Duncan, P.G. v. Defence Force Retirement & Death Benefits Authority & Anor [1980] FCA 72

CATCHWORDS

Defence Force Retirement and Death Benefits ~ Member holding acting rank - Contributions payable by member —- Defence Force Retirement and Death Benefits Act 1973, ss.3,19(1), 20 and 23 - Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations, regs.3 and 4 - Defence Force (Salaries) Regulations,

regs. 4, 5 and 7 - Naval Financial Reguiations,reg.4.

Administrative Appeals Tribunal - Jurisdiction - Whether opinion constitutes "decision" - Defence Force Retirement and Death Benefits Act 1973, ss.8(1) and 99(1) - Administrative Appeals Tribunal Act 1975, ss.3(3), 25(1) and 44.

Peter George Duncan v. Defence Force Retirement and Death

Benefits Authority and Commonwealth of Australia.

No. VG 37 of 1979.

Coram : Brennan, Keely and Lockhart JJ.

Date : 27 May 1980.

Sydney.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG No.37 of 1979

wee

GENERAL DIVISION

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION

BETWEEN : PETER GEORGE DUNCAN Applicant AND : DEFENCE FORCE RETIREMENT AND

DEATH BENEFITS AUTHORITY and COMMONWEALTH OF AUSTRALIA

Respondents ;

ORDER t JUDGES MAKING ORDER : Brennan, Keely and Lockhart JJ. 1 DATE OF ORDER : 27 May 1980. WHERE MADE : Sydney. THE COURT ORDERS THAT : 1. The appeal be allowed. 2. It be declared that, for the purposes of regulation 4(4)

of the Defence Force Retirement and Death Benefits (Annual Rates of Pay) Regulations, the amount of the annual rate of salary of the applicant under the Defence Force (Salaries) Regulations on the days between 8 November 1977 and 16 July 1979 was the annual rate of salary payable to a Captain who had completed the longer period of service that is specified in the latter Regulations in relation to an officer holding

that rank.

3. That the matter be remitted to the Administrative Appeals Tribunal to be heard and decided again, and that the Tribunal be directed: (a) to make such order as to the receipt of additional amounts by way of contribution under Part III of the Defence Force Retirement and Death Benefits Act as appears to it to be appropriate consistently with the liability of the applicant as declared by this Court; (b) to hear such further submissions, and summon such persons to give further evidence and to produce further documents, as it deems necessary to assist