Smith, Keith Kingsford v The Repatriation Commission

[1983] FCA 53

Re: KEITH KINGSFORD SMITH
And: THE REPATRIATION COMMISSION
Qld G114 of 1982
Repatriation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.

CATCHWORDS

Repatriation - appellant's entitlement to a pension under the Repatriation Act 1920 (Cwlth), Second Schedule - appellant in partnership - profit received from the partnership - work performed for the partnership without payment - entitled to payment - earning a living wage - negligible percentage of a living wage.

The Repatriation Act 1920 (Cwlth), s.107VZZH, Second Schedule

HEARING

BRISBANE

#DATE 29:3:1983

ORDER

1. The Appeal is allowed.

2. The decision appealed from is set aside.

3. The matter is remitted to the Tribunal.

JUDGE1

This is an appeal from a decision of the Repatriation Review Tribunal made on 20 October 1982 affirming a decision of a Repatriation Board which assessed the appellant's pension at the Intermediate rate (paragraph 5 of Schedule 1, Repatriation Act, 1920), plus a Fifth Schedule benefit, with effect from 10 July 1979. The appellant claims to be entitled to the Special rate of pension provided for in the Second Schedule of the Repatriation Act 1920 ("the Act"). That rate of pension is payable to a person who is totally and permanently incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage. The appeal is brought to this Court pursuant to s.107VZZH of the Act. The question of law on which the appellant appeals is stated in the Notice of Appeal in the following terms:

"Whether the Repatriation Review Tribunal misdirected itself in relation to the interpretation of the word 'incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage' in Schedule 2 of the Repatriation Act 1920 (as amended) in arriving at its . . . decision."

The material facts are in short compass. The appellant is a grazier, in his late 60s. Until late 1973, he worked a grazing property, part of which is in his name, part of which is in his wife's name, and part of which is now in the name of his eldest son. In late 1973, a partnership "Wyngarra Partnership" was formed. It consists of the appellant, his wife, his married daughter and his two sons. The partnership's property consists of livestock and chattels. The appellant formed the partnership to encourage his sons to return to work the property. Under the terms of the partnership agreement, no rent is paid by the partnership for the use of the land owned by the appellant, his wife, and eldest son. Further, each of the partners is, under the partnership agreement, entitled to live on the land free of rent or other charge. Each of the partners also has telephone, electric light, and petrol accounts paid by the partnership.

The partnership agreement provides that the appellant is entitled to one-quarter of the net profits of the partnership and that each of…