Recent decisions

The following Written Reasons for Decisions have been handed down this week. Links to the full text of the Decisions at the AustLII website are provided.

This page is updated each weekday and is current to 30 October 2014.

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Child Support

Confidential and Principal Member, Social Security Appeals Tribunal [2014] AATA 755; 17/10/2014; Dr M Denovan, Member

Child Support Agency – CSA – Application for extension of time – Reasons for delay outside of Applicant’s control – Decision set aside and substituted.

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Compensation

Jensen and Military Rehabilitation and Compensation Commission [2014] AATA 807; 30/10/2014; Senior Member BJ McCabe

VETERANS’ AND MILITARY COMPENSATION – Liability for shoulder condition accepted – Entitlement to incapacity benefits – Calculation of applicant’s actual and normal earnings – No substitution of minimum wage for calculated civilian components – Reviewable decision affirmed.

 

Kelly and Australian Postal Corporation [2014] AATA 779; 24/10/2014; Senior Member D Letcher QC

Employee of licensed corporation – Whether no present entitlement to compensation – Adjustment disorder with mixed anxiety and depressed mood – Decision affirmed

 

Melodia and Military Rehabilitation and Compensation Commission [2014] AATA 773; 24/10/2014; Senior Member AK Britton

Military rehabilitation and compensation – Claim for adjustment disorder and achilles tendinopathy – Whether a service injury or service disease – Whether the injury/disease is connected with service – Category 2 stressor – Decision affirmed

 

Munswamy and Australian Postal Corporation [2014] AATA 757; 20/10/2014; Senior Member G Ettinger, Dr W Isles, Member

employee of licensed corporation – injury in 2008 – liability to pay compensation for injury to lumbar spine accepted – subsequent decision of no present entitlement to compensation for medical expenses and incapacity affirmed by consent – present proceedings involve review of three decisions – determination of no present entitlement to compensation for medical expenses and incapacity in relation to accepted aggravation of constitutional degenerative changes in lumbar spine – denial of liability to pay compensation for new claim of aggravation of constitutional degenerative changes in lumbar spine – denial of liability to pay compensation for psychological injury due to alleged bullying and harassment – decisions under review affirmed

 

Ragg and Military Rehabilitation and Compensation Commission [2014] AATA 758; 20/10/2014; Senior Member BJ McCabe

Accepted liability for neck condition and its sequelae – Regular zen shiatsu massage – Treatment provided by massage therapists – Massage therapists not registered practitioners – Massage not recommended as part of treatment plan by psychiatrist or pain specialist – Treatment not reasonable – Decisions under review affirmed.

 

Roberts and Military Rehabilitation and Compensation Commission [2014] AATA 765; 23/10/2014; Deputy President PE Hack SC

Service in Australian Regular Army – thoracic back degeneration – no medical evidence to support relationship between present condition and army service – decision under review affirmed

 

Salazar and John Holland Pty Ltd [2014] AATA 770; 24/10/2014; Deputy President JW Constance

Whether the applicant suffered from a disease – whether the applicant suffered from a condition outside the boundaries of normal mental functioning and behaviour – decision affirmed

 

Stirling and Repatriation Commission [2014] AATA 804; 30/10/2014; Senior Member BJ McCabe

VETERANS’ AND MILITARY COMPENSATION – Several non-accepted conditions – Ischaemic heart disease – Depressive disorder – Alcohol abuse or dependence – Gastro-oesophageal reflux disease – Application of relevant Statements of Principle – Tribunal not reasonably satisfied conditions connected to service – Reviewable decisions affirmed.

 

Wilson and Australian Postal Corporation [2014] AATA 805; 30/10/2014; Senior Member JL Redfern

Employee of licensed corporation – claim for compensation for injury resulting in permanent impairment – whether accepted psychological injury arising from 2009 road rage incident resulted in permanent impairment – assessment of the degree of permanent impairment – costs – decision set aside

 

Winter and Comcare [2014] AATA 811; 30/10/2014; Deputy President PE Hack SC and Dr M Sullivan, Member

Permanent impairment – whether a “need” for supervision and direction – decision set aside

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Defence

Wilson and Commonwealth Superannuation Corporation [2014] AATA 795; 28/10/2014; Deputy President PE Hack SC

Defence Force Retirement and Death Benefits – applicant retired from army – whether applicant should have been retired on medical grounds due to posttraumatic stress disorder – insufficient evidence to show applicant suffering posttraumatic stress disorder on discharge – decision under review affirmed

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Freedom of Information

Matthews and Australian Securities and Investments Commission and Newmont Australia Ltd and Ryan and Knapp (Parties Joined) [2014] AATA 769; 24/10/2014; Deputy President SA Forgie

Documents subject of 2010 decision but consideration of personal privacy and business affairs exemptions deferred – further information within documents claimed to be exempt – additional documents located – deletion of information not relevant to the request
Practice and Procedure – abuse of process – whether Tribunal has power to consider – no power to decide abuse of process – joined party’s claim of delay by ASIC – no abuse of process
Personal information – unreasonable disclosure – objective standard –third party consultation undertaken
Business affairs – ‘would, or could reasonably be expected’ – ‘unreasonably affect’ – in respect of a person – concerning an organisation or undertaking
Protected information under ASIC Act – disclosure of information under FOI considered separately – such disclosure under law of Commonwealth and so permitted under s 127(2) of ASIC Act
Breach of confidence – four elements to found action – identify information with specificity – information to have the necessary quality of confidentiality – information to have been received in circumstances to import an obligation of confidence – threatened misuse of information
Deletion of exempt matter or irrelevant material – ‘would reasonably be regarded’

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Immigration and Citizenship

Lo and Minister for Immigration and Border Protection [2014] AATA 736; 14/10/2014; Deputy President JW Constance

Citizenship by conferral – likely to reside or maintain a close and continuing association with Australia – whether temporal limit on when residence must be likely to occur – decision affirmed

Citizenship by conferral – good character – previous convictions for traffic offences – failure to disclose information on application form – decision affirmed

 

Tacalan and Minister for Immigration and Border Protection [2014] AATA 767; 23/10/2014; Deputy President PE Hack SC

Application for citizenship – whether applicant of good character – applicant provided false date of birth to Department over five years – decision under review affirmed

 

Vernon and Minister for Immigration and Border Protection [2014] AATA 777; 24/10/2014; Senior Member D Letcher QC

Cancellation of approval of citizenship application – whether applicant is not of good character – decision affirmed

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Practice and Procedure

Chandra and Secretary, Department of Social Services [2014] AATA 774; 24/8/2014; Senior Member D Letcher QC

Extension of time application – explanation of delay – merits of substantive application – application refused

 

Stylis and Commissioner of Patents [2014] AATA 796; 28/10/2014; Deputy President SA Forgie

Whether Tribunal has jurisdiction to review decision refusing to stay consideration of a request to make a direction to co-patentees to become joined as parties in Supreme Court proceedings against third party – Commissioner refuses to stay consideration of application – whether Commissioner has made a decision that is reviewable by the Tribunal

Words and Phrases – decision under an enactment – “decision” – “under”

 

The Overseas Applicants and Commissioner of Taxation [2014] AATA 788; 27/10/2014; Senior Member G Lazanas

Interlocutory Application – receipt of evidence – application for oral evidence to be given by video link or to be taken by commission – applicants concerned about the respondent issuing a departure prohibition order if they attend to give evidence in person – application for oral evidence to be given by video link granted

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Social Security

Barnes and Secretary, Department of Social Services [2014] AATA 786; 24/10/2014; Mr M Hyman, Member

Pensions and benefits – parenting payment – overpayment – debt recovery – whether debt should be written off – whether debt should be waived – decision under review set aside and substituted

 

Barron; Secretary, Department of Social Services and [2014] AATA 783; 24/10/2014; Mr M Hyman, Member

Special child care benefit – child at risk of serious abuse or neglect – application of policy – whether a continuing risk of neglect – decision under review affirmed

 

Grasso and Secretary, Department of Social Services [2014] AATA 781; 24/10/2014; Senior Member D Letcher QC

Pensions – Disability support pension – Whether applicant's condition fully diagnosed, treated and stabilised – Whether applicant's impairment is rated 20 points or more under the Impairment Tables – Impairment rating of nil points – Decision under review affirmed

 

Hywood and Secretary, Department of Social Services and Anor [2014] AATA 791; 17/10/2014; Senior Member NA Manetta

Family Tax Benefit – estranged parents living apart – percentage share of care – SSAT finding that applicant had no care percentage set aside – applicant found to have had 51 percent care.

 

James and Secretary, Department of Social Services [2014] AATA 802; 29/10/2014; Dr M Denovan, Member

Carer Payment – Whether eligible to receive Carer Payment – Whether constant care provided – Whether Applicant qualifies for Carer Payment – Decision affirmed.

 

Kamal and Secretary, Department of Social Services [2014] AATA 806; 30/10/2014; Mr C Ermert, Member

Disability Support Pension – Impairment Tables – functional impairment – whether impairment rating of 20 points – decision affirmed

 

Khaled and Secretary, Department of Social Services [2014] AATA 763; 23/10/2014; Senior Member PW Taylor SC

Lump sum preclusion period - Applicant in receipt of Disability Support Pension - Compensation part of payment - Whether special circumstances - Portion of lump sum used to repay mortgage - No special circumstances present - Decision under review affirmed

 

Krieger and Secretary, Department of Social Services [2014] AATA 799; 29/10/2014; Senior Member NA Manetta

Pensions benefits and allowances – Disability Support Pension – whether conditions warrant 20 points – whether continuing inability to work – decision refusing pension affirmed.

 

MacMaster and Secretary, Department of Social Services [2014] AATA 776; 24/8/2014; Senior Member D Letcher QC

pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicants impairment is rated 20 points or more under the Impairment Tables – whether applicant has a continuing inability to work – decision under review affirmed

 

Mahmood and Secretary, Department of Social Services [2014] AATA 784; 24/10/2014; Senior Member D Letcher QC

Disability support pension – Extension of portability period – Whether applicant unable to return to Australia because of an event that occurred or began during period of absence – Applicant alleged he received threats to his life while in Iraq in 2013 – Family Tax Benefit – Estimate of income not provided to Centrelink as requested – Decision under review affirmed.

 

MBRF and Secretary, Department of Social Services [2014] AATA 749; 15/10/2014; Senior Member CR Walsh

Social security – disability support pension – the applicant’s impairments (being generalised musculoskeletal pain and depression)  were not fully diagnosed, treated and stabilised on the date he claimed DSP, or within 13 weeks thereafter – applicant’s impairments  did not attract 20 points or more under the “Impairment Tables” – decision under review affirmed

 

Natalizi and Secretary, Department of Social Services [2014] AATA 803; 30/10/2014; Senior Member PW Taylor SC

Disability support pension – psychiatric condition – portability – cancellation decision – whether condition fully treated and stabilised – whether a severe impairment – decision under review affirmed

 

Parker and Secretary, Department of Social Services [2014] AATA 809; 30/10/2014; Dr M Denovan, Member

Pensions, benefits and allowances – Disability support pension – Whether a rating of 20 points or more under the Impairment Tables – Section 94(1) not satisfied – Decision affirmed.

 

Pilato and Secretary, Department of Social Services [2014] AATA 775; 24/8/2014; Senior Member D Letcher QC

Pensions – preclusion period – special circumstances – non-recoverable legal costs – decision set aside

 

RPZP and Secretary, Department of Social Services [2014] AATA 800; 29/10/2014; Ms S Taglieri, Member

Portability of Carer Payment and Allowance; whether to extend portability period due to serious illness; discretion refused to be exercised.

 

SD and Secretary, Department of Social Services [2014] AATA 764; 23/10/2014; Senior Member JL Redfern

Debt – whether applicant was a member of a couple – whether there is any special reason to not treat applicant as a member of a couple – whether debt should be written off or waived – debts incurred over period of 10 years – question whether debts “irrecoverable in law” – whether officer became aware or could reasonably be expected to have become aware of circumstances giving rise to the debt – capacity to repay – decisions affirmed

 

Spelta and Secretary, Department of Social Services [2014] AATA 754; 10/10/2014; Deputy President PE Hack SC

Benefits and entitlements – applicant refused disability support pension – whether applicant’s conditions warrant a rating of 20 points under the Impairment Tables – whether applicant has continuing inability to work – whether applicant participated in a program of support – whether applicant’s conditions warrant a rating of 20 points or more under a single impairment table – decision under review affirmed

 

Tabije and Secretary, Department of Social Services [2014] AATA 778; 24/10/2014; Mr M Hyman, Member

Pensions and benefits – carer payment – overpayment – cancellation of payment – debt – whether debt should be written off – whether debt should be waived – decision under review affirmed

 

U’Brien and Secretary, Department of Social Services [2014] AATA 761; 23/10/2014; Senior Member AK Britton

Overpayments and debt recovery — Member of a couple — Whether there is a special reason the applicant should not be treated as being a member of a couple — Whether that discretion should be exercised — Whether the debt should be waived—Whether special circumstances exist — Whether the applicant knowingly made a false statement or representation to Centrelink — Meaning of “knowingly” — Whether the applicant acted under duress — Whether duress is a factor that can be taken into account in determining whether to waive a debt

 

Wright and Secretary, Department of Social Services [2014] AATA 768; 27/8/2014; Senior Member AK Britton

Disability Support Pension – Whether the applicant has a continuing inability to work – Episodic conditions

 

Zemek and Secretary, Department of Social Services [2014] AATA 801; 29/10/2014; Dr M Denovan, Member

Pensions, benefits and allowances – Disability support pension – DSP – 20 points or more under the Impairment Tables – Decision affirmed.

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Tax Agents

Frugtniet and Tax Practitioners Board [2014] AATA 766; 23/10/2014; Senior Member E Fice

Termination of registration as a tax agent – prevented from applying for registration for a period of five years – tax practitioner registration requirements – not a fit and proper person to be registered as a tax agent – applicant refused admission to practise as a barrister and solicitor – complaints lodged by clients – decision affirmed

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Taxation

Carey and Commissioner of Taxation [2014] AATA 762; 22/10/2014; Senior Member BJ McCabe

Appeal against objection decision – Statement of Facts, Issues and Contentions – Repeated non-compliance on part of taxpayer – Failure to conform to General Practice Direction – Effect of ‘guillotine’ order – Application dismissed.

 

Kirkby and Commissioner of Taxation [2014] AATA 759; 21/10/2014; Deputy President PE Hack SC

Assessment – acquisition and sale of mining tenements – applicant did not declare profits as income – applicant directed how profits were to be dealt with – objection decision affirmed

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Veterans' Affairs

Adamson and Repatriation Commission [2014] AATA 756; 17/10/2014; Dr P McDermott RFD, Senior Member

Australian Army – war-caused diseases prevented remunerative work – post-traumatic stress disorder – PTSD – depression – anxiety – alcohol dependence – applicant entitled to pension – decision set aside – decision substituted for entitlement of pension at intermediate rate.

 

Catherine Coleman as the LPR of the late Leonard Coleman and Repatriation Commission [2014] AATA 782; 24/10/2014; Senior Member D Letcher QC

Disability pension – eligible defence service – substance abuse disorder-alcohol – posttraumatic stress disorder – alleged sexual assault – decision affirmed

 

Collins and Repatriation Commission [2014] AATA 787; 24/10/2014; Senior Member D Letcher QC

Pension – operational service – claim that the veteran’s death was war-caused – consideration of Statement of Principles – the Tribunal affirms the decision under review

 

Holden and Repatriation Commission [2014] AATA 810; 30/10/2014; Senior Member GD Friedman

Veterans’ entitlements – widow’s claim – death from ischaemic heart disease – whether psychiatric condition contributed to ischaemic heart disease – remittal from Federal Court

 

Lilley and Repatriation Commission [2014] AATA 798; 28/10/2014; Dr P McDermott RFD, Senior Member

Ischaemic heart disease – Defence-caused – Whether reasonable satisfaction – Veterans’ Review Board found not defence-caused – Decision affirmed.

 

Rayfield and Repatriation Commission [2014] AATA 772; 17/10/2014; Deputy President PE Hack SC

Service pension – overpayment – whether Tribunal has jurisdiction – decision not made under s 57 of the Veterans’ Entitlements Act 1986 (Cth) – Tribunal lacks jurisdiction – Application dismissed

 

Schmidt and Repatriation Commission [2014] AATA 760; 21/10/2014; Deputy President PE Hack SC

Veterans’ entitlements – disability pension – posttraumatic stress disorder – whether applicant exposed to actual or threatened death or serious injury – diagnosis of posttraumatic stress disorder cannot be made – decision under review affirmed

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