Sleep and Repatriation Commission

[2006] AATA 1130

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1130

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2006/132

VETERANS' APPEALS DIVISION		)
Re		KENNETH JOHN SLEEP

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date20 October 2006

PlaceAdelaide

Decision The Tribunal determines that is does have jurisdiction to hear the appeal lodged by Mr Kenneth Sleep on 23 May 2006.

..............................................

J G SHORT
  (Member)

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – time in which to lodge an appeal – applicant not receiving notice of decision until 20 September 2006 – Tribunal does have jurisdiction

Acts Interpretation Act 1901 ss 28A, 29
Administrative Appeals Tribunal Act 1975 s 29

Veterans’ Entitlements Act 1986 ss 57, 176(4)(b)

REASONS FOR DECISION

20 October 2006   Mr J G Short (Member)  

1.      On 23 June 2001 a decision was made by the respondent (the Commission) to assess Mr Sleep’s rate of service pension on the basis of his assets, including his motor vehicle.  It is common ground that Mr Sleep receives a Recreation Transport Allowance and it is because of this Mr Sleep considers the Commission should disregard the value of his motor vehicle.

2.      On 29 August 2001 Mr Sleep sought a review of the decision.  Mr Sleep subsequently received a letter to the effect that the outcome of his request for review may be delayed for some time. 

3. On 5 August 2002 an adverse review decision was made under s 57 of the Veterans’ Entitlements Act 1986 (the VE Act). On 23 May 2006 Mr Sleep lodged an appeal to this Tribunal.

issue

4.      Did Mr Sleep lodge his appeal within the time limits prescribed under the Administrative Appeals Tribunal Act 1975 (the AAT Act), as varied by the VE Act, and if not, should the application be dismissed on the basis that the Tribunal lacks jurisdiction to hear the appeal?

5.      The Commission’s advocate conceded that the decision is of a type which is reviewable by this Tribunal. 

6. The Commission however contended that Mr Sleep received notice of the decision within a few days of 5 August 2002, that is the date on which the s 57 review decision was made, and hence his appeal, lodged on 23 May 2006, was out of time.

7. The Commission referred the Tribunal to ss 28A and 29 of the Acts Interpretation Act 1901 (the AI Act) which read as follows:

“28A Service of documents

(1)For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then, unless the contrary intention appears, the document may be served:

(a)      on a natural person:

(i)        by delivering it to the person personally; or

(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b)on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.

(2)      Nothing in subsection (1):

(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or

(b)affects the power of a court to authorize service of a document otherwise than as provided in that subsection.

29 Meaning of service by post

(1)Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(2)This section does not affect the operation of section 160 of the Evidence Act 1995.”

8.      Mr Sleep said that he first sought review of the decision to include his motor vehicle as part of his assets on 29 August 2001.  He said that he next received a letter from the Commission foreshadowing a delay in processing his application for review.

9. I have sighted a document dated 5 August 2002 purporting to be a determination made under s 57 of the VE Act. Mr Sleep said that he did not receive a copy of this document until 20 September 2006, that is 2 days prior to the date of this hearing. Mr Sleep said that after he received the letter indicating that there would be a delay in processing his application, and in a background of pursuing other litigation with the Commission, he did not realise that his application for review had been determined, adversely to his interests, on 5 August 2002. He said that he had no knowledge of this until he received a letter from the Commission dated 18 November 2005 which included some working notes, part of which read as follows:

“ISSUE 8 – Service Pension Income Asset Test

Mr Sleep has sought to have his motor vehicle exempted from this test on basis of contention that it is a rehabilitation device in context of the RTA decision of AAT.

This request was refused and Mr Sleep requested s 57 review. 

This review now completed and primary decision upheld.”

10. Mr Sleep said that the covering letter dated 18 November 2005 stated that enclosed along with the working notes, was a copy of the determination made under s 57 of the VE Act and a statement of reasons for that determination. Mr Sleep said that his daughter opened the letter and that both he and she noted that the notice of, and reasons for, decision were not included.

11.     It is common ground that Mr Sleep sent a further letter to the Commission on 17 February 2006 advising that the notice and reasons for decision, said to have been included under the cover of the letter dated 18 November 2005 had not been included.  This letter suggests that Mr Sleep believed, that at least prior to September 2006, he had not been provided with a copy of the Commission’s reasons for decision.

12. The Commission argued that even if this were the case, Mr Sleep should still be treated as having been served with a notice of the decision having regard to ss 28A and 29 of the AI Act. The Commission’s advocate gave sworn evidence in support of his contention that the usual practice of an officer conducting a review under s 57 of the VE Act, was to personally type reasons for the decision and a covering letter and to place those documents inside an envelope addressed to the applicant and then to place this envelope inside a postal bag, held within the Commission, for later posting. Mr Crowe confirmed that he did not have any direct or personal knowledge in relation to the posting of the subject letter. He simply gave evidence of his understanding of the Commission’s usual practice.

13.     It was agreed between the parties and I find, that the Tribunal does have jurisdiction to consider an appeal against a decision to include a pensioner’s car as an asset for purposes of assessing the appropriate rate of pension to be paid.  The issue before me was whether Mr Sleep had lodged his appeal within time. 

14. The effect of s 29(7) of the AAT Act, as modified by s 176(4)(b) of the VE Act is that a person may lodge an appeal against a decision of the Commission within 3 months, but no later than 12 months from the date upon which that person was furnished with a notice of the decision.

15. Mr Sleep’s evidence is that he was not provided with a copy of the determination made under s 57 of the VE Act and dated 5 August 2002 until 2 days prior to this hearing. Mr Sleep said that he was certainly not provided with a copy of the decision within a few days of the decision, and nor was a copy of the decision included with the letter from the Commission dated 18 November 2005. I find on the evidence before me that a copy of the s 57 determination dated 5 August 2002 did not come to Mr Sleep’s attention until about 20 September 2006.

16. This is not the end of the matter. As mentioned, the Commission’s advocate argued that service of the above mentioned document occurred pursuant to ss 28A and 29 of the AI Act within a few days of the date carried by the determination, that is within a few days of 5 August 2002.

17. While it is true that ss 28A and 29 of the AI Act do, in appropriate circumstances, work to effectively deem a document to have been served on an addressee, those sections do not have any operation unless I am satisfied that the notice was correctly addressed and posted to Mr Sleep. There is no argument that Mr Sleep resided at the address recorded in the determination’s covering letter. However, the only evidence before me as to the letter having been appropriately posted is that provided by the Commission’s advocate, and although I find him a credible witness, his evidence was only of that advocate’s understanding of the usual procedure adopted in drawing and posting notices of decisions.

18. On the evidence before me, the Commission is not assisted by ss 28A and 29 of the AI Act in order to establish services to have been effected. I accept Mr Sleep’s evidence, that he did not receive the copy of the notice dated 5 August 2002, until a few days prior to this hearing. I am not satisfied that the Tribunal is deprived of jurisdiction on the basis of an effluxion of time in which to lodge an appeal.

decision

19.     The Tribunal does have jurisdiction to consider an appeal lodged by Mr Sleep on 23 May 2006 against a decision made by the Commission on 23 June 2001 and affirmed by the Commission on 5 August 2002, to assess Mr Sleep’s rate of pension by including the value of his motor vehicle as part of his relevant assets.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .....................................................................................
  Associate

Date of Hearing  22 September 2006
Date of Decision  20 October 2006
Advocate for the Applicant       In person

Advocate for the Respondent   Mr A Crowe

DVA