Hyland and Repatriation Commission (Veterans’ entitlements) [2015] AATA 927 (6 November 2015)

Division	VETERANS' APPEALS DIVISION	
File Number	2015/1299	
Re	Denis Hyland	
	APPLICANT	
And	Repatriation Commission	
	RESPONDENT	
Decision

Tribunal	Egon Fice, Senior Member

Date	6 November 2015  	
Date of written reasons	2 December 2015	
Place	Melbourne	
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.
...............................[sgd].........................................
Egon Fice, Senior Member

Catchwords
VETERANS – entitlements – Repatriation Commission – decision to refuse application for increase in disability pension – Veterans’ Review Board – reviewable decisions – requirement to apply for review of decision by VRB within three months after service – application for review made one day after expiry of three month appeal period – no jurisdiction held by VRB or AAT to review decision

Legislation
Acts Interpretation Act 1901 (Cth) ss 2G, 36
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 42A
Evidence Act 1995 (Cth) ss 160, 163
Veterans’ Entitlements Act 1986 (Cth) ss 119, 135

Cases
Ward v Nicholls (1988) 20 FCR 18

REASONS FOR DECISION

Egon Fice, Senior Member

2 December 2015

1.	On 4 June 2012 Mr Hyland lodged an application with the Department of Veterans’ Affairs seeking an increase in his Disability Pension for previously accepted disabilities.  In a letter dated 11 July 2012 a delegate of the Repatriation Commission notified Mr Hyland that his application for increased disability pension was unsuccessful.
2.	Dissatisfied with that decision, Mr Hyland lodged an application on 19 October 2012 seeking review of that decision by the Veterans’ Review Board (VRB).  The VRB heard 
Mr Hyland’s application on 29 October 2014 and decided that his application for review was not submitted within the required time limit.  For that reason, it affirmed the Repatriation Commission’s decision. 
3.	On 20 March 2015 Mr Hyland lodged an application with the Tribunal seeking a review of the VRB decision.  I heard this matter on 6 November 2015 and handed down an oral decision in which I affirmed the VRB decision.  Subsequently, Mr D De Marchi, who appeared on behalf of Mr Hyland, requested written reasons for my decision.  These are those reasons.
Time limits for review
4.	Section 135 of the Veterans’ Entitlements Act 1986 (the VE Act) deals with the review of decisions of the Repatriation Commission by the VRB.  In so far as it is relevant to 
Mr Hyland’s case, it provides:
(1) Where a person:
(a)	…
(b)	who has made application for a pension, or for an increased pension, in accordance with section 15; or
(c)	…
is dissatisfied with any decision of the Commission in respect of the claim or application (including a decision under section 20 or 21 approving a date from which payment of a pension, or payment of a pension at a higher rate, may be made, but not being a decision under subsection 19A (1)), the person may, subject to this Act, make application to the Board for a review of the decision of the Commission.
…
(5) An application under subsection (1),(2) or (3) to the Board to review a decision of the Commission:
(a)	assessing a rate of pension or increased rate of pension;
(b)	…
(c)	refusing to increase the rate of a pension;
(d)	…
(e)	…
may be made within 3 months after service on the person to whom the decision relates of a copy of that decision in accordance with subsection 34 (2), but not otherwise.
5.	I should point out that s. 135(5) makes it plain that unless an application is lodged with the VRB within three months after service of the original decision on a veteran, the right to have that decision reviewed is lost.  There is no discretion in any of the sections in Division 3 of the VE Act, which deals with review by the VRB of original decisions, to extend the three month limitation period.
6.	While not disputed by either party, I should further note that the authorities clearly establish that the Tribunal has jurisdiction to review all aspects of a decision made by an intermediate tribunal (in this instance, the VRB), including legal questions such as those relating to jurisdiction. Wilcox J in Ward v Nicholls (1988) 20 FCR 18 said, at 27:
It would be a very odd situation… if the appointed first instance reviewer, the Veterans’ Review Board, erroneously found that it had no jurisdiction, and the Administrative Appeals Tribunal – which is set up by statute to review on their merits decisions of that Board – was then precluded from considering for itself whether that Board in fact had jurisdiction and, if so, what decision it should have made… I cannot think that this is right. I think that the true position is that… whatever decision it [the VRB] makes, that decision is subject to review by the Administrative Appeals Tribunal.  
Receipt of original decision and lodgement of application
7.	In his Application for Review lodged with the VRB on 19 October 2012, when responding to a question which stated: Date I received decision, Mr Hyland entered 18/7/2012.
8.	The method of calculating a period of time referred to in an Act is set out in s. 36 of the Acts Interpretation Act 1901 (the Interpretation Act).  Relevantly, Item 6 of s. 36(1) provides that if the period of time is expressed to begin after a specified day, it does not include that day.  Section 36 sets out a number of examples, the relevant example for this case being:
Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.
9.	The word month is defined in s. 2G of the Interpretation Act.  Relevantly, it provides:
(1) In any Act, month means a period:
(a)	starting at the start of any day of one of the calendar months; and
(b)	ending:
(i)	immediately before the start of the corresponding day of the next calendar month; or
(ii)	if there is no such day – at the end of the next calendar month.
…
(2) In any Act, a reference to a period of 2 or more months is a reference to a period:
(a)	starting at the start of a day of one of the calendar months (the starting month); and
(b)	ending:
(i)	immediately before the start of the corresponding day of the calendar month that is that number of calendar months after the starting month; or
(ii)	if there is no such day – at the end of the calendar month that is that number of calendar months after the starting month.
Example 1: A reference to 6 months starting on 15 December in a year is a reference to a period starting on that day and ending immediately before 15 June in the next year.
10.	Applying ss. 36 and 2G to Mr Hyland’s case, his 3 month period begins on 19 July 2012.  It ends on 18 October 2012.  His application lodged with the VRB has a received stamp affixed which bears the date 19 October 2012.  Neither Mr De Marchi nor Mr K Rudge, who appeared on behalf of the Repatriation Commission, disagreed with that calculation.  Accordingly, on the face of it, although Mr Hyland’s application was lodged one day outside the time limit, it is, nevertheless, out of time.
11.	Mr De Marchi argued I should consider the Evidence Act 1995 (the Evidence Act) when determining the date on which the original decision was received by Mr Hyland.  That is because, despite Mr Hyland stating on his application for an increase in the disability pension that he received the Repatriation Commission’s decision on 18 July 2012, his evidence before me on the hearing of this matter was that he received a copy of that decision around or about 18 July 2012.  In other words, it may have been after 
18 July 2012.
12.	In particular, Mr De Marchi referred to s. 163 of the Evidence Act which deals with proof of letters having been sent by Commonwealth agencies.  Relevantly, it provides:
(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 personal address and includes…
13.	If I were to apply s. 163, because the Repatriation Commission’s letter is dated 
11 July 2012, which was a Wednesday, and there were no public holidays either that week or the following week, the fifth business day would fall on Wednesday, 18 July 2012.  That would be the day on which that letter would be deemed to have been sent unless there was evidence sufficient to raise doubt about that presumption. According to 
Mr De Marchi, if one were then to apply s. 160 of the Evidence Act under which it is presumed, unless evidence sufficient to raise doubt about the presumption is adduced, that the letter would have been received at the address to which it was sent on the fourth working day after having been posted.  That would mean the letter was received on Tuesday, 24 July 2012.
14.	The problem with Mr De Marchi’s analysis is that there was, before me, evidence to rebut the presumption set out in s. 163 regarding the date on which a prepaid letter was sent.  That was Mr Hyland’s own evidence of him having written the date of receipt as 18/7/2012 on his application form.  The date on which Mr Hyland wrote that receipt date on his application form was more than three years ago.  Despite that, on the hearing of this matter, Mr Hyland changed his evidence now stating that he was uncertain about the date of receipt and rather, it was about 18/7/2012.  It should be reasonably obvious that 
Mr Hyland’s memory would have been more accurate at the time he signed his application form on 16 October 2012, a little over three months after he received the decision, rather than more than three years after having done so and after having been told that his application was lodged out of time.
15.	To add to Mr Hyland’s problem, his evidence was that his application was prepared for him on his behalf by a person from South Eastern Regional Veterans’ Centre.  He testified that he received a telephone call from the Veterans’ Centre asking him to come in as quickly as possible because he needed to sign the paperwork for the VRB application because: the documentation was very close to the deadline and to treat the request as urgent.  There can be no doubt that Mr Hyland, relying on his own recollection of the date on which he received the Repatriation Commission’s decision, had been made aware if he was not already so aware that his three month period was almost at an end.  In fact, he signed the application form on 16 October 2012 thereby allowing his representative a further two days in which to lodge the application.  For unexplained reasons, it was not.
16.	While on this point, I should say something about the VRB decision even though its reasons for decision do not have a bearing on my analysis.  The members of the VRB also referred to ss. 160 and 163 of the Evidence Act and reached the conclusion that the fifth business day after 11 July 2012, that is 18 July 2012, was the date the decision was presumed to have been received.  With respect to the members of the VRB, that is plainly incorrect.  The presumption in s. 163 is a presumption about letters having been sent by Commonwealth agencies.  It has nothing to do with receipt of a letter.  Section 160 presumes receipt of a letter as being the fourth working day after having been posted.  In any event, as I have indicated above, the presumption regarding the date on which the Repatriation Commission’s decision was sent is simply irrelevant because in this case, there was evidence from Mr Hyland of the date on which the decision was received.  For the purposes of the VE Act, the three month time limit begins to run on the day after receipt of that document.
17.	The fact that Mr Hyland gave evidence that he was now uncertain about the date on which he received the Repatriation Commission’s decision letter carries very little weight.  He appears to have changed his evidence to suit the circumstances after discovering that his application was lodged out of time.  The almost contemporaneous evidence of him having received the letter on 18 July 2012 must be preferred.
18.	In his oral submissions Mr De Marchi directed me to s. 119 of the VE Act which refers to the Repatriation Commission not being bound by technicalities.  Mr De Marchi referred to the following provisions:
(1) In considering, hearing or determining, and in making a decision in relation to:
(a)	a claim or application;
…
the Commission:
(f)	is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)	shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)	without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)	the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)	the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1) was not reported to the appropriate authorities.
19.	While it is clear that the Tribunal is not bound by the rules of evidence (s. 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act)), the three-month time limitation set out in s. 135(5) of the VE Act has nothing to do with rules of evidence.  It is a substantive provision in an Act conferring power on the Tribunal to review a decision and it binds the Tribunal.  Applying that limitation period has nothing to do with according an applicant substantial justice without regard to legal technicalities.  The Tribunal must apply the law.  If, as I believe it was, suggested by Mr De Marchi that the passage of time may have resulted in Mr Hyland having difficulty in ascertaining the date on which he received the Repatriation Commission’s decision letter, that does not assist him.  If I were to take that into account, I would be required to fall back on the date entered in his application form as being the best evidence of that date.
Conclusion
20.	While it seems harsh that Mr Hyland is precluded from having the Tribunal conduct a merits review of the VRB decision because he was one day out of time in lodging his application to the VRB, the VE Act is uncompromising in setting the time limit at three months.  Not only is there no provision for the exercise of discretion to grant an extension of time, but the Act expressly states that an application cannot be made if it is out of time.  This Tribunal is bound by that provision.
21.	Although it is clear that the VRB decision contains erroneous reasoning, its conclusion was essentially correct.  It did not have jurisdiction to embark upon a merits review of the original decision.  Similarly, this Tribunal does not have jurisdiction to review the merits of the original decision.  Mr Hyland’s application must be dismissed pursuant to s. 42A (4) of the AAT Act.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member	
................................[sgd]........................................
Associate
Dated 2 December 2015

Date of hearing	6 November 2015	
Advocate for the Applicant	Mr D De Marchi	
Solicitors for the Applicant	De Marchi & Associates	
Advocate for the Respondent	Mr K Rudge	
Solicitors for the Respondent	Department of Veterans' Affairs