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 16 April 2014.

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Business Name Registration

Smith and Australian Securities and Investments Commission and Amee Donohoe trading as Central Coast Surf Academy (Joined Party) [2014] AATA 192, 7/4/2014, Senior Member BJ McCabe

Objection to registration of business name – Availability of business names that are identical or nearly identical – Comparison of ‘academy’ and ‘school’ – Legislation provides precise and exhaustive list of names that are identical or nearly identical – Decision under review affirmed.

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Child Support

Parent A and Child Support Registrar and Anor [2014] AATA 199; 4/4/2014; Mr S Webb, Member

Percentage of care – care period – pattern of care – actual care of child over 16 – factors relevant to the determination of actual care – change in pattern of care – determination of new percentages of care in a period – decision varied

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Compensation

Azary and National Australia Bank Limited [2014] AATA 222; 16/4/2014; Senior Member J Toohey, Dr M Couch, Member

Psychological impairment – whether applicant suffered a psychiatric illness – diagnosis – causation – whether employment contributed to a significant degree – surveillance material – whether reasonable administrative action – whether taken in a reasonable manner – decision under review affirmed

 

Dunstan and Comcare [2014] AATA 208; 10/4/2014; Mr S Webb, Member

Incapacity for work – amount able to earn – normal weekly earnings – suspension from duty without pay – incarceration pending trial – deemed leave of absence without pay – continuity of employment – reduction of NWE – hardship payments to be taken into account as earnings – lump sum annual performance pay – component included in superannuation salary – no effect on ongoing earnings – lump sum productivity pay rise after termination of employment not payable – decision affirmed

 

Klaus and Telstra Corporation Limited [2014] AATA 200; 9/4/2014; Senior Member JL Redfern

Claim for cost of medical treatment – whether treatment in respect of accepted workplace injury – decision set aside

 

Kosteski and Comcare [2014] AATA 217; 14/4/2014; Deputy President RP Handley

Definition of injury – excludes diseases or injuries resulting from reasonable administrative action taken in a reasonable manner – injury resulted from being told to return to a workplace where she perceived she had been bullied and harassed – employer on notice of perception – should have been clear to employer that insistence on a return to that workplace would likely result in an injury – not reasonable – decision set aside and substituted

 

Mackay and Australian Postal Corporation [2014] AATA 201; 9/4/2014; Senior Member BJ McCabe

Ankle injury – Claim for incapacity – Claim for permanent impairment – No medical evidence connecting symptoms to accepted workplace injuries – Decision affirmed.

 

Reinhold and Comcare [2014] AATA 221; 15/4/2014; Senior Member N Bell

Compensation for injuries – whether injury permanent – degree of whole person impairment – non–economic loss – decision under review set aside and remitted

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Immigration and Citizenship

Apire and Minister for Immigration and Border Protection [2014] AATA 193; 4/4/2014; Mr S Webb, Member

Permanent resident – application for citizenship – character test – multiple minor driving offences – pattern of offending behaviour – disregard for the law – not a long period since last offence – decision affirmed

 

Nicholls and Minister for Immigration and Border Protection [2014] AATA 196; 8/4/2014; Senior Member RW Dunne

Sub class 801(Partner) visa – permanent resident – application for Australian citizenship by conferral – applicant married to an Australian citizen – applicant does not meet general residence requirement – application of Australian Citizenship Instructions – whether the applicant had, and will maintain, a close and continuing association with Australia – decision under review affirmed.

 

Sauvao and Minister for Immigration and Border Protection [2014] AATA 170; 28/3/2014; The Hon BJM Tamberlin QC, Deputy President

Visa cancellation – failure to pass character test – substantial criminal record – discretion to cancel applicant's visa – Ministerial Direction No 55 – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children – decision under review set aside and substituted

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Practice and Procedure

Confidential and Child Support Registrar and Anor [2014] AATA 220; 15/4/2014; Deputy President SD Hotop

Extension of time – application for review lodged out of time – no satisfactory or acceptable explanation for delay – applicant rested on rights – Tribunal not satisfied that reasonable in all the circumstances to grant extension of time – application for extension of time refused

 

Fernandes and National Archives of Australia [2014] AATA 198; 8/4/2014; President D Kerr

Archives Act 1983 s 55A – automatic stay of Tribunal’s decision on institution of appeal to Federal Court
Application by respondent for extension of date on which decision is to come into operation after Tribunal decision favourable to applicant and publication of reasons but before expiration of extension or of appeal period – whether Tribunal has power to grant further extension – power of Tribunal to re–exercise a power as the occasion requires – particular legislative context – application for further extension unopposed – stay extended by Tribunal

 

Ripszam and Minister for Infrastructure and Regional Development [2014] AATA 216; 11/4/2014; Mr S Webb

Application for reinstatement – original application found to be frivolous or vexatious and dismissed – scope of discretion to reinstate – meaning of error – jurisdictional fact – possibility of error – discretion to reinstate not enlivened – application refused

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Social Security

Barnes and Secretary, Department of Social Services [2014] AATA 204; 9/4/2014; Senior Member RM Creyke

Application for disability support pension barred by compensation preclusion period – Whether compensation preclusion period properly imposed – Whether there are special circumstances to shorten preclusion period – decision set aside and varied

 

Bloch and Secretary, Department of Social Services [2014] AATA 212; 11/4/2014; Senior Member N Isenberg

Pensions – disability support pension – physical impairment – permanent conditions – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a “continuing inability to work” – decision under review set aside

 

Byrnes and Secretary, Department of Social Services [2014] AATA 197; 4/4/2014; Mr S Webb, Member

Disability Support Pension – lump sum compensation – compensation preclusion period – change in circumstances – reduced financial capacity to provide for future needs

 

Jamieson and Secretary, Department of Social Services [2014] AATA 211; 10/4/2014; Senior Member AF Cunningham

Disability support pension – assets test – meaning of principal home – duplex units – assets limit exceeded – overpayment – waiver considered – decision remitted to Secretary for recalculation of debt

 

Karabatsos and Secretary, Department of Social Services [2014] AATA 213; 11/4/2014; Senior Member N Isenberg

Pensions – disability support pension – irritable bowel syndrome – whether the applicant had an impairment rating of 20 points or more under the impairment tables – whether the applicant had a “continuing inability to work” – decision under review set aside

 

Lin and Secretary, Department of Social Services [2014] AATA 194; 9/4/2014; Senior Member D Letcher QC

Newstart Allowance – Request for information – Suspension of payment – Failure to comply ‘without reasonable excuse’ – Unexplained cash deposits – Decision under review affirmed

 

McGuinness and Secretary, Department of Social Services [2014] AATA 202; 8/4/2014; Mr S Webb, Member

Disability Support Pension – impairments – requirement for 20 or more impairment points not satisfied – decision affirmed

 

McManus and Secretary, Department of Social Services and Anor [2014] AATA 206; 10/4/2014; Senior Member N Isenberg

Family Tax Benefit – percentage of care – shared care – care period – change in care – decision under review set aside

 

Richards and Secretary, Department of Social Services [2014] AATA 209; 10/4/2014; Miss EA Shanahan, Member

Carer allowance – worker’s compensation periodic payments – payment of weekly earnings for six weeks for period in 2011 – impact, if any, of working credits – applicant’s reliance on Centrelink advice – applicant has multiple Centrelink registration numbers (CRNs) – data from one CRN provided – remitted for reconsideration – decision under review affirmed

 

Spasic and Secretary, Department of Social Services [2014] AATA 203; 8/4/2014; Mr S Webb, Member

Disability Support Pension – impairments – requirement for 20 or more impairment points not satisfied – decision affirmed

 

Wilks and Secretary, Department of Social Services [2014] AATA 195; 4/4/2014; Mr S Webb, Member

Age Pension – rate calculator – member of a couple – ordinary income – income free area – ordinary income excess amount – ordinary income excess reduction factor – published information ambiguous but not binding – decision affirmed

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Superannuation

Dominic B Fishing Pty Ltd and Commissioner of Taxation [2014] AATA 205; 10/4/2014; Senior Member BJ McCabe

SUPERANNUATION – Employee contributions – Relationship between commercial fisher and crew members – Whether contract of service or contract for service – Limited direction and supervision – Crew members conducting own independent businesses – Contract not wholly or principally for labour of crew members – Crew members not employees for purposes of legislation – Objection decision set aside.

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Tax Agent

Cleary and Tax Practitioners Board [2014] AATA 218; 3/4/2014; Senior Member AF Cunningham

Suspension of registration – Stay order of Tax Practitioner Board set aside

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Taxation

Hulsen and Commissioner of Taxation [2014] AATA 190; 4/4/2014; Senior Member RG Kenny

Taxation liability – Release – Whether payment of tax liability would cause serious hardship – Factors relevant to exercise of discretion – Decision affirmed

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Veterans' Affairs

Ferdinands and Repatriation Commission [2014] AATA 215; 11/4/2014; Senior Member RG Kenny

Benefits and entitlements – Disability pension payable at 100% of general rate – Eligibility for special rate of pension – Incapacity from war–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 – Decision under review affirmed

 

Fraser and Repatriation Commission [2014] AATA 191; 7/4/2014; Senior Member RG Kenny

Benefits and entitlements – Disability pension – Operational service with Australian Regular Army – Claim for trigger finger – No applicable Statement of Principles – No reasonable hypothesis of relationship to service – Condition not war–caused – Entitlement decision under review affirmed – Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Incapacity from war–caused conditions not sufficient, alone or substantially, to prevent undertaking remunerative work for more than 20 hours or 8 hours per week, respectively – Neither intermediate nor special rate payable – Use of Guide to the Assessment of Rates of Veterans’ Pensions – Lifestyle rating less than 6 – Extreme disablement adjustment not made – Assessment decision under review affirmed

 

Kawicki and Repatriation Commission [2014] AATA 207; 10/4/2014; Deputy President RP Handley

Special Rate of pension – whether accepted conditions alone render incapable of continuing to undertake remunerative work – non–accepted condition of Blip Syndrome a factor in incapacity to work – not qualified for the Special Rate of pension

General Rate of pension – level of incapacity – GARP assessment – combined impairment rating of 60 – lifestyle rating of 4 – entitled to 100% of the General Rate of pension – decision varied

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