Defence Force Retirement & Death Benefit Authority v Britt, Douglas Harry [1984] FCA 350

Administrative law - Appeal from Administrative Appeals Tribunal - Defence Force Retirement and Death Benefits -

Authority "may" treat contributing member as if retired

on ground of invalidity - Whether "may" permissive or

mandatory - Whether discretion vested in Chiefs of Staff or Authority

Words and Phrases - "may"

at B its 1973 (Cth) ss.23, 24, 25, 26, 28, 29, 37, 38, 43A

CE FO IT AUTHORITY v DOUGLAS HARRY BRITT

8A G.15 of 1984

Coram : Fox, Woodward and Davies JJ

30 October 1984

Canberra

IN_THE FEDERAL COURT OF AUSTRALIA ) )

SOUTH AUSTRALIAN DISTRICT REGISTRY) No. SA G.15 of 1984 )

BETWEEN : PF RES Appellant AND +s DOUGLAS HARRY BRITT Respondent ORDER JUDGES MAKING ORDER t Fox, Woodward and Davies JJ DATE OF QRDER 3 30 October 1984 WHERE MADE 3 Canberra ORDER 2 The decision of the Administrative

Appeals Tribunal is set aside and the matter is remitted to the Tribunal to be reheard.

IN THE FEDERAL COURT OF AUSTRALIA > )

SOUTH AUSTRALIAN DISTRICT REGISTRY) No. SA G.15 of 1984 )

GENERAL DIVISION )

Appellant

Respondent

CORAM : Fox, Woodward and Davies JJ

20 _ October 1984

This is an appeal froma decision of the Administrative Appeals Tribunal.

The short issue in the appeal is whether the word "may" in

8.37 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) ("the Act") confers a wide discretion upon the Defence Force Retirement and Death Benefits Authority ("the Authority") or whether it merely confers a power which the Authority is under

a duty to exercise if the other elements of the section be

satisfied. It was in that latter sense that the Administrative Appeals Tribunal read the section, which provides :

"37. Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff or a person authorized 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."