Major and Repatriation Commission - [2003] AATA 826

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 826
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1044
VETERANS' APPEALS DIVISION

Re: BOAZ MAJOR
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       M.J. Carstairs, Member
Date:             22 August 2003
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member

VETERANS' AFFAIRS - veterans' entitlements service pension – controlled private trust – attribution of assets ‑ whether beneficiaries attributable stakeholders
Veterans’ Entitlements Act 1986 ss52ZN, 52ZO, 52ZQ, 52ZZB, 52ZZH,
52ZZJ, 52ZZZQ, Schedule 6
Veterans' Entitlements (Attributable Stakeholders and Attribution Percentages) Principles
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Television Corporation Ltd v The Commonwealth of Australia and Another
(1963) 109 CLR 59
Riddell v Secretary, Department of Social Security (1993) 30 ALD 31
Minister for Aboriginal Affairs and Another v Peko-WalIsend Limited and Another
(1986) 162 CLR 24
D. Pearce and S. Argument 1999, Delegated Legislation in Australia 2^nd edn,
Butterworths, Sydney
REASONS FOR DECISION
22 August 2003  M.J. Carstairs, Member
1.      This is an application by Boaz Major (the applicant) for review of a decision made by a delegate of the Repatriation Commission (the respondent) on 28 February 2002. This decision affirmed an earlier decision of the respondent that the service pensions of the applicant and his wife, Marjorie Major, were to be cancelled with effect from 1 January 2002, due to the operation of new provisions for the assessment of private trusts under the Veterans’ Entitlements Act 1986 (the Act).
2.      At the hearing the applicant was represented by Mr M Anstis of Leon Hyman and Associates, solicitors. Mr R. Douglass, an advocate with the Department of Veterans' Affairs, represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975. The Tribunal also had before it Statements of Facts and Contentions lodged by the respondent on  13 December 2002 and 5 March 2003, and by the applicant on 30 December 2002, 13 March and 7 May 2003. The Deed of Settlement for the Bo Major Family Trust (the trust) was marked as Exhibit A1.
BACKGROUND
4.      The applicant was born on 29 September 1921 and his wife was born on 18 March 1920. They have received service pension payments since 3 August 1995.
5.      In 1979 the trust was created. The Trustee Company for the trust was Leebing Investments, later replaced by Boemm Pty Ltd (the trustee company). The trustee company is a private company, the applicant and his wife being the sole shareholders and directors. The trust is discretionary, and gives the trustee powers to hold the assets and income of the trust for the benefit of the beneficiaries, at the absolute and uncontrolled discretion of the trustee.
6.      On 15 March 2001 the respondent received two forms completed by the applicant Private trust and Private company in which the applicant provided the details of the trust and company arrangements. As new legislative provisions dealing with trusts and companies were commencing on 1…

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.

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Details

Case: [2003] AATA 826
Decision Date: 22 August 2003

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, Boaz Major sought review of a decision by the Repatriation Commission to cancel his service pension due to changes in the assessment of private trusts under the Veterans' Entitlements Act 1986. The key issue before the Tribunal was whether Boaz Major and his wife should be considered attributable stakeholders of the trust, and if so, whether their asset attribution percentage should be less than 100%. Boaz Major's legal representative argued that the respondent's assessment process was deficient, as it failed to consider whether the beneficiaries exert influence over Major, and whether they are attributable stakeholders of other trusts or companies. Major's representative submitted that it was incorrect for the respondent to attribute 100% to Major and his wife without conducting a full enquiry.

The Tribunal found that the trust was a designated private trust, and that Boaz Major and his wife met the definition of controllers of the trust. The Tribunal held that the respondent is not required to investigate exhaustively all aspects of the operations of companies, trusts, individuals, and business entities related to them. The Tribunal found that the Principles, which set out factors to be taken into account by the decision-maker, allowed a broad-ranging enquiry after which a decision-maker may fix percentages reflecting the facts that emerge. The Tribunal concluded that there were no relevant circumstances which made it inappropriate for Boaz Major to be an attributable stakeholder, and that there was no reason to reduce the percentage attribution below 100%.

The Tribunal affirmed the decision under review, and the cancellation of Boaz Major's service pension was upheld.

Orders