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 24 July 2014.

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Civil Aviation

Ryan and Civil Aviation Safety Authority [2014] AATA 494; 18/7/2014; Deputy President PE Hack SC

Medical certificate – problematic substance use – whether a history of problematic alcohol use – whether engaged in problematic alcohol use – decision under review set aside and remitted

 

Compensation

Atkins and Comcare [2014] AATA 473; 14/7/2014; Senior Member RM Creyke

Osteoarthritis in right and left thumbs – whether the applicant suffered from a compensable condition – whether the injury was aggravated by the employment – whether the applicant continued to suffer the compensable condition – decisions under review affirmed

 

Egan and Telstra Corporation Limited [2014] AATA 472; 14/7/2014; Senior Member RG Kenny, Dr GJ Maynard, Brigadier (Rtd), Member

Claim for permanent impairment – Liability accepted for 1993 injury of lower back strain L5/S1 – Further injury to spine in 2011 an aggravation of underlying degenerative disease – Condition unrelated to compensable condition – Application of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)(“the Guide”) – Whole person impairment rating under Table 9.17 of the Guide – Threshold requirement of 10% for payment of compensation for permanent impairment not satisfied – Decision under review affirmed

 

Gilbert and Australian Postal Corporation [2014] AATA 483; 17/7/2014; Deputy President K Bean, Professor P Reilly AO, Member

Entitlement to incapacity payments under Safety, Rehabilitation and Compensation Act 1988 s 19 – Whether applicant able to work normal weekly hours – Further modified duties not offered to applicant – Applicant’s ability to earn equivalent to what he actually earned in relevant period – Decision under review set aside.

 

Parry and Military Rehabilitation and Compensation Commission [2014] AATA 493; 18/7/2014; Senior Member BJ McCabe, Dr GJ Maynard, Brigadier (Rtd), Member

Application for compensation in respect of cognitive impairment – Applicant already in receipt of pension for PTSD and chronic depression – Medical expert evidence suggests cognitive impairment not a separate medical condition – Cognitive impairment a consequence of accepted psychiatric conditions already compensated for under separate Act – Reviewable decision affirmed.

 

Ross and Comcare [2014] AATA 476; 15/7/2014; Senior Member RG Kenny

Acceptance of liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for right knee condition – Reviewable decision to revoke determinations relating to incapacity payments from 1 July 2007 until 8 July 2012 (“the relevant period”) – Further reviewable decision that incapacity entitlement in the relevant period was nil – Assessment of ability to earn in suitable employment – Decisions set aside and substituted – Matters remitted to Comcare for recalculation

 

Thompson and Comcare [2014] AATA 486; 17/7/2014; Deputy President SD Hotop

Commonwealth employees – applicant suffered compensable back injury – applicant subsequently suffered mental ailment – mental ailment contributed to, to significant degree, by compensable back injury – mental ailment a disease – mental ailment a compensable injury – applicant incapacitated for work as result of compensable back injury – decisions under review set aside

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Health

Accord Australasia Limited and Director, Chemicals Notification and Assessment Scheme [2014] AATA 504; 24/7/2014; Deputy President RP Handley and Professor G Johnston, Member

Imposition of conditions of use - Whether Respondent has power to impose condition of use -Whether reasonable for the Respondent to find that, when used in cosmetics, these chemicals may pose an unreasonable risk to health, safety and the environment - Chemicals pose an unacceptable risk to human health and/or the environment - Appropriate to limit the use of the chemicals to concentrations known to be safe - Setting of volume limits not justified - Definitive data required to justify the application of specific conditions - Decision under review varied - Additional conditions removed - Further assessment of the chemicals recommended

 

Wodonga Pharmacy Pty Ltd and Australian Community Pharmacy Authority and Ors [2014] AATA 496; 18/7/2014; Senior Member E Fice

Pharmacies – Recommendation of Australian Community Pharmacy Authority – Approval to supply pharmaceutical benefits – New pharmacy in a small shopping centre – Legal right to occupy the proposed premises – Information to be considered by the Authority – Single management – Commercial establishment – Gross leasable area of at least 5000 m2 – At least 15 other commercial establishments – Temporary selling points – Occupied by or likely to be occupied by one business – Separate commercial establishments – Decision under review set aside and substituted 

Practice and Procedure – Statutory interpretation – Onus of proof – Inferences

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Immigration and Citizenship

Slewa and Minister for Immigration and Border Protection [2014] AATA 484; 17/7/2014; Senior Member JL Redfern

Application for citizenship by conferral – application refused – whether applicant is of good character – proceedings for an offence against an Australian law pending – decision affirmed

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National Disability Insurance Scheme

TKCW and National Disability Insurance Agency [2014] AATA 501; 23/7/2014; Senior Member J Toohey, Mr I Thompson, Member

Child – Autism Spectrum Disorder – early intervention requirements – reasonable and necessary supports – The Listening Program – current good practice – child care support – decision under review affirmed

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Practice and Procedure

Lauricella and Secretary, Department of Social Services [2014] AATA 471; 11/7/2014; Deputy President RP Handley

Extension of time to lodge application for review – application refused

 

Secretary, Department of the Prime Minister and Cabinet and Treasurer of the Commonwealth of Australia and Combined Pensioners and Superannuants Association of New South Wales Incorporated (Party Joined) [2014] AATA 485; 17/7/2014; Deputy President SA Forgie

Freeedom of Information – direction of differently constituted Tribunal determining parties to the proceeding – whether Tribunal functus officio – whether any basis on which earlier Tribunal made a jurisdictional error so that it had not made a decision at all – Tribunal functus officio

Freeedom of Information – standing – considered if Tribunal not functus officio – interests “affected by” – applicant is a person whose interests are affected by the decision under review

Freeedom of Information – parties to the proceeding – identification of parties – difficulties arising from description of agency as “respondent” when its IC reviewable decision not under review and the Information Commissioner is not a party to the review of the IC decision

Freeedom of Information – legal representation – applicant and respondent having same representative – matter for parties and legal representatives – identification of role of each – interests align – issue of potential conflict should be revisited from time to time

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Social Security

Cope and Secretary, Department of Social Services [2014] AATA 451; 4/7/2014; Senior Member RM Creyke

Pension bonus payment – consecutive qualifying bonus periods – whether applicant satisfied work test requirements – whether applicant applied for pension bonus within time – decision under review set aside

 

Danaher; Secretary, Department of Social Services and [2014] AATA 448; 4/7/2014; Deputy President PE Hack SC

Claims – disability support pension – whether injuries permanent – whether Table 1 or Table 4 to be used for spinal injuries – whether injuries qualify for 20 points – decision set aside

 

Downes and Secretary, Department of Social Services [2014] AATA 492; 17/7/2014; Senior Member BJ McCabe

Family Assistance and Social Security – Dispute over rate of age pension – Applicant contends she made gift of $75,000 to son in 1999 – Respondent contends there was no delivery of gift until 2011 – Finding of fact that disposal of financial asset occurred in 1999 – Reviewable decision set aside and remitted to respondent.

 

Fisher and Secretary, Department of Social Services [2014] AATA 488; 17/7/2014; Senior Member BJ McCabe

Disability Support Pension – Unsuccessful application for DSP – failure to satisfy “medical criteria” – physical and psychiatric conditions not fully diagnosed, treated and stabilised – not possible to allocate impairment points – applicant made earlier, successful application for another social security payment – not reasonable to exercise discretion to deem earlier application as application for DSP – decision under review affirmed.

 

Garside and Secretary, Department of Social Services [2014] AATA 489; 17/7/2014; Senior Member BJ McCabe

Family Assistance and Social Security – Applications for Carer Allowance and Carer Payment – Medical evidence confirms applicant’s entitlement – Dispute over date of entitlement – Claim for Carer Allowance effective from day on which applicant asked for review of rejection decision – Claim for Carer Allowance effective from day on which applicant lodged second claim form that was ultimately accepted – Decision under review affirmed.

 

Haryanto and Secretary, Department of Social Services [2014] AATA 481; 14/7/2014; Mr S Webb, Member

Claim for Newstart Allowance – compensation for work injury – payment of medical treatment and other expenses, periodic payments and lump sum compensation by previous employer’s insurer prior to settlement – transfer of liability – lump sum settlement of claim – reimbursement of previous employer’s insurer – periodic payments excluded from calculation of lump sum – compensation part of lump sum – calculation of preclusion period – no special circumstances – decision affirmed

 

Polydorou and Secretary, Department of Social Services [2014] AATA 478; 10/6/2014; Mr D Ermert, Member

Disability Support Pension – absence from Australia – portability – cancellation – claim for review of cancellation – favourable determination – more than 13 weeks – date of effect – decision affirmed

 

Rajkovic and Secretary, Department of Social Services [2014] AATA 502; 23/7/2014; Deputy President RP Handley

Age Pension – Claim refused for failure to meet residence requirements – Whether Applicant Australian Resident – The nature of the accommodation used by the Applicant in Australia – The nature and extent of the family relationships the Applicant has in Australia – The nature and extent of the Applicant's employment, business or financial ties with Australia – The nature and extent of the Applicant's assets located in Australia – The frequency and duration of the Applicant's travel outside Australia – Applicant did not reside in Australia at time of application – Decision under review affirmed

 

Stien and Secretary, Department of Social Services [2014] AATA 477; 4/7/2014; Senior Member RW Dunne

Disability support pension – evidence obtained by respondent that applicant received excessive income during relevant period – decision of Social Security Appeals Tribunal affirming respondent’s decision to suspend and then cancel payment of disability support pension – applicant denies deriving excessive income.

Practice and Procedure – application for stay – hardship, likelihood of recovery by respondent, prospects of success – applicant’s history relating to disability support pension unclear – necessary for  substantive question to be decided by Tribunal – application for stay refused.

 

Sukkar and Secretary, Department of Social Services [2014] AATA 480; 16/7/2014; Senior Member N Isenberg

Disability support pension – applicant seeks indefinite portability of disability support pension – whether applicant has a severe impairment – decision under review affirmed

 

Wright and Secretary, Department of Social Services [2014] AATA 498; 21/7/2014; Senior Member RG Kenny

Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment from facial pain condition fully diagnosed, treated, stabilised and permanent – Depression not permanent – Impairment Tables – Ratings allocated for chronic pain under Tables 1, 7 and 8 of the Impairment Tables – Overall impairment rating more than 20 points – Program of support completed by applicant – Continuing inability to work – Applicant qualified for disability support pension during the relevant period – Decision under review set aside and substituted 

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Tax Practioners Board

Pathiranage and Tax Practitioners’ Board [2014] AATA 490; 14/7/2014; Senior Member J Handley

Registered tax agent – renewal of registration – whether applicant has completed continuing professional education that meets the Board's requirements – course in Australian taxation law not completed – applicant seeking extension to complete course requirements – power of the Tribunal to extend time – decision to refuse renewal of registration affirmed

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Taxation

Cameron and Commissioner of Taxation [2014] AATA 499; 22/7/2014; Senior Member PW Taylor SC

Income tax – amended assessments disallowed PAYG credit claims – jurisdiction of Tribunal – penalty – whether to remit – decisions affirmed

 

Dowling and Commissioner of Taxation [2014] AATA 474; 14/7/2014; Deputy President IR Molloy

Superannuation – Excess non-concessional contributions tax – Whether special circumstances – Whether discretion under Division 292 of the Income Tax Assessment Act 1997 (Cth) can be exercised – Decision under review affirmed

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Veterans' Affairs

Elton and Repatriation Commission [2014] AATA 475; 15/7/2014; Senior Member GD Friedman

Veterans’ entitlements – alcohol use disorder – stressful events – whether condition war–caused – cannabis use disorder – whether condition diagnosed and war-caused – decision under review set aside

 

QSWZ and Repatriation Commission [2014] AATA 482; 16/7/2014; Miss EA Shanahan, Member

Disability Pension – eligible service – cardiac arrhythmias variously diagnosed – prolonged strenuous high level endurance physical activity – eventual diagnosis paroxysmal atrial fibrillation – satisfaction of Statement of Principles – decision set aside.

 

Schwind and Repatriation Commission [2014] AATA 503; 23/7/2014; Senior Member RG Kenny

Benefits and entitlements – Disability pension – Operational service with Australian Regular Army – Claim for bilateral hip pain – Diagnoses of trochanteric bursitis and abductor tendonitis both hips – Concession by applicant that hip conditions not attributable to Army service – Entitlement decision under review affirmed
Disability pension payable at 100% of general rate – Eligibility for intermediate or special rate of pension – Accepted disabilities sufficient to prevent applicant from working eight hours per week – Incapacity from war–caused conditions not sufficient, alone, to prevent undertaking remunerative work for more 8 hours per week – Neither intermediate nor special rate payable – Assessment decision under review affirmed

 

Smith and Repatriation Commission [2014] AATA 500; 22/7/2014; Senior Member D Letcher QC

Claim for war widow’s pension – operational service – whether veteran’s service led to death – complex hypothesis – decision under review affirmed

 

Sweet and Repatriation Commission [2014] AATA 497; 18/7/2014; Senior Member RG Kenny

Benefits and entitlements – Disability pension payable at 100% of general rate – Application for increase in pension – Eligibility for special rate of pension – Remunerative work – Incapacity from war–caused conditions sufficient to prevent applicant undertaking remunerative work for more than 8 hours per week – Applicant prevented from undertaking remunerative work due solely to accepted disabilities – Special rate payable from date of claim for increase in pension – Decision under review set aside and substituted 

 

Tearle and Repatriation Commission [2014] AATA 491; 17/7/2014; Senior Member AK Britton

Entitlement to pension –Shoulder osteoarthritis and/or hand osteoarthritis – Whether disease was war-caused – Deledio test – Pension at the intermediate rate – Whether there is material that points to a hypothesis – Beneficial legislation – Decision affirmed

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