The application of s 29 of the Acts Interpretation Act
53 There is no dispute that the subject application was lodged by prepaid mail at a place approved by the Commission as required by s 5T(2)(a)(i). The Commission accepts that applications may be made by post and it does not argue that the application was not lodged. The dispute only relates to the date of lodgement.
54 Mr Ralph submits that the Tribunal misconstrued s 5T(2)(b) of the Act in finding that the application was made on 1 May 2009, being the date of the Departmental date stamp. He argues that the Tribunal should have deemed it to have been received on an earlier date.
55 Section 29 of the Acts Interpretation Act provides that, where a document may be served by post, whether the expression "serve", "give", "send" or any other expression is used, service will be deemed to be effected by properly addressing, prepaying and posting the document as a letter. Unless the contrary is proved, the service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post.
56 The unchallenged evidence of Mr Ralph and two RSL volunteers is that on 16 April 2009 Mr Ralph's application was properly addressed and sent by prepaid mail to an office approved by the Commission. Mr Ralph contends that the effect of s 5T(2)(b) read together with s 29 of the Acts Interpretation Act is that the application is deemed to have been lodged on the date on which it would be delivered in the "ordinary course of post". He also calls in aid s 160 of the Evidence Act in relation to the "ordinary course of post" as, if it is applicable, it creates a rebuttable presumption that the letter was delivered in four business days.
57 I do not accept Mr Ralph's contentions. There is no issue that s 29 of the Acts Interpretation Act applies to some provisions in the Act: see for example Repatriation Commission v Gordon and Others (1990) 26 FCR 569 which concerns s 34 of the Act. However, I do not consider that s 29, which refers to serving, giving or sending a document by post, applies to s 5T(2) of the Act when that section refers to lodgement of a document at an approved place. I was taken to no previous decision applying s 29 to the date of lodgement of an application under s 5T(2).
58 I say this, first, because s 5T(2)(a) refers to an application being "lodged" at a place approved by the Commission. The Shorter Oxford Dictionary gives a meaning to the word "lodge" which includes "deposit in court or with an official, a formal statement of (a complaint, objection etc)." When used as a verb it relevantly means "the action of lodging something especially a sum of money, securities etc; the deposit of money." In my view "lodged" has a different meaning to "serve", "give" or "send" and like expressions. Broadly, I see those words as referring to delivery of a document whereas "lodged" connotes receipt or physical acceptance.
59 There is some support for this view in Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477 per Sweeney and Northrop JJ. In this case the Full Court dealt with the meaning of the word "lodged" in ss 29 and 68 of the AAT Act. Section 29(d) relevantly provided that an application "shall be lodged with the Tribunal within the prescribed time." Section 68 provided that "[w]here a document is required by this Act to be lodged with the Tribunal, the document shall be lodged at the office of the Registrar or of a Deputy Registrar." Northrop and Sweeney JJ (Jenkinson J dissenting) took the view that an application was lodged when it was physically received. Northrop J explained (at 488-489):
Thus, in s 68 of the Act, the word "lodged" is used in the sense of placing or depositing a document at the office of the registry or a Deputy Registrar. It appears to be the practice of the tribunal to allow this to be done by post. Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the Registry. Thus, if an application is posted but not delivered to a registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the Registry. Similarly, a document deposited on a counter at the office of a Registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging.
60 Second, in relation to applications lodged at an approved place (as in the present case) s 5T(2)(b) unambiguously states that an application "is taken to have been so lodged on the day on which it is received at that place". In referring to lodgement occurring on receipt rather than by "service", "giving", or "sending" the subsection indicates that physical receipt is required. Reinforcing this in relation to lodgement at a place approved by the Commission pursuant to s 5T(2)(a)(i) (as distinct from lodgement by delivery to an approved person pursuant to s 5T(2)(a)(ii)) an application is taken to be lodged "only" if it is lodged at an approved place. This tends to confirm that an application may not be lodged by operation of the presumption in s 29.
61 Third, s 19(9) of the Act points in the same direction. It provides that the "assessment period" for applications commences on the "application day" and ends when the application is determined. "Application day" is defined to mean "the day on which the claim or application was received at an office of the Department in Australia" (emphasis added). It tends to show that it is the Commission's receipt of an application which is critical because it is then that the assessment period commences.
62 Of course the fact that the Act is beneficial legislation must be kept in mind. Section 5T(2) is to be construed liberally and as generously for a veteran as the language of the section allows: Hill v Repatriation Commission (2004) 82 ALD 60 at [44] per Mansfield J and the authorities there cited; Nilant v Macchia (2000) 104 FCR 238 at [42] per Weinberg J. However I consider s 5T(2) unambiguously provides that lodgement of a posted application only occurs when it is physically received at a place approved by the Commission.
63 Looked at another way, I note that s 2(2) of the Acts Interpretation Act provides that the application of the Acts Interpretation Act to an Act or a provision of an Act is subject to a contrary intention. If (contrary to my view) s 29 of the Acts Interpretation Act is seen to apply to lodgement of documents at an approved place under s 5T(2), for the reasons already given I consider that s 5T(2)(b) manifests an intention to preclude the operation of s 29, that is, a contrary intention.
64 Although nothing turns on this, I note that Mr Ralph's reliance on s 160 of the Evidence Act is misplaced. Section 4(1) of the Evidence Act provides that the Act applies to all proceedings in a "federal court" which is defined to include a "body (other than the Supreme Court of a Territory), that in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence". Pursuant to s 33(1) of the AAT Act the Tribunal is not required to apply the rules of evidence and it therefore does not fall within the definition of a "federal court". It was not bound to apply s 160: Danagher v Child Support Registrar [2014] FCA 1408 at [34]-[38]. However, provisions such as s 33 of the AAT Act are intended to be facultative rather than restrictive (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] per Gleeson CJ and McHugh J) and the Tribunal was entitled pursuant to s 33 to inform itself on any matter in such manner as it thinks appropriate. This meant that it was open to the Tribunal to have regard to the presumption in s 160 had it wanted to do so, but the Tribunal did not.