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 22 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

Durham and Comcare [2014] AATA 753; 17/10/2014; Senior Member G Ettinger

Comcare has accepted liability for lumbar spine injury incurred on 12 March 1996 – two further aggravations in 2005, 2006 – continuing request for physiotherapy reviewed by Comcare following more than 500 sessions – physiotherapy not provided following graduated reduction in December 2013 and reviewable decision – cost/benefit considerations – decision under review affirmed.

 

Konstandopoulos and Comcare [2014] AATA 741; 14/10/2014; Senior Member AK Britton, Professor R McCallum AO, Member

Commonwealth employees – Psychological injury – Whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth – Whether the injury is a result of reasonable administrative action taken in a reasonable manner – meaning of “suffered as a result of” – Decision set aside

 

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

 

Sener and Comcare [2014] AATA 734; 10/10/2014; Deputy President SD Hotop

Commonwealth employees – applicant suffered knee injury in 2002 – respondent accepted liability to pay compensation – applicant suffered lumbosacral disc protrusion in 2004 – applicant claimed compensation – applicant's disc protrusion not contributed to in material degree by employment – applicant's disc protrusion not a disease – applicant's disc protrusion not an injury arising out of, or in the course of, employment – applicant's disc protrusion not a compensable injury – decision under review affirmed

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Freedom of Information

Grass and Secretary, Department of Immigration and Border Protection [2014] AATA 751; 17/10/2014; Senior Member AK Britton

Amendments to personal records – Whether information is “personal information” – Whether information is based on mistake of fact – Whether the author of any opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion – Whether the information is incomplete, incorrect, out of date or misleading – Whether power to amend should be exercised – Power to annotate

 

Knapp and Australian Accounting Standards Board [2014] AATA 744; 15/10/2014; Senior Member D Letcher QC

Access to electronic documents – Documents contained on CDs – Whether document is available for purchase by the public – Documents not available to the public – Documents only available upon inspection of CDs – Decision under review set aside – Applicant entitled to access documents

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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

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Practice and Procedure

Wilkins and Australian Securities and Investments Commission [2014] AATA 748; 16/10/2014; Deputy President PE Hack SC

Application for stay – applicant seeking stay of implementation of banning order – applicant prohibited from providing financial advice for a period of five years – whether public interest in banning order outweighs prejudice to applicant – stay granted subject to conditions

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Social Security

Baxter and Secretary, Department of Social Services [2014] AATA 738; 14/10/2014; Senior Member NA Manetta

Disability Support Pension – application brought on behalf of applicant – eligible to receive DSP on date of sixteenth birthday – backdating of DSP from date application form received to date eligible to receive DSP – critical question – whether legislation permitted backdating – statutory criteria for backdating not satisfied – decision affirmed.

 

Confidential and Secretary, Department of Social Services [2014] AATA 737; 14/10/2014; Senior Member JF Toohey

Disability support pension – motor vehicle accident – spinal injury – anxiety and depression – whether conditions fully treated and stabilised – whether applicant had undergone reasonable treatment for anxiety and depression – whether continuing inability to work – decision under review affirmed

 

Goksu and Secretary, Department of Social Services [2014] AATA 752; 17/10/2014; Senior Member AF Cunningham

Overseas applicant – portability of DSP – capacity to perform work independently of program of support – decision under review 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

 

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

 

McDonald and Secretary, Department of Social Services [2014] AATA 747; 15/10/2014; Senior Member AF Cunningham

Family Tax Benefit – Applicant not entitled to Family Tax Benefit Payments – Overpaid amounts are debts owed to the Commonwealth – Whether debt can be written off or waived – decision under review affirmed

 

Paternostro and Secretary, Department of Social Services [2014] AATA 739; 14/10/2014; Dr I Alexander, Member

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

 

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

 

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

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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.

 

Cronan and Commissioner of Taxation [2014] AATA 745; 15/10/2014; Professor R Deutsch, Deputy President

Whether it is appropriate for the Commissioner to apply identified industry benchmarks – whether the Applicant is liable to pay an administrative penalty in respect of any income tax and GST shortfall amounts – whether administrative penalties imposed in respect of any income tax and GST shortfall amounts should be remitted in whole or part – decision under review affirmed

 

Dewheath Pty Ltd and Commissioner of Taxation [2014] AATA 743; 15/10/2014; Senior Member D Letcher QC

Remission of penalty – Failure to lodge Business Activity Statements – Failure to lodge Income Tax Returns – Applicant bears onus – Whether factors warranting remission – Onus not discharged – Decision under review affirmed

 

Guru 4U and Commissioner of Taxation [2014] AATA 740; 14/10/2014; Senior Member G Lazanas

goods and services tax – GST registration – cancellation of registration – whether carrying on an enterprise – entitlement to input tax credits – what is the net amount for a period in circumstances where the taxpayer is held not to have been carrying on an enterprise – administrative penalty – calculation of penalty based on tax shortfall – whether conduct involved recklessness – whether applicant is entitled to remission of penalty – decision to cancel registration is affirmed – decision with respect to assessment of GST and penalty is set aside and substituted – decision not to remit penalty is affirmed

 

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

 

The Trustee for Rane Haulage Trust and Commissioner of Taxation [2014] AATA 733; 10/10/2014; Deputy President SE Frost

Superannuation Guarantee – Applicant had not made employer superannuation contributions by due dates – Applicant had not lodged Superannuation Guarantee Statements by due dates – Whether nominal interest charge component of Superannuation Guarantee Charge was imposed correctly – Whether assessments could be amended under section 37 of the Superannuation Guarantee (Administration) Act 1992

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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.

 

Hardy and Repatriation Commission [2014] AATA 746; 14/10/2014; Brigadier (Retired) C Ermert, Member

Disposal of assets – whether a gift or return of a loan – deprived asset – decision affirmed

 

Nobes and Repatriation Commission [2014] AATA 742; 14/10/2014; Senior Member AK Britton

Widows’ pension – Emphysema and ischaemic heart disease – Whether disease was war-caused – Whether disease was defence-caused – Whether there is material that points to a hypothesis – Beneficial legislation – Decision affirmed

 

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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