Moretti and Repatriation Commission

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1067

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2515

VETERANS' APPEALS DIVISION

)

Re

LINDA MORETTI; and

LINDA MORETTI as Executor of the Estate of Carlo Moretti

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date28 November 2008

PlaceBrisbane (heard in Townsville)

Decision The Tribunal has no jurisdiction to review the decision dated                    25 September 2007.

.....................[sgd].........................

SENIOR MEMBER

4.      There was no real dispute about that sequence of events in this case.  What can be gleaned from the written material was:

§  in 2006, the respondent provisionally advised Mr and Mrs Moretti that there might be a problem with their service pensions paid in the relevant period, and that they may have been overpaid; and

§  over the course of the next year, a delegate of the respondent carried out the review that had been flagged, and then forwarded to the Morettis the “Statement of Reasons” for the substantive decision, claiming for recovery of the sum of $53,361.50. The delegate’s covering letter set out the available review rights, pointing out the need to request a review within three months from the date of the letter. The substantive decision being dated 25 September 2007, the Morettis had until about the end of December 2007 to request a review; and

§  the documents filed with the Tribunal indicate that following upon the substantive decision a number of a telephone contacts were made between the respondent’s delegate and the Morettis’ accountants.  During several of those telephone calls, the accountant flagged Mr and Mrs Moretti’s intention to seek review.  Equally plainly, no written application for review was lodged; and

§  the Morettis’ written application for review ultimately arrived about the end of February 2008, more than a month after the allotted time.  For this reason, the review officer declined to re-examine the substantive decision, stating simply that the application was out of time.

5.      The documentary materials before me included brief notes of the discussions in the telephone calls.  On 23 October 2007, Mr Cavallaro rang the Department of Veterans’ Affairs to complain about the substantive decision, explaining that the Morettis’ income and assets were regularly updated with the Department and it could not be right that they had been overpaid.  The file note recorded that Mr Cavallaro as saying he would write in “a.s.a.p”.  On 23 November 2007, someone at the Department of Veterans’ Affairs again rang Mr Cavallaro’s office to query when the request for review might be lodged.  Mr Cavallaro was not available to take that call.   On the next occasion (5 December 2007) an officer recorded that Mr Cavallaro was “off sick”. 

6.      Bearing in mind the expiration of the appeal period, any telephone calls after December – and there were several in January and February 2008 – were too late.  The statutory period had passed.  Nevertheless, file notes dated 21 January,          14 February, and 18 February 2008 recorded that Mr Cavallaro had telephoned…