Cox, W.E. v O'Donnell, L.G

Re: WADE EWART COX
And: LAWRENCE GEORGE O'DONNELL and DAVID GLEN ROSSI
No. ACT G11 of 1990
FED No. 19
Administrative Law
(1992) 106 ALR 145
(1992) 34 FCR 42
(1992) 26 ALD 733

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Judicial review - Applicant when a serving commissioned officer of the Defence Force wounded in action in Vietnam - After further service in the Defence Force applicant tendered a resignation of his military office - Resignation accepted as from 3 January 1979 - Applicant seeking invalidity benefit under Defence Force Retirement and Death Benefits Act 1973 (Cth) - Application to Chief of General Staff under s.37 of that Act for determination that, at the time the applicant was retired from Defence Force, grounds existed "on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties" - Whether s.37 applies to a member who retires at his own request - Long history of defective administrative decision-making in relation to question whether such grounds existed - Decision that grounds did not exist - Reasonable expectation that before decision made comprehensive and impartial medical review of applicant's medical condition at time of retirement would be carried out by independent medical practitioner - Expectation not fulfilled - Whether medical report relied on by decision-maker deficient - Whether deficiencies remedied - Whether reasons of decision-maker adequate.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Defence Force Retirement and Death Benefits Act 1973 (Cth), s.37

Century Metals and Mining N.L. v Yeomans (1989) 100 ALR 383

HEARING

CANBERRA

#DATE 5:2:1992

Counsel for the applicant: Mr R. Selby

Solicitors for the applicant: Macphillamy Cummins and Gibson

Counsel for the respondents: Mr P.A. Coppel

Solicitor for the respondents: Australian Government Solicitor

ORDER

The decision made on 13 February 1990 by the first respondent that, at the time of the applicant's retirement from the Defence Force, grounds did not exist on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties be set aside.

The matter be remitted to the Chief of the General Staff, Army Office, Department of Defence for further consideration and for determination according to law.

The respondents pay the applicant's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By his further amended application filed on 8 February 1991, Wade Ewart Cox ("the applicant") seeks, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"), an order of review in respect of a decision made on 13 February 1990 by Lieutenant-General Lawrence George O'Donnell, Chief of the General Staff, Army Office, Department of Defence ("the first respondent"). By that decision, which was made under s.37 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) ("the Act"), the first respondent…