Turner and Repatriation Commission (Veterans' entitlements)
[2021] AATA 3497
•28 September 2021
Turner and Repatriation Commission (Veterans' entitlements) [2021] AATA 3497 (28 September 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/6530
Re:Murray Turner
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:28 September 2021
Place:Brisbane
The Tribunal does not have jurisdiction to consider the applicant’s application lodged on 16 October 2020 for review of the decision of the Veterans’ Review Board dated 30 June 1995.
...............................[SGD].....................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Disability pension – Practice and procedure – Time limitation for lodgement of application for review – Whether applicant lodged application for review within the prescribed time – Whether application for review lodged more than 12 months after applicant was furnished with decision of Veterans’ Review Board – Whether Veterans’ Review Board gave decision to applicant – Application lodged out of time – No jurisdiction to consider application – (CTH) Veterans’ Entitlements Act 1986 s 176(4) – (CTH) Administrative Appeals Tribunal Act 1975 ss 29(1)‑(2), (7) – (CTH) Acts Interpretation Act 1901 ss 28A, 29 – (CTH) Evidence Act 1995 ss 160(1), 163(1).
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Evidence Act 1995 (Cth)Veterans’ Entitlements Act 1986 (Cth)
CASES
Capper v Thorpe (1998) 194 CLR 342
Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 47 ALD 555
Ralph v Repatriation Commission [2016] FCAFC 89
Re Bennett and Repatriation Commission (1994) 36 ALD 387
Re VCA and Australian Prudential Regulation Authority [2008] AATA 580
Repatriation Commission v Gordon (1990) 26 FCR 569
Gusdote Pty Ltd v Ashley [2011] FCA 250Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
28 September 2021
INTRODUCTION
1. On 16 October 2020, Mr Turner (“the applicant”) applied to this Tribunal for the review of a decision by the Veterans’ Review Board (“VRB”) made on 30 June 1995.[1] That decision of the VRB affirmed a determination dated 25 May 1994 that the applicant’s fractures of his right tibia and fibula were not related to his service.[2]
[1] Exhibit G, Bundle of Documents, p. 41.
[2] Exhibit G, Bundle of Documents, p. 45.
2. It is not difficult to feel sympathy towards the applicant. The applicant was honest in making a statement that his fractures occurred off duty. I accept that he considers that his medical treatment was the cause of his disability. However, the VRB had evidence before it in the form of a report from a medical officer that the defence service of the applicant had not aggravated the condition of the applicant. On 26 May 1994, the applicant was advised of this report and that there was no evidence to contradict the report of the medical officer. That advice was provided to the applicant prior to him making his application to the VRB. The applicant had not filed any medical evidence before the VRB which contradicted this report of the medical officer. The applicant had requested that the VRB deal with his application in his absence.
3. On 6 May 2021, an interlocutory hearing was conducted by videoconference under the Covid-19 practice direction[3] to determine whether the application for review of the decision of the VRB made on 30 June 1995 was lodged within the prescribed time.
[3] COVID-19 Special Measures Practice Direction – Freedom of Information, General and Veterans’ Appeals Divisions, issued by Justice D G Thomas on 27 April 2020.
4. The applicant contends that following the decision of the VRB he was not informed of the decision “due to [the Department of Veteran’s Affairs] not recording his change of address.”[4] The applicant states that the decision of the VRB was sent to his former address.[5] The applicant states that he notified the Department of Veteran’s Affairs (“DVA”) of his change of address when he was discharged from the Australian Army on 1 August 1994.[6]
[4] Exhibit H, Submissions of the applicant, [2.3].
[5] Transcript, p. 8, line 9.
[6] Exhibit H, Submissions of the applicant, [2.3].
5. The applicant states that he first received the decision of the VRB on 13 November 2020 as an attachment to an email sent to him by this Tribunal.[7] The applicant submits that he lodged his application with the Tribunal within the prescribed time because the decision was not furnished to him until 13 November 2020.
[7] Exhibit H, Submissions of the applicant, [2.1].
6. The respondent submits that the decision was furnished to the applicant by post to his last known address on 19 July 1995. The respondent further contends that a copy of the decision was provided to the applicant's representative on 16 October 2015 in response to a freedom of information request to the Department of Defence.[8]
[8] Exhibit G, Submission of the respondent, [2.16].
7. The respondent submits that the application was not made within the prescribed time under s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The respondent submits that the application for review of the decision was furnished to the applicant more than 12 months before the application was made to this Tribunal, and that the Tribunal is constrained by s 176(4) the Veterans’ Entitlements Act 1986 (Cth) (“VEA”) from extending the time for lodging an application for review to a date more than 12 months after the date on which the applicant was furnished with a reviewable decision.
ISSUE
8. I must determine whether the applicant has made an application to this Tribunal within the time prescribed under s 29 of the AAT Act.
FACTS
9. On 30 October 1979, the applicant applied to enlist in the Australian Army, and on 12 February 1980, he was enlisted in the Australian Army.
10. The applicant’s application to enlist in the Australian Army records his address as 139 Hume Street, Toowoomba, Queensland.[9] On the applicant’s “enlistment advice and personal data sheet”, his father is recorded as his next of kin, and the address recorded for his father is 139 Hume Street, Toowoomba, Queensland.[10] The Australian Army records show that the applicant’s home address prior to his enlistment was 139 Hume Street, Toowoomba, Queensland.[11]
[9] Exhibit G, Bundle of Documents, p. 1.
[10] Exhibit G, Bundle of Documents, p. 3.
[11] Exhibit G, Bundle of Documents, p. 5.
11. On 15 June 1987, the applicant was discharged from the Australian Army. On his discharge certificate, his forwarding address is recorded as 56 Park Road, Wooloowin, Queensland.[12]
[12] Exhibit G, Bundle of Documents, p. 10.
12. On 30 July 1990, the applicant applied to re-enlist in the Australian Army. On his application form his address is recorded as 7 Leonard Street, Toowoomba, Queensland. The applicant’s father is again recorded as his next of kin, and the address recorded for the applicant’s father is 7 Leonard Street, Toowoomba, Queensland.[13]
[13] Exhibit G, Bundle of Documents, p. 12.
13. There is evidence that, on 6 September 1992, the applicant incurred fractures to his right tibia and fibula in an incident that occurred while he was off duty.[14] There is evidence that the applicant received treatment at the Royal Brisbane Hospital and later received treatment at 1 Military Hospital and in Darwin. The applicant states that, on 22 February 1993, he obtained medical advice that his leg had not healed from the surgery as expected and that he could not continue to work in his job.[15]
[14] Exhibit G, Bundle of Documents, p. 43.
[15] Exhibit I, Statement of the applicant.
14. On 9 July 1993, the applicant made a claim under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) for rehabilitation and compensation for “result of operation” concerning his “lower right leg” with an injury date of 14 September 1992.[16] On 28 June 1994 his claim was rejected,[17] and on 24 February 1997 the decision to reject the claim was affirmed[18] under the Safety, Rehabilitation and Compensation Act 1988 (Cth).[19] The claim for rehabilitation and compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRCA claim”) is not the subject of these proceedings.
[16] Exhibit G, Bundle of Documents, p. 13.
[17] Exhibit G, Bundle of Documents, p. 32.
[18] Exhibit G, Bundle of Documents, p. 46.
[19] By operation of s 4 of the Commonwealth Employees' Rehabilitation and Compensation Amendment Act 1992 (Cth) the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) was renamed the Safety Rehabilitation and Compensation Act 1988 (Cth), and by operation of s 46 of the Industrial Relations and Other Legislation Amendment Act 1993 (Cth) the Safety Rehabilitation and Compensation Act 1988 (Cth) was renamed the Safety, Rehabilitation and Compensation Act 1988 (Cth).
15. On 28 February 1994, the applicant made a claim for a pension in accordance with s 14 of the VEA.[20] In his application, the applicant listed his address as “2nd Cav Regt, Waler Bks Rd Palmerston NT 0830”. The applicant confirmed that at this time his address was the 2nd Cavalry Regiment Barracks at Palmerston (“Palmerston address”).[21] On 25 May 1994, his claim for a pension was refused on the basis that he was not eligible for a pension under s 70 of the VEA. The delegate of the Repatriation Commission determined that the fractures to the applicant’s right tibia and fibula were not defence-caused within the meaning of s 70 of the VEA.[22] The covering letter to the Repatriation Commission’s determination, which is dated 26 May 1994, was addressed to the applicant at the Palmerston address. The covering letter states: “Please advise this Department, promptly, if you change your address.”[23]
[20] Exhibit G, Bundle of Documents, p. 14.
[21] Transcript, p. 9, lines 18-20.
[22] Exhibit G, Bundle of Documents, p. 25.
[23] Exhibit G, Bundle of Documents, p. 24.
16. A Notification of Change of Circumstances form dated 1 June 1994 and signed by the applicant shows that the applicant notified the DVA of a change of address to 2/14th Light Horse Regiment, Enoggera, Queensland (“Enoggera address”).[24] The applicant attached to the form his application to the VRB to review the determination made on 25 May 1994. The applicant stated in his form:
I have been posted to Queensland, leaving Darwin on 10/6/94. My new address is shown above.
Please register the attached V.R.B. application for review & then transfer my files to the Queensland office.
[24] Exhibit G, Bundle of Documents, p. 27.
17. In his application to the VRB dated 1 June 1994, the applicant listed his address as the Palmerston address.[25]
[25] Exhibit G, Bundle of Documents, p. 28.
18. A minute of the DVA dated 15 June 1994 shows that the VRB was notified of the applicant’s change of address from the Palmerston address to the Enoggera address.[26]
[26] Exhibit G, Bundle of Documents, p. 30.
19. The applicant in giving evidence remarked that he received a copy of a decision dated 28 June 1994 concerning his SRCA claim which was addressed to him at the Enoggera address.[27] In a letter dated 8 July 1994, the applicant requested a reconsideration of the decision concerning his SRCA claim.[28] The address in the header of that letter is the Enoggera address.
[27] Transcript, p. 13, lines 24-25.
[28] Transcript, p. 13, lines 30-31, 45.
20. On 1 August 1994, the applicant was again discharged from the Australian Army. On the applicant’s discharge certificate, the applicant’s forwarding address is recorded as 567 Lower Bowen Terrace, New Farm, Queensland (“New Farm address”).[29]
[29] Exhibit G, Bundle of Documents, p. 36.
21. On 30 June 1995, the VRB made a decision to affirm the determination made on 25 May 1994. The covering letter to the decision of the VRB indicates that on 19 July 1995 a copy of the decision was posted to the applicant at the Enoggera address.[30]
[30] Exhibit G, Bundle of Documents, p. 40.
22. While the applicant did leave a forwarding address (the New Farm address) with the Australian Army, there is no evidence before the Tribunal as to whether the decision of the VRB was forwarded to this New Farm address. There is in evidence a letter from the Department of Defence dated 24 February 1997 which is addressed to the applicant at the Enoggera address.[31] The letter of 24 February 1997 is a reconsideration decision of the applicant’s SRCA claim. The applicant stated that he did not understand why the letter of 24 February 1997 was sent to his Enoggera address, “because I wasn't in the army in 1997.”[32]
[31] Exhibit G, Bundle of Documents, p. 46.
[32] Transcript, p. 14, lines 12-13.
23. The applicant gave evidence before the Tribunal that when he was discharged from the Australian Army, “I informed DVA and got them to inform everybody else in their department that I was moving into Ashmore.”[33] He stated:
anything after I was discharged should have been sent to my Ashmore address. Everyone knew, and had been informed, of my new address. Why they kept sending it to 2/14 Light Horse, I have no idea, and no control over it.[34]
[33] Transcript, p. 14, lines 17-20.
[34] Transcript, p. 14, lines 25-28.
24. The applicant gave evidence that in 1995 and in 1996 he called the DVA “quite a few times”. He stated that a receptionist told him that someone would get back to him, but that he had not heard anything since. He further stated that he called the DVA in 1998 and 2000 and, “still no response from anyone from DVA or the VRB or anything.”[35]
[35] Transcript, p. 14, lines 33-38.
25. Under cross-examination, the applicant accepted that, insofar as the available documents indicate, after he notified of a change of address in 1994, the next documented time that he notified the DVA of a change of address was in 2001.[36] However, the applicant insisted that every time he changed address, he informed “everyone” of his change of address, and that, “I've never moved somewhere and not informed these people.”[37]
[36] Transcript, p. 14, lines 30-32.
[37] Transcript, p. 16, lines 9-15.
Contact with the DVA in 2001
26. The applicant gave evidence that, on 29 June 2001, he phoned the DVA and advised them that he had moved residence.[38] The applicant’s evidence confirms a telephone file note of the DVA, dated 29 June 2001. In that file note the applicant’s new address is recorded as 6/28 Bath Street Labrador, Gold Coast, Queensland (“Gold Coast address”).[39] There is also in evidence an internal email of the DVA that shows that the applicant’s file was transferred from Adelaide to Brisbane and that his address with the DVA was updated to the Gold Coast address.[40]
[38] Exhibit I, Statement of the applicant; Transcript, p. 14, line 44.
[39] Exhibit G, Bundle of Documents, p. 49.
[40] Exhibit G, Bundle of Documents, p. 50.
27. It was put to the applicant in cross-examination that his request that his address be updated to the Gold Coast address was actioned by the DVA, and he responded: “Yes, but every - but I didn't receive anything there. No one sent me anything.”[41] I do not accept that this recollection of the applicant is accurate. This is because there is in evidence before me a copy of a letter from the DVA, dated 6 July 2001, addressed to the applicant at the Gold Coast address.[42] The applicant in his statement asserted that, following his contact with the DVA in June 2001, he did not receive “any more information from DVA” until 2015.[43] In giving evidence, the applicant insisted that he did not receive the letter from the DVA dated 6 July 2001.[44] However, there is no evidence that the letter was ever returned to the DVA.
[41] Transcript, p. 15, lines 1-2.
[42] Exhibit J.
[43] Exhibit I, Statement of the applicant.
[44] Transcript, p. 16, lines 27, 35-36, 40-42.
Freedom of Information Request in 2015
28. On 18 September 2015, the applicant made a request under the Freedom of Information Act 1982 (Cth) for access to his personnel records held by the Department of Defence.[45] In the application form for the request, the applicant appointed a representative to deal with the Department of Defence on his behalf. The section under the heading “representative details” reads as follows:
I, the applicant named, appoint the person named below to
Act as my representative for my request for access to documents. I authorise Defence to deal with the representative concerning my application.
[45] Exhibit G, Bundle of Documents, p. 53.
The representative named in the application form is “Sonja J. Hellier” of the organisation “A.S.A.C. INC”. The applicant gave evidence that this organisation is the Armed Services Assistance Centre (“ASAC”).[46]
[46] Transcript, p. 18, lines 25-27.
29. Under cross-examination, the applicant confirmed that he signed the freedom of information application form and that he authorised the appointed representative to receive documents on his behalf.[47] In the freedom of information application form, under the heading “applicant details” the applicant has ticked the box for “Please send copy of documents to my representative”.[48] The box for “Please send a copy of the documents to me” was not ticked by the applicant.
[47] Transcript, p. 18, lines 10, 21-22.
[48] This was confirmed by the applicant: Transcript, p. 18, lines 17-19.
30. On 16 October 2015, the DVA granted the applicant access to the requested documents. Copies of the requested documents were provided to Ms Hellier at the ASAC as the authorised representative of the applicant.[49] Under cross‑examination, the applicant accepted that his representative received a copy of the decision of the VRB.[50] Indeed, the copy of the decision of the VRB dated 30 June 1995 has the following stamp:[51]
D.V.A FOI
16 OCT 2015
RELEASED PURUANT
TO
FOI
[49] Exhibit G, Bundle of Documents, p. 55.
[50] Transcript, p. 17, line 5.
[51] Exhibit G, Bundle of Documents, p. 41.
31. However, the applicant remarked that he was not aware that his representative at the ASAC had received a copy of the decision, and he insisted that he did not receive a copy of the decision until it was provided to him by the Tribunal on 13 November 2020.[52]
[52] Transcript, p. 17, lines 5-11.
32. In an email to the applicant dated 5 February 2021, a representative of the ASAC stated: “I can confirm that we sent your file to you [sic] mailing address and since then we have not received anything further”.[53] The applicant asserts that a copy of the decision of the VRB was not provided to him in the documents that were sent to him by the ASAC.[54]
[53] Exhibit I, email dated 5 February 2021.
[54] Closing submissions of the applicant dated 30 June 2021, [2.12].
LEGISLATION
33. Section 29 of the AAT Act provides for the manner of applying to the Tribunal for a review of a decision. Section 29(1) of the AAT Act provides relevantly:
(1) An application to the Tribunal for a review of a decision:
…
(d)if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) or (5A)—shall be lodged with the Tribunal within the prescribed time.
34. Section 29(2) of the AAT Act provides for the prescribed time for making an application; the subsection provides relevantly:
(2) … the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:
(a) if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant …
35. Section 29(7) of the AAT Act provides:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
36. The application for review of the decision of the VRB is made under s 175(1) of the VEA. Section 176(4) of the VEA modifies s 29 of the AAT Act. Section 176(4) of the VEA provides:
(4) Section 29 of the Administrative Appeals Tribunal Act 1975 applies to and in relation to an application to the Administrative Appeals Tribunal for a review of a reviewable decision:
(a)as if “ending 3 months” were substituted for “ending on the twenty‑eighth day” in subsection (2) of that section; and
(b)as if at the end of subsection (7) there were added “until such date, being a date not more than 12 months after the date on which the document setting out the terms of the decision was furnished to the applicant, as the Tribunal deems fit”.
37. Section 29 of the AAT Act, as modified by s 176(4) of the VEA, precludes the Tribunal from extending the time for the applicant to make an application for a review of a decision beyond 12 months after the date on which the applicant was furnished with the decision of the VRB.[55]
[55] Re Bennett and Repatriation Commission (1994) 36 ALD 387 at 392 (Deputy President Forgie), as cited in Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (Federation Press, 3rd ed, 2016) 513.
38. Section 28A(1) of the Acts Interpretation Act 1901 (Cth) (“AIA”) provides:
(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 the document may be served:
(a) on a natural person:
…
(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; …
39. Section 29 of the AIA states:
(1) Where an Act authorises 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 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.
40. Sections 28A and 29 of the AIA have relevance in respect of the decision of the VRB because s 140(1) of the VEA requires the VRB to “give a copy of its decision under section 139 to each party to the review.”
41. Section 160(1) of the Evidence Act 1995 (Cth) (“Evidence Act”) provides:
(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted.
42. Section 163(1) of the Evidence Act also relevantly provides:
(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
43. The Tribunal is not bound by the Evidence Act.[56] Section 4 of the Evidence Act provides that the Evidence Act applies to proceedings in a federal court. A “federal court” is defined in the dictionary to the Evidence Act as including:
a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.
[56] See VCA v Australian Prudential Regulation Authority [2008] AATA 580 at [275] and Epeabaka v Minister for Immigration & Multicultural Affairs (1997) 47 ALD 555 at 566.
44. The Tribunal is, therefore, not included among the persons or bodies to which the Evidence Act applies. Furthermore, s 8(1) of the Evidence Act states: “This Act does not affect the operation of the provisions of any other Act …”
CONSIDERATION
45. The respondent had initially contended that the decision of the VRB was furnished to the applicant on 30 June 1995.[57] The decision could not have been furnished to the applicant on that date because the covering letter enclosing the VRB’s decision is dated 19 July 1995. The respondent has now submitted that the VRB furnished its decision to the applicant by post at his last known address on 19 July 1995.[58]
[57] Exhibit G, Submissions of the respondent dated 21 December 2020, [2.14].
[58] Closing submissions of the respondent dated 31 May 2021, [2.6].
46. Section 28A(1) of the AIA has relevance because under s 140 of the VEA the VRB was required to give a copy of its decision to the applicant. The VRB could give (or furnish) its decision to the applicant by sending it by prepaid post to the address of the place of residence of the applicant last known to the VRB.
47. Section 29 of the AIA allowed the VRB to give (or furnish) its decision to the applicant by properly addressing, sending the decision as a letter by prepaid post and, unless the contrary is proved, the decision is deemed to have been given (or furnished) at the time at which the letter would have been delivered in the ordinary course of post.
48. The case of the applicant is that the letter enclosing the decision of the VRB was not “properly addressed” within the meaning of s 29 of the AIA because the DVA used the incorrect address.[59] The applicant contends that the DVA made “administrative errors in handling address changes” and that the DVA was made aware that the Enoggera address would be a temporary address as the applicant was to be discharged shortly after moving to the Enoggera address.[60] The applicant asserts that the decision of the VRB was sent to the Enoggera address which the DVA knew was not his current address.[61]
[59] Closing submissions of the applicant dated 30 June 2021, [2.17].
[60] Closing submissions of the applicant dated 30 June 2021, [3.1], [3.3]-[3.4]; Exhibit G, Bundle of documents, p. 31.
[61] Exhibit H, Submissions of the applicant, [2.4].
49. The notification that the applicant provided to the DVA on 1 June 1994 indicated that the Enoggera address was his “new address”, and there was no indication in the notification that the Enoggera address was a temporary address. The notification of the applicant was provided in respect of his application to the VRB which was attached to the notification. The applicant did not nominate the address of any house property in the notification. A DVA file note dated 15 June 1994 indicates the applicant “is now resident” at the Enoggera address. I have concluded that the applicant resided at the 2/14 Light Horse Regiment Barracks. Prior to 19 July 1995, the DVA file does not contain any record of a further change of address of the applicant. I accordingly find that on 19 July 1995 the Enoggera address was the residence of the applicant which was “last known” to the VRB within the meaning of s 28A(1) of the AIA.
50. There is no evidence before the Tribunal as to the actual date of delivery of the letter of 19 July 1995 or the ordinary course of post between the Queensland Registry of the VRB in Brisbane and the Enoggera address. I have earlier mentioned that this Tribunal is not bound by the Evidence Act.[62] However, this Tribunal is nevertheless entitled to inform itself on any matter in such manner as the Tribunal thinks appropriate.[63] In Swanton v Military Rehabilitation and Compensation Commission,[64] Tracey J held that this Tribunal was entitled to rely on the presumptions raised by ss 163(1) and 163(3) of the Evidence Act. In the absence of evidence of the actual date of delivery of the letter or the ordinary course of post, Tracey J held that the presumption in s 163(1) of the Evidence Act would operate to assist in the proof of the “ordinary course of post”. Tracey J pointed out that s 29(2) of the AIA provides that s 29 of the AIA does not affect the operation of s 160 of the Evidence Act.
[62] Evidence Act, s 4, Dictionary, Pt 1, definition of “federal court”.
[63] AAT Act, s 33(1)(c).
[64] [2017] FCA 114.
51. The applicant has not contended that the VRB did not post the decision to him.[65] Section 29(1) of the AIA, which deems the letter to be served at the time at which the letter would be delivered in the ordinary course of post, operates “until the contrary is proved”. In Repatriation Commission v Gordon (1990) 26 FCR 569, Spender J explained that any claims of non-delivery would have to be carefully scrutinised and the mere claim of non-receipt would be likely to be insufficient and that non-receipt is not the same as non-delivery. There is no contemporaneous documentary evidence which indicates that the applicant made enquiries with the VRB about his application prior to 2001. The next documented instance of the applicant contacting the DVA after 1994 is his notification of his change of address on 29 June 2001.
[65] See closing submissions of the applicant dated 30 June 2021, [2.6].
52. Section 163(1) of the Evidence Act provides a presumption that a letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address within Australia on the fifth working day after having been posted. The decision of the VRB is presumed to have been sent by prepaid post addressed to the applicant at the Enoggera address on 26 July 1995, being the fifth working day after 19 July 1995. There is no cogent evidence which raises any doubt about the application of this statutory presumption.
53. There is no issue that the VRB is a “Commonwealth agency” within the meaning of s 163(1) of the Evidence Act because it is a body exercising power under or because of a law of the Commonwealth; the law of the Commonwealth is the VEA: see definition of “Commonwealth agency” (para c) Evidence Act, Dictionary, Pt 1.[66] The VRB is also a “Commonwealth agency” within the meaning of s 163(1) of the Evidence Act because it is a body or organisation, whether incorporated or unincorporated, established for a public purpose by or under a law of the Commonwealth being the VEA: see definition of “Commonwealth agency” (para d) Evidence Act, Dictionary, Pt 1.
[66] Cf., Swanton v Military Rehabilitation and Compensation Commission [2017] FCA 1142 at [16] where Tracey J was discussing the role of the Military Rehabilitation and Compensation Commission.
54. I have considered the submission that was made by the applicant that he was not personally provided with the decision of the VRB under his freedom of information request. The applicant contends that he did not authorise anyone from ASAC to be his Enduring Power of Attorney or anything else which allowed ASAC to be notified of the decision of the VRB instead of himself.[67] However, in his request form in which he nominated ASAC as his representative, he requested that a copy of the documents be sent to his representative. The applicant did not complete that part of the form in which he could have requested that a copy of the documents be sent to himself.[68] While the applicant has quite properly recognised that on 16 October 2015 the decision of the VRB was among those documents which were provided to the ASAC pursuant to his freedom of information request, he claims that the decision of the VRB was not provided to him nor discussed with him.[69]
[67] Closing submissions of the applicant dated 30 June 2021, [3.18].
[68] Exhibit G, Bundle of Documents, p. 53.
[69] Closing submissions of the applicant dated 30 June 2021, [3.36].
55. The fact that the applicant was not personally provided with the decision of the VRB under his freedom of information request is not relevant to my inquiry as to whether the applicant has made an application to this Tribunal within the time prescribed under s 29 of the AAT Act. I have concluded that it is presumed that the decision of the VRB was sent to the applicant on 26 July 1995, and the letter enclosing the decision is deemed to have been delivered to his last known address at the time at which the letter would have delivered in the ordinary course of post. The applicant had three months after that time to lodge a timely application to this Tribunal to review the decision of the VRB.
56. Because of the operation of s 176(4) of the VEA it is now not possible for this Tribunal to extend the time for lodging an application. The claim of the applicant that he was not personally provided with the decision under his freedom of information request may have had relevance if I was able consider whether to extend the time under which the applicant could make an application, but as I have previously explained, I am unable to extend time under s 29 of the AAT Act.
57. It is clear that it is not necessary that the letter of the VRB had to be personally furnished on the applicant as interpretation legislation, such as the AIA, makes it clear that personal service of the letter upon the applicant is not necessary.[70]
[70] Ralph v Repatriation Commission [2016] FCAFC 89 at [19] (Collier, Logan and McKerracher JJ) citing Capper v Thorpe (1998) 194 CLR 342 at [23].
CONCLUSION
58. For these reasons, I determine that the Tribunal has no jurisdiction to entertain this application. For reasons of comity, I have adopted the form of ruling that was given by Deputy President Forgie in Re Bennett and Repatriation Commission (1994) 36 ALD 387 at [42].
DECISION
59. I find that the Tribunal does not have jurisdiction to consider the applicant’s application lodged on 16 October 2020 for review of a decision of the VRB dated 30 June 1995.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
.....................[SGD]...............................................
Associate
Dated: 28 September 2021
Date(s) of hearing: 6 May 2021 Date final submissions received: 30 June 2021 Applicant: In person (via video-link) Solicitors for the Respondent: Sparke Helmore (via video-link)
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