Dunkley v Repatriation Commission

[2002] FMCA 66

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNKLEY v REPATRIATION COMMISSION [2002] FMCA 66

VETERANS ENTITLEMENTS – Loss of earning allowance – applicant self employed – whether ‘engaged’ in an occupation – appeal dismissed.

Re Hoyne and Repatriation Commission (1997) 47 ALD 708

Veterans Entitlements Act 1986  s 23, 24(4), 108, 108(2), 108(8)
Administrative Appeals Tribunal Act 1975 s.44

Applicant: COLIN C DUNKLEY

Respondent: REPATRIATION COMMISSION

File No: MZ774 of 2001

Delivered on: 26 April 2002

Delivered at: Melbourne

Hearing Date: 29 January 2002

Judgment of: McInnis FM

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr P Hanks QC

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

(1)The application is dismissed.

(2)There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 774 of 2001

COLIN C DUNKLEY

Applicant

And

REPATRIATION COMMISSION

Respondent

REASONS FOR JUDGMENT

1. COLIN DUNKLEY (the Applicant) has appealed to the court in relation to a decision made by the Administrative Appeals Tribunal on 3 August 2001 (the AAT decision).

2. In its decision the Administrative Appeals Tribunal (the AAT) had set aside a decision by the REPATRIATION COMMISION (the Respondent) which had decided that the Applicant had been entitled to loss of earnings allowance under s 108 of the Veterans Entitlements Act 1986 (the VE Act) for the period 3 August 1999 to 30 August 1999 and substituted for that decision a decision that the Applicant is not entitled to loss of earnings allowance beyond 5 July 1999.

3. The Applicant’s claim for the grant of loss of earnings allowance arises from s 108 of the VE Act which provides as follows:-

   “(1) The Commission may grant an allowance, called loss of earnings allowance, to a person in accordance with the provisions of this section.

   (2)  Loss of earnings allowance may be granted to a veteran, in respect of any loss of salary or wages, or loss of earnings on his or her own account from an occupation in which he or she is engaged, suffered by reason of:

   (a)the veteran’s undergoing treatment for incapacity from a war-caused injury or a war-caused disease;

   (b)the veteran’s having to wait for the supply of, or repairs to, an artificial replacement or surgical aid or appliance necessitated by such an incapacity;

   (c)an investigation of a claim or application made by the veteran under Part II or of a pension granted to the veteran under that Part; or

   (d)the veteran’s undergoing treatment associated with such an investigation.”

4. It is noted that s 108(7) of the VE Act provides that the allowance is not payable to a person in respect of any period for which that person is receiving a pension at the rate specified in s 24(4), that is the special rate of pension.  Section 108(8) of the VE Act provides a formula for the calculation of the amount of the allowance by reference to the rate specified in s 24(4) and to the amount that the veteran would have earned from the occupation referred…