Gault and Repatriation Commission (Veterans’ entitlements)

This matter concerned an application for review by Mr and Mrs Gault regarding decisions made by the Repatriation Commission concerning their service pensions. The dispute arose from the attribution of retained company profits as ordinary income for the purposes of calculating the rate of their service pensions. The Gaults were shareholders in two private companies, and initially, retained profits were not attributed to their personal income. Following a review, the Commission altered the attribution percentages and the effective date for the reduction in pension rates, leading to the Gaults' application for further review.

The primary legal issues before the Tribunal were whether the Gaults had complied with their notification obligations under the *Veterans’ Entitlements Act 1986* (the Act) concerning company financial statements, and the correct effective dates for any adjustments to their service pension rates. Specifically, the Tribunal had to determine the meaning of "should" in the context of the notice requiring the provision of financial statements within 14 days of finalisation, and whether a failure to comply with this notice justified the retrospective reduction of their pension rates from an earlier date. The Tribunal also considered its jurisdiction in relation to any resulting overpayments or debts.

The Tribunal reasoned that the notice provided to the Gaults, which stated they "should" forward financial statements within 14 days of finalisation, imposed a mandatory obligation, not merely a suggestion. The use of "should" in this context, particularly within a statutory notice detailing notification requirements, was interpreted as requiring compliance. Consequently, the failure to provide the financial statements within the stipulated timeframe meant that the company income could not be disregarded when calculating the pension rate. The Tribunal affirmed the decision regarding the company income amounts and attributable percentages but varied the effective dates for the pension rate reductions, remitting the matter to the Commission to recalculate the correct pension rates from these revised dates. The Tribunal explicitly stated it had no jurisdiction to review decisions concerning the raising, recovery, or waiver of any resulting overpayments or debts.