Repatriation Commission v Goulding

Federal Court of Australia|2008-12-09|Before: Meibusch P, Reeves J

Introduction 1 This appeal concerns the giving of a written notice under s 155AA of the Veterans' Entitlements Act 1986 (Cth) (the 'Veterans' Act'). A principal member of the Veterans' Review Board ('the Board') dismissed Mr Goulding's review application after Mr Goulding was supposedly given a written notice under that section. Mr Goulding appealed that decision to the Administrative Appeals Tribunal ('the Tribunal') which concluded that the notice had not been effectively served and set aside the principal member's decision. The Repatriation Commission ('the Commission') has appealed the Tribunal's decision to this Court on three questions of law it says arise from that decision.

Factual background 2 Mr Goulding served in the Royal Australian Navy from 1962 to 1972. For various periods during those 10 years he was on operational duties. On 27 February 2004, he lodged a claim for a disability pension under the Veterans' Act with the Commonwealth Department of Veterans' Affairs. That claim was partly granted and partly refused by a delegate of the Commission. Mr Goulding applied to the Board for a review of that decision on 23 May 2005. Initially he was unrepresented, but he subsequently appointed an RSL advocate to represent him. For various reasons, Mr Goulding's review application proceeded at a slow pace. By late May 2007 two years had elapsed since it was first lodged. 3 Section 155AA of the Veterans' Act sets a standard review period of two years for such review applications. If, at the end of that period, a principal member of the Board considers the applicant should be ready to proceed at a hearing, he or she may give a written notice to the applicant under s 155AA(4) of the Veterans' Act requesting him to provide a written statement; either saying he was ready to proceed to a hearing, or explaining why he was not. 4 Acting under this provision, in late May 2007, a principal member of the Board sent a s 155AA notice to Mr Goulding at his brother's address in Darwin. At that time Mr Goulding was away from Darwin, visiting East Timor. His usual place of residence was Coral House, a home for ex-servicemen in Darwin, and he was using his brother's address as a mailing address while he was away. 5 When the s 155AA notice arrived at Mr Goulding's brother's address, his brother contacted Mr Goulding by telephone and read the contents of the notice to him. Mr Goulding did not actually sight the notice or read the contents for himself until he returned to Darwin in late July 2007. After the telephone conversation with his brother, Mr Goulding contacted his RSL advocate, who in turn contacted the Board. From this contact, the advocate was given to understand that they, i.e. Mr Goulding and the advocate, could deal with the notice when Mr Goulding returned to Darwin. The advocate passed this information onto Mr Goulding and, as a consequence, he did not provide a statement in response to the s 155AA notice. 6 Section 155AA(5) of the Veterans' Act provides that if the applicant does not provide a written statement in response to the s 155AA notice within 28 days, the principal member must dismiss the review application and notify the applicant accordingly. Since the principal member concerned had not received a written statement from Mr Goulding by early July 2007, he proceeded to dismiss Mr Goulding's review application under that provision.

The Tribunal's Decision 7 Mr Goulding subsequently lodged an appeal with the Tribunal. That appeal was heard in December 2007 and the Tribunal delivered its decision on 2 April 2008. 8 In its decision the Tribunal set out the factual background to the dispute along the lines set out above. It then turned to consider the legal issues. In relation to those issues it concluded, in summary, that: (a) Section 155AA of the Veterans' Act did not specify how the principal member was to give the written notice to the applicant. (b) Section 163 of the Evidence Act 1995 - which the Commission relied upon: (i) provided for when a letter from a Commonwealth agency was presumed to have been sent, not when it is presumed to have been received; (ii) applied to the Tribunal because s 5 of the Evidence Act 1995 extended that provision and a number of other provisions to all "Australian Courts" and the Tribunal fell within that expression under s 5(e) of the Evidence Act; and (iii) because that section referred more generally to correspondence from Commonwealth agencies and provided for a presumption as to when that correspondence had been sent, it therefore, did not apply to the giving or serving of a notice under s 155AA of the Veterans' Act. (c) Section 28A of the Acts Interpretation Act 1901 - which Mr Goulding relied upon: (i) dealt with the service of documents on a person; (ii) provided that "service" for the purposes of that section, included a requirement in any statute that a document be given or sent to a person; (iii) deemed service to be effected when the document was delivered to the person himself or herself or was left at or mailed to "the address of the place of residence or business of the person last known to the person serving the document"; (iv) should be interpreted strictly in the circumstances; and (v) because s 155AA of the Veterans' Act required the principal member to "give a written notice" to the applicant, that section applied to the giving or serving of a notice under s 155AA. (d) The Board did not comply with the requirements of s 28A of the Acts Interpretation Act 1901 by sending the notice to Mr Goulding's brother's address because that was not Mr Goulding's place of residence last known to the Board. 9 In the final paragraph of its decision, the Tribunal concluded: The notice sent by the [Board] to the applicant at his brother's address was not effectively served. It follows the Principal Member should not have dismissed the application to the [Board]. The decision under review is therefore set aside. The Tribunal decides in substitution that the application has not been dismissed.

The Nature of the Appeal to this Court 10 Under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') an appeal lies: "to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding". Order 53 r 3(2)(b) of the Federal Court Rules requires the notice of appeal to state "the question of law to be raised on the appeal". 11 These provisions have been considered in a number of decisions of this Court, many of which were conveniently summarised by Marshall J in Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50]. The relevant parts of that summary for the purposes of this decision are as follows:

· the questions stated must truly be pure questions of law because the existence of a question of law is the subject matter of the appeal itself;

· the question must be stated with precision as a true question of law;

· it begs the question of law to commence it with the words "whether the Tribunal erred in law", if the question is not a question of law; no formulation such as "erred in law" or "was open on a matter of law" can turn a question into a question of law if it is not such a question;

· it is impermissible to frame a question in a way which assumes the existence of legal obligations or duties or assumes that a particular statutory construction is the proper construction; and

· whether the AAT has overlooked a submission "worthy of serious consideration" is a question of law. 12 In addition to this summary, the following principles, stated in various other decisions, are relevant to this decision: the jurisdiction of this Court is dependent upon a question of law being identified: Brown v Repatriation Commission [2006] FCA 914 at [7]; these requirements (above) are applied strictly: Lambe v Director-General of Social Services (1981) 4 ALD 362 at 264 and Bishop v Department of Education, Employment and Workplace Relations [2008] FCA 1118 at [5]; on an appeal of this kind, this Court should proceed with restraint and not inflate questions of fact into questions of law: Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) [No 2] (1980) 3 ALD 38 at 50, Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 693 and Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708; and the reasons of the Tribunal should not be read over zealously, or with a keen eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259 at 272 and 291.

The Questions of Law Stated by the Commission 13 In paragraph 2 of its notice of appeal the Commission has stated the following three questions of law: (a) Whether the Tribunal misconstrued section 28A(1) of the Acts Interpretation Act 1901 and section 155AA(4) of the [Veterans' Act] by interpreting the words "the document may be served …" in s 28A(1) and "the Principal Member must give a written notice to the applicant" in s 155AA(4) to mean that a written notice is required to be sent by pre-paid post to the address of the place of residence of the person last known to the person serving the document. (b) Whether it was open to the Tribunal to conclude, on the facts that it found, that a written notice had not been given to [Mr Goulding]. (c) Whether the Tribunal erred in law by failing to consider a submission worthy of serious consideration and seriously advanced to it, namely, that [Mr Goulding] had been given a written notice under s 155AA(4) of the [Veterans' Act]because the notice had been sent to, and received at, an address nominated by him, the notice had been read to him on the telephone by his brother, and he was aware of the contents of the notice.

CONTENTIONS 14 In its outline of written submissions the Commission made the following submissions in support of its three questions of law:

Question of Law 2(a) ● Section 155AA(4) does not provide that the written notice must be sent by mail to the residential address of a veteran. The Tribunal in the present case mistakenly concluded that the notice must be mailed to a veteran's residential address. Its reasoning involved two legal errors: Firstly, the Tribunal Member erred by characterising section 28A(1) of the Acts Interpretation Act 1901 as a mandatory provision. Section 28A(1) is facultative, not mandatory. It sets out a number of ways in which a document "may" - not "must" - "be served." Secondly, the Tribunal Member erred by treating section 28A(1) as a provision that prescribed the manner in which a section 155A(4) notice must be given to a veteran. It was not open to the Tribunal member, as a matter of law, to read down the terms of section 155A(4) by introducing into it a requirement that does not appear in the section.

Question of Law 2(b) ● In the light of the findings of fact that the Tribunal had made, it was not open to the Tribunal to conclude that the contents of the section 155A(4) notice were not brought to the attention of Mr Goulding, and that he had not been "effectively served." The content of the notice had unquestionably been brought to Mr Goulding's attention.

Question of Law 2(c) The Tribunal failed to deal with the following submission: ● on Mr Goulding's evidence, the section 155A(4) notice arrived at his brother's address, the address to which Mr Goulding wished his mail to be sent, in late May; ● the exact date on which the notice is presumed to have arrived can be calculated by reference to s 163 of the Evidence Act 1995. The date of the notice was Thursday 24 May 2007, and the fifth business day after that date was 31 May 2007; ● the notice was brought to Mr Goulding's attention by his brother, and Mr Goulding understood its contents; ● Mr Goulding failed to respond to the notice for the same reason as the applicant in Rodda - because his advocate discouraged him from doing so; ● the Principal Member's delegate was obliged to dismiss the application when no written statement was received in response to the notice within the 28 day period that commenced on the date on which the notice is presumed, under s 163 of the Evidence Act 1995, to have arrived.

Relevant statutory provision 15 Section 155AA of the Veterans' Act relevantly provides that: Power to dismiss application - initial consideration (1) In this section: standard review period, in relation to an application for review, means the period of 2 years after the day on which the application was received at an office of the Department in Australia. (2) This section applies to an application for review unless: (a) the hearing of the review has finished within the standard review period; or (b) as at the end of the standard review period, a date, time and place is fixed for the commencement or resumption of the hearing of the review. (3) For the purposes of paragraph (2)(a), the hearing of a review is taken to have finished when there are no further submissions to be made to the Board by any of the parties to the review. (4) If, at the end of the standard review period: (a) this section applies to an application for review; and (b) the Principal Member considers that the applicant should be ready to proceed at a hearing; the Principal Member must give a written notice to the applicant requesting the applicant to provide to the Principal Member, within 28 days after receiving the notice; (c) a written statement indicating that the applicant is ready to proceed at a hearing; or (d) a written statement explaining why the applicant is not ready to proceed at a hearing. (5) If the applicant does not provide a written statement under paragraph (4)(c) or (d) within the 28 days, the Principal Member must dismiss the application and must notify the applicant and the Commission of the dismissal. …

Giving a written notice under s 155AA(4) 16 It is apparent from these provisions that before the principal member is required to dismiss an application under s 155AA(5), he or she must have "give[n] a written notice to the applicant" under s 155AA(4). As the Tribunal correctly observed in its decision, s 155AA does not itself specify how the principal member is to give the written notice to the applicant. Furthermore, it was common ground between counsel before me that the Veterans' Act does not contain a provision that specifies how the principal member is to give a written notice under s 155AA(4), as, for example, the Migration Act 1958 does in s 441A. In that event, it seems to me, that a principal member has to rely upon an appropriate provision in some other statute e.g. s 28A of the Acts Interpretation Act: see Repatriation Commission v Gordon ('Gordon') (1991) 100 ALR 255. 17 At this juncture, I should note that it also ultimately emerged as common ground between counsel before me that: s 28A of the Acts Interpretation Act did not apply on the facts in this case because the s 155AA notice was not sent to Mr Goulding's place of residence last known to the Board and that s 29 of the Acts Interpretation Act did not apply in this case because the Veterans' Act did not authorise the notice to be served by post. I would add that even if the latter concession is not correct because s 28A provides the necessary authorisation (see Deputy Commissioner of Taxation v Meredith ('Meredith') (2007) 69 ATR 876 at [64] per Basten JA), the end result will be the same because of the former concession that s 28A did not apply on the facts.

The first question of law 18 To turn then to the first question of law raised by the Commission. I do not agree that the Tribunal characterised s 28A of the Acts Interpretation Act as a mandatory provision, or treated it as a provision that prescribed the manner in which a s 155AA notice must be given. From my reading of the Tribunal's decision, I consider it did the following. First, as noted above, it correctly observed that s 155AA of the Veterans' Act did not specify how a s 155AA notice was to be given. Secondly, it considered the two provisions of other statutes that had been specifically put forward by the parties: s 163 of the Evidence Act (by the Commission) and s 28A of the Acts Interpretation Act (by Mr Goulding), to establish whether the necessary written notice was given under s 155AA(4). Thirdly, it correctly decided that s 163 did not apply in the circumstances because it dealt more generally with correspondence from Commonwealth agencies and, more significantly, provided for a presumption as to when that correspondence had been sent, not when it was received: see further [29] below. Finally, it correctly decided that, in contrast, s 28A of the Acts Interpretation Act applied to the service of documents, which included giving a notice and it was therefore the apposite provision of the two provisions put forward, for giving a written notice under s 155AA(4) of the Veterans' Act. 19 Conversely, from my reading of the Tribunal's decision, I do not consider it expressed, or even implied, the conclusion that s 28A of the Acts Interpretation Act was a mandatory provision, or that a s 155AA notice must be given in accordance with that section. Instead, I consider that the Tribunal quite correctly construed the two - and only two - statutory provisions put forward by the parties to establish whether the necessary written notice was given under s 155AA(4) and decided that, so construed, one addressed the situation at hand, and the other did not. 20 In this respect it is important to bear in mind that s 44(1) of the AAT Act makes it clear that the question of law that is raised on appeal before this Court must be "from [the] decision of the Tribunal". That means, in my view, that an appellant may not misconstrue the effect of the Tribunal's decision, extract a question of law from that misconstruction and put that question of law before this Court on appeal. I consider this is all the more so given the importance of identifying a proper question of law to found this court's jurisdiction and the strict approach taken to that requirement in the decisions I have referred to above: see at [11] and [12]. For these reasons I do not consider that the question of law stated in paragraph 2(a) of the Commission's notice of appeal states a proper question of law within the terms of s 44(1) of the AAT Act.

The second question of law 21 Turning then to the second question of law stated by the Commission, I consider it suffers from the same defect: it does not identify a question of law that actually arises from the Tribunal's decision. In this question of law, the Commission is essentially saying that, given its findings of fact, viz that the notice was posted to Mr Gordon at his brother's address and the contents of the notice were read out to Mr Goulding by his brother, the Tribunal could not find the s 155AA notice had not been "effectively served". The problem for the Commission with this question of law, in the form stated, is that is not what the Tribunal actually concluded. 22 The words "effectively served" appear in the last paragraph of the Tribunal's decision: see [9] above. When those words are read in the context of that paragraph as a whole, particularly the words earlier in the sentence in which they appear, I consider that the Tribunal has clearly limited that conclusion to service under s 28A of the Acts Interpretation Act. In other words, the Tribunal concluded that Mr Goulding had not been effectively served under s 28A because: "The notice [was] sent by the [Board] to [him] at his brother's address …". 23 I do not consider the Tribunal was there stating that conclusion for all purposes. And, the reason why the Tribunal was not stating that conclusion for all purposes is obvious: it was not asked to. As I have pointed out above (see [18]), the Tribunal was presented with two, and only two, statutory provisions relating to service of the s 155AA notice - one by each party. It decided that one of those provisions addressed the situation at hand i.e. s 28A of the Acts Interpretation Act; and the other did not i.e. s 163 of the Evidence Act. It then proceeded to apply s 28A to the facts and concluded that the notice had not been "effectively served" under that section. As I have noted above, it is now common ground that the Tribunal was correct in reaching that conclusion about the application of s 28A. 24 For these reasons, I consider that the second question of law, stated in paragraph 2(b) of the Commission's notice of appeal, as with the first question of law, misconstrues what the Tribunal actually decided and it has, therefore, not identified a question of law that actually arises from the Tribunal's decision. Put another way, I do not consider it states a proper question of law within the terms of s 44(1) of the AAT Act.

The third question of law 25 The third and final question of law set out in the Commission's notice of appeal falls into a different category i.e. it does not rely upon the Tribunal's decision at all, but rather relies upon a submission that the Commission says the Tribunal did not decide, and should have. The Commission says that submission was to the effect that: the s 155AA notice was given to Mr Goulding because it was sent to, and received at, an address nominated by him, the notice was read to him on the telephone by his brother, and he was aware of the contents of the notice. 26 While it is not mentioned in this third question of law, the Commission's view of the construction of s 163 of the Evidence Act is fundamental to this submission. Before the Tribunal the Commission's statement of issues, facts and contentions contained the following submissions: The [Veterans' Act] does not ordinarily require personal service of documents - Repatriation Commission v Gordon (1991) 100 ALR 255 at 263 lines 37-39. Service of the s 155AA(4) notice upon the applicant is deemed to have been effective on the fifth business day after 24 May 2007, the date on which the notice was prepared - s 163(1) Evidence Act 1995. 27 In its outline of written submissions before me in support of this question of law (see [14] above) the Commission submitted: … the exact date on which the notice is presumed to have arrived can be calculated by reference to s 163 Evidence Act 1995. The date of the notice was Thursday 24 May 2007, and the fifth business day after that date was 31 May 2007. 28 In my view this construction of s 163 of the Evidence Act is wrong. Instead I consider the Tribunal was quite correct in concluding, as it did (see [8(b)(i)] above), that s 163 of the Evidence Act provides for a presumption as to when Commonwealth correspondence has been sent, and it does not provide for a presumption as to when that correspondence is received. I consider this comes from both the plain meaning of the words used in the section and the purpose of the section. I should add that in reaching this conclusion, I am forced to reach a different conclusion from that reached by Rares J in SZGMB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 437, a decision that was relied upon by the Commission before me. In that case, his Honour concluded that: "the effect of s 163 is that the letter is presumed to have been received on the fifth business day after the date it bears." at [26]. I would also add that Giles J. came to the same conclusion as I have above about s 163, in Meredith at [21]. 29 The purpose of s 163 is not contained in the Australian Law Reform Commission, Evidence, Final Report No 38 (1987), or the explanatory memorandum for the Evidence Bill, 1993, or the second reading speech for the Evidence Bill, 1993. However, an explanation of its purpose is contained in a publication produced by the Commonwealth Attorney-General's Department: Bellamy G and Meibusch P. 'Commonwealth Evidence Law' Aus Info (2nd ed 1998). That explanation is as follows at pp 280 -281: [163.2] Since s. 163 provides a presumption in relation to the date of posting, it differs from, and complements, s. 160, which provides a presumption about the date of receipt of letters that have been posted. [163.3] The presumption in s. 163 is directed to proving dispatch to a particular person of a computer produced notice or item of correspondence that has been sent by post to the person as part of a bulk computer mailout by a Commonwealth agency. In some mailouts, a very large number of items of correspondence (hundreds of thousands) can be involved. [163.4] Some of the large Commonwealth service delivery departments use commercial mailing houses to dispatch bulk mail. The presumption of postage on the fifth business day makes allowance for the time a mailing house may need to dispatch bulk mail. However, the section applies to all letters from Commonwealth agencies. [163.5] A party who wishes to probe that a letter etc. was posted on a day other than the fifth business day after it was prepared need do no more than it would do apart from this section, namely lead evidence of the time and date the letter was posted. This commentary explains why such a presumption was created in relation to the sending of letters from a Commonwealth agency and how this presumption differs from the presumption created by s 160. 30 Having mentioned s 160 of the Evidence Act, I should deal with an alternate submission the Commission's counsel put in the dying stages of the hearing before me. It was that if s 163 of the Evidence Act did not apply to prove service of the s 155AA notice, then s 160 did. In my view the short answer to this submission is that all s 160 does is to create a presumption as to the time of receipt of the s 155AA notice at Mr Goulding's brother's address: I do not consider it creates a presumption as to the giving or serving of the notice on Mr Goulding: see the discussion in Deputy Commissioner of Taxation v Trio Site Services Pty Ltd [2007] FCA 776 at [26] - [30] per Lindgren J and Meredith at [60] - [65] per Basten JA and at [20] - [24] per Giles J dissenting. To make the link between the presumed receipt of the notice and the process of giving or serving of the notice under s 155AA, I consider the Commission needs to show that the Board has either complied with ss 29 and 28A of the Acts Interpretation Act, or some other similar provision that creates a presumption that service is effected if certain steps are taken. It has done neither. I do not therefore accept that s 160 of the Evidence Act applied to prove service of the s 155AA notice. 31 I might add that I consider there are at least two further problems with the Commission's late reliance on s 160 of the Evidence Act. First, it has not been identified as a question of law in any of the three questions of law which found the jurisdiction of this Court. Secondly, I consider the question whether the Board complied with s 160, is either a question of fact, or a mixed question of fact and law, neither of which can be relied upon as a question of law: see the decisions summarised at [11] and [12] above. 32 It follows that, having correctly concluded that the Commission's construction of s 163 of the Evidence Act, which was fundamental to this submission, was wrong, I do not consider the Tribunal was obligated to give this submission any further consideration, and it committed no error of law in failing to do so.

Conclusion 33 For these reasons I do not consider the first and second questions of law stated in the Commission's notice of appeal set out a proper question of law within the terms of s 44(1) of the AAT Act. Furthermore, I do not consider the Tribunal committed any error of law in failing to consider the submission stated in the Commission's third question of law. This appeal must therefore be dismissed. I will hear the parties on the question of costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 9 December 2008 Counsel for the First and Second Appellants: Ms M Henderson

Counsel for the Respondent: Mr W Piper

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