Robert Kann and Secretary, Department of Defence

[2015] AATA 249

[2015] AATA 249  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5203
Re	Robert Kann
APPLICANT
And	Secretary, Department of Defence
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	8 April 2015
Date of written reasons	24 April 2015
Place	Darwin

The decision under review is affirmed.

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Deputy President P E Hack SC

CATCHWORDS

DEFENCE – Defence Home Ownership Assistance Scheme – applicant serving officer in Naval Reserve – transition of entitlements – whether applicant entitled to continuation of subsidy payments – maximum subsidy period exhausted – decision under review affirmed

LEGISLATION

Defence Home Ownership Assistance Scheme Act 2008 (Cth)

REASONS FOR DECISION

Deputy President P E Hack SC

8 April 2015

1. This is an application by Mr Robert Kann who holds the rank of Lieutenant in the Royal Australian Navy Reserve. Lieutenant Kann has been a serving officer in the Naval Reserve for a number of years and has been a participant in the Defence Home Ownership Assistance Scheme and its statutory predecessors.

2. The decision in issue is a decision that Mr Kann is not entitled to subsidy payments under the Defence Home Ownership Assistance Scheme Act 2008 (Cth) after February 2014. After discussion today with Mr Kann, it is apparent that Mr Kann accepts that the Act operates in the manner in which the respondent has determined his entitlements and that his entitlements are as has been determined by the respondent. His grievance is not with the way in which the Act has operated. His grievance is as to the manner in which he was persuaded to forgo entitlements under the earlier scheme, and the transition of his entitlements into the new scheme.

3. As I have sought to explain to Mr Kann in the course of the hearing, those are matters that are not capable of a decision in this Tribunal which has the task of ascertaining the correct or preferable decision on the material presented by the parties. The Tribunal’s jurisdiction is limited to affirming, varying or setting aside the decision under review – it has no wider jurisdiction. It is true, as Mr Kann pointed out, that the Tribunal’s role is generally described as inquisitorial rather than adversarial. But it is within the confines of the particular decision that the Tribunal’s task is to determine whether the decision made was the correct or preferable decision.

4. In light of Mr Kann’s concession it is obvious the decision under review was the correct decision and that it ought be affirmed. Whether Mr Kann has been badly dealt with by the Commonwealth, through its various service arms or agencies, is not a matter upon which I am able or entitled to reach a judgement. If Mr Kann be so advised, he should pursue his revenues elsewhere.

5. The decision under review is affirmed.

6. After I gave the reasons above orally at the conclusion of the hearing, Mr Reilly, the solicitor for the respondent, made some remarks, directed to Mr Kann, regarding the potential cost consequences if Mr Kann were to take up the option of commencing proceedings in a court. Those remarks were, in my opinion, entirely unwarranted. Mr Kann had presented his grievance in a polite and respectful manner. It is not for me to reach any conclusions about his underlying complaint. Equally, it is not the role of the lawyer of a party to make in terrorem and entirely gratuitous comments about the possible consequences to Mr Kann of taking further action to redress his perceived grievance, a fortiori, where that lawyer is representing a department of the Commonwealth of Australia.  The comments ought not have been made.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 24 April 2015

Date of hearing	8 April 2015
Applicant	In person
Solicitors for the Respondent	HWL Ebsworth Lawyers