Clayton and Repatriation Commission (Veterans' entitlements)

This matter concerned an appeal by Mr Clayton against a decision of the Repatriation Commission regarding his entitlement to a pension at the special rate. The core of the dispute revolved around whether Mr Clayton, who was over 65, met the requirements of the "10 year rule" under section 24(2A)(g) of the relevant legislation. The Deputy President K Bean was required to determine this preliminary issue.

The legal issue before the court was whether Mr Clayton satisfied the second limb of section 24(2A)(g), which pertains to veterans working on their own account. Specifically, the court had to consider if Mr Clayton's period of working as a hotel owner/manager for at least 10 years, which commenced before he turned 65 and ended after he turned 65, was sufficient to satisfy the rule, notwithstanding his subsequent short-term employment. The court also had to determine the point in time and the capacity in which Mr Clayton last undertook paid work.

The court reasoned that section 24(2A)(g) directs attention to the capacity in which a veteran last undertook paid work. Citing the Full Court of the Federal Court in *Ralph v Repatriation Commission*, the court noted that the criterion is concerned with the capacity of that last paid work. The evidence established that Mr Clayton's last remunerated work was as an employee at Fassina Liquor merchants, concluding on 3 August 2014. The provision then requires, in cases of last employment as an employee, that the veteran had been working for that employer or predecessors for a continuous period of 10 years that began before they turned 65. As Mr Clayton did not satisfy this limb, and his last work was not on his own account, he could not satisfy the 10 year rule.

Having determined that Mr Clayton did not satisfy section 24(2A)(g), the court concluded that he was not entitled to a pension at the special rate. Accordingly, the decision under review was affirmed.