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VRB Case Note No. 2: Service of decision


Whether the appeal was lodged within the relevant 3 month time limit?
Specifically, whether service of a copy of a decision on the solicitor was effective service?   

The issue

Before the substantive matter could be considered, the issue for the Board to resolve was whether the appeal was lodged within the 3 month time limit specified within S135(5) of the Veterans’ Entitlements Act 1986 (VEA).

The background

The Solicitor, in this matter, wrote to the Department of Veterans’ Affairs stating he was acting on behalf the applicant, attaching an authority signed by the applicant.  The Department forwarded to both the solicitor and the applicant a copy the delegate’s decision, which was the subject of review before the Board.

The Solicitor gave evidence to the Board that she received her copy of the decision, 4 business days after it was posted and on that same day wrote to the applicant, enclosing a copy of the decision. 
The applicant gave evidence that he did not receive his copy of the letter from the Department, until 10 days after it was posted (some 6 days after his solcitor). However, he did receive a copy of the solicitors letter, one day before receiving the copy from the Department.

The main issue for the Board to consider, arsing out of these circumstances, was whether service of a copy of the decision on the solicitor was effective service. If so, then for the purposes of S135 (5) of the VEA the application for review would be out of time.

The relevant legislation and case law

Time frame for applications

The time frame for review applications to the Board is set out in S135 (5) of the Veterans’ Entitlements Act 1986 (VEA). That section states relevantly:

An application… to the Board to review a decision…may be made within 3 months after service on the person to whom the decision relates a copy of that decision in accordance with subsection 34(2), but not otherwise (emphasis added).

The Board noted that the provisions of S 135 (5) are to be applied strictly - see Thomas Jervis Bowen and Repatriation Commission [1994] AATA 53which applies the Federal Court decision in David John Roy Compton v Repatriation Commission [1993] FCA 468.

The Board’s consideration

The Board noted that the form used for an application for a review, did not contain a section specifying a notice of address for service of documents. Further, the front page of the application formstated:

Where the decision is one assessing a rate of pension or concerning a claim for an attendant allowance – 3 months from the date you receive notice of the decision  (emphasis added)

The Board considered that these observations supported the contention that the date for commencement of the time period commences from the date of service of the decision on the applicant not his/her advocate/representative.

The Board noted that while that it is the Department’s usual practice to forward copies of decisions to both applicants and representatives, that does not necessarily mean that the decision is taken to be received by the applicant at the point when the representative receives it. 

The Board concluded by noting that there was no evidence that the solicitor had clearly indicated that she was to be the address for service of documents and considered that the application for review was lodged within time and was on foot before the Board.

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