Haager and Secretary, Department of Family and Community Services

[2000] AATA 227

DECISION AND REASONS FOR DECISION [2000] AATA 227

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/711

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      KEITH & MARGARET HAAGER            
  Applicants
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member)

Date23 March 2000

PlaceBrisbane

Decision      The decision under review is set aside and the matter remitted to the respondent with a direction that the applicants made the request within the terms of section 1185G of the Act before 15 September 1998.
Decision No 227/2000  (Sgd) K L Beddoe
  Senior Member
CATCHWORDS
SOCIAL SECURITY : Retirement Assistance for Farmers – Transfers of farming properties – When is a request made – Requirement for lodgment

Retirement Assistance for Farmers Scheme
Social Security Act 1947 – s159(1)
Social Security Act 1991 – Part 3.14A, ss579, 579C, 740, 741, 742, 1185F, 1185G, 1185H, 1185J
Veterans' Entitlements Act 1986 – s177

Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 83 ALR 449
Re Kiss and Donohoe and Repatriation Commission (1995) 38 ALD 443
Roberts v Repatriation Commission (1992) 29 ALD 442, 111 ALR 436
Formosa and Anor v DSS (1988) 81 ALR 687

REASONS FOR DECISION

Mr K L Beddoe (Senior Member)            

1. The applicants seek review of a decision by the respondent to reject their application under the Retirement Assistance for Farmers Scheme.  That decision was subsequently affirmed by the Social Security Appeals Tribunal.

2. Part 3.14A of the Social Security Act 1991 ("the Act") provides for a scheme modifying general provisions of the Act in respect of retirement assistance for farmers. In essence the scheme relates to certain transfers of farming properties or interests in farming properties to descendants and modifies the general operation of the Act in relation to those transfers. It is essentially beneficial legislation designed to make the Act even more beneficial for those who qualify under the provisions. It is not necessary however that I explore the statutory provisions as to the operation of the scheme. This case is only concerned with a procedural step in that scheme.

3. Division 4 of Part 3.14A applies if a person has reached pension age, there has been a transfer of a relevant qualifying interest, the person is receiving a social security payment and the value of the qualifying interest has been included in the persons assets when calculating the rate of social security payment (s1185F).

4. If the rate at which a social security payment made is being, or has been, paid to a person is less than the rate which would have been paid if the qualifying interest was not taken into account the person may request that the social security payment be paid at the increased rate (s1185G).  Such a request must be made in writing in accordance with an approved form (s1185H).

5. Section 1185J of the Act requires the respondent to make a determination granting a request under section 1185G. Such a determination takes effect:

   (a)if the transfer was completed before 15 September 1998 and the person makes the request before that day – on 15 September 1997 or the day on which the transfer was completed, which is later; or

   (b)if the transfer was completed after 14 September 1998 but before 15 September 2000 and the person makes the request during the period of 3 months that starts on the day on which the transfer is completed – on the day on which the transfer was completed; or

   (c)       in any other case – on the day on which the request is made.

6. At the hearing the first applicant ("the applicant") conducted the applicants' case and Mr Letch represented the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents. Oral evidence was given by the first applicant.

7. I make the following findings of fact.  On 24 August 1998 the applicant contacted the respondent's teleservice and requested, in effect, that he be sent the forms approved in terms of section 1185H.

8. To complete the forms, after he received them, the applicant had to make enquiries of the Queensland Industry Development Corporation to obtain necessary documentation.  Some delay occurred in this process.  Those documents had to be obtained from Kingaroy and some delay apparently beyond the applicant's control occurred.

9. The necessary forms were completed and signed by the applicants on various dates the last in time being T7/36 which was signed by both applicants and dated 14 September 1998.  The forms were posted at Murgon Post Office on that day and received by Centrelink at Gympie on 15 September 1998.  I was told there is no Centrelink office at Murgon.  I note Murgon is approximately 100km from Gympie and the subject property approximately 20km from Murgon.

10. The applicants' case is that the respondent is "splitting hairs" and to his detriment because he lives a long distance from a Centrelink office requiring him to rely on lodgment by mail.

11. The respondent's case is that a request made under section 1185G is made when it is communicated i.e. lodged in the Centrelink office. In response to the Tribunal it was put that it is not sufficient that an applicant do everything in the applicant's power to make the request. It is not made until communicated by lodgment in the Centrelink office.

12. In support of that submission the respondent relies on sections 740, 741 and 742 of the Act. However I am not satisfied that those provisions are either relevant or of any assistance. They relate to claims for special benefits and section 742 specifically requires lodgment "at an office of the Department" or approved place or with an approved person.

13. Given that no such provisions are in the Act relevant to section 1185G it would, in my view be incorrect to imply that the Parliament intended lodgment to be the criteria for the purposes of section 1185G. It is not apparent to me that the making of an application or request is to be said to have the same meaning as lodgment of an application or request or for that matter the presentation of a petition in bankruptcy. The latter embrace delivery as an essential part of the process. As Northrop J explained in Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 83 ALR 449 at 461:

    "The word "lodge", when used as a verb, has a number of meanings. In the Shorter Oxford Dictionary the relevant meaning is "(a) To place, deposit". A number of examples are set out including "To put and leave in a place of custody or security 1666. To lodge money in the hands of a banker 1882. (b) To deposit in court or with an official a formal statement of (an information, complaint, objection etc)". Thus, in s68 of the Act, the word "lodged" is used in the sense of placing or depositing a document at the office of the registry or a Deputy Registrar. It appears to be the practice of the tribunal to allow this to be done by post. Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the registry. Thus, if an application is posted but not delivered to a registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the registry. Similarly, a document deposited on a counter at the office of a registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging. Regulation 9(1) of the regulations is consistent with this construction. In that regulation the words "lodged or received" seem to be used in the sense of deposited and accepted."

1. The significance of the difference between making an application and lodging an application is illustrated by the Tribunal's decision in Re Kiss and Donohoe and Repatriation Commission (1995) 38 ALD 443. There applications for review were made in the sense of prepared and lodged in a document exchange box no longer operated by the Tribunal. Mathews J (President) decided that the applications had not thereby been lodged with the Tribunal. Although extensions of time had been granted for lodgment there was an adverse effect on the operation of section 177, of the Veterans' Entitlements Act 1986 because the applications for review had not been lodged within the required three months period.

2. The decision clearly turns on concepts of lodgment and not on the fact that the relevant applications had been made in the sense of prepared and delivered at an earlier time.  With respect that decision was consistent with the Federal Court decision in Roberts v Repatriation Commission (1992) 29 ALD 442, 111 ALR 436, where the Federal Court decided that an application for review to this Tribunal is made on the day it is lodged, lodgment being a specific requirement in the terms of section 29 of the Administrative Appeals Tribunal Act 1975.

3. Formosa and Anor v DSS (1988) 81 ALR 687 is authority for the proposition that a person eligible for age pension payments must make a claim in writing before becoming entitled to payment of the pension. Section 159(1) of the Social Security Act 1947 was the relevant provision. It relevantly provided that a claim shall be made in writing in accordance with a form approved by the secretary and shall be lodged at a place specified by the section. There was however a difference in the court as to whether the requirement as to a claim in writing was mandatory or directory. Davies and Gummow JJ said the requirement was mandatory whereas Burchett J said it was directory (Burchett J, however, had found that no oral claim for pension had been made so that the claimant failed).

4. There are many examples where the Parliament has made lodgment a mandatory requirement when making a claim for age/pension under the Social Security Act 1947 as discussed above, a claim for special benefits as discussed above and a claim for Austudy under sections 579 to 579C of the Act.

5. That requirement has not been included in the provisions now under consideration and it would be incorrect to imply a mandatory requirement (per Burchett J in Formosa) including a requirement for lodgment when no such requirement appears in the section.

6. I am satisfied that the applicant made a request within the terms of section 1185G when he posted the request by prepaid letter addressed to Centrelink, Gympie, at the Murgon Post Office on 14 September 1998. By that action he had done everything necessary to make a valid request within the terms of section 1185G. The fact of receipt by Centrelink on 15 September 1998 corroborates the applicants evidence as to posting but is otherwise irrelevant.

7. For these reasons the decision under review will be set aside and the matter remitted to the respondent with a direction that the applicants made the request within the terms of section 1185G of the Act before 15 September 1998.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed:         
  T G Lowther
  Associate

Date of Hearing  26 October 1999
Date of Decision  23 March 2000
Representative for the Applicant   Mr Haager

Solicitor for the Respondent         Mr Letch