Bonser v Commonwealth Superannuation Corporation
[2021] FCA 847
•28 July 2021
FEDERAL COURT OF AUSTRALIA
Bonser v Commonwealth Superannuation Corporation [2021] FCA 847
File number: QUD 16 of 2021 Judgment of: LOGAN J Date of judgment: 28 July 2021 Catchwords: ADMINISTRATIVE LAW – application for judicial review of a decision of the Commonwealth Superannuation Corporation (CSC) – invalidity classification – where parties have jointly promoted that the Court make a declaration that the decision of the CSC was invalid and of no effect – where grant of relief requires the exercise of judicial discretion – where evidence supports the joint submissions – orders made in terms sought
DEFENCE AND WAR – military superannuation and invalidity benefits – Military Superannuation and Benefits Act 1991 (Cth) – application for judicial review of a decision of the Commonwealth Superannuation Corporation (CSC) – invalidity classification – where parties have jointly promoted that the Court make a declaration that the decision of the CSC was invalid and of no effect – where grant of relief requires the exercise of judicial discretion – where evidence supports the joint submissions – orders made in terms sought
Legislation: Military Superannuation and Benefits Act 1991 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 37N, 43
Judiciary Act 1903 (Cth) s 39B
Cases cited: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: Heard on the papers Counsel for the Applicant: Mr P Nolan Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr R Schulte Solicitor for the Respondent: Ashurst Australia ORDERS
QUD 16 of 2021 BETWEEN: CLINTON JAMES BONSER
Applicant
AND: COMMONWEALTH SUPERANNUATION CORPORATION
Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
28 JULY 2021
THE COURT ORDERS THAT:
1.The decision of the Respondent made on 11 October 2019, affirming the decision of the Reconsideration Committee of the Respondent on 11 August 2017 under Rule 22 of the Military Superannuation Benefits Scheme Rules (contained in the Schedule to the Military Superannuation and Benefits Trust Deed) (Rules) that Mr Bonser be classified 20% Class C, with effect from 8 February 1999 (Decision), is invalid and of no effect.
2.The Applicant’s request for reconsideration of the 11 August 2017 decision, made on 1 November 2018, be remitted to the Respondent to be determined according to law.
3.The Respondent is to pay the Applicant’s costs fixed in the amount of $27,500.
4.The application is otherwise dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LOGAN J:
In the Australian Army, and with the exception under international humanitarian law of medical, nursing and chaplaincy personnel, every soldier, even a cook, is trained as a combatant and may be required to undertake that role. This case serves as a reminder of that enduring requirement of military service and of the hazards which, even when not on operational service, accompany that requirement.
Mr Clinton James Bonser (Mr Bonser) enlisted in the Australian Army in 1992. After recruit training, he was allotted to the Australian Army Catering Corps (AACC) in the Regular Army. Thereafter, he trained as a cook. He later sought and was granted a transfer to the Royal Australian Navy. Unfortunately, he developed an anxiety condition that rendered him unsuitable for further naval services. Thereafter, he was transferred back to the Army. He resumed duty in the AACC. In the course of this later period of military service, then Private Bonser fell heavily from a 10 foot high wall while traversing an obstacle course as part of general, military skills proficiency training. Thereafter, he suffered from lower back pain. A slip in a service kitchen saw him injure his right knee. Each required surgical treatment. In 1999, Mr Bonser was discharged from the Army.
Long after his discharge, Mr Bonser applied for an invalidity pension under the Military Superannuation and Benefits Scheme, established under the Military Superannuation and Benefits Act 1991 (Cth). On 11 August 2017, a Reconsideration Committee of the respondent Commonwealth Superannuation Corporation (CSC) decided that he should be classified as Class C for the purposes of that scheme, with effect from his date of discharge. That is the lowest of three classifications for which the scheme provides. Mr Bonser was dissatisfied with that decision. He sought its review by the CSC. On 11 October 2019, the CSC affirmed the classification decision of the Reconsideration Committee.
On 19 January 2021, Mr Bonser filed an originating application by which he sought a declaration by the Court that the CSC’s decision was void and of no effect. As a sequel to case management orders, which included a referral to mediation by a registrar, the parties have now jointly promoted that the Court make such a declaration and grant ancillary relief which provides for a reconsideration of subject of Mr Bonser’s classification and the fixing of costs.
There is no doubt that the Court has jurisdiction to grant the declaration sought: s 39B(1A)(c) of the Judiciary Act 1903 (Cth) offers one foundation and s 39B(1) of that Act may offer another. However, as the parties correctly recognise, the granting of such relief entails the exercise of a judicial discretion: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. Accordingly, the parties have filed a joint submission which details why the orders sought should be made. A copy of that submission is annexed to, and forms part of, these reasons for judgment.
The course adopted by the parties is appropriate. Further, in my view, orders of this nature ought not to be made in chambers but rather in open court for published reasons for judgment. They are not orders relating to practice and procedure. It is necessary to explain why it is that substantive relief is granted in the exercise of the judicial power of the Commonwealth. That it will be necessary for the CSC to reconsider its decision serves to underscore why that is so.
Having regard to the joint submission, I am well satisfied that the present is a case in which the declaration sought should be made. The reliance by the CSC, unexplained in its reasons, on an internally inconsistent, specialist report might aptly be characterised as illogical or irrational. Further or alternatively, that in conjunction with the apparent ignoring of revelations in service records as to Mr Bonser’s medical condition might aptly lead to a conclusion that the CSC failed, constructively, to discharge its statutory function. In fairness to the CSC, it must also be recorded that its participation in the joint submission entails ready and frank awareness of lapses in its administration of Mr Boner’s claim that entail jurisdictional errors. I note, too, that the CSC raises no issue in relation to delay in the seeking of the relief sought.
The parties are to be commended in respect of the approach they have taken to the resolution of this proceeding. It is entirely in keeping with duties owed to the Court by parties and their legal advisers, as confirmed in recent times by s 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
The parties have also agreed that costs should be fixed in a particular amount. There never was any doubt that s 43 of the FCA Act extended to the making of such an order for costs but that it does is confirmed these days by s 43(3)(a) of the FCA Act. Because the parties are agreed as to the amount, I have not delved into, as otherwise well I might have, given the sum specified and the stage of the proceedings, the foundation for the amount of the lump sum. Neither in the circumstances is it necessary to consign such a task to a registrar.
For these reasons, there will be orders in the terms promoted by the parties.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 28 July 2021
ANNEXURE
0
1
3