Defence Force Retirement and Death Benefits Authority v Gregory [2009] FCA 875

FEDERAL COURT OF AUSTRALIA

Defence Force Retirement and Death Benefits Authority v Gregory [2009] FCA 875 ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – whether tax payments to Commissioner of Taxation were recoverable as part of general decision to recover overpayment of benefits under Defence Force Retirement and Death Benefits Act 1973 (Cth) – whether Tribunal made findings of fact in absence of evidence – whether scope of Tribunal's discretion not to order recovery of overpayment extended to payments to Commissioner of Taxation DEFENCE AND WAR – whether member of Defence Force remained an eligible member of the Defence Force Retirement and Death Benefits Act 1973(Cth) – whether respondent was a member of the Defence Force for the purposes of the Defence Force Retirement and Death Benefits Act 1973 – whether respondent became a member of the Military Superannuation Benefits Scheme Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44 Defence Act 1903 (Cth) ss 31, 32, 32A, 45, 50 Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 3(1), 5(2), 5(3), 5A(1)(a), 5A(1)(b), 5A(2)(b), 8, 23, 61B, 61C, 99, 126(4), 132 Defence Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001 (Cth) Sch 2 Items 14, 17, 95 Defence (Personnel) Regulations 2002 (Cth) regs 3, 121 Military Superannuation and Benefits Act 1991 (Cth) s 6 Auckland Harbour Board v R [1924] AC 318 referred to Chapman v Defence Force Retirement and Death Benefits Authority (2001) 108 FCR 537 followed Defence Force Retirement and Death Benefits Authority v Chapman (2000) 63 ALD 351 followed Defence Force Retirement and Death Benefits Authority v Lokan [2008] FCAFC 43 followed Director General of Social Services v Hales (1983) 47 ALR 281 referred to Lokan and Defence Force Retirement and Death Benefits Authority [2007] AATA 1652 distinguished Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 cited DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY v STEPHEN GREGORY