Smock acknowledged that the balance of the writing (including the affixing of some rubber stamp impressions) was his. Mr Smock signed that document on 3 June 2005.
19.The documents produced by Mr Smock, and which he says were sent to the Board on 3 June 2005, bear no evidence of having been sent by facsimile. Had they been sent by the applicant in this way, as Mr Smock claimed, it might be expected that that would have been evident from the markings that routinely appear on documents sent by facsimile. When asked about this Mr Smock said that the applicant must have delivered the documents to him. That appears contrary to the notation in his “chronology”.
20.Mr Smock’s evidence was to the effect that he “would have” completed the details on the forms, handwritten the Board’s post office box address on an envelope, gone to the Redlands RSL (where he was the Pensions and Welfare Officer) and put the envelope in the RSL’s mailing system. He was thus even unable to say that the letter got into the postal system.
21.The evidence leaves me far from satisfied that the Form 1 and the Form 2 were posted by Mr Smock at all. In the result I am satisfied that the applicant did not provide a written statement under s 155AA(4)(d).
22.Mr Jarro of counsel who appeared for the applicant did not suggest that Mr Smock’s conversation with a representative of the Board on 24 May 2005 could amount to the provision of a written statement,[3] rather he relied upon the fact of that conversation as entitling me to more readily draw an inference that Mr Smock was correct in saying that he had sent the documents. I am unable to accept that submission. In my view the fact of the conversation establishes no more than that Mr Smock had in mind on 25 May 2005 the fact that the applicant wanted to proceed with his claim. It does not lead me to conclude that Mr Smock gave effect to that state of mind by posting the documents.
[3] Cf. Adams and Veterans’ Review Board (1992) 16 AAR 307.
23.It follows that in my view the decision under review was correct and ought be affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .......................Signed...............................................
Leisa Pendle, AssociateDate/s of Hearing 5 September 2006
Date of Decision 8 September 2006
Counsel for the Applicant Mr N Jarro
Solicitors for the Applicant Sciacca & AssociatesFor the First Respondent Ms T McConnell
Counsel for the Joined Party Mr D de Jersey
Solicitor for the Joined Party Australian Government Solicitor
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