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 27 August 2014.

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Business Names Registration

G C Swinburne and F J McFarlane and Australian Securities and Investments Commission and Child Psychology Services Pty Ltd (Joined Party) [2014] AATA 602; 26/8/2014; Deputy President FJ Alpins

Business Names Registration Act 2011 (Cth) – whether business names “available” for registration – whether business names “identical or nearly identical” to business name registered to another entity – meaning of “nearly identical” – construction of legislative instrument made under Act – effect of provision granting power to use computer programs to make decisions on construction of Act and legislative instrument

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Civil Aviation

Randazzo and Civil Aviation Safety Authority [2014] AATA 581; 21/8/2014; Mr R Bartsch, Member, Dr W Isles, Member

Conditions placed upon pilots licence – Condition imposed requiring pilot to undertake all flights with safety pilot present – Applicant with medical conditions – Atrial fibrillation – Whether applicant likely to endanger the safety of air navigation – History of compliance with medications unsatisfactory – Conditions appropriately imposed – Decision under review affirmed

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Compensation

Baker and Linfox Armaguard Pty Limited [2014] AATA 597; 25/8/2014; Senior Member BJ McCabe

Accepted liability for injury sustained at work – Claims for permanent impairment and non-economic loss – Applicant claims he has lost use of fingers – No medical evidence to establish that injury prevents applicant from using his fingers – Decision under review affirmed. 

 

Davies and Australian Postal Corporation [2014] AATA 578; 20/8/2014; Miss EA Shanahan, Member

Injury or disease – liability for right forearm strain accepted in 2009 – liability for bilateral carpal tunnel syndrome denied in October 2010 – repetitive movement claimed during mail sorting – complex medical history arising from craniopharyngioma of pituitary gland – cause of carpal tunnel syndrome multifactorial – work contribution material but not significant – decision affirmed

 

Ergarac and Comcare [2014] AATA 592; 22/8/2014; Senior Member RM Creyke

Commonwealth employee – whether injury resulted in reasonable requirement for household assistance and gardening assistance – amount of assistance required

 

Hutchinson and Comcare [2014] AATA 588; 22/8/2014; Deputy President SD Hotop

Commonwealth employees – applicant suffered mental ailments – respondent accepted liability to pay compensation to applicant for "major depressive disorder – single episode" – respondent subsequently accepted liability to pay compensation to applicant for "post-traumatic stress disorder" – date on which applicant first suffered compensable mental injury – description of first compensable mental injury amended to “major depressive disorder” – decision under review varied

 

Odell and Comcare [2014] AATA 591; 22/8/2014; Senior Member RM Creyke

Commonwealth employee – accepted injury to left leg – whether continues to suffer accepted injury – whether suffered impairment as a result of injury – whether impairment is permanent – whether met minimum level of whole person impairment in accordance with Guide – whether suffered compensable economic loss.

 

O’Loughlin and Linfox Australia Pty Ltd [2014] AATA 577; 50/8/2014; Senior Member GD Friedman

Face and left knee injury – revocation of previously accepted liability – altercation while delivering fuel – whether injury arose out of or in the course of employment – decision affirmed

 

Prain and Comcare [2014] AATA 593; 22/8/2014; Senior Member RM Creyke

Commonwealth employee – injury to right knee travelling on public transport to Comcare-funded medical treatment – whether claim arose out of or in the course of employment – whether Comcare liable to pay compensation – decision under review affirmed

 

Willis and Comcare [2014] AATA 603; 27/8/2014; Senior Member BJ McCabe

Dispute concerning calculation of Normal Weekly Earnings – Respondent accepts liability for applicant’s injury – Applicant continues to work reduced hours – Respondent pays difference of current earnings and previous Normal Weekly Earnings – Effect of Higher Duties Allowance and Work Location Allowance on calculation – Reviewable decision affirmed

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Education

Doan and Secretary, Department of Education [2014] AATA 580; 7/8/2014; Mr C Ermert , Member

Higher Education Support – Student Learning Entitlement – application period – whether application is made before the end of the application period – whether not possible for the application to be made before the end of that period – decision under review affirmed

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Immigration and Citizenship

Cremin and Minister for Immigration and Border Protection [2014] AATA 574; 18/8/2014; Deputy President JW Constance

Citizenship by descent – eligibility – requirement that one parent became an Australian citizen on 26 January 1949 – Applicant’s father killed during WWII – decision affirmed

 

Saba and Minister for Immigration and Border Protection [2014] AATA 579; 21/8/2014; Senior Member PW Taylor SC

Citizenship application – Close and continuing association with Australia – Decision set aside – Decision remitted to Minister for redetermination

 

Zaidan and Minister for Immigration and Border Protection [2014] AATA 584; 21/8/2014; Senior Member CR Walsh

Citizenship by conferral – eligibility – general residence requirement – overseas absences – “good character” requirement – decision under review affirmed

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Practice and Procedure

Twentyman; Secretary, Department of Social Services and [2014] AATA 582, 21/8/2014; Deputy President JW Constance

Application for the Tribunal to direct the Respondent to attend a medical examination – consideration of the Tribunal’s power under ss 33 and 43(1) of the Administrative Appeals Tribunal Act – application refused

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Social Security

Brown and Secretary, Department of Social Services [2014] AATA 583; 21/8/2014; Senior Member CR Walsh, Dr J Chaney, Member

Disability support pension – applicant had fully diagnosed but not fully treated and stabilised physical impairments arising from a degenerative disease of the lumbar spine and Dupuytren’s contractures of both hands – applicant had hypercholesterolaemia and hypothyroidism which were not fully diagnosed, treated and stabilised – applicant’s physical impairments did not attract 20 points or more under the “Impairment Tables” on the date she claimed DSP or within 13 weeks thereafter – decision under review affirmed

 

Davies and Secretary, Department of Social Services [2014] AATA 604; 27/8/2014; Senior Member D Letcher, QC

Disability Support Pension – psychiatric impairment – whether condition “permanent” – whether condition fully diagnosed, treated and stabilised at relevant time – diagnosis for the purposes of Table 5 – “appropriately qualified medical practitioner” – clinical psychologist – decision under review affirmed

 

Estate of Emily Pitt and Secretary, Department of Social Services [2014] AATA 575; 19/8/2014; Ms S Taglieri, Member

Cancellation of Age Pension due to non-compliance with notice to complete questionnaire; whether reasonable excuse; whether sections authorising cancellation ought to apply; Age Pension payable from 25 August 2011 to 26 April 2012 – decision under review affirmed

 

Gupta and Secretary, Department of Social Services [2014] AATA 586; 22/8/2014; Senior Member NA Manetta

Pensions, benefits and allowances – Disability Support Pension – whether conditions warranted 20 impairment points under one or more tables – continuing inability to work – program of support – whether applicant unable to work for 15 hours per week – decision under review affirmed

 

Kuloba and Secretary, Department of Social Services [2014] AATA 605; 27/8/2014; Mr C Ermert, Member

Disability support pension – disabilities – Impairment Tables – diagnoses – corroborating evidence – fully diagnosed – fully treated – fully stabilised – decision affirmed

 

Lewis and Secretary, Department of Social Services [2014] AATA 598; 26/8/2014; Dr I Alexander, Member

Pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairment is rated 20 points or more under the Impairment Tables – decision under review affirmed

 

Manhire and Secretary, Department of Social Services [2014] AATA 585; 22/8/2014; Senior Member RW Dunne

Pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a "continuing inability to work" – reports of medical practitioners considered – Job Capacity Assessments conducted – decision under review affirmed.

 

McGee; Secretary, Department of Social Services and [2014] AATA 567; 7/8/2014; Senior Member NA Manetta

Pensions, benefits and allowances – Newstart allowance – income maintenance period – calculation – payment in lieu of notice – commencement date – decision under review set aside

 

O’Bryan and Secretary, Department of Social Services [2014] AATA 590; 1/8/2014; Senior Member NA Manetta

Disability support pension – whether applicant has impairments totalling 20 points – whether return to work program by WorkCover sufficient program of support – decision under review affirmed.

 

Ridden and Secretary, Department of Social Services [2014] AATA 599; 25/8/2014; Senior Member CR Walsh

Family tax benefit – arrears of family tax benefit – applicant’s husband failed to lodge income tax returns on time – variation of instalment and past period entitlement determination where income tax return not lodged – no discretion to pay applicant arrears of family tax benefit – proof of letters having been sent by Commonwealth agencies – decision under review affirmed

 

Swale; Secretary, Department of Social Services and [2014] AATA 554; 1/8/2014; Senior Member AF Cunningham

Claim for Parenting Payment (Partnered) – whether Assessable Income exceeds the Personal Income Cut-Off Limit – whether Trust Income should be included – whether Applicant is an Attributable Stakeholder of the Trust – whether Trust Distributions were made in accordance with Validly Executed Resolutions under the Trust Deed – decision under review set aside

 

ZYFZ and Secretary, Department of Social Services [2014] AATA 589; 22/8/2014; Dr P McDermott RFD, Senior Member

Pensions and benefits – Disability support pension (DSP) – Whether applicant overpaid DSP – Applicant did not disclose employment – Whether overpayment recoverable – Debts cannot be written off or waived under the Social Security Act 1991 (Cth) – Decision under review affirmed

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Taxation

Roesch and Commissioner of Taxation [2014] AATA 595; 22/8/2014; Deputy President IR Molloy

Assessment of income – Asset betterment assessment – Shortfall penalty – Whether asset betterment error constitutes excessive assessment – Unaccounted expenditure – Excessive assessment not demonstrated – Whether intentional disregard of taxation law or recklessness

 

The Taxpayers and Commissioner of Taxation [2014] AATA 572; 14/8/2014; The Honourable R Nicholson, Deputy President

GST – accountant sole shareholder and director of two proprietary companies – second company incorporated to act as manager of low cost government loan program – whether second company agent of first company – whether first company claimed deduction for superannuation – whether first company fully paid interest expense – quantum of money received by first company from government agencies – whether accountant’s income should include deemed dividends – whether penalties for ‘intentional disregard’ appropriate – whether penalties should be applied – whether penalty uplift appropriate – remission

 

ZGVK and Commissioner of Taxation [2014] AATA 576; 19/8/2014; Deputy President SE Frost

Income tax – taxpayer lodges returns without deduction claims – claims later that significant deductions should be allowed – uncertainty around arrangements – objection decisions largely upheld

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Veterans' Affairs

Hall and Repatriation Commission [2014] AATA 569; 15/8/2014; Dr P McDermott RFD, Senior Member, Dr GJ Maynard, Brigadier (Rtd), Member

Pensions and benefits – Agreement that applicant entitled to pension at 70% of general rate – Whether applicant eligible for special rate of pension – Whether incapacity from defence-caused conditions sufficient to prevent the applicant from undertaking remunerative work for more than 8 hours per week – Accepted disabilities alone not responsible for inability to undertake remunerative work – Applicant not entitled to special rate of pension – Decision under review varied and otherwise affirmed

 

Martin and Repatriation Commission [2014] AATA 600; 26/8/2014; Senior Member RG Kenny

Disability pension – Operational service with Royal Australian Navy – Application of Statement of Principles – Appropriate diagnosis of posttraumatic stress disorder and depressive disorder – Reasonable hypotheses of relationship to service raised – Not satisfied beyond reasonable doubt that psychiatric conditions not related to service – Posttraumatic stress disorder and depressive disorder war-caused – Decision under review set aside – Remittal of assessment to respondent

 

Palmer and Repatriation Commission [2014] AATA 571; 15/8/2014; Dr M Denovan, Member

Pensions and benefits – Widow’s pension – Whether veteran’s death was war-caused – No causal connection between veteran’s service and his increased animal fat consumption – Reasonable hypothesis test not satisfied – Decision under review affirmed

 

Paprotny and Repatriation Commission [2014] AATA 573; 18/8/2014; Deputy President K Bean, Lt Col R Ormston (Ret’d), Member

Veterans' entitlements – Operational service in Vietnam – Whether veteran suffers from PTSD – Whether veteran suffers from depressive disorder – Whether veteran suffers from alcohol use disorder – Whether alcohol use disorder war-caused – Deledio steps – Decision under review affirmed.

 

Sheehan and Repatriation Commission [2014] AATA 594; 22/8/2014; Dr M Denovan, Member

Service pension – Special rate of pension – Whether applicant ceased remunerative work for reasons other than his war-caused incapacity, intermediate rate – Whether war-caused injury or disease is sole or substantial cause of applicant’s inability to obtain work – Decision under review affirmed

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