Repatriation Commission v Goulding

Case [2008] FCA 1858

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Goulding [2008] FCA 1858

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether either s 160 or s 163 of the Evidence Act 1995 creates a presumption of receipt of notice – misapprehension as to correct law - what constitutes “effective service” under s 28A of the Acts Interpretation Act 1901 – what constitutes the giving of written notice in accordance with s 155AA of the Veterans’ Entitlements Act 1986 (Cth)

PRACTICE AND PROCEDURE - appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) - whether notice of appeal complies with the requirements of Order 53 rule 3 of the Federal Court Rules - what constitutes a question of law

Acts Interpretation Act 1901 s 28A
Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Evidence Act 1995 ss 5, 160, 163
Migration Act 1958 s 441A
Veterans’ Entitlements Act 1986 (Cth) s 155AA
Federal Court Rules Order 53 r 3(2)(b)

Bishop v Department of Education, Employment and Workplace Relations [2008] FCA 1118
Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) [No 2] (1980 3 ALD 38
Brown v Repatriation Commission [2006] FCA 914
Capper v Thorpe (1998) 194 CLR 342 Deputy Commissioner of Taxation v Trio Site Services Pty Ltd [2007] FCA 776
Deputy Commissioner of Taxation v Meredith (‘Meredith’) (2007) 69 ATR 876
Federal Commissioner of Taxation v Swift (1989) 18 ALD 679
Hartnett v Migration Agents Registration Authority [2004] FCA 50
Lambe v Director-General of Social Services (1981) 4 ALD 362
Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707
Repatriation Commission v Gordon (1991) 100 ALR 255
SZGMB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 437

Bellamy G and Meibusch P. ‘Commonwealth Evidence Law’ Aus Info (2nd ed 1998)

REPATRIATION COMMISSION and PRINCIPAL MEMBER VETERANS' REVIEW BOARD v ALLAN GOULDING

NSD 602 of 2008

REEVES J
9 DECEMBER 2008
DARWIN (VIA VIDEOLINK TO SYDNEY)


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 602 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

REPATRIATION COMMISSION
First Appellant

PRINCIPAL MEMBER VETERANS' REVIEW BOARD
Second Appellant
AND:

ALLAN GOULDING
Respondent

JUDGE:

REEVES J

DATE OF ORDER:

9 DECEMBER 2008

WHERE MADE:

DARWIN (VIA VIDEOLINK TO SYDNEY)

THE COURT ORDERS THAT:

1.This appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 602 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

REPATRIATION COMMISSION
First Appellant

PRINCIPAL MEMBER VETERANS' REVIEW BOARD
Second Appellant
AND:

ALLAN GOULDING
Respondent

JUDGE:

REEVES J

DATE:

9 DECEMBER 2008

PLACE:

DARWIN (VIA VIDEOLINK TO SYDNEY)

REASONS FOR JUDGMENT

INTRODUCTION

  1. This appeal concerns the giving of a written notice under s…

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AGLC
Repatriation Commission v Goulding [2008] FCA 1858
Case
[2008] FCA 1858
Decision Date

CaseChat Overview and Summary

The appeal before the court involved a dispute between Mr. Goulding and the Repatriation Commission concerning the effective service of a written notice under section 155AA of the Veterans' Entitlements Act 1986. The case originated from Mr. Goulding’s application for a review of a decision by the Commission, which was dismissed by a principal member of the Veterans’ Review Board. Mr. Goulding subsequently appealed to the Administrative Appeals Tribunal, which found that the notice had not been effectively served and set aside the principal member's decision. The Commission appealed to the Court on three questions of law arising from the Tribunal’s decision.

The legal issues before the Court centred on the interpretation and application of sections 155AA, 163 of the Evidence Act 1995, and 28A of the Acts Interpretation Act 1901. The central issue was whether the notice was effectively served to Mr. Goulding when it was delivered to his brother's address while he was away. The Court had to determine the appropriate statutory provisions governing the service of such notices and whether the Board’s action complied with those provisions.

In its reasoning, the Court examined the statutory language and relevant case law to interpret the provisions governing the service of notices under the Veterans’ Act. The Court noted that section 155AA of the Veterans’ Act did not specify the manner of giving the written notice. The Court further found that section 163 of the Evidence Act 1995 did not apply as it only addressed the presumption of the sending of correspondence, not its receipt. Regarding section 28A of the Acts Interpretation Act 1901, the Court concluded that the Board did not comply with the requirements for service because the notice was sent to Mr. Goulding’s brother’s address, which was not his last known place of residence. The Court held that the notice was not effectively served, and therefore, the principal member’s decision to dismiss the review application should be set aside.

The Court dismissed the appeal and upheld the Tribunal’s decision, affirming that the notice had not been effectively served and the review application should not have been dismissed. The Court’s decision means that Mr. Goulding's review application remains open, and the Tribunal’s order setting aside the principal member's decision stands.

Orders

Orders of the court

1. This appeal be dismissed.

Note:

Background

Background to the litigation

This appeal concerns the giving of a written notice under s 155AA of the Veterans’ Entitlements Act 1986 (Cth) (the ‘Veterans’ Act’). A principal member of the Veterans’ Review Board (‘the Board’) dismissed Mr Goulding’s review application after Mr Goulding was supposedly given a written notice under that section. Mr Goulding appealed that decision to the Administrative Appeals Tribunal (‘the Tribunal’) which concluded that the notice had not been effectively served and set aside the principal member’s decision. The Repatriation Commission (‘the Commission’) has appealed the Tribunal’s decision to this Court on three questions of law it says arise from that decision.FACTUAL BACKGROUND Mr Goulding served in the Royal Australian Navy from 1962 to 1972. For various periods during those 10 years he was on operational duties. On 27 February 2004, he lodged a claim for a disability pension under the Veterans’ Act with the Commonwealth Department of Veterans’ Affairs. That claim was partly granted and partly refused by a delegate of the Commission. Mr Goulding applied to the Board for a review of that decision on 23 May 2005. Initially he was unrepresented, but he subsequently appointed an RSL advocate to represent him. For various reasons, Mr Goulding’s review application proceeded at a slow pace. By late May 2007 two years had elapsed since it was first lodged. Section 155AA of the Veterans’ Act sets a standard review period of two years for such review applications. If, at the end of that period, a principal member of the Board considers the applicant should be ready to proceed at a hearing, he or she may give a written notice to the applicant under s 155AA(4) of the Veterans’ Act requesting him to provide a written statement; either saying he was ready to proceed to a hearing, or explaining why he was not. Acting under this provision, in late May 2007, a principal member of the Board sent a s 155AA notice to Mr Goulding at his brother’s address in Darwin. At that time Mr Goulding was away from Darwin, visiting East Timor. His usual place of residence was Coral House, a home for ex-servicemen in Darwin, and he was using his brother’s address as a mailing address while he was away. When the s 155AA notice arrived at Mr Goulding’s brother’s address, his brother contacted Mr Goulding by telephone and read the contents of the notice to him. Mr Goulding did not actually sight the notice or read the contents for himself until he returned to Darwin in late July 2007. After the telephone conversation with his brother, Mr Goulding contacted his RSL advocate, who in turn contacted the Board. From this contact, the advocate was given to understand that they, i.e. Mr Goulding and the advocate, could deal with the notice when Mr Goulding returned to Darwin. The advocate passed this information onto Mr Goulding and, as a consequence, he did not provide a statement in response to the s 155AA notice. Section 155AA(5) of the Veterans’ Act provides that if the applicant does not provide a written statement in response to the s 155AA notice within 28 days, the principal member must dismiss the review application and notify the applicant accordingly. Since the principal member concerned had not received a written statement from Mr Goulding by early July 2007, he proceeded to dismiss Mr Goulding’s review application under that provision. THE TRIBUNAL’S DECISION

Evidence

Evidence Before The Court

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Decision

Reasons for decision

REEVES J
Section 155AA(5) of the Veterans’ Act provides that if the applicant does not provide a written statement in response to the s 155AA notice within 28 days, the principal member must dismiss the review application and notify the applicant accordingly. Since the principal member concerned had not received a written statement from Mr Goulding by early July 2007, he proceeded to dismiss Mr Goulding’s review application under that provision. THE TRIBUNAL’S DECISION Mr Goulding subsequently lodged an appeal with the Tribunal. That appeal was heard in December 2007 and the Tribunal delivered its decision on 2 April 2008. In its decision the Tribunal set out the factual background to the dispute along the lines set out above. It then turned to consider the legal issues. In relation to those issues it concluded, in summary, that:(a)Section 155AA of the Veterans’ Act did not specify how the principal member was to give the written notice to the applicant.(b)Section 163 of the Evidence Act 1995 – which the Commission relied upon:(i)provided for when a letter from a Commonwealth agency was presumed to have been sent, not when it is presumed to have been received;(ii)applied to the Tribunal because s 5 of the Evidence Act 1995 extended that provision and a number of other provisions to all “Australian Courts” and the Tribunal fell within that expression under s 5(e) of the Evidence Act; and(iii)because that section referred more generally to correspondence from Commonwealth agencies and provided for a presumption as to when that correspondence had been sent, it therefore, did not apply to the giving or serving of a notice under s 155AA of the Veterans’ Act.(c)Section 28A of the Acts Interpretation Act 1901 – which Mr Goulding relied upon:(i)dealt with the service of documents on a person;(ii)provided that “service” for the purposes of that section, included a requirement in any statute that a document be given or sent to a person;(iii)deemed service to be effected when the document was delivered to the person himself or herself or was 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”;(iv)should be interpreted strictly in the circumstances; and(v)because s 155AA of the Veterans’ Act required the principal member to “give a written notice” to the applicant, that section applied to the giving or serving of a notice under s 155AA. (d)The Board did not comply with the requirements of s 28A of the Acts Interpretation Act 1901 by sending the notice to Mr Goulding’s brother’s address because that was not Mr Goulding’s place of residence last known to the Board. In the final paragraph of its decision, the Tribunal concluded:The notice sent by the [Board] 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 [Board]. The decision under review is therefore set aside. The Tribunal decides in substitution that the application has not been dismissed.THE NATURE OF THE APPEAL TO THIS COURT

Ratio Decidendi

Legal Principle Established

Established by: REEVES J

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