Title: Sydney
Author: Adele Veness
Last saved by: Davidson, Susan
Company: ZOO Communications

AAT Bulletin

Issue No. 11/2015	16 March 2015
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. The Bulletin occasionally includes information on legislative changes that affect the AAT and other important developments.  
It is recommended that the Bulletin be read on-line. This has the advantage of allowing the reader to use hyperlinks to access the full text of cases and other internet sites mentioned in the Bulletin. 
The AAT does not make any representation or warranty about the accuracy, reliability, currency or completeness of any material contained in this Bulletin or on any linked site. While the AAT makes every effort to ensure that the material in the Bulletin is accurate and up-to-date, you should exercise your own independent skill and judgement before you rely on it. Information contained in this Bulletin is not legal advice and is intended as a general guide only.  You should rely on your own advice or refer to the full cases and legislation in relation to any proceedings.
Enquiries regarding this publication may be directed to aatweb@aat.gov.au. 
Contents
AAT Recent Decisions
Compensation
Customs
Higher Education
Passports
Practice and Procedure
Transport
Small Taxation Claims
Taxation
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised

AAT Recent Decisions
This section of the Bulletin provides information about decisions recently published by the AAT.  Only AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Civil Aviation
Moorabbin Airport Corporation Pty Ltd and Minister for Infrastructure and Regional Development and Kingston City Council and City of Greater Dandenong (Joined Parties) [2015] AATA 77; 17/2/2015; Justice S Kenny, Presidential Member
Airports – Decision by Minister to refuse to approve draft major development plan under s 94(2) of Airports Act 1996 (Cth) – Application by airport-lessee company for review of decision – Proposed development “relates to” airport within s 91(1A) – Approval of draft major development plan would defeat statutory purpose in s 91(1A), where airport-lessee company no longer able to implement the draft major development plan in accordance with the details of the development set out in it – Evidence predicated on a particular retail tenancy mix – Basis for assumption as to tenancy mix no longer exists – Tribunal unable to assess economic impacts of development adequately – Consideration of matters mandated by s 94(3) – Matters mandated by s 94(3) do not provide a reason not to approve draft major development plan – Consideration of the likely effect of traffic flows, the likely effect of the proposed development on the local and regional economy and community, how the proposed development fits within the local planning schemes for commercial and retail development, the extent of consistency with the planning schemes, and the justification for any inconsistencies – Consideration of last-mentioned matters not provide a reason not to approve the draft major development plan – Decision under review affirmed
Compensation
WBJM and Comcare [2015] AATA 143; 13/3/2015; Senior Member BJ McCabe
Liability accepted for incapacitation caused by workplace injury – Segway provided to applicant – Cost of insurance for Segway – Insurance not medical treatment – Insurance not aid or appliance – No express provision in legislation made for insurance – Respondent not authorised to pay for insurance –Decision under review affirmed
Customs
BASF Australia Ltd and Anor and Chief Executive Officer of Customs [2015] AATA 140; 12/3/2015; Deputy President SA Forgie
Tariff classification – Vegapure 95, Vegapure 95E, Vegapure 95FF – Subject goods – Plant sterols – Plant esters – Whether vegetable oil or fraction of vegetable oil – Whether food – Whether medicaments – Whether put up in packings for retail sale – Whether mixtures of chemicals with foodstuffs or with other substances of nutritive value – Decision under review affirmed
Higher Education
Adamson and Secretary, Department of Education [2015] AATA 141; 12/3/2015; Senior Member CR Walsh and Dr CN Kendall, Member
Student enrolled in graduate diploma at Open Universities Australia – No request for withdrawal received in writing by university by relevant census date – Student FEE-HELP debt affected – Whether grounds to remit FEE-HELP debt – Special circumstances – Ministerial guidelines – Decision under review affirmed
Passports
Lee and Minister for Foreign Affairs [2015] AATA 142; 13/3/2015; The Hon. B Tamberlin QC, Deputy President
Issue – Date of birth given on passport application different to that on applicant’s birth certificate – Discretion to endorse a travel document – decision
Practice and Procedure
James and Commissioner of Taxation [2015] AATA 136; 11/3/2015; Senior Member BJ McCabe
Jurisdiction - Dispute regarding PAYG credits – Decision with respect to PAYG credits not part of objection decision – Tribunal has no power to review decision with respect to PAYG credits – No jurisdiction
Kennedy and Comcare [2015] AATA 117; 25/2/2015; Deputy President PE Hack SC
Application for adjournment of preliminary hearing – Applicant given sufficient opportunity to prepare case – Tribunal must use resources efficiently – Proceedings to be dealt with in a way that is fair, just, economical, informal and quick – Application refused
Kennedy and Comcare [2015] AATA 132; 3/3/2015; Deputy President PE Hack SC
Application for adjournment of preliminary hearing – Six further grounds – Vagueness of evidence – Prospect of legal representation – Capacity to prepare for hearing – Adjournment not warranted – Application refused
Munday and Comcare [2015] AATA 123; 5/3/2015; Senior Member J Popple
Proceedings – Tribunal’s power to issue summons – Whether requested summons is relevant – Requested summons relates to events subsequent to claim – Summons refused
Ward and Commissioner of Taxation [2015] AATA 138; 11/3/2015; Deputy President SE Frost and Dr J Popple, Senior Member 
Excess superannuation contributions tax – Whether Tribunal has jurisdiction – Whether a person can lodge an objection where Commissioner does not make a determination – Ordinary meaning of legislation is manifestly absurd – Person may lodge objection – Tribunal has jurisdiction
Statutes – Interpretation – Ordinary meaning is manifestly absurd – Tribunal may refer to explanatory memorandum – Tribunal may insert words – Construction is reasonably open – Clear when read with explanatory memorandum that amendment confers jurisdiction
Zhang and Secretary, Department of Social Services [2014] AATA 131; 9/3/2015; Senior Member N Isenberg
Extension of time to lodge application for review – Extension of time refused
Transport
Jays and Minister for Infrastructure and Regional Development [2015] AATA 145; 13/3/2015; Deputy President PE Hack SC
Definition of “road vehicle” not satisfied – Appropriate form of decision – Decision set aside and remitted to Minister with direction
Small Taxation Claims
Clemens and Commissioner of Taxation [2015] AATA 124; 6/3/2015; Professor R Deutsch, Deputy President
Notice of assessment – Tax return – Resident of Australia – Ordinary concepts test – 183 day test – Decision under review affirmed
Jaczenko and Commissioner of Taxation [2015] AATA 125; 6/3/2015; Professor R Deutsch, Deputy President
Notice of assessment – Tax return – Resident of Australia – Ordinary concepts test – 183 day test – Decision under review affirmed
Koustrup and Commissioner of Taxation [2015] AATA 126; 6/3/2015; Professor R Deutsch, Deputy President
Notice of assessment – Tax return – Resident of Australia – Ordinary concepts test – 183 day test – Decision under review affirmed
Taxation
HVZZ and Commissioner of Taxation [2015] AATA 133; 5/3/2015; Senior Member CR Walsh
Private rulings – Non-commercial business loss deferral rule – Commissioner’s discretion not to apply rule – “additional information” not materially different from scheme to which ruling relates – Whether commencement of a new “business activity” – Objective expectation of tax profit – Commercially viable period for industry concerned – Commissioner’s ruling on the scheme as identified in the PBR correct – Objection decision affirmed
Veterans' Affairs
Tuck and Repatriation Commission [2015] AATA 137; 11/3/2015; Brigadier (Retired) C Ermert, Member
De facto relationship – Separated from partner – Member of a couple – Partner service pension – Non-illness separated spouse – Not legally married – Decision under review affirmed

Appeals 
This section of the Bulletin provides information about appeals against AAT decisions that have been lodged or finalised.  Only appeals in relation to AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Appeals lodged
CASE NAME | AAT reference
Agapis v A Deputy President of the AAT at Perth & Ors | [2013] AATA 187
Kumar v Minister for Immigration and Border Protection & AAT | [2014] AATA 944
Appeals finalised
CASE NAME | AAT reference | court Reference
Smith v Comcare | [2014] AATA 28 | [2015] FCAFC 24
P v Child Support Registrar & M | [2014] AATA 229 | [2015] FCA 116
Forster v Repatriation Commission | [2014] AATA 91 | [2015] FCA 198
Zdziarski v Telstra Corporation Limited | [2014] AATA 108 | [2015] FCA 207

© Commonwealth of Australia 2015

With the exception of the Commonwealth Coat of Arms and any third party material, this work is licensed under a Creative Commons Attribution 3.0 Australia Licence.  Content from this publication should be attributed as: Administrative Appeals Tribunal, AAT Bulletin.
To the extent that copyright subsists in third party material, it remains with the original owner and permission may be required to reuse the material.
The terms under which the Coat of Arms can be used are detailed on the following website: http://www.itsanhonour.gov.au/coat-arms/. 
Enquiries regarding the licence are welcome at aatweb@aat.gov.au. 
This licence is limited to the AAT Bulletin and does not extend to the full text of AAT decisions.  Separate licence terms for AAT decisions can be found on AustLII.  Those terms provide that section 182A of the Copyright Act 1968 applies.

AAT Bulletin		 issue 11/2015 aat