Title: AAT Bulletin Issue No. 21/2013, 27 May 2013
Author: AAT
Last saved by: Novello, Mary
Company: ZOO Communications

AAT Bulletin
Issue No. 14/2013	27 May 2013

AAT Bulletin
Issue No. 21/2013	27 may 2013

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
Practice and Procedure
Social Security
Taxation
Veterans' Affairs
Appeals Finalised
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.

Compensation
Chyi and Australian Postal Corporation [2013] AATA 326; 22/5/2013; Senior Member RG Kenny
Australia Post employee – Liability for aggravated condition – Continuing liability ceased – Work-related condition resolved – Decision under review affirmed
Findlay and Comcare [2013] AATA 324; 21/5/2013; Deputy President JW Constance
Adjustment disorder – Whether applicant suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 − Reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment – Decision under review affirmed
Jones and Comcare [2013] AATA 334; 24/5/2013; Senior Member AF Cunningham
Adjustment disorder − Application for partial invalidity pension to ComSuper − Whether employment related − Disease not contributed to, to a significant degree by employment with ATO − Decision under review affirmed
Martin and Comcare [2013] AATA 268; 2/5/2013; Hon B Tamberlin, QC, Deputy President
Entitlement to compensation – Method of calculation – Definition of adjustment percentage – Decision under review set aside and remitted
Menz and Border Express Pty Ltd [2013] AATA 317; 17/5/2013; Professor RM Creyke, Senior Member
Commonwealth employee – Calculation of incapacity payments – Calculation of normal weekly earnings – Whether Rostered Days Off are an allowance according to section 8 of the Safety, Rehabilitation and Compensation Act 1988 – Whether deductions from payslips of amount ‘banked for RDOs’ authorised by sections 8 and 19 of the SRC Act 1988 – Decision under review, so far as it relates to entitlement to Rostered Days Off, is affirmed.
Tsiamis and Comcare [2013] AATA 319; 20/5/2013; Senior Member JF Toohey and Dr S Toh, Member
Claim for bi-polar disorder, paranoid schizophrenia, post-traumatic stress disorder as a result of witnessing accident at work – Whether applicant witnessed accident – Claim lodged 30 years after incident at work – Whether notice given as soon as practicable – Whether applicant suffered from claimed conditions – Whether any causal connection between applicant’s condition and her employment – Whether injury in the course of employment – Whether claim excluded because applicant engaged in serious and wilful misconduct – Tribunal satisfied applicant suffered psychological conditions – Not satisfied of causal connection to employment – Decision under review affirmed
  
Practice and Procedure
World Wide Fund for Nature Australia and Australian Pesticides and Veterinary Medicines Authority [2013] AATA 329; 22/5/2013; Deputy President PE Hack SC
Jurisdiction – Tribunal’s powers on review cannot exceed powers of original decision-maker – Decision not within terms of enactment – No decision constituted by refusal to do act or thing – No jurisdiction – Application dismissed

Social Security
Atkinson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 325; 22/5/2013; Senior Member RG Kenny
Pensions, benefits and allowances – Age pension – Assets test – Claim of financial hardship – Claim of unrealisable asset – Objective test to be applied – Decision under review affirmed
Cook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 323; 21/5/2013; Senior Member RG Kenny
Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Psychological impairment from Asperger’s disorder – Impairment Tables – Condition not fully diagnosed and stabilised and not permanent – No impairment rating allocated – Applicant not qualified for disability support pension during the relevant period – Decision under review affirmed  
Druett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 333; 23/5/2013; Mr M Hyman, Member
Pensions, benefits and allowances – Disability support pension – Age pension – Change in circumstances – When applicant informed Centrelink – Backdating of benefits – Benefits backdated to date when Centrelink informed of change in circumstances – Decision under review affirmed
Townson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 321; 20/5/2013; Senior Member RG Kenny
Pensions, benefits and allowances  – Age pension – Failure to give timely notification of income – Overpayment of age pension a debt due to the Commonwealth – No basis for writing off debt – No special circumstances making it desirable to waive debt – Decision under review affirmed

Taxation
Heaney and Commissioner of Taxation [2013] AATA 331; 23/5/2013; Senior Member E Fice
Non-commercial business losses – Primary production activities – Offset claim due to losses from primary production – Deferral of losses from non-commercial business activities – Business activities of a similar kind – Special circumstances discretion – Lead time discretion – Single farming activity or two separate business activities – Definition of business activity – New business activity – Farming losses set off against medical practice income – Decision under review affirmed
PRACTICE & PROCEDURE – Burden of proof – Principles of statutory construction – expert evidence – Admissibility of opinion evidence – The rules of evidence – Extrinsic materials

Veterans' Affairs
Greenwood and Repatriation Commission [2013] AATA 316; 17/5/2013; Senior Member G Ettinger and Dr M Couch, Member
General rate of pension –  Special or intermediate rate of pension – Whether totally and permanently incapacitated from war-caused injury or disease or both – Degree of incapacity from war-caused injury or disease –  Totally and permanently incapacitated for work in employment for which one is suited – Whether prevented from continuing to participate in remunerative work due to accepted conditions alone – Whether a loss of salary, wages or earnings is suffered  – Whether incapable of undertaking remunerative work for periods aggregating more than eight hours a week – Decision under review affirmed
Moir and Repatriation Commission [2013] AATA 315; 17/5/2013; Senior Member RG Kenny
Pensions and benefits – Service with Royal New Zealand Navy –- Member of defence force established by a Commonwealth country – Danger not incurred by hostile forces of the enemy – Qualifying service for service pension not rendered – Decision under review affirmed
O’Brien and Repatriation Commission [2013] AATA 330; 22/5/2013; Miss EA Shanahan, Member 
Special rate – Profound hearing loss – Occupation that of a teacher –  Profound hearing loss – Non-war-caused conditions not contributing to incapacity for work – Decision under review set aside.
Szelag and Repatriation Commission [2013] AATA 318; 20/5/2013; Senior Member RG Kenny
Benefits and entitlements – Eligibility for intermediate or special rate of pension – Assessment period – Incapacity from accepted conditions sufficient to prevent applicant undertaking remunerative work for more than 20 hours or 8 hours per week, respectively, in consecutive parts of assessment period – Intermediate rate payable in the early part of the assessment period – Special rate payable in the latter part of the assessment period – Decision under review set aside and substituted
Townsend and Repatriation Commission [2013] AATA 335; 24/5/2013; Senior Member RG Kenny
Pensions and benefits – Defence service with Australian Army – Depressive disorder – Diabetes mellitus – Statements of Principles – Clinical onset – Experiencing a category 1B stressor – Conditions caused by defence service – Decisions set aside and substituted – Matter of assessment remitted to Repatriation Commission 
Pensions and benefits – Defence service with Australia Army – Alcohol dependence – Erectile dysfunction – Chronic bronchitis and emphysema – Clinical onset – Conditions not caused by defence service – Decisions under review affirmed
Appeals Finalised
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
IOOF Holdings Limited v Commissioner of Taxation & AAT | [2013] AATA 239

Appeals finalised
CASE NAME | AAT reference | court Reference
Comcare v Martinez (No 2) | [2012] AATA 795 | [2013] FCA 439
Guppy v Australian Postal Corporation | [2012] AATA 806 | [2013] FCA 489

Sent v Commissioner of Taxation

[2011] AATA 198

[2013] HCATrans 108
[2012] FCAFC 187
[2012] FCA 382

Billington v Secretary, Department of Families, Housing, Community Services  and Indigenous Affairs | [2012] AATA 181 | [2013] FCA 480
Sanctuary Lakes Pty Ltd v Commissioner of Taxation | [2012] AATA 404 | [2013] FCAFC 50
Simmons v Comcare | [2012] AATA 687 | [2013] FCA 484

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