Case: Chapman v Defence Force Retirement and Death Benefits Authority [2001] FCA 594 ; (2001) 108 FCR 537
Outcome: followed
respondent's interpretation arises from a misunderstanding of the relevant sections of the DFRDB Act. The same misunderstanding arose in the proceedings before the Full Federal Court in Chapman v Defence Force Retirement and Death Benefits Authority [2001] FCA 594 ; (2001) 108 FCR 537. In Chapman [2001] FCA 594 ; 108 FCR 537 the Full Court held that s 5A(1) excluded eligibility for membership of the DFRDB Act for any person commencing continuous full-time service after 1 October 1991. The majority (Whitlam and Gyles JJ) considered that s 5A(1)(b) applied to Major Chapman. They said at [21]: Section 5A(1) of the DFRDB Act makes the date 1 October 1991 a watershed. Eligibility, by operation of s 3 of the DFRDB Act, depends upon current continuous full-time service of certain kinds by members of the Defence Force, of whatever status. Section 5A(1) makes clear that, in general, any person actually joining the Defence Force in any capacity from 1 October 1991 will in no circumstances ever become eligible. Any person who was then a member of the Permanent Force will clearly continue to be eligible because of the full-time service obligation of that person... In this fashion, subs 5A(1) as a whole excludes eligibility for any person commencing continuous full-time service after 1 October 1991. Wilcox J considered the same submission which is made in the present proceedings by the respondent, namely that he could not ' become ' a member of the Defence Force after 1 October 1991 because he remained, at all material times, a member of the Defence Force. Wilcox J dismissed such submission, finding at [8] of his decision that the deeming provisions of the DFRDB Act contained in s 5(2), when taken into consideration with the definition of ' retirement ' contained in s 3 of that Act, had the consequence that ' regardless of the true position, the appellant was deemed to have retired from the Defence Force when he ceased in 1988 to be a member of the Australian Regular Army and transferred to the Australian Army Reserve '. His Honour considered that s 5A(1)(a) applied rather than s 5A(1)(b). Wilcox J concluded at [8]: On that basis, he once again became a member of the Defence Force when he commenced in 1996 to render continuous full-time service. It is also instructive to consider the judgment of Weinberg J at first instance in Defence Force Retirement and Death Benefits Authority v Chapman (2000) 63 ALD 351. The Full Federal Court's decision in Chapman [2001] FCA 594 ; 108 FCR 537 does not bring into question the reasoning of Weinberg J at first instance. Rather, it affirms it. The reasoning of Wilcox J in the Full Federal Court decision is consistent with Weinberg J's observations in relation to s 5A(1)(a) of the DFRDB Act and the majority decision in Chapman [2001] FCA 594 ; 108 FCR 537 does not challenge such reasoning as their Honours, considering s 5A(1)(b) was applicable to Major Chapman's circumstances, said ' it is unnecessary to consider other bases for ineligibility '. That is, the majority did not make any finding in relation to s 5A(1)(a). Therefore, Weinberg J's decision, and reasons, are still good law in respect of his interpretation of s 5A(1)(a). Chapman [2001] FCA 594 ; 108 FCR 537 was silent on the interpretation of s 5(3) of the DFRDB Act. None of their Honours considered the section. The majority did not need to as s 5 as a whole was irrelevant for the purposes of s 5A(1)(b). It can be assumed that Wilcox J considered that Weinberg J's findings in relation to that section were correct as he did not mention s 5(3) even though he relied on s 5A(1)(a). The fact that the majority of Chapman [2001] FCA 594 ; 108 FCR 537 decided that Major Chapman fell under s 5A(1)(b) rather than 5(1)(a) has no consequence for the present purposes. The respondent's election under s 132 is equally irrelevant. The Court is not bound by Chapman . However, the Court would need sound reasons to depart from considered, well-reasoned findings by members of this Court regarding the interpretation of provisions which are directly relevant to the current proceedings. The Court respectfully adopts the reasoning of the Full Court as well as Weinberg J in Chapman 63 ALD 351 which proceeds along similar lines. It follows from the above that the points of distinction relied upon by the respondent do not distinguish his circumstances from that considered in both Chapman decisions. The respondent's interpretation of s 5(3) Section 3(1) of the DFRDB Act provides: "service" means service as a member of the Defence Force.