Goulding and Principal Member of the Veterans' Review Board and Repatriation Commission (Party Joined)

[2008] AATA 263

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 263

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3585

GENERAL ADMINISTRATIVE DIVISION		)
Re		Allan Goulding

Applicant

And Principal Member of the Veterans’ Review Board

Respondent

And          Repatriation Commission

Joined Party

DECISION

Tribunal Senior Member Bernard J McCabe

Date2 April 2008

PlaceBrisbane (heard in Darwin)

Decision The Tribunal sets aside the decision under review and decides in substitution that the application has not been dismissed.

.......................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for disability pension dismissed by Veterans’ Review Board – s 155AA notice sent to applicant – whether notice given to the applicant – notice not sent to applicant’s residential address – notice sent to an alternate address which applicant requested correspondence to be sent – notice not given to applicant – decision set aside

Acts Interpretation Act 1901 (Cth) s 28A

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Evidence Act 1995 (Cth) ss 4, 5, 163

Veterans’ Entitlements Act 1986 (Cth) s 155AA

REASONS FOR DECISION

2 April 2008 Senior Member Bernard J McCabe         

1. Mr Allan Goulding asked the Veterans’ Review Board (“the VRB”) to reconsider the Repatriation Commission’s decision to deny him a disability pension. The application progressed very slowly. After two years had passed without a hearing, the Registrar of the VRB sent a notice under s 155AA of the Veterans Entitlements Act 1986 (“the Act”) to the applicant’s address. That notice required the applicant to provide a written statement indicating whether he was ready to proceed to a hearing. Mr Goulding was overseas when the letter containing the notice arrived at the address he gave to the VRB. He did not provide a written response within the time set out in the notice. The application was dismissed by the Principal Member of the VRB. The applicant has now asked the Tribunal to reconsider that decision.

2.      The VRB and the Commission say the Principal Member of the VRB had no choice but to dismiss the case. They say the Tribunal does not have the power to reinstate the matter. I disagree, for reasons I will explain.

The factual background to the dispute

3.      The applicant claims that he suffers from a number of service-related disabilities. He applied for a disability pension under the Act. His application was rejected by the Commission on 8 October 2003. He applied to the VRB for review of that decision on 23 May 2005.

4.      Mr Goulding was not represented when he filed his application. He subsequently advised the VRB by telephone that he would be represented by an RSL advocate. Staff from the VRB contacted the advocate who agreed he would act for Mr Goulding. The applicant and his advocate made little progress towards a hearing. There may have been communication difficulties, and the applicant was ill. Whatever the reason, the case had not been heard within two years of the date when proceedings were commenced in the VRB.

5. Section 155AA(4) of the Act requires the Registrar to send a notice to the applicant if the matter has not been heard within the VRB’s “standard review period” and the Principal Member considers the case should be ready for hearing. The standard review period is a two-year period commencing on the date the application was filed. The applicant must provide a written explanation of whether the case is or is not ready for hearing within 28 days after receiving the notice. The Registrar duly sent a notice under this section to the applicant.

6.      Mr Goulding had been living at Coral House, a home for ex-serviceman. He gave evidence that he had experienced problems with mail delivered to Coral House during his frequent absences. He said he might be gone for months at a time and the persons who received his mail at Coral House would simply bundle the correspondence together and deliver it to him when he returned. He said that was unsatisfactory if a particular letter required urgent attention. For that reason, he spoke with an officer of the Commission and asked for all correspondence to be sent to his brother’s address in Darwin. Mr Goulding said he was on friendly terms with the officer, and explained his concerns in some detail. I note exhibit one includes (at p 143) a hand-written note on paper bearing the letterhead of the Department of Veterans’ Affairs recording the instructions to send mail to the applicant’s brother’s address. The note does not suggest the applicant filed a change of address form, and Mr Goulding says he does not recall providing any advice to that effect. The instructions in the note are limited to the destination of the correspondence. I also note some of the correspondence on the file is addressed to Mr Goulding “Co” his brother’s address: exhibit one p 33 (although that letter pre-dates the note appearing at exhibit one, p 143).

7. The VRB sent Mr Goulding’s s 155AA notice and other correspondence to his brother’s address. But Mr Goulding says he actually lived at Coral House when the notice was sent, albeit that he was frequently away for extended periods. He did not live with his brother: his brother’s address was used as a mailing address only. He made it clear in the course of his evidence that he always returned to live at Coral House. I have no reason to doubt his story. I accept the applicant’s place of residence is Coral House.

8.      The applicant was overseas when the notice arrived at his brother’s address sometime in late May. Mr Goulding’s brother read the contents to him over the telephone. He gave evidence that he contacted his advocate, who then contacted the VRB. Mr Goulding says the advocate told him not to worry about the notice. The applicant says he was given to understand they (ie, he and his advocate) would deal with the notice when Mr Goulding returned to Australia in due course. Mr Piper, for the applicant, points out the applicant did not actually sight the letter or read its contents for himself.

9.      The Tribunal did not hear from the advocate. There were no witnesses called on behalf of the VRB to explain what was said when the advocate called. The VRB does not in any event dispute Mr Goulding’s account of what he was told. The respondents say it does not matter because the Act imposes an inflexible obligation to respond in writing within the specified time once a notice has been received.

The legal issues

10. The applicant argues he did not receive the notice in accordance with s 155AA of the Act because (a) he has never actually come into possession of the document and (b) it was not in any event sent to his place of residence but to his brother’s address. In those circumstances, the requirements for dismissal have not been observed with the effect that Mr Goulding’s application remains on foot.

11. I note s 155AA of the Act requires that the Principal Member “give a written notice to the applicant”. The Act does not specify how that is to be done. The rules governing the despatch of mail and service of documents by post are dealt with in other legislation.

12. The Commission says the dispute should be resolved having regard to s 163(1) of the Evidence Act 1995. That section says a letter from a Commonwealth agency is presumed to have been sent to the address on the letter within a certain period after the date on the letter. I note the section does not deem the letter to have been received by a particular person on a particular date.

13.     The provisions of the Evidence Act1995 do not ordinarily apply to the Tribunal as it is not a Court, and the Administrative Appeals Tribunal Act 1975 says it is not obliged to apply the rules of evidence: s 33(1)(c); see also s 4 of the Evidence Act 1995. But s 5 of the Evidence Act 1995 extends the operation of some provisions of the Act to “all proceedings in Australian courts”. The expression “Australian court” is defined in the dictionary in that Act to include:

(e)  a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence …

14. The Tribunal is an “Australian court” for the purposes of s 5. Section 163 is one of the provisions that extend to all Australian courts, including the Tribunal.

15. Mr Piper says I should have regard instead to s 28A of the Acts Interpretation Act 1901. That section deals with the service of documents on a person. “Service” for the purposes of s 28A includes a requirement in any statute that a document be given or sent to a person. Service is deemed to be effected when the document is delivered to the person himself or herself, or if it is left at or mailed to “the address of the place of residence or business of the person last known to the person serving the document …”: s 28A(1)(ii).

16. Which provision should be applied? Given s 155AA of the Act creates an obligation to “give a written notice” to the applicant, I think I should have regard to s 28A of the Acts Interpretation Act 1901. Section 163 of the Evidence Act 1995 refers more generally to correspondence from Commonwealth agencies, and assists in determining when the correspondence was sent. That is not the issue here. Section 28A, in contrast, squarely addresses the question of service.

17.     The VRB has not complied with the requirement in 28A of the Acts Interpretation Act 1901 to send the document by pre-paid post to “the address of the place of residence … of the person last known to the person serving the document”. It sent the document to Mr Goulding’s brother’s address. I have already found the applicant does not reside with his brother. The applicant lives at Coral House.

18. The mistake is understandable: all of the correspondence from the VRB and the Commission addressed to the applicant was sent to his brother’s address. I accept the VRB was under a genuine and probably reasonable misapprehension as to Mr Goulding’s place of residence. But the requirements of s 28A are clear, and it is appropriate that they be interpreted and applied strictly given the applicant may otherwise be denied a benefit to which he would be entitled if he satisfies the other requirements in the Act.

Conclusion

19.     The notice sent by the VRB to the applicant at his brother’s address was not effectively served. It follows the Principal Member should not have dismissed the application to the VRB. The decision under review is therefore set aside. The Tribunal decides in substitution that the application has not been dismissed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ...................................[Sgd]..................................................
  Michael Buckingham, Associate

Date of Hearing  10 December 2007
Date of Decision  2 April 2008
Counsel for the joined party     Miss R Henderson
Solicitors for the applicant        Pipers Barristers and Solicitors
Solicitors for the respondent    Departmental advocate
Solicitors for the joined party    Australian Government Solicitor