Cox and Secretary, Department of Defence
[2025] ARTA 1972
•1 October 2025
Cox and Secretary, Department of Defence [2025] ARTA 1972 (1 October 2025)
Applicant:Luke Cox
Respondent: Secretary, Department of Defence
Tribunal Number: 2024/8759
Tribunal:Senior Member D Thomae
Place:Brisbane
Date:1 October 2025
Decision:The Tribunal dismisses the application for review pursuant to s 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth).
CATCHWORDS
DEFENCE – Defence Home Ownership Assistance Scheme (DHOAS) – subsidy certificate – applicant served in the Regular Army and then transferred to the Army Reserves -applicant medically discharged in 2018 – applicant subsequently applied for subsidy certificate – subsidy certificate given to applicant in 2023 – subsidy certificate expired in April 2024 – applicant applied for a further subsidy certificate in April 2024 – applicant not then a member of the Defence Force for purposes of DHOAS – subsidy certificate must not be given to applicant in response to April 2024 application – s 101(1)(b) Administrative Review Tribunal Act 2024 – no reasonable prospects – application for review dismissed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Defence Home Ownership Assistance Scheme Act 2008 (Cth)
Defence Home Ownership Assistance Scheme Regulations 2008
Cases
Clement v Australian Bureau of Statistics [2016] FCA 948
Jefferson Ford Pty Ltd v Ford Motor Company of Australia (2008) 167 FCR 372
Kitoko v University of Technology Sydney [2021] FCA 360
Moore and Secretary, Department of Defence [2025] ARTA 179
Secretary, Department of Defence v Perry [2011] FCA 214
Ullmer and Secretary, Department of Defence [2011] AATA 542
Statement of Reasons
INTRODUCTION
On 22 October 2024, the applicant, Mr Cox, made an application for review to the Administrative Review Tribunal (the Tribunal) of the decision by the respondent, the Secretary, Department of Defence (the Secretary), dated 27 September 2024, to affirm the decision that Mr Cox was not entitled to a subsidy certificate under the Defence Home Ownership Assistance Scheme Act 2008 (Cth) (DHOAS).[1]
[1] Exhibit R1, T2.
As stated by the Tribunal as presently constituted in Moore and Secretary, Department of Defence [2025] ARTA 179 at [2], the DHOAS assists current and former members of the Australian Defence Force (ADF) to achieve home ownership by the payment of tiered financial subsidies applied to the repayment of a home loan. A subsidy certificate issued by the Secretary under the DHOAS is proof of eligibility to access a subsidised home loan under the scheme.
The Secretary seeks dismissal of Mr Cox’s application for review pursuant to s 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) on the basis that Mr Cox’s application has no reasonable prospects of success.
The present application for review is the latest in a number before the Tribunal that seeks to have the Secretary issue a subsidy certificate for extenuating circumstances. The grounds across those applications are varied, but invariably are for junior members of the ADF whose personal circumstances preclude them from using the subsidy certificate granted after discharge within the time limit of 12 months and seek an indulgence from the Secretary for a further subsidy certificate to be issued.
No such indulgence arises under the DHOAS. No discretion is given to the Secretary. The effect on often vulnerable veterans with significant medical issues is unfortunate. The Secretary may respectfully consider putting in place a process for informing transitioning members of the ADF, particularly junior members who are medically discharged and vulnerable, in respect to the rights and limitations on the entitlement and use of subsidy certificates. The Tribunal acknowledges that on the issue of a subsidy certificate it is accompanied by a document that spells out those rights and limitations, but it is clear to the Tribunal that the messaging is not completely effective.
Mr Cox was self-represented at the hearing. The Secretary was represented by Ms Davenport, of the Australian Government Solicitor.
The Tribunal admitted into evidence:
·the T-Documents filed in the matter as exhibit R1.
·The supplementary T-documents as exhibit R2.
BACKGROUND
Mr Cox served as a regular member of the Australian Army (Army) for over 4 years from 2008 to 2013 and then for over 5 years as a reservist until 2018 when he was medically discharged.[2] He has operational service in Afghanistan as an infantryman.
[2] Exhibit R2
Mr Cox seeks by his application for review a further subsidy certificate from the Secretary under the DHOAS.
LEGISLATIVE SCHEME
The relevant process that applies for the granting of a subsidy certificate under the DHOAS is:
(a)Section 14 provides that a person may apply to the Secretary for a subsidy certificate and that it must be in the approved form.
(b)Section 16 requires the Secretary to:
(i)give a subsidy certificate if s 17, 18, 19 or 20 applies; or
(ii)refuse to give a subsidy certificate if those sections do not apply.
Section 18 (surviving partners), s 19 (discharge of loan due to destruction or loss of property) and s 20 (discharge of loan as property was sold) do not apply to Mr Cox’s circumstances.
Section 3 provides:
3Definitions
In this Act:
eligible has the meaning given by section 7.
…
Permanent Forces means the Permanent Navy, the Regular Army or the Permanent Air Force.
Reserves means the Naval Reserve, the Army Reserve or the Air Force Reserve.
Section 7 defines who is eligible and provides:
7 Eligibility—who is eligible?
A person is eligible if the person is eligible as any of the following:
(a) a serving member (see section 8);
(b) an incapacitated member (see section 9);
(c) a rejoining incapacitated member (see section 10);
(d) a rejoining member (see section 11);
(e) a separated member (see section 12);
(f) an old scheme member (see section 13).
Section 17 provides:
17 Decision to give subsidy certificate—eligible applicants
(1) Subject to this section, the Secretary must give a subsidy certificate to the applicant if the Secretary is satisfied that the applicant:
(a)is eligible; and
(b)does not hold a subsidy certificate that is in force; and
(c)if the applicant is not a member of the Defence Force—has not previously applied for a subsidy certificate since he or she stopped being a member of the Defence Force.
MATERIAL FACTS
The non-contentious evidence before the Tribunal is that:
(a)On 1 November 2018, Mr Cox medically discharged from the Army.[3]
(b)On 19 April 2023, Mr Cox was issued with a subsidy certificate as a separated member (the Subsidy Certificate).[4]
(c)On 18 April 2024, Mr Cox’s subsidy certificate expired, without any recorded subsidy payments.
(d)On 17 April 2024, Mr Cox applied for a further subsidy certificate.[5]
(e)On 22 April 2024, the DVA, as delegate of the Secretary, determined that Mr Cox was ineligible for a further subsidy certificate (the Primary Determination).[6]
(f)On 29 April 2024, Mr Cox requested an internal review of the Primary Determination.[7]
(g)On 27 September 2024, an internal review by a delegate of the Secretary affirmed Mr Cox’s ineligibility for a subsidy certificate (the Reviewable Decision).[8]
[3] Exhibit R2.
[4] Exhibit R1, T7.
[5] Exhibit R1, T9.
[6] Exhibit R1, T10.
[7] Exhibit R1, T11.
[8] Exhibit R1, T12.
CONTENTIONS
Mr Cox’s contentions
Mr Cox contends that the Secretary should have extended the Subsidy Certificate for a short period beyond its expiry on 18 April 2024 to allow for settlement of his pre-approved loan with the Australian Military Bank.
In a letter from Mr Cox’s mortgage broker,[9] Mr Runciman states that Mr Cox had difficulties satisfying the requirements to obtain finance with his previous bank and after adjustments to applied to the Australian Military Bank in March 2024. Mr Runciman states that settlement could not occur prior to the expiry of the Subsidy Certificate (18 April 2024) and Mr Cox applied for a further subsidy certificate.
[9] Exhibit R1, T2.1.
Mr Runciman criticises the practice of the previous DHOAS lender in requiring Mr Cox to obtain a subsidy certificate prior to loan approval, placing Mr Cox at a disadvantage because he did not qualify for a loan under that provider and then had a time constraint in using the Subsidy Certificate.
At the hearing, Mr Cox contended that discretion is exercised by courts in considering traffic matters and a similar discretion should be applied to his circumstances. Mr Cox also emphasised that he was medically discharged from his service in the Army and pointed to s 9 of the DHOAS for his eligibility for a subsidy certificate.
The Secretary’s contentions
The Secretary contends that the Tribunal should dismiss Mr Cox’s application for review because there are no reasonable prospects of success.[10]
[10] Respondent’s Application and Submissions for Dismissal (Respondent’s Submissions) at [33]-[44]
The Secretary does not dispute that Mr Cox satisfies the requirements of s 17(a) and (b) of the DHOAS.[11]
[11] Respondent’s Submissions, at [31]-[32].
As to eligibility, the Secretary relies on the decision of Secretary, Department of Defence v Perry[12] for defining the term ‘member of the Defence Force’ for the purpose of s 7 of the DHOAS.
[12] [2011] FCA 214.
It is contended, in circumstances where Mr Cox was not a member of the ADF for the purposes of the DHOAS from 2018 and had been issued a subsidy certificate as a separated member, he is therefore ineligible for a further subsidy certificate because of the operation of s 17(c) of the DHOAS. [13]
[13] Respondent’s Submissions at [30].
As to the discretion to dismiss Mr Cox’s application for review pursuant to s 101(1)(b) of the ART Act because it has no reasonable prospects of success, the Secretary relies on Kitoko v University of Technology Sydney [2021] FCA 360, per Griffiths J:
(a) The effect of s 31A is to lower the bar below that fixed by previous authorities for obtaining summary judgment. It is not necessary to demonstrate that a claim/defence be “hopeless” or “bound to fail” for it to have no reasonable prospects of success (s 31A(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act); Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [17]-[26] per French CJ and Gummow J).
(b) The Court must make a practical judgment as to whether the opposing party has reasonable prospects of success, one which is “real, not fanciful or merely arguable” (Spencer at [25] per French CJ and Gummow J);
(c) Where the moving party establishes a prima facie case in support of summary judgment, the onus shifts to the opposing party to point to factual or evidentiary issues making a trial necessary (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] per Gordon J). Page 6
(d) Determination of an application for summary dismissal is a value judgment to be made in the particular circumstances of the case, in the absence of a full and complete factual matrix; in other words requiring a “practical judgment” of the case at hand. It does not require a “mini trial”, but rather a “critical examination of the available material to determine whether there is a real question of law or fact that should be decided at trial” (Australian Securities and Investment Commission v Cassimatis [2013] FCA 641; 220 FCR 556 at [46] per Reeves J).
(e) The Court retains a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially (Cassimatis at [50] per Reeves J).
(f) Notwithstanding that s 31A of the FCA Act sets a lower bar than previously stated for the summary determination of a proceeding, the power to enter summary judgment is not to be exercised lightly (Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ).
The Secretary also cites Jefferson Ford Pty Ltd v Ford Motor Company of Australia (2008) 167 FCR 372 and Clement v Australian Bureau of Statistics [2016] FCA 948 for the proposition that the Tribunal, where accepting Mr Cox’s evidence, can resolve a contested legal issue summarily, and if there are no reasonable prospects of success, it should do so without undue delay.
CONSIDERATION
The issue for determination is whether Mr Cox is eligible for a subsidy certificate pursuant to s 16 of the DHOAS in response to his April 2024 application. At the hearing Mr Cox stated that what he really was requesting was an extension of time for the Subsidy Certificate.
The Tribunal is reasonably satisfied that:
(a)Mr Cox’s application was compliant with s 14 of the DHOAS and that ss 18, 19 and 20 of the DHOAS do not apply in this application for review.
(b)Mr Cox satisfies ss 17(a) and (b) of the DHOAS.
The question arises in respect to s 17(c) of the DHOAS, whether Mr Cox is ‘not a member of the Defence Force – has not previously applied for a subsidy certificate since he or she stopped being a member of the Defence Force’[14].
[14] s 17(c) of the DHOAS
The clear and unequivocal evidence is that Mr Cox does not satisfy s 17(c) of the DHOAS. Mr Cox was not a member of the ‘Defence Force’ and had been issued with the Subsidy Certificate after he medically discharged in 2018.
Reliance on s 9 of the DHOAS does not assist Mr Cox. That section provides eligibility as an ‘incapacitated member’ after the member ‘stopped being a member of the Defence Force because of a compensable condition’ and has not rejoined. Accepting that Mr Cox was eligible under s 9 (incapacitated members) because of his medical discharge from the Army, and that in addition he was eligible also under s 12 (separated member), does not give Mr Cox a separate right to an additional subsidy certificate.
Put another way, Mr Cox’s eligibility can arise from more than one ground as contained in s 7 of the DHOAS that provides eligibility for ‘any of the following’ and then lists six distinct grounds for eligibility, but once Mr Cox has established eligibility under s 7, then by operation of s 17 of the DHOAS Mr Cox must also satisfy ss 17(b) and (c).
The Tribunal acknowledges the impact on Mr Cox by the strict application of the DHOAS in his circumstances. The lack of discretion afforded the Secretary, and in turn the Tribunal, is such that extenuating circumstances do not allow flexibility in the application of the DHOAS.
There is no statutory power in the DHOAS to extend the operation of a subsidy certificate.
Section 101(1)(b) of the ART Act provides the Tribunal the discretion to dismiss an application if satisfied that the application has ‘no reasonable prospects of success.’
The Tribunal’s decision to dismiss under s 101 of the ART Act is to be used sparingly, but the authorities relied upon by the Secretary provide the legal basis for consideration of summary dismissal where a legal question can be determined, and the Tribunal accepts Mr Cox’s evidence without equivocation, without the requirement to go to a full hearing.
The Tribunal is reasonably satisfied that Mr Cox is not entitled to a further subsidy certificate under the DHOAS because:
(a)Mr Cox applied for and was given the Subsidy Certificate after medical discharge from the Army.
(b)It matters not whether Mr Cox’s eligibility for the Subsidy Certificate arose as from him being a ‘separated’ or ‘incapacitated’ member because the correct statutory construction of s 7 of the DHOAS is that satisfaction by Mr Cox of any of the grounds within the section establishes eligibility under s 17(a).
(c)Mr Cox was:
(i)not a member of the ‘Defence Force’ at the time of his application for a further subsidy certificate, subject of his application for review; and
(ii)he had previously applied for a subsidy certificate since he ‘stopped’ being a member of the ‘Defence Force’.
(d)There is no statutory power in the DHOAS for the Secretary, or the Tribunal, to extend the operation of a subsidy certificate or give a further subsidy certificate because of extenuating circumstances.
The Tribunal is reasonably satisfied that Mr Cox has no reasonable prospects for success in his present application for review because of its finding that Mr Cox is not entitled to a further subsidy certificate under the DHOAS. The Tribunal has come to this view accepting Mr Cox’s evidence in its entirety.
DECISION
The Tribunal dismisses the application for review under s 101(1)(b) of the ART Act.
Date(s) of hearing: 30 September 2025 Date final submissions received: 30 September 2025 Representation for the Applicant: Mr Cox, Self-represented litigant Solicitors for the Respondent: Ms Davenport, Australian Government Solicitor
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