Defence Force Retirement and Death Benefits Authority v Lokan

[2008] FCAFC 43

FEDERAL COURT OF AUSTRALIA

Defence Force Retirement and Death Benefits Authority v Lokan [2008]
FCAFC 43

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY v GEOFF LOKAN
QUD 288 OF 2007

SPENDER, COLLIER AND LOGAN JJ
6 MARCH 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 288 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL 

BETWEEN:	DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY Appellant
AND:	GEOFF LOKAN Respondent

JUDGES:	SPENDER, COLLIER AND LOGAN JJ
DATE OF ORDER:	6 MARCH 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal dated 9 August 2007 that the respondent repay to the applicant the sum of $21,352.86 be set aside.

3.The respondent repay to the applicant by way of fortnightly instalments of $300.00 the sum of $29,791.86 commencing 28 days after the date the Court affixes the stamp of the Court to these orders.

4.The decisions of the applicant dated 31 October 2006 and 23 March 2007 be affirmed.

5.There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 288 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL 

BETWEEN:	DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY Appellant
AND:	GEOFF LOKAN Respondent

JUDGES:	SPENDER, COLLIER AND LOGAN JJ
DATE:	6 MARCH 2008
PLACE:	BRISBANE

REASONS FOR JUDGMENT

SPENDER J:

1. The decision under review by the AAT related to the recovery of an overpayment of pension to Mr Lokan during a period of almost two years following his re-enlistment in the Air Force.  The fact that there was an overpayment was not in issue, nor was in issue that the AAT had a discretion that allowed it not to order the recovery of the full amount.  The Tribunal held that the decision under review be varied to reduce the amount to be recovered from Mr Lokan, by fortnightly instalments of $300.00, from $29,791.86 to $21,352.86.  The reduction represented the amount of PAYG instalments remitted to the Australian Tax Office from Mr Lokan’s pension.

2. The Defence Force Retirement and Death Benefits Authority (the Authority) has appealed on a number of grounds asserting errors of law made by the AAT.  On 23 October 2007, on the recommendation of Justice Logan, the Chief Justice determined that the matter be heard by a Full Court.

3. On 29 November 2007, the Australian Government Solicitor, acting for the Authority, sent to the Court signed consent orders.  The terms of those proposed orders are:

   (i)        the appeal be allowed;

   (ii)the decision of the Administrative Appeals Tribunal dated 9 August 2007 that  the respondent repay to the applicant the sum of $21,352.86  be set aside;

   (ii)the respondent repay to the applicant by way of fortnightly instalments of $300.00, the sum of $29,791.86, commencing 28 days after the date the Court affixes the stamp of the Court to these orders;

   (iv)the decisions of the applicant dated 31 October 2006 and 23 March 2007 are affirmed;

   (v)there be no order as to costs.

4. On 28 February 2008, the appellant also filed a Statement of Matters said to justify the making of the proposed consent orders, in accordance with Practice Note 26.   

5. The difficulty that then arose was a consequence of the determination by the Chief Justice that the matter be heard by a Full Court.  That determination having been made, it seems that only a Full Court could make the orders sought by the parties.   The Chief Justice therefore convened a Full Court consisting of Justice Spender, Justice Collier and Justice Logan to deal with the matter. 

6. An anomaly arises from the determination of the Chief Justice that the matter be determined by a Full Court.  Had there been a determination that the matter be dealt with by a single Judge, the consent orders could have been dealt with by that Judge.  The Full Court that has been convened has the power to deal with the orders which the parties wish us to make by consent. 

7. The effect of the orders which the parties wish the Court to make is to increase the amount of the repayments by the amount that had been remitted by the Authority to the Australian Tax Office by way of PAYG instalments.  That amount was not included by the Tribunal in the amount to be repaid because of the view of the Tribunal that there would be no practical benefit achieved by requiring the respondent to repay the PAYG instalments to the Authority.  There was no evidence before the Tribunal which would support that conclusion, and the statement submitted by the parties said to justify the making of the proposed consent orders suggests that, having regard to various provisions of the Income Tax Assessment Act 1936 (Cth) and the Taxation Administration Act1953 (Cth), there may very well be a practical benefit from making the orders as proposed by the consent orders.

8. For these reasons, in my opinion the Court should make the orders which the parties wish the Court to make by consent.  I will now ask Justice Collier for her reasons.

   COLLIER J:

9. I agree with the reasons of the presiding judge.

   LOGAN J:

10. I also agree.

    SPENDER J:

11. In those circumstances the orders of the Court are:

    1.        The appeal be allowed. 

    2.The decision of the Administrative Appeals Tribunal dated 9 August 2007 that the respondent repay to the applicant the sum of $21,352.86 be set aside.

    3.The respondent repay to the applicant by way of fortnightly instalments of $300.00 the sum of $29,791.86, commencing 28 days after the date the Court affixes the stamp of the Court to these orders.  

    4.        The decisions of the applicant dated 31 October 2006 and 23 March 2007 be affirmed.

    5.       There be no order as to costs.  

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Collier and Logan.

Associate:

Dated:        20 March 2008

The Appeal was dealt with on the papers
Date of Hearing:	6 March 2008
Date of Judgment:	6 March 2008