Fowler; Department of Family and Community Services [1999] AATA 659 (6 September 1999)

Last Updated: 13 September 1999

DECISION AND REASONS FOR DECISION [1999] AATA 659

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. S1998/376

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And KERRIE ANN FOWLER

Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date 6 September 1999

Place Adelaide

Decision The decision under review is affirmed.

............(Signed).....................

Deputy President B.H. Burns

CATCHWORDS

SOCIAL SECURITY - newstart allowance - cancellation and imposition of administrative breach rate reduction period - Secretary's power to give a notice to a person requiring the provision of information - service by post - service deemed to be effected by properly addressing prepaying and posting the document as a letter unless the contrary is proved - whether the contrary is proved - whether reasonable excuse for failure to comply with notice - decision affirmed.

Social Security Act 1991 - ss631, 658(1), 658(2)

Acts Interpretation Act 1901 - s29

Evidence Act 1995 - s160

Repatriation Commission v Gordon (1991) 100 ALR 255

REASONS FOR DECISION

6 September 1999 Deputy President B.H. Burns

1. This is an application by the Secretary, Department of Family and Community Services ("the Secretary") for review of a decision of the Social Security Appeals Tribunal ("the SSAT"). The SSAT set aside a decision of a delegate, as affirmed by an authorised review officer, to cancel newstart allowance and impose an administrative breach rate reduction period, and substituted for it a decision that Ms Kerrie Fowler ("the respondent") did not receive a notice pursuant to s658(1) of the Social Security Act 1991 ("the Act") and therefore, pursuant to s631, had a reasonable excuse for failing to comply with a requirement made of her under s658 of the Act.

2. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents). Further documentary evidence was placed before it by the parties including statements of the respondent (Exhibit R2), Fiona Stuart, the respondent's former housemate (Exhibit R3), Robert Lowde, former employee of the Department of Family and Community Services ("the Department") (Exhibit A3), Denise Tosh, officer of the Department (Exhibit A4) and one Peter Morgan, an employee of Australia Post (Exhibit A5). In addition to the documentary evidence, the Tribunal heard oral evidence from the respondent. The Secretary did not call any witnesses to give oral evidence on its behalf.

3. The Secretary was represented by Mr K. Nicholson and the respondent by Mr P. Cuthbertson, both of counsel.

4. By way of background, it was agreed as between the parties that at the relevant time, the respondent was in receipt of newstart allowance. It was also agreed that she was then living in a house at 8 Arcturus Avenue, Huntfield Heights, SA 5163 which she shared with a friend, Ms Stuart, and Ms Stuart's infant child.

5. Pursuant to s658 of the Act, the Secretary has the power to give a notice to a recipient of newstart allowance requiring that person to provide certain information to the Department. Relevantly, s658 states as follows:

'Secretary may require recipient to give particular information relevant to payment of newstart allowance

658 (1) The Secretary may give a person to whom a newstart allowance is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the allowance to the person.

(2) Subject to subsection (2A), a notice under subsection (1):

(a) must be in writing; and

(b) may be given personally or by post; and

(c) must specify how the statement is to be given to the Department; and

(d) must specify the period within which the person is to give the statement to the Department; and

(e) must specify that the notice is a recipient statement notice given under this Act.

(2A) A notice under subsection (1) is not invalid merely because it fails to comply with paragraph (2) (c) or (e).

(3) The period specified under paragraph (2) (d) must end at least 7 days after the day on which the notice is given.

(4) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.

(5) A person must not, without reasonable excuse, refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.

Penalty: Imprisonment for 6 months.

...'

6. It was further agreed as between the parties that a letter dated 23 April 1998 addressed to the respondent at the Arcturus Avenue address (T3) requiring her to fill in and return within 14 days an "Entitlement Review" form constituted a valid notice under s658(2). It was also agreed that the form was not returned within the prescribed time period, following which the decision was made resulting in cancellation of her newstart allowance and imposition of an administrative breach rate reduction period. This decision was made pursuant to s631 of the Act which reads as follows:

'Administrative breach rate reduction period to apply to persons who fail to comply with notification requirements

631 If a person refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 656, 657, 658 or 1304:

(a) a newstart allowance is not payable to the person; and

(b) if, at a later time, a newstart allowance becomes payable to the person - an administrative breach rate reduction period applies to the person.

Note: For administrative breach rate reduction period see section 644B.'

7. On 9 June 1998, the respondent sought review of the decision which was affirmed by an authorised review officer. On 25 June 1998, the respondent lodged an application with the SSAT, claiming that she had a reasonable excuse for not complying with the requirement made of her under s658, namely, because she never received the notice stating that she was required to fill in the review form or the review form itself. Accepting the respondent's submission, the SSAT decided that the respondent had a reasonable excuse and, as such, newstart allowance should not have been cancelled nor an administrative breach rate reduction period imposed. The Secretary applied to the Tribunal for review of the decision of the SSAT.

8. The respondent gave oral evidence before this Tribunal. In her evidence she stated that she never saw or recalled receiving the notice requiring her to fill in the review form or the review form itself. She said that had she received them, she would have filled in the form and returned it straight away to her local Centrelink office as she was accustomed to doing with her fortnightly forms. She also gave a description of the system of mail retrieval in the household at the time, as well as a physical description of the letterbox and its surrounds. In this regard, her evidence was that the letterbox was a regular sized box with a slit in the front and a hinged door at the back. She said it was located next to the driveway and would have been accessible to anyone walking past. The respondent gave evidence that either she or her housemate would check the box daily and whoever retrieved the mail would either hand over the other's mail directly to them or, if that person was not at home, would leave it in an obvious place, namely, on the kitchen bench or on the other's bed. The respondent gave evidence that if she did not find mail in the box, or in an obvious place in the house, she would ask her housemate whether any mail had arrived for her. Her evidence was that it would be highly unlikely that she or her housemate had misplaced the subject letter but admitted that this was possible. The respondent could not recall there ever having been any other instances of misplaced or lost mail, or mail which ought to have arrived but had not.

9. The evidence of the respondent was by and large corroborated in the statement of Ms Stuart. The Secretary did not require Ms Stuart for cross-examination, nor did it make submissions on the question of the respondent's credibility.

10. The Tribunal had the advantage of closely observing and listening to the respondent when giving her evidence. The Tribunal found the respondent to be an impressive witness who did her best at all times to be accurate in the giving of her testimony. She was honest and straightforward in her answers and the Tribunal has no hesitation in accepting the factual content of her testimony and, in particular, that she never became aware of the existence of the subject letter by way of it being delivered to her home address. Accordingly, the Tribunal finds that the respondent did not see or become consciously aware of having received the subject letter with the enclosed form. The Tribunal also finds that the system of mail retrieval in the respondent's household was reliable and that the respondent and her housemate did all that could be reasonably expected of them to ensure that mail delivered to the address was promptly retrieved from the box and brought to the attention of the intended recipient.

11. The Tribunal now turns to consider the submissions of the parties.

12. On behalf of the Secretary, Mr Nicholson submitted that as the s658 notice may, pursuant to s658(2)(b), be given by post, the Secretary is entitled to rely on the deeming provision in s29 of the Acts Interpretation Act 1901 ("the Acts Interpretation Act") which reads as follows:

'Meaning of service by post

29. (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.

Section 160 of the Evidence Act 1995 reads as follows:

'Postal articles

160. (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 fourth working day after having been posted.

...

(3) In this section:

"working day" means a day that is not:

(a) a Saturday or a Sunday; or

(b) a public holiday or a bank holiday in the place to which the postal article was addressed.'

13. Mr Nicholson submitted that the statements of Mr Lowde (Exhibit A3) and Ms Tosh (Exhibit A4) were evidence of the three formalities having been satisfied, namely, that the s658 notice was properly addressed, pre-paid and posted. Specifically, in his statement, Mr Lowde asserts that he would have printed off the letter and placed it, together with the review form, in a correctly addressed envelope which would have then been left in the appropriate place for outgoing mail. The statement of Ms Tosh gave an account of the usual practice of the officer assigned to mail duties who, she claimed, would have sorted the outgoing mail before taking it to the post office where pre-paid postage was paid in bulk. Mr Nicholson submitted that as the formalities had been satisfied, pursuant to s29 of the Acts Interpretation Act, service of the notice is deemed to have been effected. Mr Nicholson submitted that the onus then shifts to the intended recipient to prove to the contrary, which it may only do by providing "cogent evidence beyond average domestic arrangements", for example, of the postman being unable to deliver the letter because of illness or, alternatively, having stolen or lost the mail. The Secretary contended that a claim along the lines of that made by the respondent in this case, namely, that despite having done all that was reasonable to ensure mail did not go astray the notice was not received, could never, in terms of s29 of the Acts Interpretation Act, be sufficient to prove to the contrary. Mr Nicholson submitted that otherwise, the contrary would be established in virtually every case and would lead to unworkable administrative consequences given the number of such notices that are sent out by post in any given period.

14. The Secretary submitted that where a notice under s658 is deemed to have been given, it will not be a reasonable excuse if the person claims not to have received the notice. In effect, the Secretary contended that a person is barred, by virtue of the deeming effect of s29, from utilising "non-receipt" as a reasonable excuse for not complying with a requirement under s658. The Secretary contended that a reasonable excuse must be something other than not having received a notice (which is deemed to have occurred), for example, illness or the like which may have prevented a person, having received a notice, from complying with a requirement in it.

15. On the other hand, the respondent's submission was that so long as she did all that was reasonable to ensure that there was a reliable system of mail retrieval in place, non-receipt of a s658 notice will constitute a reasonable excuse for not complying with a requirement made under that section. The respondent also submitted that evidence of someone not receiving a letter, despite having done all that was reasonable to ensure their mail does not go astray, if accepted, will be sufficient to avoid the deeming of service pursuant to s29 of the Acts Interpretation Act. Alternatively, the respondent submitted that even if s29 is found to apply, then there will still be a reasonable excuse for the purposes of s631 if a person has done all that could be reasonably expected to be done to ensure that mail which is delivered comes to the attention of the person to whom it is addressed.

Consideration of the Matter at Large

16. The Tribunal would indicate that it has had regard to the whole of the material placed before it together with the submissions advanced by both parties and the authorities referred to therein.

17. Pursuant to s658 of the Act, the Secretary "may give a person ... a notice that requires the person to give the Department a statement ...". Clearly, before a person will be able to begin the task of taking steps to comply with a requirement made of them under s658, the Secretary must have given a notice to the person informing them what the requirement is. It goes without saying that if a person is not given a notice then that person will not know what they are required to do and will not be able to take steps to comply, or not, as the case may be. In short, unless the Secretary gives a notice to a person, the person will not be required to do anything and there can be no failure to comply giving rise to penalties under s631 of the Act. Thus, prior to considering whether the respondent in this case has a "reasonable excuse" for failing to comply with a requirement under s658, it must first be established as a matter of fact whether or not a s658 notice was given to her.

18. A notice under s658 may be given personally or by post - s658(2)(b). For the purposes of s29 of the Acts Interpretation Act, where an Act authorises something to be provided to a person via the postal system, the expression "serve" will be interchangeable with the expressions "give" or "send" or any other like expressions that may be used. Hence, where s658(2) permits a notice to be "given" by post, it will be correct to substitute the expression "served" and vice versa.

19. Section 29 of the Acts Interpretation Act provides that where certain formalities associated with the posting of a letter have been satisfied, service is deemed to be effected unless the contrary is proved. Initially, a fact-finder would need to be satisfied on the balance of probabilities that the formalities of the posting stage have been attended to, namely, that there was a document in existence which was properly addressed, pre-paid and posted as a letter (where "posting" is taken to mean the handing over of custody of the letter to the postal authorities). If the formalities of posting have been found to be satisfied, the deeming provision in s29 of the Acts Interpretation Act comes into effect unless the contrary is proved. If the contrary is not proved, s29 has the effect of deeming service (ie. the giving) of the notice to be effected at the time at which the notice would be delivered in the ordinary course of post. Section 160 of the Evidence Act 1995 then stipulates that the relevant time of receipt at the relevant address is, unless there is evidence sufficient to raise a doubt, 4 working days after posting. Together, these statutory provisions make it unnecessary for evidence to be adduced from the postal authorities on the issue of delivery and, indeed, sensible administrative practice dictates that this be so.

20. In Repatriation Commission v Gordon (1991) 100 ALR 255, Spender J held that the phrase "unless the contrary is proved" in s29 of the Acts Interpretation Act relates not only to proof that the time of delivery was different from the time of ordinary delivery, but also encompasses proof that there never was delivery. Hence, a person who asserts that service has not been effected will be at liberty to adduce evidence that there never was delivery. Evidence of this nature may go to establishing that the formalities of the posting stage, namely, the prepaying, addressing and posting, have not been satisfied. Alternatively, it may go to proving that having been posted, a document was not delivered ie. that there was a breakdown in the ordinary course of post. Evidence of this nature could include such matters as the postman being ill and not completing the round or having lost the mail. A person seeking to prove to the contrary the assumption inherent in s.29 may also establish that, having been posted and delivered to the address, the notice was not physically received by, or given to, or served on the intended recipient. This category of evidence may include such things as the notice having been stolen from the letterbox or retrieved by another member of the household who then forgot to give it to the intended recipient. There are of course many scenarios which may prove the contrary.

21. Turning to the matter at hand, the Tribunal has before it statements of Ms Tosh and Mr Lowde which assert on the balance of probabilities that all was done that was required to be done with respect to the formalities of the posting stage. Taken in isolation, these statements would be sufficient to satisfy the Tribunal that the formalities of the posting stage were satisfied which would trigger the deeming effect of s29 of the Acts Interpretation Act. However, the issue of formalities of posting and delivery is to be determined having regard to the whole of the evidence before the Tribunal including any evidence which may tend to prove to the contrary.

22. Mr Cuthbertson submitted on behalf of the respondent that the evidence of his client to the effect that despite doing all that was reasonable she did not receive the letter, if accepted, would outweigh the statements of Ms Tosh and Mr Lowde. Their evidence, he said, was at best as to the usual practice of the Department and was not as conclusive as his client's evidence that she has an independent recollection of never having seen the notice. He submitted that if there was no evidence from the respondent or if her credibility was challenged and found wanting, then the statements tendered by the Secretary would have been sufficient to satisfy the Tribunal that the formalities of the posting stage had been satisfied. It was then submitted by Mr Cuthbertson that assuming the formalities of the posting stage were established, his client's evidence was nevertheless sufficient to satisfy the Tribunal on the balance of probabilities that the letter was never received by her, thus proving to the contrary the assumption inherent in s29. Mr Cuthbertson conceded that mere non-receipt without a person having done all that they could to ensure the safe passage of mail after delivery would be insufficient to prove to the contrary, whereas where a person has done all that they could, it would.

23. The Tribunal now turns to consider the relevant statutory provisions in light of the totality of the evidence before it, together with the parties' submissions. The respondent's evidence, at its highest, was that she did not see or become consciously aware of having received the notice. This, however, does not necessarily lead to the conclusion that the notice was posted but not delivered or was not posted at all. Her evidence leaves open any number of possible explanations as to what may have occurred. For example, as was suggested by Mr Cuthbertson, the Department may have deviated from its usual practice resulting in the notice not having been posted or delivered. Equally, there could be other plausible explanations, for example, that the notice was correctly posted and delivered but then stolen from the letter box prior to it being retrieved by the respondent or Ms Stuart, or that at the time of delivery it became wedged in amongst a bundle of junk mail and was inadvertently retrieved from the letter box by the respondent or Ms Stuart and subsequently disposed of. Another possibility which was acknowledged by the respondent in her evidence (albeit as a remote possibility) was that the letter could have been received by her or Ms Stuart and then misplaced. Having regard to the multitude of other possibilities left open by the respondent's evidence, the Tribunal is not able to accept that her evidence is sufficient to prove to the contrary that which is established by the statements of Tosh and Lowde and that which flows therefrom courtesy of the deeming provision.

24. Having regard to the evidence contained in the statements tendered by the Secretary which has been accepted and preferred by the Tribunal, together with the evidence proffered by the respondent which has also been accepted, the Tribunal finds on the balance of probabilities that there was in existence a valid notice under s658 comprising the letter dated 23 April 1998 and enclosed review form which was correctly addressed to the respondent, pre-paid and posted. The Tribunal also finds that for the purposes of s29 of the Acts Interpretation Act, the contrary has not been proved. The Tribunal also finds that for the purposes of s160 of the Evidence Act 1995, doubt about the presumption has not been raised.

25. Accordingly, as the notice is found to have been properly addressed, prepaid and posted and as the Tribunal is not satisfied that the contrary has been proved, the deeming provision stands, meaning service of the notice is deemed to be effected. Thus, for the purposes of s658, the Tribunal finds that the notice was given to the respondent. In this regard, the Tribunal would indicate that its conclusion is different from that reached by the SSAT.

26. It was agreed that in failing to return the review form within the required period, the respondent had failed to comply with a requirement made of her under s658 and the Tribunal so finds. The Tribunal now turns to consider whether, pursuant to s631, the respondent had a reasonable excuse for failing to comply with that requirement.

27. The Tribunal's considered opinion is that where the deeming provision in s29 of the Acts Interpretation Act applies, the Tribunal is not precluded from then considering the effects of a claim of non-receipt in the context of whether or not there is a reasonable excuse for the purposes of s631 of the Social Security Act. Obviously, not every claim of non-receipt will automatically amount to a reasonable excuse - each case will depend on its own particular circumstances. The circumstances here relate to the acceptance by the Tribunal that the respondent never became aware of the existence of the subject letter by way of it being delivered to her home address, coupled with an acceptance by the Tribunal that the system of mail retrieval at the respondent's address was reliable and that all that reasonably could be expected was done to ensure that mail delivered to the address was promptly retrieved and brought to the attention of the intended recipient. Much will depend on the efforts a person has made to ensure they have received mail addressed to them and delivered to their postal address. The Tribunal's view is that although evidence of non-receipt may be insufficient to prove to the contrary for the purposes of s29 as has been found to be the case here, it may nevertheless become relevant to the question of reasonable excuse providing a person has done all that is reasonable and has not been able to comply with a notice through no fault of their own.

28. If there was no evidence from the respondent or if her evidence was not accepted, then clearly the conclusion would be that there was no reasonable excuse. Equally, if she had checked her mail infrequently or her system of mail retrieval was unreliable, there would be no reasonable excuse. But where a person has done all that they can reasonably be expected to ensure that mail delivered to their address and intended for their attention is brought to their attention but did not become consciously aware of a 658 notice and hence, through no fault of their own, was unable to comply with a requirement made of them under that section, it must, as a matter of fairness, constitute a reasonable excuse for the purposes of s631. Being of the view that the respondent's circumstances clearly fall into this category, the Tribunal finds that pursuant to s631 of the Act, the respondent has a reasonable excuse for failing to comply with a requirement made of her under s658.

29. The Tribunal does not interpret s29 of the Acts Interpretation Act as meaning that once service is deemed to have been effected by post courtesy of the operation of that section, that also means the person to whom the letter is addressed is deemed to have a conscious awareness of the contents of the document so served or an appreciation of its significance. The Tribunal's considered view is that deemed service must be viewed in its context, namely, that it is a legislative means of ensuring that service is effected by properly addressing, prepaying and posting a document as a letter. Deemed service of this nature does not however preclude, where relevant, a genuine claim that a person may have in certain circumstances, namely, that the person was not aware of the letter or cognisant of its contents. The case of service by post on an illiterate person would be an obvious example. Equally, the case at hand is another where fairness dictates that the operation of s29 of the Acts Interpretation Act ought not be construed in such a manner as to impute to the respondent knowledge of the contents of the notice deemed to have been served on her thereby denying her from making an honest and genuine claim pursuant to s631 of the Social Security Act that, through no fault of her own, she did not see the notice and thus could not comply with its requirements. Had Parliament intended to exclude a person who has a genuine claim of not ever becoming aware of such a notice in circumstances beyond their control from relying on the reasonable excuse clause in s631, it could have said so but has not.

30. For these reasons (which are different reasons from those given by the SSAT) the decision of the Tribunal is that the decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns

Signed: ............(Signed)..................

Peter Psaltis (Associate)

Date/s of Hearing 28 and 29 June 1999

Date of Decision 6 September 1999

Counsel for the Applicant Mr Nicholson

Solicitor for Applicant Thomson Playford

Counsel for the Respondent Mr Cuthbertson

Solicitor for the Respondent Moloney and Partners