Glasson and Repatriation Commission [2003] AATA 78 (14 January 2003)

Last Updated: 29 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/573

VETERANS' APPEALS DIVISION

)

Re

ERIC GLASSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 14 January 2003

Place Sydney

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/573

)

VETERANS' APPEALS DIVISION )

Re: ERIC GLASSON

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 14 January 2003

Place Sydney

Decision FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT the rate of pension to be paid to the Applicant for all war caused injuries and diseases is increased to 80% of the General Rate with date of effect from 29 March 2001.

(Sgd) M.D. ALLEN

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

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Date of effect - Whether VRB decision received in the normal course of post.

Veterans' Entitlements Act 1986 - s177

Acts Interpretation Act 1901 - s28A and s29

Repatriation Commission v Gordon and Ors 100 ALR 255

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:

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

Associate

Date of Hearing 14 January 2003

Date of Decision 14 January 2003

Solicitor for Applicant Mr A Halstead, Legal Aid Commission

Advocate for Respondent Ms P Hook, Department of Veterans Affairs

DRAFT JUDGMENT

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2002/573

By M.D. ALLEN, Senior Member

GLASSON and REPATRIATION COMMISSION

SYDNEY, TUESDAY, 14 JANUARY 2003

MR ALLEN: In this matter, pursuant to an application lodged with the Tribunal on 29 April 2002, the applicant sought review of a decision by a delegate of the respondent as affirmed by a Veterans Review Board which continued his disability pension at 60 per cent of the general rate, as from 29 March 2001. When the matter came on for hearing before me today, it was agreed between the parties that the applicant's disability pension should be increased to 80 per cent of the general rate, but the dispute between them was as to the date from which that increase should take effect.

Section 177 of the Veterans Entitlement Act reads inter alia:

(2) Where the Administrative Appeals Tribunal upon application made under section 175(1) for a review of a decision of the Commission, that has been affirmed or varied by a decision of the Board or a decision of the Board made in substitution for a decision of the Commission, grants a pension, the Tribunal may approve payment of the pension, at the increased rate as the case may be (a) if the application is made in three months after service on the applicant of a document setting out the terms of that decision of the Board, from a date not earlier than the earliest date as from which the Board could, if it had granted an increased rate of pension, have approved payment of the pension at an increased rate, or (b) In any other case if the review relates to a claim in accordance with section 14 from a date not more than six months before the date on which the application under section 175(1) was made.

The Veterans Review Board made its decision in this matter on 7 November 2001. However, it would appear that the copy of the decision and a letter advising the applicant of the decision was not forwarded to him until 13 November 2001. The letter was addressed to the applicant at Unit 25, Roland Court, Grove Circuit, Lake Illawarra, NSW, 2528.

At document T10 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, there is a copy of the applicant's application to the Veterans Review Board. Again that gives his address as Unit 25, Roland Court, Lake Illawarra, NSW, 2528. There is, of course, a slight difference in the address as it would appear his address is Roland Court, Grove Circuit. That I take it, is an address which the Department of Veterans Affairs had on its records as a result of the payment of pension and other allowances to the applicant.

The applicant did not make an application to this Tribunal until 29 April 2002, that is to say, outside the three month limit as provided by section 177 of the Veterans Entitlements Act. The reasons for that are set out in his statement of 16 September 2002, which became exhibit A2 in these proceedings. To put it very succinctly, the applicant claimed that he did not receive the letter notifying him of the decision of the Veterans Review Board. It was not until 22 April 2002 that not having received anything from the VRB, he wrote a letter to Legal Aid Commission who had assisted him with his application to the VRB, and inquiries were made. Upon inquiries being made by the Legal Aid Commission, it was found that the VRB had handed down a decision dated 7 November 2001.

Section 28(A)(1) of the Act's Interpretation Act 1901 provides inter alia that:

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 attention appears the document may be served (a) on a natural person (1) by delivering it to the person personally, or (2), by leaving it at or by sending it by prepaid post to the address of the place of residence or business of the person last known to the person serving the document.

I would interpose here that it seems quite clear that the letter of 13 November 2001, was sent to an address nominated by the applicant. Section 29 of the Act's Interpretation Act, then goes on to provide:

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 unless the contrary intention appears, the service shall be deemed to be effective 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 the post.

Exhibit R3 is a letter by the Acting Registrar of the Veterans Review Board New South Wales Registry, which sets out the proceedings in the Veterans Review Board for the posting of letters. I read:

After photocopying the documents, the original decision is placed on the Board's file with a copy of the covering letter. The officer places the applicant's copy in a window faced envelope which has been marked "postage paid". Items for postage are placed in a central area within the Board's office and at 2.00 pm each day are taken by hand by one of the Board's staff to the mail room in the Department of Veterans Affairs. Mail is collected from the Department by a contract courier at 3.30 pm each working day and taken directly to Australia Post. It is clear, of course, that such a system does not allow for the proof of a letter having been posted.

In other words, the old expedience of having a letter book in which correspondence out is noted has apparently gone by the wayside. No doubt "efficiencies" in the Department are responsible for this state. It seems to me, however, that one can apply a presumption of regularity in the matter, in that in the normal course it may be inferred that letters would proceed and be posted.

The applicant simply states that he never received the letter. It is clear that the applicant is now an elderly man and may have some confusion, but I have no reason to disbelieve his sworn evidence. There has been nothing produced to me to suggest his credit should in any way be impugned, so that one has a situation in effect, where there is an inference that the letter has been posted. There then follows the presumption as per section 29 of the Act's Interpretation Act, that it would have been delivered in the normal course of post.

The only other matter which can affect it is that the applicant states that he was absent from his place of residence from about the middle of November 2001 for some three weeks. During that time, his mail was collected on an irregular basis by his daughter. He knows of no reason why his daughter would not have delivered up to him upon his return all of the mail which she collected.

A similar matter was discussed by his Honour Spender J, in Repatriation Commission v Gordon & Others, Volume 100 ALR 255. At page 265, his Honour said:

In my opinion, in relation to the deeming provision in the section to the time at which service was effected, the qualification, until the contrary is proved, is not restricted to proving a time of delivery different to the ordinary time at which the letter would be delivered, but encompasses proof that the letter was never delivered at all. Of course any such claims would have to be carefully scrutinised and the mere claim of non-receipt would be likely to be insufficient. Non-receipt is not the same as non-delivery. The view I take of section 29 there is a statutory presumption that what is proved to have been properly dispatched by post, arrived at the usual time, but that non-delivery at that time, or non-delivery at all might be proved by evidence.

In this matter, as I said, the evidence is finally balanced as opposed to the, what I would say, the presumption of regularity posting, there is the evidence by the applicant that he simply did not receive a letter, the receipt of which he was somewhat eagerly expecting. Admittedly, he was away, but I take it that his daughter would have surrendered to him all letters which came into her possession. There is, as I said, a situation where I must be satisfied on the balance of probabilities as per section 120(4) of the Veterans Entitlements Act, that the item was not delivered to the applicant. It is, of course, extremely difficult for an applicant such as the current applicant to prove a negative.

In a situation such as this, where I have the sworn evidence of the applicant, confused as he might be at times, and nothing to impugn his credit. Having regard to all sorts of exigencies which may have happened, it seems to me that I can be satisfied of his evidence on oath, that he did not receive the document. In this case, therefore, I am prepared to say that the effective date of the decision under review should be 29 March 2001.