Shingles v D.F.R.D.B Authority

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHINGLES v D.F.R.D.B. AUTHORITY [2008] FMCA 260

ADMINISTRATIVE LAW – Appeal from decision of Administrative Appeals Tribunal – alleged errors of law – allegations of bias – failure to raise bias point till after Tribunal’s decision – appeal dismissed.

Vakauta v Kelly (1989) 167 CLR 568
John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Minister for Immigration & Citizenship v MZXPA [2008] FCA 185
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220

Applicant: GRAHAM JAMES SHINGLES

Respondent: DEFENCE FORCE RETIREMENT & DEATH BENEFIT AUTHORITY

File number: MLG 504 of 2007

Judgment of: Burchardt FM

Hearing dates: 1 & 7 February 2008

Date of last submission: 7 February 2008

Delivered at: Melbourne

Delivered on: 14 April 2008

REPRESENTATION

Counsel for the Applicant: Mr White

Solicitor for the Applicant: KCI Lawyers

Counsel for the Respondent: Mr Dillon

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

1. THAT the appeal be dismissed. 

2. THAT the Applicant pay the Respondent’s costs of and incidental to the appeal. 

3. THAT Order 2 be stayed for fourteen (14) days for the Applicant to file and serve written submissions as to costs. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 504 of 2007

GRAHAM JAMES SHINGLES

Applicant

And

DEFENCE FORCE RETIREMENT & DEATH BENEFIT AUTHORITY

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 2 March 2007 by which the Tribunal affirmed a decision under review.  Relevantly, the Tribunal assessed Mr Shingles' inability to undertake employment at 25 per cent, this figure being within the scale for a pension at class C.  The inability to work arises from Mr Shingles’ service with the Australian Army in Vietnam. 

2. The Tribunal was constituted by a Senior Member (“the Senior Member”) and a doctor.  The grounds of appeal raise a number of matters which counsel for Mr Shingles categorised under a number of sub-headings.  All were said to amount to errors of law. 

3. It should be noted that the grounds of appeal asserted in the notice of appeal are far more extensive than the four sub-headings to which counsel referred me, but it is convenient in the light of the way in which counsel for Mr Shingles conducted the case to follow the same methodology that he adopted. 

4. The four errors of law that Mr Shingles asserts are:

   a)That the Tribunal failed to take into account relevant considerations;

   b)The Tribunal failed to discharge its obligation to give reasons;

   c)A failure of the Tribunal to accord natural justice to Mr Shingles; and

   d)Bias.

5. It should be noted at the outset that the submissions of the Respondent dated 24 January 2007 contain at paragraph 1 the following entirely accurate assertion:

   This is a difficult case because it requires the witnesses and ultimately the Tribunal to assess the Applicant's degree of incapacity on the day after the Applicant's discharge from…