Swanton v Military Rehabilitation and Compensation Commission

1. The application be dismissed.
2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TRACEY J: 1 Mr George Swanton is a decorated ex-serviceman. He suffers from asthma which, he claims, was brought on by the living conditions to which he was exposed during his service. He also has broader concerns for the welfare of other servicemen and women who might be similarly afflicted by asthma contracted by them whilst engaged in military service. 2 Mr Swanton was enlisted in the Australian Army for a period of service ending in 1956. He was discharged as medically unfit. 3 In 2014 Mr Swanton made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") for an asthma condition which he attributed to a chest infection which he had contracted in 1956. He said that he had first become aware of the condition in January 1956 and had sought treatment for it the following month. 4 Mr Swanton's claim was considered by a delegate of the first respondent ("the MRCC"). 5 On 18 March 2015 the delegate denied that the MRCC was liable to pay him compensation. 6 On 12 May 2015 Mr Swanton requested that this decision be reconsidered. 7 Following an internal review another delegate of the MRCC affirmed the original decision on 9 November 2015. The MRCC was required to cause to be served on Mr Swanton, as soon as practicable after that decision was made, a notice recording the terms of the decision, the reasons for it, and a statement that an application for review could be made to the Administrative Appeals Tribunal ("the Tribunal"): see s 63 of the SRC Act. 8 Mr Swanton was advised of the decision by letter dated 9 November 2015. It was addressed to him at a private residential address in outer Melbourne with a copy sent to the "Western Suburbs Veterans' Centre Werribee" at a post office box address in Werribee Plaza. The letter provided Mr Swanton with advice of the decision and the reasons for it. Attached to the letter was another document which advised him of his right to seek review of the MRCC's decision in the Tribunal and how to prosecute such an application. 9 By application received on 24 May 2016 Mr Swanton applied to the Tribunal for review of the decision of the MRCC to affirm the initial decision to deny liability. 10 In a further application, received by the Tribunal on 17 June 2016, Mr Swanton applied for an extension of time within which to apply for review of the MRCC's decision. Mr Swanton's postal address was listed on the application form as the Werribee Plaza post office box and a box was ticked that indicated that his "[p]referred method for receiving correspondence" was by post. This form also listed a person from the Western Suburbs Veterans' Services Centre as Mr Swanton's representative and specified a post office box in Melton as the representative's postal address; another box was ticked which indicated that post was the representative's preferred method for receiving correspondence. 11 The application to the Tribunal for an extension of time was necessary because s 29(2)(a) or s 29(2)(b)(iii) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), whichever was applicable, when read with s 65(4) of the SRC Act, provided that an applicant had 60 days within which to seek review of the MRCC's decision following the day on which a document recording the MRCC's decision was given to him or her. 12 The MRCC's obligation arising out of s 63 of the SRC Act, to serve a notice of the decision on Mr Swanton, attracted the operation of s 28A(1)(a)(ii) of the Acts Interpretation Act 1901 (Cth). That section enabled the MRCC to send the notice by pre-paid post to the last known address of Mr Swanton's "place of residence". Section 28A(1) relevantly provides: 28A Service of documents (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: (i) by delivering it to the person personally; or (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; or … 13 The application of s 28A to s 63 of the SRC Act in turn meant that the service on Mr Swanton of the letter dated 9 November, which recorded the MRCC's decision and reasons, and the accompanying notice of review rights, may be deemed to have been effected at the time at which the letter would have been delivered to his residential address "in the ordinary course of post": see s 29(1) of the Acts Interpretation Act 1901 (Cth). Section 29 provides: 29 Meaning of service by post (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 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. 14 What, if any, evidence was before the Tribunal as to the actual date of delivery or the ordinary course of post between Melbourne and Mr Swanton's residential address in outer Melbourne is not known. In the absence of such evidence, the presumption in s 160(1) of the Evidence Act 1995 (Cth) ("the Evidence Act") would have operated to assist in the proof of the fact of the "ordinary course of post": see s 29(2) of the Acts Interpretation Act 1901 (Cth); Gusdote Pty Ltd v Ashley (2011) 193 FCR 227 at 241-242 and 248; [2011] FCA 250 at [53]-[56] and [91] (Foster J); Scope Data Systems Pty Ltd v Goman (2007) 70 NSWLR 176 at 187-188; [2007] NSWSC 278 at [38] (White J). Section 160 of the Evidence Act relevantly provides: 160 Postal articles (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. … 15 Section 163(1) of the Evidence Act also raises a relevant presumption. It provides: 163 Proof of letters having been sent by Commonwealth agencies (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. (2) In this section: business day means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or bank holiday in the place in which the letter was prepared. letter means any form of written communication that is directed to a particular person or address, and includes: (a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and (b) any envelope, packet, parcel, container or wrapper containing such a communication; and (c) any unenclosed written communication that is directed to a particular person or address. … 16 It may be accepted that the MRCC is a "Commonwealth agency" within the meaning of s 163(1) of the Evidence Act as it is a body exercising power under or because of a law of the Commonwealth, namely the SRC Act: Evidence Act, Dictionary, Pt 1. 17 Having regard to the operation of ss 160(1) and 163(1) of the Evidence Act, and in the absence of any evidence to the contrary, it may be presumed that the MRCC sent the letter dated Monday 9 November 2015 by post to Mr Swanton on Monday 16 November 2015, and that it was received at his residential address on Friday 20 November 2015. The last day for a timely application to the Tribunal was 60 days after 20 November 2015, namely Tuesday 19 January 2016. It is apparent that each of Mr Swanton's applications, received by the Tribunal in May and June 2016 respectively, were made out of time. The Tribunal was empowered, by s 29(7) of the AAT Act, to enlarge time if it was satisfied that it was reasonable in all the circumstances to do so. 18 On 12 July 2016, whilst the application for an extension of time was pending before the Tribunal, solicitors acting for the MRCC wrote to Mr Swanton's representative advising him that the application for an extension of time would be opposed. Two reasons were given. They were that there had been a significant delay by him in bringing the application, which delay was not adequately explained, and that the proposed application for review was without merit. 19 On 14 July 2016 the Tribunal convened a telephone hearing to deal with Mr Swanton's application to extend time. The Tribunal refused the application. Its decision was recorded in a document dated 14 July 2016. The document was posted to Mr Swanton under cover of a letter bearing the same date. The letter was addressed to Mr Swanton but under his name it listed his representative's post office box in Melton. In that letter Mr Swanton was advised by the Tribunal that his application had been refused and that any appeal to this Court from the decision had to be lodged no more than 28 days after delivery by post had been effected. No written reasons were provided by the Tribunal for the making of its decision. The member who made the decision was prevented at the time from providing reasons because of the onset of a sudden and serious illness. He has since been unable to do so. 20 By letter dated 28 February 2017, Mr Swanton's representative (who had the post office box in Melton) wrote to Mr Swanton at the residential address in outer Melbourne. The letter stated: "Please find enclosed a copy of the AAT decision that you have been looking for."