House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72

FEDERAL COURT OF AUSTRALIA

House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72 Citation: House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72

Appeal from: House v Defence Force Retirement and Death Benefits Authority [2010] AATA 147

Parties: DAVID HOUSE v DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

File number(s): QUD 103 of 2010

Judges: GREENWOOD, GILMOUR AND LOGAN JJ

Date of judgment: 1 June 2011

Catchwords: ADMINISTRATIVE LAW – consideration of an appeal from the Administrative Appeals Tribunal ("Tribunal") on the ground that the Tribunal failed to apply the correct legal test of "prescribed physical or mental impairment" for the purposes of s 34(1B), s 34(1A)(c) and Part V of the Defence Force Retirement and Death Benefits Act 1973 (Cth) – consideration of whether the citizen is to be deprived of a remedy under s 44(4) or s 44(5) of the Administrative Appeals Tribunal Act 1975 (Cth) notwithstanding that an error of law is made out and conceded by the respondent – consideration of the general principles to be applied in determining whether a remedy should go – consideration of the principle that when the question involves the exercise of the discretion and the error of law determines the framework within which the facts are to be determined and upon which the statutory discretion is exercised, the Court ought to exercise great caution before deciding that the error of law could make no difference to the result already reached – consideration of the authorities on that question MENTAL HEALTH – consideration of the notion of "prescribed physical or mental impairment" for the purposes of Part V of the Defence Force Retirement and Death Benefits Act 1973 (Cth) PRACTICE AND PROCEDURE – consideration of the general principles to be applied in determining whether the citizen is to be deprived of a remedy in circumstances where an error of law is made out and conceded by the respondent – consideration of the authorities on the question of whether the error of law could make no difference to the result already reached DEFENCE AND WAR – consideration of the notion of "prescribed physical or mental impairment" for the purposes of Part V of the Defence Force Retirement and Death Benefits Act 1973 (Cth) – consideration of s 34(1A) and s 34(1B) in the context of a reclassification application under s 34 of Part V of the Defence Force Retirement and Death Benefits Act 1973 (Cth)