Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302

FEDERAL COURT OF AUSTRALIA

Defence Force Retirement and Death Benefits Authority v House [2009] FCA 302

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – Tribunal review of Decision of the Defence Force Retirement and Death Benefits Authority – Defence Force Retirement and Death Benefits Act 1973 (Cth) – invalidity pension – invalidity classification – percentage incapacity for civil employment under s 34(1A)(a)– physical and mental impairment – alcoholism – personality disorder – whether error of law on part of Tribunal – whether Tribunal considered a serious submission regarding previous Tribunal decision – whether Tribunal failed to take into account relevant considerations – improvement of condition – range of civil employment available – whether reasons of Tribunal inadequate – relevance of previous related decision of Tribunal Held: Tribunal erred in law in reaching its decision – failure to take into account serious submission regarding previous Tribunal decision – failure to take into account relevant considerations regarding improvement of condition and range of civil employment available – Tribunal erred in only considering two of the nine employment types available – reasons inadequate – appeal allowed – decision of the Tribunal set aside –matter remitted to Tribunal for determination according to law Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 43(2B), 44(1) Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 30, 34(1), 34(1)(c), 34(1A), 34(1B)(a), 37, 99(2), 99(6)

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 followed Australian Postal Corporation v Sellick [2008] FCA 236 cited Casarotto v Australian Postal Corporation (1989) 86 ALR 399 at 403 followed Cheung v AAT [2009] FCA 241 cited Collector of Customs v Pozzolanic (1993) 43 FCR 280 cited Comcare Australia v Grimes [1994] FCA 1054 cited Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 cited Dixon v Commissioner of Taxation [2008] FCAFC 54 cited Doman v Riordan (1990) 21 ALD 255 cited House and Defence Force Retirement and Death Benefits Authority [2004] AATA 667 cited House and Defence Force Retirement and Death Benefits Authority [2008] AATA 38 related House v D.F.R.D.B. Authority [2004] FMCA 833 cited McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791 cited Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 followed Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 cited Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 77 ALR 577 cited Re Quinn & Australian Postal Corporation (1992) 15 AAR 519 cited Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 cited