JTBT and Commonwealth Superannuation Corporation (Practice and procedure) - [2025] ARTA 1042

JTBT and Commonwealth Superannuation Corporation (Practice and procedure) [2025] ARTA 1042 (11 July 2025)
Applicant:JTBT
Respondent: Commonwealth Superannuation Corporation
Tribunal Number: 2024/2350

Tribunal:General Member C Willis
Place:Melbourne
Date:11 July 2025

Decision:The Tribunal dismisses the application under section 97 on the basis that the Tribunal is satisfied that the decision identified by the Applicant for the purposes of this application is not reviewable by the Tribunal.

.....................[SGD]......................
General Member Catherine Willis
Catchwords
PRACTICE AND PROCEDURE – Defence Force Retirement and Death Benefits Scheme – entitlement of surviving spouse of deceased member of scheme to pension – classification and reclassification of deceased member of scheme – Applicant seeking backdating of classification of deceased member - whether correspondence evidences a decision of the Respondent or confirmation or variation of a decision of the Respondent – whether there is a reviewable decision for review by the Tribunal – application dismissed
Legislation
Administrative Review Tribunal Act 2024 (Cth), ss 12, 17
Defence Force Retirement and Death Benefits Act 1973 (Cth), ss 30, 34(1), 34(1AA), 34(3), 47(1), 99(2), 99(4A),107
Cases
Loschiavo and Department of Housing and Construction [1980] AATA 35
Statement of Reasons
INTRODUCTION

JTBT (the Applicant) is the widow of Mr A who served with the Australian Defence Force (ADF) until his discharge on invalidity grounds in late 1998. Mr A passed away in 2017.
Mr A had been a member of the Defence Force Retirement and Death Benefits Scheme (the ‘Scheme’) which is administered by the Commonwealth Superannuation Corporation (the ‘Respondent’) in accordance with the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the ‘DFRDB Act’). Upon his death the Applicant became entitled to a ‘spouse reversionary benefit’ (the ‘Benefit’) under the DFRDB Act.
The amount of the Benefit payable to the Applicant is based on various factors, including the classification of Mr A’s level of incapacity under the DFRDB Act and the date at which the classification is determined. The current application has arisen in the context of the Applicant seeking to have a previous reclassification by the Respondent of Mr A (to a higher level of incapacity) which was to take effect as at the date of his death backdated to an earlier date.
The process of assessing Mr A’s classification under the DFRDB Act began in 1998 upon his discharge from the ADF and continued following his death. Over this lengthy period there has been a significant volume of correspondence between the Respondent and Mr A, and subsequently between the Respondent and the Applicant, about the appropriate classification and the date from which classification should take effect.
The issue for the Tribunal in this application is whether there is a ‘reviewable decision’ of the Respondent for the Tribunal to consider. The parties are in disagreement as to which statements, findings or outcomes communicated by the Respondent might constitute a decision that has been confirmed or varied under the DFRDB Act, which would in turn give rise to a ‘reviewable decision’ for the Tribunal.
This interlocutory decision only addresses the question of whether there is a ‘reviewable decision’ for the purposes of the Administrative Review Tribunal Act 2024 (Cth) (the ‘ART Act’) and if so, identifying what that decision is. It does not consider the merits of the Applicant’s claims to an increased or backdated Benefit or make findings about the manner in which the Respondent has undertaken its classification, reclassification and internal review processes, except to the extent necessary to address the issue of identifying a ‘reviewable decision.’
RELEVANT LAW
Review by the Tribunal of decisions made for the purposes of the DFRDB Act
A person whose interests are affected by a reviewable decision may apply to the Tribunal for a review of the decision: section 17 of the ART Act.
A decision is a ‘reviewable decision’ if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision: subsection 12(1) of the ART Act.
Subsection 12(2) provides additionally that:
… if an Act or a legislative instrument provides for an application to be made to the Tribunal for a review of a decision of a person under a power, a decision under the power is a reviewable decision, whether or not it is made by the person.
The Note to subsection 12(2) confirms that:
Under subsection (2), the decision is a reviewable decision even if made by a person who is not authorised to make the decision.
Section 97 of the ART Act provides that the Tribunal must dismiss an application if the application is made for review of a decision and the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
The DFRDB Act is the only legislation identified by the parties as relevant to decisions for consideration in this application. Part XI of the DFRDB Act is titled ‘Review of decisions by CSC’ and Division 3 of that Part is headed ‘Review of decisions by the Administrative Review Tribunal.’
Section 3 of the DFRDB Act defines a ‘decision of CSC’ to mean ‘a decision of CSC or a delegate of CSC’ under the DFRDB Act or other legislation as specified.
Section 107 provides that applications may be made to the Tribunal for review of a decision of the Respondent that has been confirmed or varied:
(a)By the Respondent under paragraph 99(4A)(a) or (b); and
(b)By the Defence Force Case Assessment Panel (the ‘Panel’) under paragraph 102(1)(a); and
(c)By the Respondent under paragraph 106(1)(c) or (d).[1]
[1] Subsection 102(1) covers matters relating to the functions of the Panel in relation to decisions referred to the Panel by CSC. Section 106 covers the making of a decision by CSC after a decision has been referred to the Panel and the Panel has made recommendations.
Subsection 99(2) of the DFRDB Act provides that:
‘A person who is affected by a decision of CSC and is dissatisfied with the decision may, by notice in writing given to CSC, 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 CSC allows, request CSC to reconsider the decision.’
After receiving a request for reconsideration of a decision, under subsection 99(4) the Respondent must do one of the following:
(a)Refer the decision to the Panel[2] for the Panel to make recommendations to the Respondent in relation to the decision; or
(b)Refer the decision to the Panel for the Panel to reconsider the decision; or
(c)Reconsider the decision itself.
[2] The functions of, and other matters relating to the Panel are set out in Division 2, Part XI of the DFRDB Act.
If the Respondent reconsiders a decision, it may confirm the decision, vary the decision or set aside the decision and substitute a new decision: subsection 99(4A). Only a decision by the Respondent to confirm or vary the original decision may be the subject of an application to the Tribunal: see paragraph (a) of section 107 which refers to paragraphs (a) and (b) of subsection 99(4A).
The Respondent must inform the person, in writing, of the result of the reconsideration of the decision: subsection 99(5).
Classification under the DFRDB
The process for classification and reclassification of members for the purposes of their entitlements under the Scheme provides the background to the various potential decision points raised by the parties.
Section 39 of the DFRDB Act provides that where a ‘recipient member’ of the scheme dies, their surviving spouse may be entitled to a pension calculated by reference to the rate at which retirement pay or invalidity pay was payable to the deceased member immediately before the member’s death, and subject to sections 47 and 75.
Section 30 sets out three ‘classes’ (Class A, Class B and Class C) which reflect a percentage of incapacity in relation to civil employment to be applied in the calculation of an invalidity benefit.
Subsection 30(1B) provides that:
‘Where a deceased member of the scheme is classified under this section, the classification is taken to have had effect at all times on and after his or her retirement.’
Section 34 provides that the Respondent may reclassify a recipient member to a different classification in section 30 if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such reclassification is appropriate: see subsection 34(1).
Subsection 34(1AA) applies if ‘at a time when [the Respondent] is reviewing, but has not yet determined, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a recipient member, the recipient member dies…’. In such circumstances, the Respondent must determine what was the member’s percentage of incapacity immediately before their death and if satisfied that the member would have been given a higher classification had they not died, reclassify the member accordingly.
Subsection 34(2A) provides that where a deceased member has been reclassified under section 34, the Respondent must specify the day from which reclassification has effect and the member is taken to have been classified under section 30 on and after that day.
Under subsection 34(3) where the Respondent reclassifies a recipient member under section 34, the date specified as the date from which the reclassification has effect shall not be a date earlier than the date on which the Respondent reclassifies the member unless:
(a)The member is reclassified as Class A, or from Class C to Class B; and
(b)The Respondent is satisfied that special circumstances exist that justify an earlier date so being specified.
Subsection 47(1) provides for a deceased member to be deemed to have been in receipt of invalidity pay immediately before their death as if they had been classified as Class A at that time. The conditions for the operation of that provision include the Respondent being satisfied of a nexus between the death of the member and a physical or mental impairment of the member that caused their invalidity or incapacity that led to their retirement: paragraph 47(1)(a). Immediately before their death the member must also have been in receipt of invalidity pay and classified as Class B or Class C, or entitled to invalidity benefit and classified as Class C because of a previous reclassification but not entitled to invalidity pay: paragraph 47(1)(b).
BACKGROUND
It is necessary to set out in some detail events and extracts of correspondence, on the basis that the parties’ contentions as to whether the Tribunal has any jurisdiction are depend on very particular interpretations and characterisations matters that occurred over an extended period of time.
Circumstances of Mr A
Mr A enlisted in the Australian Defence Force (ADF) in 1987. Mr A entered into a de facto relationship with the Applicant in 1990 and they were married in 1997. They remained married until his death.
Mr A developed certain physical and mental health conditions, including conditions arising after surgery in 1998.
In December 1998:
(c)The Respondent[3] classified Mr A as ‘Class C’ in anticipation of his invalidity retirement (the ‘1998 Class C Classification’).[4]
(d)Mr A was discharged from the ADF on the ground of invalidity.
[3] At that time the relevant decision-making entity was the Defence Force Retirement and Death Benefits Authority. Since that time the Commonwealth Superannuation Commission has assumed responsibility for the Scheme. For the purposes of this timeline the term ‘Respondent’ is used to refer to the agency or entity administering the Scheme under the DFRDB Act.
[4] T4, T5. This classification was stated to be under section 30 of the DFRDB Act.
On 1 January 1999 Mr A was formally retired from the ADF. He commenced employment in the civilian sector during 1999 which he ceased in January 2000.
In February 2000 Mr A sought review of the 1998 Class C Classification, together with an extension of time to seek this internal review. In August 2000 the Respondent made a reassessment decision under section 99 of the DFRDB Act which varied the 1998 Class C Classification to classify Mr A as ‘Class B’ from 1 January 1999 (the ‘2000 Class B Reclassification’).[5]
[5] T6 appears to set out this decision, although the document is undated. Papers at T71 also provide background to this reclassification and the resulting revised payments.
In July 2001 the Respondent requested information from Mr A on the basis that the relevant authority under the DFRDB was ‘required to determine whether a recipient member's incapacity in relation to civil employment has changed to the extent that a variation in the classification may be warranted. Invalidity pensioners are requested to provide employment information from time to time to determine whether a review should be undertaken.’[6] Mr A provided the requested information.
[6] T7.
On 30 July 2001 the Respondent wrote to Mr A advising that his case had been examined but a review of his invalidity classification was not warranted at that stage. Mr A was advised by the Respondent that his case would be periodically reviewed by the Respondent to determine whether his entitlement should be varied, and if he felt that his condition had deteriorated to the extent that his classification should be altered he was also able to request a review (the ‘2001 Notification Letter’).[7] The 2001 Notification Letter appears to have been referred to by the Respondent subsequently as recording a decision made under section 34 at that time.[8]
[7] T73.
[8] T43, as discussed at paragraph 45 below.
In July 2002 the Respondent deferred a scheduled employment review until February 2003 on the basis of the Respondent experiencing a backlog of reviews and staffing issues.[9]
[9] T74.
In February 2003 the Respondent again wrote to Mr A requesting information for the purpose of determining whether his incapacity in relation to civil employment has changed to the extent that a variation in the classification might be warranted, and noting that invalidity pensioners were requested to provide information ‘to determine whether a review should be undertaken.’[10]
[10] T9.
In April 2003 the Respondent undertook an ‘employment review’ of Mr A’s incapacity which included the direction ‘defer 5 years.’[11] The Respondent sent Mr A a letter (the ‘2003 Notification Letter’)[12] which stated that:
Your case has been examined and a review of your invalidity classification is not warranted at this stage. Your benefit will therefore continue at its current rate and increase from time to time in accordance with the provisions of the legislation.
The Authority will periodically review your case to determine whether your entitlement should be varied. However, if at any time you consider that the impairment that caused your retirement from the Defence Force has deteriorated to the extent that your classification should be altered, you may request a review.
[11] T11.
[12] T12.
In late 2017 Mr A was admitted to hospital and he passed away in early 2018.[13]
[13] T13.
Determination of the Applicant’s Benefit
Following Mr A’s passing the Respondent wrote to the Applicant about her potential eligibility for a ‘spouse reversionary benefit’ under the DFRDB Act[14] and in February 2018 the Applicant made an application for this Benefit which was approved.[15]
[14] T15.
[15] T93.
In March 2018 there appears to have been a telephone conversation between an employee of the Respondent and the Applicant’s daughter. The Respondent sought a copy of Mr A’s death certificate and any Coroner’s Report to assist the Respondent in determining whether the appropriate rate of benefit was being paid to the Applicant. In an email to the Applicant’s daughter, the Respondent noted that Mr A’s classification had not been altered since his reconsideration decision (being the 2000 Class B Reclassification) was finalised.[16]
[16] T27.
The circumstances of Mr A’s death gave rise to a requirement for a report from the Coroner. In a 2019 report, the Coroner noted Mr A’s military service and his medical discharge from the ADF, and found that the death of Mr A was in part related to his engagement over some years with the Department of Veteran Affairs (‘DVA’) in relation to access to medical care.[17]
[17] T37.
After the Applicant provided Mr A’s death certificate and the Coroner’s Report in September 2020, the Respondent then undertook a reassessment under section 47 of the DFRDB Act for the purposes of determining the correct amount of the Benefit.
On 16 December 2020 a delegate of the Respondent made a decision under section 47 (‘December 2020 Decision’)[18] indicating their findings that:
(a)Mr A was a member of the scheme who may be treated under section 47;
(b)Mr A’s chronic pain was causally connected to his retiring impairments;
(c)Mr A’s death was due to his chronic pain, that was causally connected with the impairment that led to his invalidity impairment; and
(d)Mr A was taken to have been, immediately before his death, an invalidity pensioner classified as Class A and in receipt of that pension at that rate.
[18] T47.
In making its December 2020 Decision, the Respondent stated that it relied upon Mr A’s records from the DVA (which included earlier medical reports), the Coroner’s Report and the ‘section 34 determination dated 30 July 2001.’[19]
[19] T47.
On 16 December 2020 the Respondent wrote to the Applicant providing a copy of this decision and advising that the Applicant’s pension would be recalculated on the basis of Mr A having been a Class A pensioner rather than Class B at the time of his death. The Respondent also advised the Applicant of her ability to seek a reconsideration of the decision under subsection 99(2) of the DFRDB Act if she was dissatisfied with this outcome[20].
[20] T48.
On 18 January 2021 the Applicant’s daughter sent an email to the Respondent[21] stating that:
I would like my father’s file to be further reviewed to have his reclassification to Class A dated back to either 1998, when he was first, incorrectly, classified as a Class C invalidity member or, alternatively, to 30 July 2001, when he was, incorrectly, reclassified as a Class B invalidity member.
[21] T51.
On 19 February 2021 the manager of the Respondent’s Reconsiderations team replied to the Applicant’s daughter as follows[22]:
I understand that you have expressed a desire to seek reconsideration of previous decisions that were made in relation to your fathers invalidity classification. I can confirm that unfortunately this is not going to be possible. The reconsideration appeal rights are personal to the particular member affected by the decision and do not continue following their death so this avenue won’t be an option for you in relation to this matter.
[22] T52.
On 10 November 2022 the Applicant’s daughter wrote to the Respondent[23]:
I would again like to request that my father’s file to be further reviewed to have his reclassification to Class A dated back to either 1998, when he was first, incorrectly, classified as a Class C invalidity member or, alternatively, to 30 July 2001, when he was, incorrectly, reclassified as a Class B invalidity member.
If this will not occur, please provide confirmation of this and the basis upon which the right of review does not transfer following death.
[23] T55.
The Respondent sent an email to the Applicant’s daughter on 16 November 2022 explaining their reasoning.[24] Citing a decision of the former Administrative Appeals Tribunal (AAT) in Loschiavo and Department of Housing and Construction[25] and having regard to the plain English meaning, the Respondent’s position was that the phrase ‘person affected’ as used in subsection 99(2) referred to a natural living person and not a representative of a deceased person. The reconsideration rights were applicable to the primary member and did not to extend to other parties following the member’s death. The Applicant was referred to the Respondent’s Customer Care team or the Australian Financial Complaints Authority if she was dissatisfied with this information.
[24] T56.
[25] Loschiavo and Department of Housing and Construction [1980] AATA 35.

In response to a request from the Applicant’s daughter for a ‘merit review rights summary’ the Respondent (via its ‘Reconsiderations’ team) replied by email on 18 November 2022 as follows[26]:
In regards to your further queries, the legislation referenced is Section 99 of the DFRDB Act - Defence Force Retirement and Death Benefits Act 1973 ( please note that the Merit review appeal rights for DFRDB matters is the AAT, rather than AFCA as I had listed below in error. For further information please go to the AAT’s website – or you can contact them by telephone on 1800 228 333 or email at [email protected]
With the above said, normally the AAT will require that you have exhausted all internal appeals/complaints avenues before they will address your application. As a result, I would suggest that you first contact our Customer Care team at [email protected] to obtain a formal response to your query if you are not satisfied with the information provided previously. This could then be submitted to the AAT as part of your application, in the event that you choose to pursue it further.
[26] T59.
The Applicant’s daughter asked that this email chain be forwarded to the relevant internal team of the Respondent for review. The Respondent told her that she would need to contact their Customer Care team or the Tribunal directly.[27]
[27] T60.
On 21 November 2022 the Applicant’s daughter wrote to the Customer Care and Reconsideration teams of the Respondent[28]:
(a)Noting that Mr A’s case had been reassessed, it had been determined that his death was due to his retiring impairments and the pension was revised from Class B to Class A;
(b)Requesting that Mr A’s file be further reviewed to have his reclassification to Class A backdated to either 1998 (when the Applicant believed he was wrongly classified as Class C) or to 30 July 2001 (when the Applicant believed he was wrongly classified as Class B)[29]; and
(c)Asking that if this review could not be undertaken, that the Respondent should provide details of that decision, undertake the necessary internal review and provide that information to the Applicant’s daughter along with the merit review rights for seeking review of any adverse decision in the Tribunal.
[28] T61.
[29] As Mr A was reclassified to Class B in August 2000, it is not clear whether the 30 July 2001 date was stated in error or whether the Applicant is identifying the 2001 Notification Letter as a decision under section 34 to refuse reclassification.
On 25 November 2022 the Respondent wrote to the Applicant (via her daughter) as follows (the ‘November 2022 Letter’)[30]:
[30] T3.
‘Thank you for taking the time to contact us regarding a reconsideration of your late father’s invalidity classification.
We have looked into your complaint and we appreciate your patience while we investigated.
We reconfirm our decision to decline your application to have the invalidity classification applicable to the late [Mr A] reassessed, as only the member is eligible to submit such a request.
The details
…
Following your father’s passing on [date], a re-assessment of the reversionary pension paid to your mother [Applicant], was requested in order to determine whether [Mr A’s] death could be linked to the reasons for which he was medically separated from Defence. It was found, upon review of the relevant facts by a Delegate, that there was a link between these two events. Consequently, an increase in pension, and back-pay, was granted to [Applicant]. The delegate determined that [Mr A] was, immediately before his death, an invalidity pensioner classified as Class A.
On 18 January 2021 you requested CSC reclassify the late [Mr A’s] invalidity pension to either Class A from the date of separation, or as Class A effective from 30 July 2001. You were advised by reply email on the same date that reconsideration rights are personal to the particular member and do not continue following their death.
Following a further reconsideration request from yourself on 10 November 2022, you were advised on 16 November 2022 (with additional clarification provided on 18 November 2022) that as per Section 99(2) of the Defence Force Retirement and Death Benefits Act 1973, reconsideration of the matter you are requesting could only be made by the ‘person affected’, namely the late [Mr A], not by representatives of the deceased.
…
A discussion of the Loschiavo case followed before the letter continued:
Consequently, the reconsideration appeal rights are applicable to the primary member affected by the decision, in this case the late [Mr A] and do not extend to other parties following their death. Therefore, neither yourself nor your mother are eligible to request a reconsideration, as neither of you are the primary member affected by the decision.
Resolution
Based on our interpretation of Section 99(2) of the Defence Force Retirement and Death Benefits Act 1973, and the decision of the AAT in Loschiavo and Department of Housing and Construction [1980], we reconfirm our decision not to reassess the late [Mr A’s] invalidity class to an earlier date.
The next steps
…
If you are not satisfied with our response you can lodge a Merit Review Appeal of our decision with the Administrative Appeals Tribunal. For further information about this process please contact the Administrative Appeals Tribunal directly...
The Applicant emailed the Respondent in response on 7 January 2024 querying the Respondent’s interpretation of the DFRDB Act and the application of the Loschiavo decision to her circumstances. She asked that the Respondent refer her case to the Panel for review and requested information about that review process.[31]
[31] T68.
The Respondent replied by email on 11 January 2024[32]:
Please accept this as confirmation that I have received your email which I have forwarded to other relevant teams and am awaiting their response. Please remember that you are able to lodge an appeal via the Administrative Appeals Tribunal (using the details provided in my complaint response) too.
[32] T68.
On 18 January 2024, the Respondent provided a further email response to the Applicant[33]:
Thank you for your patience. I have heard back from our Reconsideration Team and they advise there is no additional/different information they can provide you. If you have any new questions, please feel free to email the team directly [email address] and they will respond in due course. Otherwise, and as noted in my previous email and complaint response, you are able to appeal our decision to the Administrative Appeals Tribunal.’
[33] T68.
Procedural history before the Tribunal
The Applicant lodged an application for review with the Tribunal on 24 March 2024 attaching a copy of the Respondent’s November 2022 Letter and describing her reason for the application to the Tribunal as follows:
The decision is incorrect and should be reviewed. Three issues: does the Applicant have review rights under the Act (yes), is the Applicant an affected person to seek that the pension be backdated under the Act (yes) and can the pension be backdated to an earlier date under the Act (yes). The pension should be backdated to an earlier date – either to Class A from the date of separation on 30 December 1998 or as Class A effective from 30 July 2001.
The Tribunal wrote to the Applicant on 19 April 2024 noting that the decision she had provided with her application appeared to fall outside the time limit for seeking Tribunal review set down by the DFRDB Act and providing information about how she could apply for an extension of time to make her Tribunal application.
On 3 May 2024 the Applicant made an application for an extension of time (the ‘EOT Request’)[34] to apply for review by the Tribunal. In her application form, the Applicant said:
‘The delay is either a period from 15 February 2024 to 24 March 2024 when the Respondent re-notified the representative to seek review in the Tribunal or a longer period from about December 2022 to 24 March 2024 when the original letter was received.
At all times, the [Applicant’s] representative has attempted to engage with the Respondent to resolve the classification date. That exchange has gone on since the death of Mr [A] (January 2018). A part of that was resolved, resulting in reclassification from the date of death. A part of that is unresolved, seeking reclassification from an earlier period of time.
The reasons for the delay include that attempts have been made to resolve this with the Respondent, including under the panel provisions of the DFRDB, but they have been unsuccessful. There was no timeframe specified to seek review and correspondence from the Respondent encouraged a review application out of time, should the date from the letter be taken to be the relevant date to calculate the deadline.
[34] Under subsection 29(7) of the former Administrative Appeals Tribunal Act 1975 (Cth) which was in force at that time and is the predecessor legislation to the ART Act.
Unfortunately, the Tribunal appears to have delayed processing the Applicant’s EOT Request and it was not until 5 August 2024 that the Tribunal wrote to the Respondent notifying them of the EOT Request and the substantive application for review. The Respondent’s representative wrote to the Tribunal on 16 August 2024 seeking until 26 August 2024 to take instructions and respond to the EOT Request. After not receiving a response from the Tribunal, the Respondent wrote again to the Tribunal seeking until 9 September 2024 to respond to the EOT Request.
On 9 September 2024, the Respondent wrote to the Tribunal and the Applicant to confirm that it did not oppose the EOT Request but believed there was a jurisdictional issue relating to the underlying Tribunal review application which they were discussing with the Applicant. They advised that the parties were also seeking to agree proposed consent orders to attempt to resolve the matters.
On 18 October 2024 the Respondent’s representative wrote to the Tribunal requesting that a directions hearing be scheduled for late October or November 2024. Again, there appears to have been a delay on the part of the Tribunal and the first directions hearing was not scheduled until 10 February 2025. At that directions hearing the following issues were raised:
(a)The Respondent had initially thought that the decision the subject of the Tribunal review application was the December 2020 Decision, and agreed to the EOT Request on that basis. However, subsequent correspondence from the Applicant to the Tribunal suggested that review of a different matter was being sought and this had given rise to the Respondent’s jurisdictional question.
(b)The Respondent indicated its position that the November 2022 Letter attached to the Tribunal review application was a refusal to consider a request to reclassify a pension and not a ‘decision.’ As such, it could not be reviewed by the Tribunal.
(c)The Respondent was therefore seeking clarification from the Applicant as to which decision or matter was the subject of the Tribunal review application.
(d)The Applicant’s representative viewed the November 2022 Letter as a decision to confirm a previous decision not to review, and therefore the Tribunal had jurisdiction under section 99(4A) of the DFRDB Act to review what was a decision to confirm a previous decision. The Applicant referred to further email exchanges with the Respondent after November 2022, which they believed were relevant to the EOT Request. The Applicant’s position was that the ‘reconfirmation decision’ set out in the November 2022 Letter was tied to the ‘classification decision’ in the December 2020 Decision.
The Applicant’s representative also told the Tribunal that she had obtained a volume of documents following Freedom of Information (‘FOI’) requests[35], including documents which suggested that there was an outstanding or ongoing review under section 34 of the DFRDB Act at the time of Mr A’s death.
[35] In her submissions dated 25 February 2025 the Applicant outlined her FOI requests of February 2019, August 2024 and October 2024.
The Respondent’s representative suggested that EOT Request should be dealt with after clarification of which decision the Applicant was seeking review.
The Tribunal agreed that there was some apparent confusion about which decision (or decisions) were to be the subject of any review application to the Tribunal. The discussions at the directions hearing were not entirely aligned with the content of the Applicant’s original application of March 2024. Accordingly, the Tribunal directed that the Applicant provide to the Tribunal and the Respondent a written outline of the scope of her application, confirming (by reference to particular items of correspondence or otherwise) the decision or decisions which she believed the Tribunal should review. She was also directed to clarify which matters she believed the Respondent had not dealt with under section 34 of the DFRDB Act. Further directions were made for the parties to file submissions on the jurisdiction of the Tribunal.
The parties filed materials with the Tribunal in compliance with these directions, the content of which is described in further detail below. This included a bundle of documents uploaded by the Respondent containing correspondence between the parties (the ‘Document Bundle’).[36] This material had been drawn from documents provided by the Respondent by way of ‘administrative access’ following FOI requests of the Applicant.
[36] The Document Bundle comprised approximately 2300 pages of material dating from December 1998 to the time of the Applicant’s applications to the Tribunal in March and May 2024. The individual items within the Document Bundle have each been marked with ‘T’ references and in this decision the Tribunal has adopted the T references to identify particular material.
In its submissions, the Respondent also indicated that if the Tribunal were to find that the November 2022 Letter evidenced a reviewable decision, the Respondent would likely make an application for dismissal of the matter on the basis that the Applicant had no reasonable prospects of success. This was because any such decision would have been made under section 47 of the DFRDB Act and the Respondent’s position was that section 47 did not provide any statutory power to backdate a classification to a date prior to the time of Mr A’s death.
A further directions hearing was held on 8 April 2025. The parties confirmed that they had discussed the issues since the previous directions hearing but that there was still disagreement as to what matter was being put to the Tribunal as a reviewable decision and therefore the jurisdictional question remained.
The Respondent’s view was that the only ‘reviewable decision’ for the Tribunal was the December 2020 Decision and that the November 2022 Letter did not evidence a decision. The Respondent said that it had invited the Applicant to seek reconsideration by the Respondent of the December 2020 Decision and that it would allow the Applicant an extension of time to do so. The Applicant’s position was that she was not seeking review of the December 2020 Decision. She told the Tribunal that she had engaged with the Respondent[37] in relation to what she believed was a decision that the Applicant was required to make (and had yet to make) under section 34 of the DFRDB Act, although she acknowledged that the Tribunal had no role in reviewing a decision that was yet to be made.
[37] This appears to be the substance of the letter of 26 March 2025 subsequently referred to by the Respondent in its letter of 2 May 2025.
The outcome of this directions hearing was that the Tribunal felt that there was still insufficient clarity about the subject matter of any potential review, such that the Tribunal was not yet in a position to make an informed decision on the jurisdictional point. Having regard to the volume of material in the Document Bundle, the Tribunal made further directions for the parties to identify the particular documents they believed were relevant to the question of whether there was a reviewable decision.
On 8 May 2025, the Respondent sent to the Tribunal a ‘joint list of documents’ (‘Joint List’)[38] which identified those items from the Document Bundle which the Applicant and Respondent believe are relevant to the question of the jurisdiction of the Tribunal. Some documents have been identified by both parties as relevant. The Respondent has referred to certain documents that the Applicant has not identified. A larger number of documents have been identified as relevant only by the Applicant. The Annexure to this decision sets out the documents to which the Tribunal was referred and to which it had regard.
[38] ‘Joint list of documents relevant to the question of whether there is a decision under the Defence Force Retirement and Death Benefits Act 1973 (Cth) which is a reviewable decision for the purposes of the Administrative Review Tribunal Act 2024 (Cth).’
ISSUES AND CONTENTIONS
From the exchange of submissions and the discussions at the directions hearings, the Tribunal understood the position of the parties to be as follows.
The Applicant:
(a)Acknowledged that the December 2020 Decision was a decision made by the Respondent under section 47 but was not seeking a review of that decision. There had been no review or reconsideration of that decision under section 99, and therefore the Tribunal has no jurisdiction under section 107 in relation to the December 2020 Decision;
(b)Nevertheless rejected the Respondent’s submissions that a review of the December 2020 Decision would be futile or have no reasonable prospects of success;
(c)Contended that the Respondent made a decision, or more precisely reconsidered and confirmed a previous decision, for the purpose of subparagraph 99(4A)(a). When the Applicant requested re-classification of Mr A to Class A from an earlier date, per the emails of 18 January 2021 and 10 November 2022, that was a request for reclassification under subsection 34(1). The Applicant believed that the Respondent should have been aware of its powers under section 34 when this request or these requests were made;
(d)Said that the Respondent declined to exercise its reclassification powers under section 34 per its email of 16 November 2022. The Applicant said that she sought internal review of that decision by the Respondent, and the November 2022 Letter evidences a decision by the Respondent to confirm its earlier decision. Further, the November 2022 Letter was the ‘notice in writing’ of the result of that reconsideration for the purposes of subsection 99(5) or the ‘review vehicle’ for the Tribunal’s consideration. On the basis that there has been a review of a decision of the Respondent that has been confirmed by the Respondent under paragraph 99(4A)(a), an application may be made to the Tribunal for review of the decision under paragraph 107(a);
(e)Observed that in its correspondence, the Respondent repeatedly referred to the Applicant having ‘appeal’ or review rights with the Tribunal, and proactively directed the Applicant to apply to the Tribunal;
(f)Reiterated that she is a person who is (or was) affected by the Respondent’s decision for the purposes of her entitlement to seek a review or reconsideration of that decision under subsection 99(2). The Applicant submitted that the Tribunal is not bound by the decision in Loschiavo, which in any event is distinguishable from her circumstances;
(g)Submitted that the Tribunal has the jurisdiction to make a fresh decision under subsection 34(1), with the correct or preferable decision being to reclassify Mr A to Class A from the date of his retirement on 1 January 1999 or another date following his retirement under subsection 34(3); and
(h)Also submitted that her EOT Request should be granted to facilitate this review.

The Respondent:
(a)Agrees that the December 2020 Decision was a decision made under section 47 of the DRFDB Act. The Respondent’s view was that the Applicant would have had a right to seek a review of the December 2020 decision had she done so within 30 days of that decision. The Respondent said that it would agree to an EOT for a review of the December 2020 Decision;
(b)Nevertheless, reiterated its position that the Applicant is not a person who was ‘affected by’ the December 2020 Decision;
(c)Submitted that it could not have exercised its discretion under subsection 34(1) to conduct a review of Mr A’s classification as that provision only empowered the Respondent to review a recipient member’s classification and Mr A ceased to be a recipient member upon his death;
(d)Said that the November 2022 Letter is not a record of a decision made upon a review of a classification decision for the purposes of section 99. It contended that the Applicant is not a person who was ‘affected by’ the December 2020 Decision (or any previous decision of the Respondent relating to Mr A’s classification) and the November 2022 Letter does not represent a confirmation of the December 2020 Decision (or any other previous decision). The November 2022 Letter may be characterised as correspondence notifying the Applicant that the Respondent would not be undertaking the review previously requested by the Applicant, that is, a ‘decision’ to decline to undertake a review of the relevant date of classification for Mr A;
(e)Submitted that the November 2022 Letter is therefore not a decision which falls within section 107 of the DFRDB Act and as such is not reviewable by the Tribunal. The Tribunal must therefore dismiss the application under section 97 of the ART Act;
(f)Observed that if the Respondent had agreed to undertake a review, then a decision made as a result of that review would have been subject to section 99 (but it had not done so); and
(g)Alternatively, if the Tribunal did believe that the November 2022 Letter disclosed a reviewable decision, although the Respondent would accept that the Tribunal had the jurisdiction to review, the Respondent said that any review of that decision would be futile because section 47 does not permit a reclassification decision to take effect from a date earlier than the date of the relevant member’s death.[39] Therefore, the Respondent would likely ask the Tribunal to dismiss the Applicant’s application under paragraph 101(1)(b) of the ART Act on the basis that the application had no reasonable prospects of success.
[39] The Respondent outlined to the Tribunal its contentions as to why it does not have any statutory power under section 47 to ‘backdate’ the Class A classification to a date earlier the date of Mr A’s death. It is not necessary to provide the detail of this analysis for the purposes of this jurisdictional proceeding.
The Respondent said that the November 2022 Letter and subsequent email correspondence was issued by an internal dispute resolution case staff of the Respondent. It was therefore suggested that the Applicant is not able to place significant reliance on the correspondence she received from the Respondent between February 2021 and February 2024, at least in relation to her options for review.
As a separate matter, the Applicant contends that at the time of Mr A’s death in 2018 there was an outstanding reclassification decision to be made under subsection 34(1AA).[40] In February 2003, the Respondent advised Mr A that it would undertake an employment review to determine whether a variation in his classification level was warranted. The outcome of the review in April 2003 contained a direction to ‘defer 5 years.’ No further review or assessment occurred in 2008 and had not occurred by the time of Mr A’s death in 2018. The subsequent decision of the Respondent under section 47 in the December 2020 Decision did not satisfy the requirement to make a decision under subsection 34(1AA). However, the Applicant acknowledges that given this arises from a decision not having been made, the Tribunal has no jurisdiction in relation to this issue. The Applicant has instead suggested that the Respondent should seek to resolve the dispute between the parties by reference to this issue.[41]
[40] Subsection 34(1AA) provides that if a recipient member dies at a time when the Respondent is reviewing (but has not yet determined) the member’s percentage of incapacity, then the Respondent must determine what was, immediately before the member’s death, their percentage of incapacity and reclassify accordingly.
[41] Paragraph 99 of the Applicant’s submissions of 25 February 2025.
The Respondent agrees with the Applicant’s contention that the Tribunal would not have jurisdiction to review or determine a decision that had not been made by the relevant decision maker. The Respondent rejects the proposition that there is any decision that the Respondent must or could make under subsections 34(1AA) or 34(3) which it had not yet made. The Respondent further contended that a decision under subsection 34 is not one that is reviewable by the Tribunal as it is not a decision covered by section 107 of the DFRDB Act.
ANALYSIS AND CONSIDERATION
What role (if any) does the Tribunal have in relation to any ‘outstanding’ decision under subsection 34(1AA)?
On the basis that the parties agree that the Tribunal has no jurisdiction in relation to a decision that has not been made, and the Tribunal’s lack of jurisdiction in these circumstances appears to be clear, there is no need for the Tribunal to consider this question further.
The Tribunal has sought to acknowledge the submissions and contentions of the parties on this point. It does not propose to provide any observations on whether there is a decision that could be made under subsection 34(1AA) or whether a decision under section 34 may be the subject of an application to the Tribunal for the purposes of paragraph 107(a) more generally.
Does the November 2022 Letter evidence a ‘reviewable decision’?
The primary question remaining is whether the November 2022 Letter discloses a reconsideration decision under subsection 99(4A) confirming a previous decision of the Respondent, either to decline a reclassification under section 34 (as suggested by the Applicant) or reconfirming the December 2020 Decision (as denied by the Respondent).
Shortly after receiving the December 2020 Decision (on 16 December 2020) the Applicant’s daughter sent an email to the Respondent (on 18 January 2021) asking for her father’s file to be ‘further reviewed to have his reclassification to Class A’ backdated. This request was made as part of an email chain which included the December 2020 Decision and the details of the recalculation of the Applicant’s pension entitlements as a consequence of the December 2020 Decision. The Applicant expressly requested the review for the purposes of having the Class A reclassification backdated, and that Class A reclassification was the result of the December 2020 Decision. The December 2020 Decision was made under section 47 and not under section 34 of the DFRDB Act. Also within the email chain under which the Applicant’s daughter requested a further review of her father’s file was her outline of the basis upon which the Respondent should find that there was the requisite connection between her father’s death and the impairments that led to his incapacity retirement or the purposes of paragraph 47(1)(b).
The Tribunal’s view is that although the email of 18 January 2021 could be construed for the purposes of subsection 99(2) as a request in writing by the Applicant to the Respondent for a reconsideration of a decision (leaving aside the question of whether the Applicant was a ‘person who is affected’ by a decision), the only decision identified for reconsideration is the December 2020 Decision as made under section 47. There is no reference to section 34 or the criteria contained in section 34. It is not sufficient for the Applicant to say that the Respondent should have been aware of section 34 as a basis for making a decision, or as an alternative basis for making a decision affecting her pension entitlements. Although the Applicant’s referred in her email to ‘incorrect’ reclassification decisions made in 1998 and 30 July 2001[42] in relation to his Class C and Class B classifications, those decisions are referred to in the context of the Applicant seeking a backdating of the section 47 decision to those earlier dates.
[42] It is again noted that the reclassification to Class was made in August 2000.
The Respondent’s response in its email of 19 February 2021 was to reject the request on the basis that the Applicant was not entitled to request reconsideration as she was not a person who was ‘affected’ by a decision. Whether or not the Respondent’s reason for rejecting the request as invalid was correct, there is no indication that the Respondent referred any matter to the Panel or otherwise reconsidered a matter itself under subsection 99(4).
The Applicant’s daughter sent a further email to the Respondent on 10 November 2022 in the same terms as her email of 18 January 2021 and in continuation of that earlier email chain. Again, the Tribunal believes that this could be construed as a request under subsection 99(2) for reconsideration of a decision of the Respondent, but the decision for reconsideration could only be the December 2020 Decision. The Respondent again replied in similar terms to its previous email rejecting the Applicant’s entitlement to reconsideration under section 99.
The Applicant’s daughter emailed the Respondent in similar terms on 21 November 2022, making express reference to the previous reassessment of her father’s case whereby it was determined that his death was due to his retiring impairments and ‘that pension’ was revised from Class B to Class A. The Tribunal accepts that this email could be viewed as a (further) attempt by the Applicant to seek a reconsideration under subsection 99(2). However, there is no basis for finding that the decision identified for reconsideration was other than the December 2020 Decision made under section 47.
The Respondent’s November 2022 Letter, whilst referring to the Applicant’s correspondence as a ‘complaint’ rather than a request for reconsideration, which it had ‘investigated’ rather than reconsidered, does acknowledge the Applicant’s 10 November 2022 email as a ‘reconsideration request’ and advises that it ‘reconfirm[s] our decision to decline your application to have the invalidity classification applicable to the late [Mr A] reassessed.’ Although the letter clearly disputes the entitlement of the Applicant to seek reconsideration as a ‘person who is affected’, it does address and provide the Respondent’s view on key matters relating to Mr A’s classification before stating that it ‘reconfirm[s] our decision not to reassess.’ It also advises the Applicant that she can lodge a ‘Merit Review Appeal of our decision’ with the Tribunal.
On balance the Tribunal would be willing to view the November 2022 Letter as evidencing (as required by subsection 99(5)) the result of its reconsideration to confirm (for the purposes of paragraph 99(4A)(a)) a previous decision of the Respondent. However, the Tribunal’s view is that the only decision that was confirmed was the December 2020 Decision. There was no reconsideration of a previous decision made by the Respondent for the purposes of section 34 of the DFRDB Act as contended for by the Applicant. This means that the Tribunal does not agree that there is a ‘decision’ as identified by the Applicant for review by the Tribunal.
Could the December 2020 Decision give rise to a ‘reviewable decision’?
During the course of this proceeding, the Respondent has confirmed that the December 2020 Decision was a decision made under section 47 of the DFRDB Act, agreed that the Applicant would have had a right to seek review of the December 2020 Decision under section 99 had she sought such review within the appropriate timeframe and has told the Tribunal that it would allow the Applicant an EOT under subsection 99(2) for this to occur.
However, the Respondent has also previously told[43] the Applicant that for the purposes of subsection 99(2) of the DFRDB Act she was not ‘a person who is affected by a decision’ of the Respondent and therefore could not seek a reconsideration. The Respondent’s position was that reconsideration or appeal rights were only available to the ‘primary’ or recipient member under the Scheme (being Mr A) and did not extend to other persons following the death of the primary member. The Respondent cited the decision in Loschiavo in support of this conclusion.
[43] Per the Respondent’s email of 16 November 2022 and the subsequent November 2022 Letter.
Although not stated explicitly in the November 2022 Letter, the wording of that letter and its place in the timeline of events suggests that the Respondent was referring to its decision as set out in the December 2020 Decision. This was a decision made under section 47 of the DFRDB Act.
The Applicant is correct that the Loschiavo decision is not binding on this Tribunal, although consistency of decision making by the Tribunal is desirable where similar facts and issues are involved and is aligned with the objective in section 9 of the ART Act of promoting trust and confidence in the Tribunal. However, the Loschiavo decision is distinguishable from the present circumstances. Leaving aside the obvious matter of Loschiavo involving different legislation, the Tribunal’s analysis of that legislation found a ‘consistent policy’ that Parliament had not contemplated a grant being made in relation to an application on behalf of a deceased person. This approach is consistent with other authority such as Allan v Transurban City Link Ltd[44] where the High Court considered the expression ‘affected by’ and indicated that regard should be had to the ‘subject, scope and purpose’ of the relevant statute being examined as well as the nature of the reviewable decision itself.
[44] Allan v Transurban City Link Ltd [2001] HCA 58 (‘Allan’). See also the decision of the Tribunal in Becton Dickinson Pty Ltd and Minister for Health and Aged Care [2025] ARTA 16 per Deputy President Britten-Jones at [24] to [34] referring to Allan and other authorities.
The Applicant has pointed out that section 47 of the DFRDB Act can only have operation after the death of the recipient member. The Tribunal believes that this might have been a relevant matter in any consideration of whether the Applicant was a ‘person affected’ by a decision of the Respondent made under section 47.[45] The Tribunal also notes the Respondent’s contention that section 47 does not provide any means for it to backdate a classification to Class A to a date before the death of the recipient member.
[45] It may also be relevant to the question of whether the Applicant is a person who is able to make an application to the Tribunal for review of a decision under section 17 of the ART Act.
The Applicant has told the Tribunal she is not seeking a review of the December 2020 Decision in this application. It is therefore not necessary for the Tribunal to consider the operation of section 47 in relation to backdating of Class A classification or the operation of subsection 99(2) in relation to a decision under section 47 any further.
EOT Request
For the reasons set out above, the Tribunal is satisfied that there is no decision identified by the Applicant for the purposes of her application that is (at least currently) reviewable by the Tribunal. On that basis, it is not necessary to consider whether it would be reasonable in all the circumstances to extend the period during which the Applicant may make her application for the purposes of section 19 of the ART Act.
NON-DISCLOSURE AND NON-PUBLICATION ORDERS
The Applicant sought an order under section 70 of the ART Act prohibiting or restricting the publication of information tending to identify the Applicant, Mr A and persons related to them, together with any health information that would lead to such identification. The order was sought on the basis that such information, including medical information, was confidential in nature and non-publication of such information would not prevent the publication of the proceeding.
The Respondent did not offer any submissions objecting to the Applicant’s request.
Having regard to the considerations in subsection 71(2), including the principle that it is desirable that evidence given before the Tribunal is made available to the public, the Tribunal nevertheless agreed that it was appropriate to make the order under section 70 as requested by the Applicant. The Tribunal agrees that the medical and health information filed with the Tribunal is confidential and of a highly sensitive nature, and publication of information identifying the Applicant and/or Mr A in this context is likely to cause distress to the Applicant and her relatives. The Tribunal does not believe that non-disclosure of the identity of the Applicant and Mr A or the detail of the medical information filed prevents the Tribunal from communicating its analysis and decision on the jurisdictional issues raised in this application.
CONCLUSION
The Tribunal does not agree that the Respondent made a decision to decline a request for a reassessment under section 34 of the DFRDB Act. Therefore, the Respondent cannot have confirmed such a decision upon a reconsideration under section 99(4A) for the purposes of paragraph 107(a) of the DFRDB Act.
Accordingly, the Tribunal must dismiss the application under section 97 of the ART Act on the basis that it is satisfied that the decision identified by the Applicant is not reviewable by the Tribunal.
Date of hearing: On the papers
Applicant: JTBT
Respondent: Commonwealth Superannuation Corporation
Applicant’s Solicitor: Applicant’s Representative
Respondent’s Solicitor: King & Wood Mallesons

ANNEXURE – RELEVANT DOCUMENTS
Documents filed by the parties with the Tribunal
Documents filed or provided by the Applicant:
(a)Application for Review of Decision dated 24 March 2024, attaching email and letter from Respondent dated 25 November 2022.
(b)Application for Extension of Time for Making an Application for Review of Decision dated 3 May 2024.
(c)Written outline of scope of application dated 25 February 2025.
(d)Applicant’s Submissions dated 25 February 2025.
(e)Applicant’s Reply dated 25 March 2025.
Documents filed or provided by the Respondent:
(a)Email dated 9 September 2024 from King & Wood Mallesons to Tribunal.
(b)Respondent’s Submissions dated 11 March 2025 (and further version with updated footnotes).
(c)Document Bundle uploaded on 17 March 2025.
(d)Copy of letter from Applicant to Respondent dated 2 May 2025.
(e)Email dated 8 May 2025 from King & Wood Mallesons to Tribunal.
Items from the Document Bundle identified by both parties as relevant[46]
[46] References are to the T numbers allocated to the Bundle of Documents as uploaded by the Respondent on 17 March 2025.
T3, T5, T6, T11, T47, T48, T51, T56, T59, T61.
Further items from the Document Bundle identified by the Respondent only as relevant
T1, T2, T13, T23, T55, T65.
Further items from the Document Bundle identified by the Applicant only as relevant
T4, T7, T9, T10, T12, T15, T27, T33, T37, T44, T45, T52, T60, T68, T71, T72, T73, T74, T93, T92.