Jones and Secretary, Department of Jobs and Small Business
[2018] AATA 3652
•23 August 2018
Jones and Secretary, Department of Jobs and Small Business [2018] AATA 3652 (23 August 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6143
Re:LISA JONES
APPLICANT
AndSecretary, Department of Jobs and Small Business
RESPONDENT
DECISION
Tribunal:R Cameron, Senior Member
Date:23 August 2018
Place:Melbourne
The Tribunal affirms the decision under review.
R Cameron, Senior Member
Catchwords
FAIR ENTILEMENTS GUARANTEE - Unpaid employment entitlements – whether applicant made effective claim – before the end of 12 months - insolvency event – employment ends by employer – decision affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth)
Fair Entitlements Guarantee Act2012 (Cth)Cases
Brown v Secretary, Department of Employment [2017] AATA 96
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Porciello v Sectretary, Department of Employment [2017] AATA 819
R v Seifert (1956) 73 WN (NSW) 358
Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647
Secondary Materials
P Gillies, Law of Evidence in Australia (Legal Books, 1st ed. 1987)
R A Brown, Documentary Evidence in Australia (Law Book Co, 1st ed. 1988)
REASONS FOR DECISION
R Cameron, Senior Member
25 September 2018
INTRODUCTION
This is an application by Lisa Jones (“the Applicant”) for the review of a decision made by an authorised review officer of the Department of Employment “(the Respondent”), made on 19 September 2017 (“The reviewable decision”). The reviewable decision denied a claim by the Applicant for assistance under the provisions of the Fair Entitlements Guarantee Act2012 (“the FEG Act”)[1].
[1] The Applicant sought an internal review of a decision made on 23 June 2017 which determined that she was not eligible for assistance under the FEG Act. This document is to be found that T 9 of the T documents.
THE FEG ACT AND ITS APPLICATION
The FEG Act can been described as a legislative safety net that allows financial assistance to be given to eligible employees who lose their job due to the liquidation or bankruptcy of their employer, where they have unpaid employment entitlements. It is useful to reproduce several sections of the FEG Act which will be referred to during the course of these reasons.
SECTION 3
Objects of this Act
The main objects of this Act are:
(a) to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:
(i) the employers are insolvent or bankrupt; and
(ii) the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
(iii) the former employees cannot get payment of the entitlements from other sources; and
(b) to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees receive for the entitlements.
SECTION 4
Simplified outline of this Act
(1) This section is a simplified outline of this Act.
(2) Under Part 2, a person is eligible for financial assistance under this Act (called an advance) if:
(a) the person’s employment by an employer has ended; and
(b) the employer is being wound up or bankrupt; and
(c) the end of the employment is connected with the insolvency or bankruptcy of the employer; and
(d) the person has not been fully paid his or her entitlements relating to that employment; and(e) the person has made a claim for the advance.
SECTION 5
Definitions
insolvency event : an insolvency event happens to an employer of a person:
(a) when a liquidator of the employer is appointed (provisionally or otherwise) under the Corporations Act 2001; or
PART 2—ELIGIBILITY FOR ADVANCE
DIVISION 1—CONDITIONS OF ELIGIBILITY FOR ADVANCE
SUBDIVISION A—BASIC CONDITIONS OF ELIGIBILITY
SECTION 10
Conditions of eligibility for advance
(1) General conditions
A person is eligible for an advance if the Secretary is satisfied of all of the following:
(a) the person’s employment by a particular employer has ended;
(b) after the commencement of this section, an insolvency event happened to the employer;
(c) the end of the employment:
(i)was due to the insolvency of the employer; or
(ii) occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or
(iii) occurred on or after the appointment of an insolvency practitioner for the employer;(d) the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;
(e) the person has taken steps, so far as reasonable, to prove those debts in the winding up or bankruptcy of the employer;
(f) if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those debts;
(g) when the employment ended, the person was an Australian citizen or, under the Migration Act 1958, the holder of a permanent visa or a special category visa;
(h) an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.DIVISION 2—CLAIM FOR ELIGIBILITY FOR ADVANCE
SECTION 14
Making an effective claim
(1) To be effective for the purposes of this Act, a claim that a person is eligible for an advance for the person’s employment by an employer must:
(a) be in a form approved by the Secretary; and
(b) be accompanied by any documents required by the Secretary; and
(c) be made in accordance with subsection (2), and with subsection (3) if it applies.
(2) The claim must be made before the end of 12 months after the later of the following events:
(a) an insolvency event happens to the employer;
(b) the person’s employment by the employer ends.
It is appropriate to make some observations concerning the sections of the FEG Act applicable to this matter.
The definition of “insolvency event” contained in section 5 includes the situation that arises when a liquidator of the employer is appointed; regardless of the method of, or the reason for, the appointment. This definition does not differentiate between the ways that a liquidator can be appointed, such as by a members’ voluntary winding up, a creditors’ voluntary winding up or an order of a Court however made (for instance in insolvency or on the just and equitable ground amongst others.) Further, in a matter that will assume some relevance to the Applicant’s contentions, an “insolvency event” can occur if a company is placed into liquidation; regardless of whether or not it is actually insolvent.
The provisions of section 10, which provide the conditions that need to be satisfied for an applicant to be eligible for an advance under the scheme created by the FEG Act, are cumulative. Unless all of those conditions are satisfied, an applicant is not eligible. Under section 10 (1) (h) of the FEG Act an applicant must make an “effective claim” within the meaning of section 14 to be eligible for an advance.
Under section 14 (2), to make an effective claim for an advance under the FEG Act it must be made to the Respondent before the expiration of 12 months after the later of either the occurrence of an “insolvency event” or the person’s employment by the employer ends.
If the effective claim is not lodged within the 12-month period it is the financial “sudden death” for the potential applicant. The FEG Act does not permit the Respondent or the Tribunal any discretion to extend the time within which to lodge a claim.[2] On a true and proper construction of section 14 (2) the question for determination by the Tribunal in this application is whether or not an effective claim was lodged by the Applicant within the 12 month period. If not, her application fails.
[2] See for instance Porciello v Sectretary, Department of Employment [2017] AATA 819 at paragraph 8 and the authorities referred to therein and Brown v Secretary, Department of Employment [2017] AATA 96.
FACTS AND MATTERS RELEVANT TO THIS APPLICATION
The Applicant was employed as a disability support worker by a company known as Nissand Pty Ltd (“Nissand”) from approximately September 2012. The evidence reveals that Nissand provided residential care services for persons suffering from disabilities pursuant to a “Service Agreement” with the Department of Human Services (“DHS”). DHS apparently terminated the Service Agreement with Nissand in late May 2016.
Following the termination of the Service Agreement by DHS, on 7 June 2016 Nissand was placed into voluntary liquidation. The evidence as to the form of liquidation varies in its description in several documents. There is evidence from a company search for Nissand derived from the ASIC database under section 1274A of the Corporations Act 2001 (“Corporations Act”), which records that the company had liquidators appointed in a creditors’ voluntary winding up on 7 June 2016. (The search also records that it was under external administration (liquidation) from 7 June 2016).
A Circular to Former Employees dated 8 June 2016 from Mr Yeo (one of the joint and several liquidators) says that the company was placed into liquidation by special resolution of its members on 7 June 2016. In the Form 505 lodged by the liquidators with the Australian Securities and Investments Commission (“ASIC”) it is said to be a “creditors’ voluntary liquidation”. In the “Notice of Appointment as Liquidator” (lodged by the liquidators’ accounting firm Pitcher Partners with ASIC pursuant to section 491(2)(b) of the Corporations Act), it is stated to be a winding up pursuant to a resolution of the company's members.[3]
[3] The Notice of Appointment as Liquidator forms an attachment to the Circular to Former Employees being document T 7 of the T documents. It is also required by section 491 (2) (b) of the Corporations Act to be lodged with ASIC and gazetted within 7 days of the passing of the resolution for voluntary winding up being passed.
Under section 1274B of the Corporations Act, in a court proceeding, a writing that purports to have been prepared by ASIC is admissible as prima facie evidence of the matters stated in such document, as it sets out what purports to be information obtained by ASIC, from the ASIC database. In other words, the writing is proof of such matter in the absence of evidence to the contrary. Whilst this application is not a proceeding in a court, there does not seem to be any reason why the documents lodged with ASIC should not be admissible before this Tribunal as prima facie proof of the matters recorded in them.
The fact that section 1274B of the Corporations Act refers only to admissibility of a document in a court is puzzling, particularly given that under section 1305 (1) of the Corporations Act a book of account kept by a company is admissible in evidence in any proceeding (which must include a proceeding before this Tribunal) as prima facie evidence of any matters stated or recorded in such a book. It seems difficult to understand why documents produced from the ASIC database are not expressly said in section 1274B to be admissible in any proceeding as is a book of account.
NISSAND’S LIQUIDATION AND THE ISSUE OF AN INSOLVENCY EVENT WITHIN THE MEANING OF SECTION 5 OF THE FEG ACT
The Applicant contends that when Nissand was placed into voluntary liquidation there had not been, or such appointment did not constitute, an “insolvency event” within the meaning of the definition contained in section 5 of the FEG Act.[4]
[4] This contention is found in paragraph 9 of the Applicant's Statement of Facts, Issues and Contentions.
The Applicant further contended that at the time that Nissand was placed into voluntary liquidation it was still solvent.[5] The basis for this contention is a statement to that effect contained in (amongst other places) paragraph 36 of an affidavit sworn by a director of Nissand, Andrew John Tsindos on 9 June 2017, in a proceeding in the Supreme Court of Victoria. The Applicant tendered a copy of this affidavit.
[5] See paragraph 1 of the Applicant’s contentions on page 7 of her Statement of Facts, Issues and Contentions.
Several things should be said with respect to these contentions, which the Tribunal rejects. As noted above, the definition of “insolvency event” contained in section 5 of the FEG Act requires that a liquidator of the company (being the employer) has been appointed. There is no requirement that the company be insolvent or that the liquidation be of any specific type, such as a creditors’ voluntary winding up or a winding up in insolvency by the Court. The fact of liquidation is all that is required to trigger an insolvency event.
Additionally, the section does not require the company to be insolvent at the time that liquidators are appointed. As has been observed earlier, liquidators can be appointed for all sorts of reasons other than insolvency. Indeed, it is apparent from the material before the Tribunal that Nissand’s sole, or dominant, source of income had ceased as a result of DHS terminating the Service Agreement. As such the directors may well have resolved to place the company in liquidation as it was likely to become insolvent in the near future. There would be obvious reasons for doing this, including the directors’ duties to ensure that the company did not continue to trade whilst it was insolvent. Placing the company’s affairs under the scrutiny of liquidators is one way of avoiding these consequences and complying with directors’ duties imposed upon them under the Corporations Act.
If the conclusion of the Tribunal concerning this matter is incorrect, the mere unverified statement by a director of the company in an affidavit sworn and filed in another proceeding cannot possibly be sufficient proof of solvency of that company in any event. The Tribunal notes, that in its experience, frequently, directors of companies have an unjustified confidence in the solvency of a company notwithstanding its liquidation. Proving solvency is not always easy. As was noted in dialogue between the bar table and the bench during the hearing of this application, section 95A of the Corporations Act contains a definition of solvency; which is that a person is solvent if, and only if, the person is unable to pay its debts, as and when they become due and payable. This definition adopts what is known as the “cash flow test” of insolvency. This is directed to income sources available to the company and expenditure obligations it has to meet, rather than a balance sheet test, which focuses on the value of the company’s assets and liabilities reflected in the company’s books. The statements made in paragraph 36 of the Tsindos affidavit are conclusory and simply do not permit the Tribunal to reach a conclusion as to the solvency of the company in these circumstances.
The effect of the appointment of the liquidators on 7 June 2016 was that, for the purposes of section 14 (2) (a) of the FEG Act, the insolvency event happened on that date.
The Applicant also made an alternative submission - that by reason of a meeting of creditors on 24 June 2016 which resolved to replace the liquidators appointed on 7 June 2016 the relevant date for commencement of the insolvency event within the meaning of section 14(2)(a) was either postponed or extended or perhaps, did not commence until 24 June 2016.[6]
[6] The Applicant’s Statement of Facts, Issues and Contentions from paragraphs 5 to 9 on pages 7 & 8 are referred to for their full force and effect.
The Tribunal has to reject this contention. Whilst the meeting of creditors on 24 June 2016 replaced the liquidators Messers. Yeo and Vasudevan, as it was entitled to do, the fact of liquidation and its commencement date was not affected or otherwise changed by reason of the resolution passed at that meeting.
Therefore, the Tribunal repeats its finding that the insolvency event which happened to the Applicant’s employer, Nissand, occurred on 7 June 2016, when the liquidators were appointed.
WHEN DID THE APPLICANT’S EMPLOYMENT WITH NISSAND END?
The next issue to be determined by the Tribunal in this application is the date upon which the Applicant’s employment with Nissand ended.
The Applicant contends that at no time did Nissand terminate her employment.[7] Alternatively, the Applicant contends that her employment was not terminated until a later date, such as 14 June 2016. In making this assertion, the Applicant relied upon the contents of a letter that she received on 27 May 2016 from Rodney Nissen (a director of Nissand) which stated that her employment would cease on 14 June 2016. (“the Nissen letter”)
[7] See for instance the second contention of the Applicant on page 7 of her Statement of Facts, Issues and Contentions.
Concomitant with this contention was a contention that the DHS was the “implied employer” of the Applicant by reason of the provisions of the Service Agreement.[8] (The Service Agreement was not in evidence before the Tribunal). The Tribunal rejects this contention because there is no evidence to support such an assertion. Additionally, the evidence before the Tribunal is that the employment contract existed between the Applicant and Nissand. The DHS was not privy to such a contract and there is no evidence that a contract of employment between it and the Applicant ever came into existence.
[8] See for instance the contention to this effect contained on page 6 of the Applicant's Statement of Facts, Issues and Contentions.
After considering the overwhelming preponderance of the evidence, the Tribunal concludes that the Applicant’s employment with Nissand ceased as and from 7 June 2016.
There is considerable evidence which leads the Tribunal to reach this conclusion. The evidence of the Applicant’s own admission contained in the “Fair Entitlements Guarantee” claim form sent by the Applicant to the Respondent.[9] In question C2, of “Part C - Termination of Your Employment” of the Fair Entitlements Guarantee claim form, the Applicant was asked: “What was the last date you worked for your former employer?” She included the date of “7 June 2016”.
[9] This document is part of document T 7 of the T documents.
In the Circular to Former Employees (referred to previously) which is dated 8 June 2016, Mr Yeo (a liquidator of Nissand) states in the last sentence of the second paragraph: “For the avoidance of doubt, I confirm that the Company has ceased to trade as at 7 June 2016 and that your employment has effectively ceased as at that date.”
It is within the powers conferred on a liquidator under the Corporations Act to terminate employees’ contracts of employment. Under section 506 of the Corporations Act a liquidator may exercise any of the powers under that Act conferred on a liquidator in a winding up in insolvency or by the court. Section 477 of the Corporations Act gives a liquidator broad powers to carry on the business of the company and do all such things as are necessary for the winding up of its affairs and distribution of its property.
The Circular to Former Employees from the liquidator, which the Applicant conceded she probably received, used language that could leave the reader in no doubt that their employment had ceased as at that date. This is consistent with the date included by the Applicant in response to question C2 of the Fair Entitlements Guarantee claim form referred to above. When pressed in the witness box the Applicant, to her credit, conceded that this was the date of termination. Accordingly, the Tribunal finds that the Applicant’s employment with Nissand ended on 7 June 2016.
DID THE APPLICANT MAKE AN EFFECTIVE CLAIM WITHIN THE MEANING OF SECTION 14 OF THE FEG ACT?
As both the insolvency event and the Applicant’s employment with Nissand occurred on the same day, namely 7 June 2016, the remaining issue to be determined by the Tribunal is whether the Applicant made an “effective claim” within 12 months of that date.
As noted earlier, the requirement to make a claim within the 12-month period is a strict requirement of section 14 (2). It is “sudden death”, meaning there is no power vested in the Tribunal to extend the time if the claim is not made within the 12-month period. The language used in section 14 (2) is similar in drafting and effect to section 459G of the Corporations Act which prescribes a strict 21-day deadline for the filing and service of an application and supporting affidavit to set aside a statutory demand.[10] Generally, where the legislature has wished to provide a power in the court or a tribunal to extend time in relation to making such an application it has done so expressly.
[10] Indeed, as Hayne J in Texel Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 298 when sitting as a judge of the trial division of the Supreme Court of Victoria described such language used in section 459G as creating a situation for a company in the event of failing to make and serve an application to set aside a statutory demand within the 21 day time limit as facing “certain corporate death with no opportunity of demonstrating that it should be permitted to survive”. The strict obligation to make file and serve an application within the 21 day time limit was also emphasised by the High Court of Australia in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265.
Some may consider that this strict deadline may be capable of harsh operation. No doubt it is. However, the time limit is prescribed for a reason. Firstly, as was contended by the Respondent, there has to be a time limit to enable liquidators to do all things necessary for the winding up of the affairs of the company distributing its property and finalising the administration. If a limit is not placed on employee claims, which do take priority, the ability to finalise a winding up is impaired. Secondly, of course the Fair Entitlements Guarantee scheme involves the allocation of public monies consequent upon the satisfaction of various criteria laid down in the FEG Act for the payment of an advance. There has to be a point at which the line is drawn on the demands of the revenue to meet such claims. In policy terms, a 12-month time limit has been selected by the legislature to enable such claims to be made.
The Applicant gave evidence that she and Mr David Baird (who appeared for the Applicant at the hearing before the Tribunal) spent a substantial time on Sunday, 4 June 2017 at her residence, completing the Fair Entitlements Guarantee claim form and assembling the documentation required to accompany that form. The task was not completed until approximately 5.00 PM on that day. When the task was finalised, the Applicant signed the claim form and gave it together with the supporting documentation to Mr Baird to post it to the Respondent.
Mr Baird corroborated the Applicant’s account of the events of 4 June 2017 concerning preparation of the Fair Entitlements Guarantee claim form and assembly of the supporting documentation. Further, he gave evidence that at approximately 5.00 PM on that day the claim form and supporting documentation were placed in an envelope and that he posted the envelope at a letterbox near the Applicant’s residence at approximately 5:45 PM on that day.
The Tribunal records that the Applicant had been suffering significant ill-health for some time, both before and after the cessation of her employment with Nissand. She gave evidence that because of her health condition she had not kept in contact with other staff members of Nissand. Consequently, she did not realise that she had the ability to make an effective claim under the FEG Act until she was contacted by Mr Baird who apprised her of this fact. Naturally, the Tribunal has considerable sympathy for the plight of the Applicant. However, it is bound to conduct its review of this application in accordance with what the law prescribes, notwithstanding any sympathy it may otherwise have for the Applicant.
According to evidence from the Respondent, the envelope posted by Mr Baird was not received until 14 June 2017. This evidence came from two witnesses, namely Mr Phil Hartley, the Director, Information Management within the Technology and Services Group of the Respondent; and Mr George Shaw, the Director of the Fair Entitlements Guarantee Contact and Initial Assessment section (“the FEG Hotline”). More concerning the evidence from those witnesses will be canvassed later in these reasons.
One of the documents accompanying the Fair Entitlements Guarantee claim form was a certified copy of the Applicant’s birth certificate.[11] An issue relied upon by the Respondent, and which did assume some significance in this hearing, was that it was certified by a pharmacist, one Alvin Siaw. Alongside his stamp and what appears to be signature or initials is inserted in handwriting “12/6/17”.
[11] This document is part of document T 7 of the T documents at page 111.
Mr Siaw did not give evidence at the hearing before the Tribunal. No explanation was offered for him not being called to give evidence. The Applicant gave evidence that such handwriting is hers. Obviously, this date is well after the date that the letter containing the claim form was said to be posted by Mr Baird to the Respondent. The Applicant’s explanation for this discrepancy (which it should be noted was relied upon heavily by the Respondent in asserting that the application could not have been received within 12 months of 7 June 2016) was that she looked at her telephone to identify the current date and used that date to write on the certified copy birth certificate. She then said that subsequently she ascertained that the date on her “phone was out by several days”. This was apparently verified by Mr Baird.
The Tribunal accepts the evidence of Mr Shaw and Mr Hartley concerning the receipt of the letter from the Applicant. They were both witnesses who presented as committed and professional public servants for whom high standards were the custom. They both readily made concessions where appropriate and were impressive witnesses. They readily saw their obligations to assist the Tribunal. Their evidence was informative and helpful.
Mr Hartley explained the mailroom procedures adopted in 2017; and how such mail when received and sorted is then delivered to the “Fair Entitlements Guarantee Branch”. He emphasised that there was a strong awareness of the importance of making sure that FEG claims are processed properly and of the potential risk to claimants of such claims being received out of time. A critical aspect of his evidence was the fact that when mail items are received they are rapidly processed and delivered to the FEG branch on the morning of receipt.
Mr Shaw explained the processes of the FEG branch and what occurs with the mail. Once the mail is received, a date stamp is placed upon the claim form or one of the accompanying documents, as occurred in this case. The Tribunal notes that the Respondent’s date stamp of 14 June 2017 was stamped on the Applicant’s birth certificate.[12] It seems most unlikely that an employee of the Respondent would stamp a date stamp with the incorrect date on a document after it had been received. The consequences for an employee of the Respondent in doing so would be serious. There is no reason for the Tribunal to find other than that the date stamp was placed upon the document by an employee of the Respondent on the date that it was received.
[12] This document is at page 111 of document T 7 of the T documents.
Critically, upon receipt of a claim form and accompanying documents they are then scanned and assigned to the FEG electronic claims management system. This is a relational database which creates a claim record for each individual claimant. When entered into the electronic claims management system, the claim is assigned a unique identifier, or what is known by the Respondent as a “claim number”.
Mr Shaw gave evidence of the searches of the database that he conducted, which revealed that the Applicant’s claim form was received by the FEG branch on 14 June 2017. He exhibited to his statement a series of screenshots from the Respondent’s electronic database which contain entries concerning the Applicant’s claim. The last page of those screenshots is what might be described by a layman as a “running sheet” which records comments presumably entered by the Respondent’s officers when various events or matters should be recorded in the course of the business or affairs conducted.
When questioned about practices and procedures of the Respondent, Mr Shaw stated that if an application had been dropped on the floor or in some other way gone astray but subsequently found, the circumstances concerning such events would have been recorded in the part of the database that contains written comments. He emphasised the fact that those circumstances would be accurately recorded. Although, it should be noted that he stated that such an event had not to his knowledge occurred. The Tribunal accepts this evidence.
The evidence given by both of the Respondent’s witnesses concerning recordkeeping management systems adopted by the Respondent establishes that those systems were, in the Tribunal’s consideration, professional and well organised. There is no reason to doubt the reliability of the systems adopted or the accuracy of the database and record keeping systems.
The screenshots from the Respondent’s database attached to Mr Shaw’s statement would obviously be admissible as business records under the provisions of section 69 of the Evidence Act 1995 and would be receivable in evidence as proof of their contents. There does not seem to the Tribunal any reason why they should not be admissible in this proceeding. In any event, without having recourse to the provisions of the Evidence Act 1995it is still submitted that the screenshots can be admissible in other ways.
The system of recordkeeping adopted by the Respondent in the course of carrying out its duties or affairs can be received by the Tribunal for the purpose of proving matters of the nature of this application. This approach has been adopted in many cases. For instance in R v Seifert[13] the New South Wales Court of Criminal Appeal permitted a pharmaceutical importer’s records as to quantities of a particular drug brought into Australia to be tendered as a basis for a statistical picture of the dissemination of the drug in the community. Such records are admissible because the systematic compilation makes them inherently reliable in respect of a number of different propositions. The approach can also be adopted to support the admission of minutes of meetings of a body compiled in a proven and systematic way.[14]
[13] (1956) 73 WN (NSW) 358 at 364-5.
[14] The reasons of Franki J in Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647 at 676 by way of example are referred to. A helpful discussion of this question can be found in R. A. Brown "Documentary Evidence in Australia", first edition 1988 at pages 290-293. Also, Gillies "Law of Evidence in Australia" at pages 299-300.
The Tribunal accepts that the Fair Entitlements Guarantee form was not received by the Respondent until 14 June 2017. There is no evidence to suggest that the claim form and supporting documents were received any earlier or were processed by the Respondent other than in the usual course of conducting its affairs.
The Tribunal accepts the evidence of Mr Shaw that, had the document been received internally but in some way misplaced, that fact would have been recorded by appropriate comments in the Respondent’s database in the area that contained comments. The systems of mail receipt and sorting, then processing and entry into the electronic database to record claims, is carefully and properly administered and inherently reliable.
In making this finding the Tribunal does not need to adjudicate on the question of whether or not the envelope was in fact posted on 4 June 2017 as stated in Mr Baird’s evidence. Also, it does not need to adjudicate on the evidence of the Applicant that she wrote the wrong date on the certified copy of the birth certificate. The point is that the finding has been made that the claim form and supporting documents did not arrive until 14 June 2017 which was outside the time prescribed by section 14 (2) of the FEG Act. Therefore, the Applicant did not make an effective claim within the meaning of that section.
As to why the claim form and supporting documents may have taken so long to arrive with the Respondent, the Tribunal can only speculate. They did not arrive in time and therefore an effective claim was not made by the Applicant. The Applicant did tender some evidence which referred to the fact that as and from 1 January 2016 a change to the procedures of Australia Post meant that a letter sent by ordinary prepaid post could take up to six business days to arrive. The evidence does not indicate if this applies to all mail or whether it is for local rather than interstate mail items. It is possible (however the Tribunal does not make a finding to this effect) that for whatever reason it took several further days beyond six days to arrive. In any event if it did take six days to arrive after 4 June 2017 it would still have been out of time.
The Tribunal also notes that the Respondent, in its Statement of Facts, Issues and Contentions, did raise the question of whether the presumption of receipt of a postal article under section 160 of the Evidence Act 1995 might be applied to find that the letter was received on the fourth working day after it had been posted by Mr. Baird. Given the findings that the letter was not received by the Respondent until 14 June 2017 as noted previously, the Tribunal finds, for the reasons articulated, that evidence sufficient to rebut such presumption has been adduced. In any event, as correctly contended by the Respondent, such presumption will not assist the Applicant as the fourth working day following the postage of the FEG claim form and supporting application was after the 12 month period prescribed by section 14 (2) of the FEG Act had expired. However, it should be repeated that the finding of the Tribunal is that the claim form was received by the respondent on 14 June 2017.
Further consideration was given in the course of the hearing to whether sections 28A and 29 of the Acts Interpretation Act 1901 might have application. Similarly to the consideration of section 160 of the Evidence Act 1995, given the finding of the Tribunal that the claim form was received on 14 June 2017, those sections do not apply. Additionally, the language used in section 28A and 29 applies to an Act that requires or permits documentation to be served by post. Section 14 (2) does not make any reference to service of the relevant claim by post. The language used is that the claim must be “made”, it does not refer to posting or service by post. The use of the word "made" it is submitted is a deliberate choice by the legislature and casts a significant obligation on the Applicant for an advance under the FEG Act to make sure that the claim is received by the Respondent. The Tribunal observes that there was evidence that most claims these days under the FEG Act are lodged with the Respondent on the Internet, via the medium of its website; which of course provides an electronic record of the date and time of lodgement with which it is impossible to cavil.
Decision
Therefore, for the reasons outlined above, the Tribunal affirms the reviewable decision.
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58. I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Cameron
.........[sgd].........................................
Associate
Dated: 25 September 2018
Date(s) of hearing: 23 August 2018 Solicitors for the Applicant: David Baird Solicitors for the Respondent: Lex Holcombe
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