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 26 November 2014.

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Child Support

Confidential and Child Support Registrar and Anor [2014] AATA 865; 21/11/2014; Senior Member JF Toohey

Shared Care – whether decision of Registrar should be revoked – conflicting evidence of parents – weight of the evidence favours mother’s claims –decision under review set aside and remitted to the respondent to calculate child support payable in accordance with this decision

Confidential and Child Support Registrar and Anor [2014] AATA 874; 25/11/2014; Ms S Taglieri, Member

Pattern of care; whether revocation of percentage of care correct; actual percentage of care determination applicable for teenager living away from parent.

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Compensation

Bassili and Prosegur Australia Pty Ltd [2014] AATA 853, 14/11/2014; Senior Member E Fice

Shoulder injury – injury simpliciter – lifting bags of heavy coins – chronic calcific tendinopathy – calcific rotator cuff disease – constitutional condition – radiological evidence – aggravation of existing ailment – decision affirmed.

 

Ford and Military Rehabilitation and Compensation Commission [2014] AATA 858; 20/11/2014; Deputy President SD Hotop

Military Compensation – applicant rendered warlike service/non-warlike service – applicant claimed for acceptance of liability for cavernous angioma – respondent refused to accept liability for “intracerebral haemorrhage (date of onset 20 September 2011)” – applicant suffered right pontine cavernous angioma on 18 September 2011 (injury) – Statement of Principles does not uphold hypothesis connecting injury with circumstances of applicant's service – material before Tribunal does not raise reasonable hypothesis connecting injury with circumstances of applicant's service – Tribunal satisfied that no sufficient ground for determining that injury a service injury – injury not a service injury – decision under review varied

 

Foster and TNT Australia Pty Ltd [2014] AATA 852; 14/11/2014; Senior Member GD Friedman

Truck driver – chronic adjustment disorder with mixed anxious and depressed mood, drug dependency – previous left elbow injury – whether psychological condition arose out of or in the course of employment – whether employment contributed to psychological condition to significant

 

Wing and Military Rehabilitation and Compensation Commission [2014] AATA 859; 20/11/2014; Deputy President K Bean

Military rehabilitation and compensation – Claim for bronchiectasis which was diagnosed in 1966 – Whether notice served and claim made within period required by 1930 Act – Whether prejudice to the Commonwealth – Whether mistake, absence from Australia or other reasonable cause – Ignorance – Decision under review affirmed.

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Customs

JM Gillies and Agencies Pty Ltd and Chief Executive Officer of Customs [2014] AATA 868; 21/11/2014; Senior Member E Fice

Synthetic monofilament fishing lines – classification of goods – chapter 54 and chapter 95 – expert evidence by manufacturers of similar goods – application of the general rules of interpretation – use of chapter and section notes – reference to extrinsic materials – use of Explanatory Notes to the Harmonized Commodity Description and Coding System – statutory construction – tariff concession orders – interpretation of tariff concession orders – the stated use set out in an application for a TCO – tariff classification to which a TCO is keyed – the meaning of nylon yarn – decision affirmed.

Practice and Procedure – withdrawal of concessions previously made – model litigant rules – whether estoppel applies to proceedings in the Tribunal

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Defence

Delahunty and Commonwealth Superannuation Corporation [2014] AATA 864; 3/10/2014; Deputy President AG Melick SC

Defence force retirements and death benefits – applicant’s retiring impairment at date of discharge – percentage of incapacity in relation to civil employment – decision set aside and substituted

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Practice and Procedure

Issa and Migration Agents Registration Authority [2014] AATA 870; 24/11/2014; Senior Member G Ettinger

Application to stay decision of Office of Migration Agents Registration Authority – consideration of prospects of success at substantive hearing, public interest, disadvantages to the Applicant – procedural fairness – stay refused.

 

Soames and Secretary, Department of Social Services [2014] AATA 856; 17/11/2014; Senior Member JF Toohey

Practice and procedure – previous application dismissed as vexatious – applicant not to make certain further applications without leave – application for leave – whether applicant should be granted leave – previous submissions restated – no new information – leave to make application refused

 

Zanbergs and Commonwealth Bank of Australia [2014] AATA 866; 21/11/2014; Senior Member JF Toohey

Extension of Time – factors to be considered – whether acceptable explanation for delay – whether applicant instructed solicitors to delay application – whether delay on part of solicitors sufficient reason to grant the extension – extension of time granted

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Social Security

Butler and Secretary, Department of Social Services [2014] AATA 875; 13/11/2014; Senior Member BJ McCabe

Disability Support Pension – Whether Applicant has severe impairment – Whether Applicant has continuing inability to work – No impairment attracting 20 point rating – No participation in a program of support – Decision under review affirmed

 

Campbell and Secretary, Department of Social Services [2014] AATA 857; 19/11/2014; Senior Member PW Taylor

Disability support pension – Conditions which do not receive points under Impairment Tables – No severe impairment – Condition of depression not fully treated or stabilised – No continuing inability to work – Decision under review affirmed

 

Collin and Secretary, Department of Social Services [2014] AATA 861; 20/11/2014; Dr P McDermott RFD, Senior Member

Family Tax Benefit – FTB – Lump sum payment – Application lodged outside of time limitation – Whether application should be allowed – Provision does not confer discretion upon Secretary to extend time to lodge claim – Decision under review affirmed.

 

Confidential and Secretary, Department of Social Services and Anor [2014] AATA 872; 25/11/2014; Ms S Taglieri, Member

Family Tax Benefit; whether payable for 14 week qualifying period; to mother of child who left without her consent; or actual carer due to special circumstances

 

Elhenday and Secretary, Department of Social Services [2014] AATA 855; 17/11/2014; Senior Member JF Toohey

Disability support pension – serious injury at work – back, neck and shoulder impairments – psychological condition – reflux – whether conditions fully diagnosed treated and stabilised – not all conditions fully treated and stabilised during the relevant period – no single condition rating 20 or more points – applicant had not completed program of support – decision under review affirmed

 

Gifford and Secretary, Department of Social Services [2014] AATA 873; 21/11/2014; Senior Member CR Walsh

Disability support pension – lump sum compensation payment – 50% rule – lump sum preclusion period – “special circumstances” discretion – it is appropriate to treat the payment of legal costs, including disbursements, as not having been made – decision under review set aside and substituted

 

JYJF and Secretary, Department of Social Services [2014] AATA 862; 20/11/2014; Dr P McDermott RFD, Senior Member

Disability Support Pension – DSP – Impairment points – Continuing inability to work did not exist at date of cancellation – Decision under review affirmed.

 

Piazza and Secretary, Department of Social Services [2014] AATA 871; 13/11/2014; Senior Member BJ McCabe

Pensions – disability support pension – whether conditions are fully diagnosed, stabilised and treated – whether applicant’s impairments are rated 20 or more points under the impairment tables – decision affirmed

 

VHTH and Secretary, Department of Social Services [2014] AATA 860; 20/11/2014; Dr P McDermott RFD, Senior Member

Newstart Allowance – Income maintenance period – Ordinary income – Termination payment – Financial hardship – Special benefit – Decision under review affirmed.

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Taxation

Agius and Commissioner of Taxation [2014] AATA 854; 17/11/2014; Deputy President SE Frost

Income tax – default assessments – whether applicant was a resident of Australia – source of income – burden of proof – imposition of administrative penalty – whether return required to be lodged – remission of penalty – objection decisions affirmed

 

Byrt and Commissioner of Taxation [2014] AATA 867; 21/11/2014; Deputy President PE Hack SC

Income Tax – assessment – sale of mining tenements – profits not declared as income – decision under review affirmed

 

GHP 104 160 689 Pty Ltd and Commissioner of Taxation [2014] AATA 869; 24/11/2014; President D Kerr

Income taxation – remission of shortfall interest charge – shortfall quantum agreed by parties – orders made in terms of short minutes of orders submitted by consent

 

Hope and Commissioner of Taxation [2014] AATA 877; 26/11/2014; Deputy President SA Forgie

Excess contributions tax – superannuation payments in 2009 financial year – excess contributions made – request for determination from Commissioner for reallocation of contributions to other tax year – whether special circumstances – no special circumstances

Jurisdiction – Commissioner’s decision to refuse to make determination – rights of review for determination – substantive application decided

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Veterans' Affairs

Paton and Repatriation Commission [2014] AATA 863; 21/11/2014; Senior Member PW Taylor SC

Disability pension – depressive conditions – whether conditions are service related – decision set aside and remitted

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