Sullivan and Defence Force Retirement and Death Benefits Authority

[2009] AATA 152

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 152

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6239

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DONALD JOHN SULLIVAN

Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY  

Respondent

DECISION

Tribunal Senior Member M D Allen

Date26 February 2009

PlaceSydney

Decision Being satisfied that the Tribunal does not have jurisdiction in this matter, I direct the Registrar of the Tribunal to take no further action regarding the listing of this matter for Hearing.

...................[sgd].......................

M D Allen
  Senior Member

CATCHWORDS

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS: Whether a decision had been made – refusal by Chief of Air Force to inform DFRDB Authority that Applicant could have been retired on the grounds of invalidity not reviewable by the Administrative Appeals Tribunal

LEGISLATION

Defence Force Retirement and Death Benefits Act (1973): ss. 37, 99

CASE LAW

Defence Force Retirement and Death Benefits Authority v Britt (1984) 4 FCR 306

REASONS FOR DECISION

26 February 2009 Senior Member M D Allen

1.      On the 17^th December 2008, the Applicant lodged an application with the Tribunal seeking review of an alleged failure by the Defence Force Retirement and Death Benefits Authority ( “DFR & DBA”) to make a decision regarding his claim for entitlements under the Defence Force Retirement and Death Benefits Act 1973 (“the DFRDB Act”.

2.      Section 99 of the DFRDB Act provides inter alia that applications may be made to the Administrative Appeals Tribunal for review of decisions of the DFR & DBA  in reconsideration decisions of the original decision.

3.      Section 37 of the DFRDB Act states:

“Where a contributing member has been retired otherwise then on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Naval Staff, Chief of the General Staff or the Chief of the Air Staff or a person authorised in writing by the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.”

4.      By letter dated 12 June 2008, a person describing himself as Director General Personnel – Air Force, wrote to the Applicant in the following terms, namely:

“Thank you for your letter of 27 March 2008, requesting your administrative discharge in 1987 be amended to a medical discharge. As this matter falls within my area of responsibility, the Chief of Air Force has asked me to respond.

I am advised by the Director of the Joint Health Support Agency that there is no evidence on your Air Force medical records to indicate that you were suffering from, or sought assistance for, a mental health problem prior to discharge. Further, in the opinion of the Director of Mental Health at Defence Health Services, the report provided by Doctor G. Pohlen in support of your request does not relate any specific symptoms back to your military service. On the basis of this advice, I cannot support your request to have your discharge status amended and your records will continue to reflect that you were discharged administratively…”

5.      At the outset, it can be stated that the above letter does not constitute a valid decision pursuant to section 37 of the DFRDB Act for the following reasons, namely:

(i).The author of the letter does not state that he holds a delegation from the Chief of Air Force to make decisions pursuant to section 37 of the DFRDB Act

(ii).The author does not state that the decision is made by him as a delegate.

(iii). The purported decision does not give reasons why its author made his decision but merely refers to opinions of a service medical officer.

6.        In its letter of 1 December 2008 to the Applicant, the DFR & DBA stated:

“I note your advice that the Chief of Air Force advised you, in the letter dated 12 June 2008, that grounds did not exist on which you could have been discharged as medically unfit for service (please note that ComSuper does not have copies of your letter to the Chief of Air Force dated 27 March 2008, the reply dated 12 June 2008 from the Chief of Air Force [sic] nor the advice to you from the AAT dated 23 September 2008). As the Chief of Air Force has not informed the Authority that such grounds existed, the Authority has no discretion under section 37 of the Act to treat you as thought you were retired on invalidity grounds.”

7.        The advice by the DFR & DBA to the Applicant correctly sets out the effect of section 37 of the DFRDB Act. The respective function of the service Chief of Staff and the DFR & DBA were set out by the Full Court of the Federal Court in Defence Force Retirement and Death Benefits Authority and Britt (1984) 4 FCR 306 at 309, namely:

“ The section confers a specific function upon the Chiefs – of – Staff, that is, the function of determining whether the member could have been retired on the ground of invalidity and informing the authority of that fact. This is a function properly imposed from the Chiefs – of – Staff for they are aware of the requirements of service and therefore able to determine whether the member’s medical condition was such as to justify his retirement on the ground that he was unable to perform his duties. But that is the only function which s37 confers upon the Chiefs – of – Staff. It does not confer upon them the power to decide whether, in the whole of the circumstances of the case, the former member should be treated as if he had been retired on the ground of invalidity or even the power to request that he be so treated. The section makes the advice of a Chief – of – Staff a precondition to the exercise of the discretion which the section confers and not in itself an exercise of that discretion.”

(see also Cox v O’Donnell & Anor (1992) 34 FCR 42 at 55)

9.        It is quite clear, as per the Applicants submissions, that there is a lacuna in the DFRDB Act as there is no provision allowing a challenge to the decision (or failure to state) of the relevant service Chief of Staff as to the opinion to be formed for the purposes of section 37. If Rana and Defence Force Retirement and Death Benefits Authority [2005] AATA 291 is cited as authority to the contrary, I respectfully find that that matter is limited to its own facts.

10.      For the reasons stated above, namely that the Chief of Air Force has not informed the DFR & DBA that ground’s existed on which the Applicant could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, no decision capable of being reviewed by this Tribunal has been (or indeed could be) made. Consequently, the Tribunal has no jurisdiction to entertain the application for review made on 17 December 2008.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: M.Corcoran................................................................................
  Associate

Date of Hearing  26 February 2009
Date of Decision  26 February 2009
Solicitor for the Applicant          Appeared on own behalf
Counsel for the Respondent     A. Dillon
Solicitor for the Respondent     Australian Government Solicitor