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

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JUDGMENT No. 12S 4S8,-.

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 A.L.R. 343.

Veterans' Entitlements Act 1986 (Cth) - s.53 Administrative Appeals Tribunal Act 1975 (Cth) - s.44

REPATRIATION COMMISSION v. HARRY STEWART HALL and JOAN EVELYN HALL No. NSW G575 of 1986

Sweeney, Davies and Einfeld JJ. Sydney 30 March 1988

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G575 of 1986 GENERAL DIVISION )

ON APPEAL from the Veterans' Appeals Division of the Administrative Appeals Tribunal

BETWEEN: REPATRIATION COMMISSION

Applicant AND: HARRY STEWART HALL and JOAN EVELYN HALL Respondents CORAM: Sweeney, Davies and Einfeld JJ. DATE: 30 March 1988 PLACE: Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. 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 1s receiving a service pension, so that such a distribution would be a change of circumstances." - .