House v Defence Force Retirement & Death Benefit [1998] FCA 1800

s0nesesvcveosecees:

JUDGMENT No. L290 1 628

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY NG 86 of 1998 BETWEEN: DAVID RICHARD HOUSE

APPLICANT AND: DEFENCE FORCE RETIREMENT AND DEATH BENEFIT

AUTHORITY

RESPONDENT JUDGE: EINFELD J DATE: 25 MARCH 1998 PLACE: BRISBANE

REASONS FOR JUDGMENT

At the relevant time for this matter, the scheme of the Defence Force Retirement and Death Benefits Act 1973 (Cth) provided for the Defence Force Retirement and Death Benefits Authority (the Authority) to determine the "percentage of incapacity in relation to civil employment" of a person receiving an invalidity payment. Recipients of invalidity payments were classified according to the determined percentage. Section 30 of the Act provided that if the percentage of incapacity was assessed at 60 per cent or more, the recipient was classified in class A; if the incapacity was assessed at between 30 per cent and 60 percent the recipient was classified in class B; if the incapacity was less than 30 per cent, class C was applied. Section 34(1) of the Act provided that the Authority may, from time to time, alter the

percentage of incapacity and consequently reclassify the recipient according to section 30.

Section 34(1A) set out the matters which the Authority was to consider in making the assessment of the percentage of incapacity. Paragraph (c) stated that the Authority shall have

regard to:

the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil

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employment referred to in paragraph (b); Section 34(1B) defines "prescribed physical or mental impairment" as, in part:

(a) a physical or mental impairment of the member that was the cause or one of the causes of the invalidity or physical or mental incapacity by reason of which the member was retired;