DOUGLAS MEPHAM and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 478

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5080

VETERANS' APPEALS DIVISION		)
Re		DOUGLAS MEPHAM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member A K Britton
Dr J D Campbell, Member

Date 28 June 2010

PlaceSydney

Decision The decision under review is affirmed.

..................[SGD]...............................

Senior Member A K Britton

5. Section 24(2)(a) provides that for the purposes of the second limb of s 24(1)(c), the so-called “loss test”, a veteran shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i)  the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii)  the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; …

6.         In Flentjar v Repatriation Commission (1997) 48 ALD 1 at 4-5 Branson J (with whom Beaumont and Merkel JJ agreed) described the issues raised by s 24(1)(c) as being:

(1) What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?

(2) Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?

(3) If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?

(4) If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?

7. Whether Mr Mepham satisfies the criteria prescribed by s 24 must be assessed in relation to the “assessment period”, which runs from the date on which his claim was received, 10 June 2003, to the date his claim is ultimately determined: s 19(5C) of the Act. If he satisfies all s 24 criteria at any time during that period, he will have an entitlement to the special rate pension from that time, notwithstanding that at some subsequent time he does not satisfy all criteria: Leane v Repatriation Commission [2004] FCAFC 83 at [31].

Background

8.         Mr Mepham joined the Royal Australian Air Force in 1964 and resigned in 1986. He spent 12 months in Vietnam on active service. While in the Air Force, he trained and worked as an engineer. On resigning from the Air Force in 1986, he worked as an aircraft planner for a couple of years before going on to work as a handyman.

9.         In 1993, Mr Mepham and his wife purchased a 3500 acre property in Inverell with the intention of running cattle and sheep.  According to Mr Mepham, the farm was…