Repatriation Commission v Kimpton [2006] FCA 1120

Repatriation Commission v Kimpton [2006] FCA 1120

The Tribunal did not err in law or breach procedural fairness in exercising its discretion to exclude assets, since there were no relevant decision-making principles that limited its power and the Commission had the opportunity to address the issue. However, the Tribunal failed to decide a material question, namely whether there was an imputed disposal of shares under s 52E, as put before it; if the Commission files amended grounds of appeal raising this point, the matter should be remitted to the Tribunal; otherwise, the appeal stands dismissed.

Parties
Applicant: Repatriation Commission; Respondent: Percy Kimpton; Respondent: Beryl Kimpton
Jurisdiction
Australia
Judgment Date
22 August 2006
Procedural Posture
Appeal / Judgment on Appeal From Administrative Appeals Tribunal
Outcome
Conditional remitter to Tribunal on amended grounds; otherwise application dismissed; costs to respondents in any event
Legal Topics
Service Pensions, Means Testing, Attribution of Assets, Exclusion of Assets, Procedural Fairness, Disposal of Assets, Tribunal Review
Administrative Law Veterans' Law Social Security Law Service Pensions Means Testing Attribution of Assets Exclusion of Assets Procedural Fairness +2 more

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Parties

Repatriation Commission

Applicant

Percy Kimpton

Respondent

Beryl Kimpton

Respondent

Procedural Posture

Appeal / Judgment on Appeal From Administrative Appeals Tribunal

Legal Issues

  1. 1 Whether the Tribunal erred in law by failing to decide whether the winding up of companies involved an imputed disposal of shares under s 52E of the Veterans' Entitlements Act 1986 (Cth)
  2. 2 Whether the Tribunal failed to comply with relevant Decision Making Principles when exercising discretion to exclude assets
  3. 3 Whether the Tribunal denied procedural fairness to the Commission by making a determination on excluded assets without sufficient notice

Ratio Decidendi

The Tribunal did not err in law or breach procedural fairness in exercising its discretion to exclude assets, since there were no relevant decision-making principles that limited its power and the Commission had the opportunity to address the issue. However, the Tribunal failed to decide a material question, namely whether there was an imputed disposal of shares under s 52E, as put before it; if the Commission files amended grounds of appeal raising this point, the matter should be remitted to the Tribunal; otherwise, the appeal stands dismissed.

Court Disposition

Conditional remitter to Tribunal on amended grounds; otherwise application dismissed; costs to respondents in any event

Orders

  • The applicant has leave to amend the notice of appeal to include a ground that the Tribunal erred in failing to decide whether shares held by the respondents were disposed of under s 52E.
  • If an amended notice is filed by 12 September 2006, the Tribunal's decision of 20 September 2005 is set aside and the matter remitted to the Tribunal for determination according to law.