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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Confidential and Child Support Registrar and Anor  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  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.
Bassili and Prosegur Australia Pty Ltd  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  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  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  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.
JM Gillies and Agencies Pty Ltd and Chief Executive Officer of Customs  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
Delahunty and Commonwealth Superannuation Corporation  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
Issa and Migration Agents Registration Authority  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  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  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
Butler and Secretary, Department of Social Services  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  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  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  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  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  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  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  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  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.
Agius and Commissioner of Taxation  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  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  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  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
Paton and Repatriation Commission  AATA 863; 21/11/2014; Senior Member PW Taylor SC
Disability pension – depressive conditions – whether conditions are service related – decision set aside and remitted