Jakab and Repatriation Commission - [2004] AATA 428

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 428
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/9

VETERANS' APPEALS DIVISION
)

Re STEFAN JAKAB

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe
Date30 April 2004
PlaceBrisbane

Decision The Tribunal decides to affirm the decision under review insofar as it has jurisdiction to do so.
..................(Sgd).......................
KL Beddoe
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements - rate of service pension – partnership business trading in listed securities – income from business properly treated as ordinary income and not deemed income – shares traded by the business not “financial assets” - decision to reduce rate of pension properly made
VETERANS’ AFFAIRS – practice and procedure – overpayment of pension - jurisdiction of Tribunal on review – no power to review whether there has been an overpayment
Veterans’ Entitlements Act 1986 ss 5H, 5(J)(1), 37N, 46B, 46E, 57, 175(2)
Re Knight and Repatriation Commission (1993) 18 AAR 370
FC of T v Everett (1980) 143 CLR 440
Norman v FC of T (1963) 109 CLR 9
REASONS FOR DECISION

30 April 2004 Senior Member KL Beddoe

1.      The applicant seeks review of a decision by the respondent that there has been an overpayment of service pension to the applicant. In essence the dispute arises from data-matching with records of the Australian Taxation Office and because the applicant did not report income on the basis that he was carrying on business in partnership with his wife to the respondent. The business is said to be one of trading in listed securities. The applicant says the deeming provisions should apply as the listed securities are financial assets. He also says that the shares are jointly owned with his wife and were properly reported to the Department of Veterans’ Affairs. He does not deny substantial profits from share trading in the year to 30 June 2000, the financial year in which it is said that the overpayment of service pension occurred.
2. Sub-division B of Division 4 of Part III of the Veterans’ Entitlements Act 1986 (“the Act”) provides for making a claim for invalidity service pension. It is not disputed that the applicant made such a claim and that the claim was accepted.
3. Section 37N of the Act provides for working out the rate of payment of an invalidity service pension in accordance with the Rate Calculator in Part 2 of Schedule 6 of the Act.
4.      Module A of the Rate Calculator provides for the overall rate calculation process but depends upon calculations made in relevant following modules.
5.      In particular, Module E provides for the “ordinary/adjusted income test”. In this case the relevant concept is “ordinary income” which is defined in sub-section 5H(1) of the Act as meaning income that is not maintenance income or an exempt lump sum. No issue arises in relation to maintenance income, or an exempt lump sum.
6. Section 5H(1) defines “income” in relation to a person to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jakab and Repatriation Commission

Details

AGLC: Jakab and Repatriation Commission [2004] AATA 428
Case: [2004] AATA 428
Decision Date: 30 April 2004

CaseChat Overview and Summary

The case of Jakab and Repatriation Commission involved a dispute over the rate of service pension to be awarded to the applicant, Mr Jakab, who was a veteran. The matter was brought before the Administrative Appeals Tribunal (AAT). The central issue was whether the income generated from a partnership business trading in listed securities should be treated as ordinary income for the purposes of calculating Mr Jakab's pension entitlement. Additionally, the Tribunal was asked to determine whether it had the jurisdiction to review the decision regarding an overpayment of pension.

The Tribunal first considered whether the income from the partnership, which traded in listed securities, should be classified as ordinary income or deemed income. The Tribunal held that the income was properly treated as ordinary income because the shares traded by the business were not considered “financial assets” as defined in the relevant legislation. This conclusion was based on the Tribunal’s interpretation of the statutory provisions and the nature of the business activities. Furthermore, the Tribunal found that the decision to reduce the rate of pension was properly made in accordance with the statutory provisions, considering the ordinary income derived from the partnership.

The Tribunal also examined its jurisdiction to review the decision regarding an overpayment of pension. It concluded that it did not have the authority to review such matters, as established by relevant case law and statutory provisions. The Tribunal found that its role was limited to reviewing decisions made under the Veterans’ Entitlements Act 1986, and it did not extend to determining whether there had been an overpayment. Therefore, the Tribunal affirmed the decision under review to the extent of its jurisdiction.

The Tribunal affirmed the decision under review, upholding the determination that the income from the partnership business should be treated as ordinary income and that the pension rate was properly adjusted. The Tribunal did not have jurisdiction to review the issue of overpayment of pension.

Orders

Orders of the court

The Tribunal decides to affirm the decision under review insofar as it has jurisdiction to do so.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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