Fraser v Chief of Airforce

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRASER v CHIEF OF AIRFORCE [2006] FMCA 499

ADMINISTRATIVE LAW – Defence.

Administrative Decisions (Judicial Review) Act 1977, s.5(1)
Defence Force Retirement and Death Benefits Act1973, ss.26, 37

Lynch v General Dental Council [2004] 1 All ER 1159
R v Secretary of State for the Environment; Ex parte Powis [1981] 1 WLR 584
Defence Force Retirement and Death Benefit Authority v Britt (1984) 4 FCR 306
Catton v Chief of Army [2003] FMCA 275

Applicant: RONALD McKINNON FRASER

Respondent: CHIEF OF AIRFORCE, DEPARTMENT OF DEFENCE

File Number: BRG80 of 2005

Judgment of: Jarrett FM

Hearing date: 28 November 2005

Date of Last Submission: 1 December 2005

Delivered at: Brisbane

Delivered on: 10 April 2006

REPRESENTATION

Counsel for the Applicant: Mr Redmond

Solicitors for the Applicant: Smith & Associates

Counsel for the Respondent: Ms Walker

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG80 of 2005

RONALD McKINNON FRASER

Applicant

And

CHIEF OF AIRFORCE

Respondent

REASONS FOR JUDGMENT

1. This is an application for an order of review pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act").

2. The applicant seeks relief in respect of a decision of the respondent made under s.37 of the Defence Force Retirement and Death Benefits Act1973 ("the DFRDB Act") on 24 January, 2005.  By the decision the respondent determined that "at the time of his discharge, grounds did not exist whereby ex-LAC Ronald McKinnon Fraser A228246 ENGFITT2 could have been discharged because of a physical or mental incapacity to perform his duties".

3. By his application filed on 22 February, 2005, the applicant seeks the following orders:

   1. That grounds existed at the time of the Applicant’s retirement that he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties and that he may for the purposes of the Defence Force Retirement and Death Benefits Act 1973 Section 37 be treated as if he had been retired on that ground.

   2. Any other Order this honourable Court deems meet.

4. By his Contentions of Law and Fact filed on 14 November, 2005, the applicant abandoned that relief and sought an order of review to set aside the relevant decision and to remit the matter to the respondent for further consideration and for determination according to law.

5. The grounds upon which he seeks relief are specified in the application as follows:

   Following are the bases on which the Orders are sought under the Administrative Decisions (Judicial Review) Act 1977, Section 5:

   1. that a breach of the rules of natural justice occurred in connection with the making of the decision;

   2. that procedures that were required by law to be observed in connection with the making of the decision were not observed;

   3. that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which…