Scott, E.S. v Commissioner for Superannuation [1987] FCA 738

Scott, E.S. v Commissioner for Superannuation [1987] FCA 738

By majority, the Tribunal erred in treating changes in repatriation pension means-testing and the possibility of a double benefit as a proper adverse consideration. At the time Mr Scott ceased employment he could have established entitlements under both legislative schemes had he followed the proper formalities, and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 December 1987
Procedural Posture
Appeal From a Decision of the General Administrative Division of the Administrative Appeals Tribunal Under S.44(1) of the Administrative Appeals Tribunal Act 1975 / Federal Court Appeal From the Tribunal's Affirmation of the Commissioner's Refusal to Give a Direction Under S.7(2) of the Superannuation Act 1976
Outcome
Appeal allowed with costs by majority.
Legal Topics
['review of Administrative Discretion' 'invalidity Retirement' 'deemed Retirement on Physical or Mental Incapacity' 'repatriation Service Pension' 'irrelevant Considerations']
['administrative Law' 'superannuation Law' 'commonwealth Employment' "veterans' Entitlements"] ['review of Administrative Discretion' 'invalidity Retirement' 'deemed Retirement on Physical or Mental Incapacity' 'repatriation Service Pension' 'irrelevant Considerations']

Source-derived case record

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Procedural Posture

Appeal From a Decision of the General Administrative Division of the Administrative Appeals Tribunal Under S.44(1) of the Administrative Appeals Tribunal Act 1975 / Federal Court Appeal From the Tribunal's Affirmation of the Commissioner's Refusal to Give a Direction Under S.7(2) of the Superannuation Act 1976

Legal Issues

  1. 1 ["Whether the Tribunal erred in affirming the Commissioner's refusal to direct under s.7(2) of the Superannuation Act 1976 that Mr Scott be deemed to have retired on the ground of physical or mental incapacity." "Whether Mr Scott's receipt of a service pension under the Repatriation Act 1920 and later repatriation legislation was a relevant consideration against exercising the s.7(2) discretion." "Whether, given the Tribunal's findings of actual invalidity, confusion about legal entitlements, and absence of unreasonable delay, the discretion should have been exercised in Mr Scott's favour."]

Ratio Decidendi

By majority, the Tribunal erred in treating changes in repatriation pension means-testing and the possibility of a double benefit as a proper adverse consideration. At the time Mr Scott ceased employment he could have established entitlements under both legislative schemes had he followed the proper formalities, and his failure to do so was explained by his medical condition and confusion. The Tribunal had found actual invalidity, confusion about his legal position, and no unreasonable delay. Those circumstances established a strong moral case for the exercise of the s.7(2) discretion, and no relevant special circumstance justified refusal.

Court Disposition

Appeal allowed with costs by majority.

Orders

  • ['The appeal be allowed with costs.' 'The decision of the Administrative Appeals Tribunal dated 10 April 1987 be set aside.' 'In lieu thereof, the decision of the Commissioner for Superannuation be set aside with a direction that the Commissioner give an appropriate direction under s.7(2).']