Defence Force Retirement and Death Benefits Authority v Mathews [2011] FCA 160

Defence Force Retirement and Death Benefits Authority v Mathews [2011] FCA 160

The respondent's relevant intention for s 61B was determined by the undertaking to serve, which specified continuous full-time service for less than 12 months. He was therefore required by s 61B(3) to elect before resuming that service whether or not to become a member of the Military Superannuation and Benefits Scheme. His earlier elections under s 61B(1) did not satisfy that requirement, and the form completed after service commenced was too late. The Tribunal erred in law in treating subjective intention and earlier elections as sufficient.

Jurisdiction
Australia
Judgment Date
02 March 2011
Procedural Posture
Appeal From the Administrative Appeals Tribunal / Judgment on Appeal
Outcome
Appeal allowed; decision of the Administrative Appeals Tribunal set aside; matter remitted to the Tribunal for determination according to law.
Legal Topics
['defence Force Retirement and Death Benefits Scheme' 'military Superannuation and Benefits Scheme' 'valid Election Under S 61 B of the Defence Force Retirement and Death Benefits Act 1973 (cth)' 'continuous Full Time Service in the Reserves']
['administrative Law' 'superannuation Law'] ['defence Force Retirement and Death Benefits Scheme' 'military Superannuation and Benefits Scheme' 'valid Election Under S 61 B of the Defence Force Retirement and Death Benefits Act 1973 (cth)' 'continuous Full Time Service in the Reserves']

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Procedural Posture

Appeal From the Administrative Appeals Tribunal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether an election made for the purposes of s 61B(1) could and did constitute a valid election for the purposes of s 61B(3) when made prior to the respondent resuming service for a continuous period of less than 12 months.' "Whether the Tribunal erred in law by having regard to evidence of the respondent's subjective intentions in determining whether, for the purposes of s 61B(3), he was a recipient member who intended to resume full time service as a member of a Reserve for a continuous period of less than 12 months." 'Whether the respondent became a member of the Military Superannuation and Benefits Scheme and was disentitled to retirement pay otherwise payable under the Defence Force Retirement and Death Benefits Act 1973 (Cth).']

Ratio Decidendi

The respondent's relevant intention for s 61B was determined by the undertaking to serve, which specified continuous full-time service for less than 12 months. He was therefore required by s 61B(3) to elect before resuming that service whether or not to become a member of the Military Superannuation and Benefits Scheme. His earlier elections under s 61B(1) did not satisfy that requirement, and the form completed after service commenced was too late. The Tribunal erred in law in treating subjective intention and earlier elections as sufficient.

Court Disposition

Appeal allowed; decision of the Administrative Appeals Tribunal set aside; matter remitted to the Tribunal for determination according to law.

Orders

  • ['The appeal is allowed.' 'The decision of the Administrative Appeals Tribunal of 22 July 2010 is set aside.' 'The matter is remitted to the Tribunal for determination according to law.']