Repatriation Commission v Hall, H.S - [1988] FCA 128

Re: REPATRIATION COMMISSION
And: HARRY STEWART HALL and JOAN EVELYN HALL
No. G575 of 1986
Veterans' Entitlements

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Davies(1) and Einfeld(1) JJ.

CATCHWORDS

Veterans' Entitlements - Appeal from Administrative Appeals Tribunal - application of assets tests in Division 4 of Part II of the Act - trust property held by family discretionary trust - what income reasonably derived from the property - what factors may be taken into account by the test of reasonableness - whether the Tribunal considered and dealt with the two issues raised by s.53(1) of the Act

Secretary, Department of Social Security v. Copping (1987) 73 ALR 343.

Veterans' Entitlements Act 1986 (Cth) - s.53

Administrative Appeals Tribunal Act 1975 (Cth) - s.44

HEARING

SYDNEY

#DATE 30:3:1988

Counsel for the Applicant: Mr B.T. Sully Q.C. with Mr J.S. Hilton

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the respondent: Mr M.D. Broun QC with Mr H. Bleicher

Solicitors for the respondent: Australian Legal Aid Office

ORDER

The appeal be dismissed.

The Tribunal's order be varied:

(a) In order 2 by substituting "direction" for "recommendation"

(b) By adding to the end of the order -

"(b) That section 53(3) should not be applied to reduce the service pension of H.S. Hall or wife's service pension of J.E. Hall subject to any relevant change of circumstances of the veteran and spouse arising since the hearing before the Tribunal, it being noted that the Tribunal proceeded on the basis that no further distributions would be made from the H.S. Hall Family Trust otherwise than to the veteran and for his spouse while the veteran and/or his spouse is receiving a service pension, so that such a distribution would be a change of circumstances."

The applicant pay the respondent's costs of the
appeal.

NOTE: Settlement and entry of orders are dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision by majority of an Administrative Appeals Tribunal ("the Tribunal") which held that, for the purposes of the application of the assets tests set out in Division 4 of Part II of the Veterans' Entitlements Act 1986 (Cth), the applicant, the Repatriation Commission, should disregard the interests of the respondents, Mr H.S. Hall and his wife, Mrs J.E. Hall, in three properties known as "Murray Pine", "Pine View" and "Lot 3" and also the value of the interests which Mr and Mrs Hall had in a Trust entitled the "Harry Stewart Hall Family Trust". Under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), the appeal is brought with respect to, and is limited to, points of law.

The matter arose under legislation substantially identical to that appearing in ss.6AD and 6AE of the Social Security Act 1947 (Cth), provisions which were considered by a Full Court of this Court in Secretary, Department of Social Security v. Copping (1987) 73 ALR 343. Relevant provisions of the

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: [1988] FCA 128
Decision Date: 30 MARCH 1988

CaseChat Overview and Summary

In this case, the Repatriation Commission sought to appeal a decision made by the Administrative Appeals Tribunal (AAT) concerning the application of assets tests to a veteran's entitlements. Specifically, the dispute centred around the income reasonably derived from trust property held by a family discretionary trust and whether the AAT had appropriately considered the relevant factors in making its determination. The matter was heard in the Federal Court of Australia.

The central legal issues the court had to decide were whether the AAT had adequately considered the two issues raised by section 53(1) of the Act and whether the factors taken into account by the tribunal in determining what income was reasonably derived from the trust property were appropriate. Additionally, the court had to examine whether the AAT had correctly applied the relevant provisions of the Act to the circumstances of the case.

The Federal Court found that the AAT had indeed considered and dealt with the two issues raised by section 53(1) of the Act. The court held that the AAT appropriately exercised its discretion in determining the income reasonably derived from the trust property, taking into account the relevant factors. The court also noted that the AAT's approach to applying the assets tests was consistent with the provisions of the Act. As a result, the appeal was dismissed, and the Tribunal's order was varied to reflect the court's findings. The veteran's and his spouse's service pensions would not be reduced, subject to any relevant changes in circumstances since the hearing before the Tribunal. The Repatriation Commission was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

The appeal be dismissed.

The Tribunal's order be varied:

(a) In order 2 by substituting "direction" for "recommendation"

(b) By adding to the end of the order -

"(b) That section 53(3) should not be applied to reduce the service pension of H.S. Hall or wife's service pension of J.E. Hall subject to any relevant change of circumstances of the veteran and spouse arising since the hearing before the Tribunal, it being noted that the Tribunal proceeded on the basis that no further distributions would be made from the H.S. Hall Family Trust otherwise than to the veteran and for his spouse while the veteran and/or his spouse is receiving a service pension, so that such a distribution would be a change of circumstances."

The applicant pay the respondent's costs of the

appeal.

NOTE: Settlement and entry of orders are dealt with in

Order 36 of the Federal Court Rules.

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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