Dunn and Defence Force Retirement and Death Benefits Authority
[2002] AATA 438
•7 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 438
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1997/366
GENERAL ADMINISTRATIVE DIVISION )
Re RONALD NORMAN DUNN
Applicant
And DEFENCE FORCE RETIREMENT & DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mr R D Fayle, Senior Member
Date7 June 2002
PlacePerth
Decision Pursuant to the powers vested in it by the Administrative Appeals Tribunal Act 1975, the Tribunal lacks jurisdiction to review the decision of the Board made on 11 January 1973, to assess the applicant's classification of Class C pursuant to s51 of the Defence Force Retirement Benefits Act 1948. For those reasons the Tribunal does not extend the time in which the applicant may apply to this Tribunal to review that decision.
….......(sgd R D Fayle).....................
Senior Member
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS - whether 1973 decision to classify applicant as Class "C" reviewable - proper characterisation of Authority's decision - consideration whether tribunal has power to review decision if Authority had purported to review Board's decision - no jurisdiction.
Administrative Appeals Tribunal Act 1975
Defence Forces Retirement Benefits Act 1948 - Ss, 51, 52, 53
Defence Forces Retirement and Death Benefits Act 1973 - Ss99,
Defence Forces Retirement and Death Benefits Bill 1973
Defence Legislation Amendment Bill 1984
Re: Robert Joseph Taylor and Defence Forces Retirement and Death Benefits Authority, decision No. V85/551, Deputy President Thompson, 17 April 1986
Re: William Bernard John Davina and Defence Forces Retirement and Death Benefits Authority, decision no. Q96/105, Deputy President S A Forgie, 24 September 1996.
REASONS FOR DECISION
7 June 2002 Mr R D Fayle, Senior Member
On 31 October 1997 Mr Ronald Dunn ("the applicant") applied to this Tribunal for review of a decision by the Defence Force Retirement & Death Benefits Authority ("the Authority") that for the purposes of section 53 of the Defence Forces Retirement Benefits Act 1948 ("the 1948 Act"), the applicant's classification to 60% Class A take effect from 3 May 1969.
The parties requested that the matter be determined by the Tribunal on the papers. The Tribunal, being satisfied that it is appropriate in the circumstances, has proceeded to determine the matter on the basis of documents provided to the Tribunal for that purpose. Documents lodged with the Tribunal by the respondent consist of those pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), a statement of Facts and Contentions filed by the respondent, the respondent's written submissions and chronology. Many documents were provided by the applicant. These provided evidence of background history. These were provided by the applicant in support of his contention that the then Defence Force Retirement Board ("the Board") was wrong in its original determination, on 11 January 1973, under the 1948 Act, that the applicant was Class C. That is, the Board determined the applicant's percentage of total incapacity, in relation to civil employment, as less than thirty (i.e. < 30%).
The Tribunal was able to glean from the papers the following background to this application, which to a certain extent provides a basis for understanding the applicant's desire to have the original determination changed retrospectively so as to increase his entitlements immediately following his discharge from the Army on 2 May 1969. However, because the applicant did not give evidence in person, the Tribunal may not have faithfully recorded all the background/historical facts. As will be seen, this can make no difference to the outcome of the review since the Tribunal is satisfied that the respondent's chronology of events and record of facts, none of which is disputed, is sufficient.
In 1967, at age 19 the applicant volunteered to join the Defence Force and on 6 November 1967, underwent an entry medical examination, which he passed. That record indicates that the applicant had never suffered "frequent severe depression" or "mental illness – nervous breakdown". He joined C Company of the 9th Royal Australian Regiment ("9RAR"). Medical records indicate that the applicant was diagnosed with "depressive reaction" in January 1969 and his then commanding officer reported that he "would prefer to see him returned to Australia", apparently from Vietnam. There is sufficient evidence to show that whilst in Vietnam the applicant suffered a mental illness which interfered seriously with his work and domestic relationships.
Upon return to Australia it seems that the applicant was treated for depression, firstly in NSW (T121) then subsequently and on several occasions at the Repatriation General Hospital Hollywood, in Western Australia. His illness was diagnosed as "inadequate personality". Suffice it to say that there is no doubt that whilst in Vietnam the applicant experience severe mental illness, which has been treated since. His treatment has included periodic hospitalisation in both New South Wales and Western Australia. The applicant's written evidence is that he was subjected to shock treatment whilst institutionalised in a mental hospital in New South Wales. The Tribunal has no reason to doubt that the applicant has undergone treatment for his illness over the years, some of which occurred during 1970 and 1971 and indeed has continued. And it appears that whilst the applicant was undergoing treatment or for other reasons beyond his control, pension cheques sent to him were not collected resulting in his pension being cancelled in 1972 but reinstated in 1977 when he again contacted the department.
Amongst the papers presented to the Tribunal by the applicant is an Examining Medical Officer's Report dated 18 June 1981, which assesses the applicant's "personality disability/condition" caused by anxiety and depression at 60%, being the degree of serious interference with work and domestic relationships. The relevant form includes a notation by the assessing medical officer, which states: "My guess is that the condition was of about the same severity in Feb 1977". Similarly, the documents provided by the applicant include a Report of Medical Officer dated 10 March 1969. It provides a provisional diagnosis of "mental instability – Jan 69 in Vietnam". In answer to question 19 "What is the extent of the incapacity in the general labour market from each disability?" the medical officer stated "40%".
The Tribunal understands the applicant's contention to be that he was seriously incapacitated for work as a direct result of his mental state which manifested itself whilst with 6RAR in Vietnam and caused, at least in part, his assessed 60% incapacity. He contends that when discharged from the Army, on 2 May 1969, as medically unfit, he was then in fact 60% totally incapacitated in relation to civil employment. He submitted that the assessment of 20% relevant incapacity made effective from 3 May 1969 was erroneous.
The undisputed facts, some of which repeat those already stated above, are now summarised. The applicant was born on 17 October 1948 and joined the Australian Defence Forces ("ADF") on 1 February 1968 and then became an eligible member of the Defence Force Retirement Benefits Scheme ("DFRB"). This was then a contributory scheme.
The applicant was discharged from the ADF medically unfit on 2 May 1969.
On 11 January 1973 the DFRB Board determined pursuant to section 51 of the 1948 Act that the applicant's percentage of incapacity in relation to civil employment was 20% and that he be classified Class C with effect from 3 May 1969. Apparently this decision was made consequent upon the applicant failing to attend medical examinations.
On 6 March 1975 the Committee of Alternates purported to determine that the applicant's incapacity in relation to civil employment was 30% on and from 23 October 1974 and that pursuant to s53 of the 1948 Act, he be classified as Class B for the purposes of s51(2) of the 1948 Act.
Following the reclassification above on 6 March 1975, the applicant's percentage of incapacity in relation to civil employment was reviewed, purportedly pursuant to s53 of the 1948 Act, on five occasions resulting in an affirmation that the percentage incapacity was 30% and that therefore the applicant remained in Class B.
On 25 February 1997 a delegate of the respondent purported to determine that the percentage of incapacity was 60% and that his classification be varied to Class A with effect from 26 November 1996 (T4).
On 7 April 1997 the applicant requested that the above decision purportedly taken on 25 February 1997 be back-dated to 26 November 1992, the date on which the Repatriation Commission, pursuant to the Veterans' Entitlements Act 1988, granted a pension at the "special rate" (T129). In another written request which is undated (T132), the applicant further, and presumably in the alternate, submitted that the 25 February 1997 (purported) decision be back-dated to 2 May 1969, the day of discharge from the Army.
On 12 September 1997, the respondent's delegate reconsidered its (purported) decision of 25 February 1997 and substituted a determination that the applicant's classification be Class A from 6 September 1991 (T3).
On 31 October 1997 the applicant applied to this Tribunal for a review of the respondent's (purported) decision that for the purposes of s53 of the 1948 Act, his reclassification to 60% Class A level take effect from 3 May 1969. Further, on 13 January 1998, the applicant requested the respondent grant an extension of time to seek reconsideration of all previous decisions which determined his classification to be lower than Class A. In effect, it is the latter issue with which this Tribunal must first contend to determine whether it has jurisdiction to consider the applicant's application.
In response to proceedings before this Tribunal the respondent undertook to apply on behalf of the applicant, to the Department of Finance and Administration for consideration of an act of grace payment. In the result, the Chairman of the Authority (the respondent) was advised that the Parliamentary Secretary to the Minister for Finance and Administration approved an act of grace payment to the applicant, representing a payment to equate to what would have been paid to the applicant should he have been classified as Class B from 3 May 1969 to 22 October 1974. The Tribunal understands that despite the applicant having received this payment he still maintains his application for review before the Tribunal. That is, he is seeking a retrospective payment assessed at the 60% Class A level from 3 May 1969 to 5 September 1991.
In her submissions for the respondent, Ms Tess Munoz, a departmental advocate, referred the Tribunal to two decisions in support of her submissions that the Tribunal lacks jurisdiction in this matter. Those decisions are respectively Taylor and Defence Force Retirement and Death Benefits Authority, (Deputy President I R Thompson), V85/551, 17 April 1986, and Davina and Defence Force Retirement & Death Benefits Authority (Deputy President S Forgie), Q96/105, 24 September 1996. In the opinion of the Tribunal each of those decisions is directly to the point of this matter and each is consistent, as recognised by Deputy President Forgie in Davina at paragraphs 49 and 50. This Tribunal can do no better than to adopt the reasons of Deputy President Forgie which have an absolute bearing and relevance to the matter here before the Tribunal for review. It will become apparent why the previously mentioned decisions or determinations have been qualified as purported since Deputy President Forgie relevantly states with clarity why such decisions or determinations are without real and effective legislative support. However, be that as it may, it is not a matter for this Tribunal's determination, which is concerned only with the question of jurisdiction in relation to what it understands as to what the applicant is seeking by way or review.
The relevant passages from Davina commence at paragraph 33 through to paragraph 50 (with one omitted on the grounds of irrelevance) and are relied upon by this Tribunal. For the sake of making its decision complete, some those legislative provisions are recited in context.
By way of introduction, the case of Davina concerned two broad issues for consideration, the relevant one being the broad issue related to whether the Tribunal may review the respondent's (that is, the Authority's) decision taken in relation to Mr Davina. Upon review on 1 September 1995, the respondent, that is, the DFRDB Authority ("the Authority"), determined that a decision made by a delegate of the Defence Force Retirement Benefits Board ("the Board") on 10 August 1972 was correct. The relevant issue in Davina involved two questions. The first was whether it was not appropriate to recommend that an act of grace payment be made to the applicant, Mr Davina (clearly not relevant to these proceedings). The supplementary question, which is directly relevant to this case, was whether the Tribunal had the power to review the decision in any event.
We take up the decision of Deputy President Forgie in Davina from paragraph 33, editing only to exclude irrelevancies, include additional explanation in context, or reflect the now relevant legislation.
33. … I [now consider] whether this tribunal has power to review its decision. The tribunal's power is found in section 99 of the Defence Forces Retirement and Death Benefits Act 1973 ("DFRDB Act.") That section came into operation on 1 July, 1976 (Defence Force Retirement and Death Benefits Amendment Act 1970, sub-section 2(4) and section 13). Sub-section 99(6) provides that
"Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Authority, being decisions that have been confirmed or varied under subsection (4)."
34. What are the decisions that may be confirmed or varied by the Authority under sub-section 99(4)? The starting point is sub-section 99(2) which provides that
"A person who is affected by a decision of the Authority and is dissatisfied with the decision may, by notice in writing given to the Authority, within a period of 30 days after the date on which the decision first comes to the notice of the person, or within such further period as the Authority allows, request the Authority to reconsider the decision."
35. The word "decision" has the same meaning as it does in the Administrative Appeals Tribunal Act 1975 ("AAT Act.") A "decision of the Authority" is defined to mean
"... a decision of the Authority, or a delegate of the Authority, under this Act, under the Defence Forces Retirement Benefits Act 1948 or that Act as amended and in force from time to time, or under any other Act that relates to retirement benefits for members of the Defence Force and modifies or affects the provisions of the Defence Forces Retirement Benefits Act 1948 or that Act as amended and in force from time to time."
36. The "Authority" means the "... the Defence Force Retirement and Death Benefits Authority established by section 8 [of the DFRDB Act] (sub-section 3(1)). Section 8 provides that the Authority will have the general administration of the DFRDB Act and for its membership. There is no room in the definition to read into it a statement that the Authority is simply the Board under another name. This conclusion is reinforced by the fact that the Board and the Authority co-existed until the Board's abolition on 22 November, 1984 but with different functions (see paragraph 39 below and Defence Legislation Amendment Act 1984, sections 2 and 91).
37. Clearly included among the decisions which the Authority may confirm or vary are those made by the Authority under the DFRB Act. No provisions is made for the Authority to confirm or vary decisions of the Board. That is not an end of the matter for the Authority may make decisions itself under the DFRB Act. What are those decisions? The answer to that question lies in part in an examination of the changes introduced earlier when the DFRDB Act was passed and in part in changes after the introduction of section 99. I will outline some of those changes.
38. After the enactment of the DFRDB Act, eligible members of the Defence Force were required to make fortnightly contributions in accordance with its terms. Complementary amendments were made to the DFRB Act by the Defence Forces Retirement Benefits Act 1973 ("the 1973 transitional Act"). This meant that those who had contributed to the Defence Forces Retirement Benefits Fund ("the DFRB Fund") established under the DFRB Act now contributed under the DFRDB Act and, from 1 October, 1972, ceased to contribute to that fund (DFRB Act, section 23). The moneys from the DFRB Fund were transferred to the Commonwealth (DFRB Act, section 21A). These changes were recorded in the Board's final Annual Report for the years 1972-73.
39. Despite the DFRDB Act's coming into operation on 1 October, 1972 and the DFRB's Fund ceasing to exist, the DFRB Act continued in operation. As I have said, it was amended by the 1973 transitional Act. That legislation amended certain provisions of the DFRB Act with effect either from 1 October, 1972 or from 19 June, 1973 (1973 transitional Act, section 2). The precise amendments are of no consequence in this case but it should be noted that the 1973 transitional Act inserted into the DFRB Act sub-section 5(6). That sub-section provided that the Board would cease to exist on the date fixed by the Minister and published in a notice in the Commonwealth Government Gazette (1973 transitional Act, section 6). The Board continued to exist but its powers were limited to matters in respect of investments in the DFRB Fund. It no longer performed the functions it had previously performed in relation to ascertaining entitlements to pensions and benefits. Those functions were now carried out by the Authority established under the DFRDB Act. [emphasis added]
40.Of particular importance in this case, were sections 51, 52 and 53 of the DFRB Act. Immediately before 1 October, 1972, section 51 of the DFRB Act had applied to a member of the DFRB Fund retired on the grounds of invalidity or mental or physical incapacity before his or her retiring age. It provided for the Board to determine the percentage of the contributor's total incapacity in relation to civil employment and to classify him or her in accordance with that percentage as either Class A, Class B or Class C.
The relevant parts of s51 of the DFRB Act 1948 are inserted here for reference purposes.
51(1) Subject to sub-section (3) of this section, where –
(a) a member who is a contributor has been retired before attaining the retiring age for the rank held by him;
(b) (d) [not relevant]
on the ground of invalidity or physical or mental incapacity to perform his duties (not, in the opinion of the Board, due to wilful action on his part for the purpose of obtaining pension or other benefit), he is entitled to benefit in accordance with the next three succeeding suctions, but, subject to section sixty of this Act, is not otherwise entitled to benefit under this Act.
(2)Where a person (not being a person to whom section fifty two A of this Act applies) is, or is about to become, entitled to benefit by virtue of the last preceding sub-section, the Board shall determine the percentage of total incapacity of the person in relation to civil employment and shall classify the person according to the percentage of incapacity as follows:-
Percentage of Incapacity Class
Sixty or over A
Thirty or over but less than sixty B
Less than thirty C
[Remaining sub –sections inapplicable]
The decision in Davina continues:
41. A contributor's pension or other entitlements were then [that is, prior to 1 October 1972] calculated according to his or her classification and the provisions of section 52. A person classified as either Class A or Class B was entitled to a pension. A person who was classified as Class C and who had completed 20 years' service for a pension was entitled to the payment of a pension (paragraphs 52(3)(a) and (b)). A person who was classified as Class C but who had not completed that length of service was entitled to a refund of his or her contributions and to a gratuity which was … [calculated at a rate (of $100) for each year of service for a pension completed], (paragraph 52 (3)(b).
42. [Not applicable]
43. There was a clear distinction drawn between a pension and a benefit payable under section 52. Section 53 provided for the reclassification of the percentage of incapacity of a person it described as a "pensioner". It provided that:
"The Board may, from time to time, if it is satisfied that the percentage of incapacity of a pensioner classified under section fifty-one of this Act has altered, or, because of the nature of his employment, should be varied, reclassify him in accordance with the altered percentage of incapacity." (sub-section 53(1))
44. In view of the clear distinction between a pension and a benefit in section 52, it seems apparent that the word "pensioner" cannot be given a meaning to include the recipient of an amount clearly described as a benefit and distinguished from a pension. The clear implication of this conclusion is that a person who has not completed 20 years' service for a pension and has been classified as a Class C is not a "pensioner" and is not entitled to be considered for reclassification. The conclusion that such a person is not a "pensioner" is reinforced by section 53(3). That provides for the payments to be made to a person who does not have 20 years' service for a pension and who is reclassified as a Class C. Provision is made for the payment of a [lump] sum of money but he or she is not thereafter entitled to any pension under section 52.
45. After the enactment of the DFRDB Act and the 1973 transitional Act, decisions under sections 51 and 53 of the DFRB Act were made by the Authority and not by the Board. The substantive scheme of the provisions remained but a new sub-section 53(1) which provided:
"The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a pensioner classified under section 51 of this Act is such that the classification of the pensioner should be altered, reclassify him accordingly as if he were being classified under section 51." (1973 transitional Act, section 27)
46. The word "pensioner" was again nominated by the section as the person whose incapacity could be re-assessed. There is nothing in the amendments which suggests that the Authority could re-assess a person who was not in receipt of a pension and so in Mr Davina's position, [and by inference, Mr Dunn, the present applicant].
47. That a pensioner does not include a person initially classified as Class C is further underlined by sub-section 53(4) of the DFRB Act. That provision was inserted in 1979 by the Defence Force (Retirement and Death Benefits Amendments) Act (No. 2) 1979 (section 4) and reads:
"In this section, 'pensioner' includes a person who is classified as Class C by reason of his having been reclassified (whether before or after the commencement of this sub-section) under sub-section (1) of this section, whether or not the person is entitled to a pension"
It includes as a pensioner a person who would not otherwise be a pensioner by virtue of re-classification but makes no reference to a person who may not be regarded as a pensioner by virtue of his or her original classification as Class C and limited years of service.
48. The Authority, therefore, did not have jurisdiction to re-classify a person in Mr Davina's situation [and by inference, in Mr Dunn's situation]. Had it purported to do so, this tribunal would have the jurisdiction to review the decision in light of the principles stated by the majority of the Full Court of the Federal Court in Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1. The outcome of such a review would, however, have to be that the Authority did not have the power to make a decision to re-classify in the first place. Consequently, this tribunal would not have the power to re-consider Mr Davina's [and by inference, Mr Dunn's] situation and to re-classify him.
49. I note that my conclusion is consistent with that of Deputy President Thompson in Taylor and Defence Force Retirement and Death Benefits Authority (unreported, 17 April, 1986, Decision No. 2631). As did Deputy President Thompson, I note that upon the repeal of section 83 of the DFRB Act, a person in Mr Davina's [and by inference, Mr Dunn's] position is left without any avenue of appeal or review. Section 83 had provided that:
"(1) Any dispute under this Act shall be determined in the first place by the Board:
Provided that any person aggrieved by a decision of the Board may appeal to the High Court constituted by a single Justice of that Court.
(2)The decision of the court shall be final and conclusive and without appeal."
50.It was repealed by the 1973 Transitional Act (section 55). When its repeal came into effect on 19 June, 1973 (section 2), a person in Mr Davina's [and by inference, Mr Dunn's] position was left without any redress at all. This is most unfortunate but, consistently with Deputy President Thompson, I can find no way to assist Mr Davina [nor, by inference, can this Tribunal assist Mr Dunn]. It cannot be said that the repealed section 83 is in some way included in the current section 99. Section 99 is quite clear in its terms and those terms cannot, even on the most generous interpretation, be read as permitting an avenue of review of a Board decision. I also note that, before this tribunal was given the jurisdiction to review decisions under the DFRB Act, jurisdiction lay with Administrative Review Tribunals established by section 106 of the DFRDB Act. While those tribunals were given power to review the Authority's decisions under the DFRB Act, they had no power to review decisions of the Board (DFRDB Act as passed in 1973, sub-section 111(2)).
The decision
For the above reasons this Tribunal lacks jurisdiction to review the decision of the Board to assess the applicant's classification of Class C pursuant to s51 of the Defence Force Retirement Benefits Act 1948 made by the Board on 11 January 1973. For those reasons the Tribunal does not extend the time in which the applicant may apply to this Tribunal to review that decision.
In closing, the Tribunal merely notes that the applicant's plight has been significantly redressed, albeit not to his satisfaction, by the payment of pension at the Class A rate effectively since 6 September 1991 and an act of grace payment to compensate the applicant as if he was a Class B pensioner from 3 May 1969 to 22 October 1974, the date from which he has been administratively treated as a Class B pensioner (see paragraph 11 of these reasons).
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member.
Signed: ............(sgd V Wong)...................................
AssociateDate/s of Hearing 17 January 2002
Date of Decision 7 June 2002
Solicitor for the Applicant In person
Solicitor for the Respondent Ms Tess Munoz
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