Kindree & CSR & Anor (SSAT Appeal)
[2010] FMCAfam 357
•22 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KINDREE & CSR & ANOR (SSAT APPEAL) | [2010] FMCAfam 357 |
| CHILD SUPPORT – Appeal from SSAT – error of law – assessment of earning capacity – no material before Tribunal upon which the conclusion could properly be based. |
| Child Support (Assessment) Act 1989, ss.4, 7A, 77, 98S, 117 Child Support (Registration and Collection) Act 1988, ss.103N, 103T Evidence Act 1995, s.144 |
| Commonwealth Shipping Representative v P & O Service [1923] AC 191 Freckelton and Selby, Expert Evidence: Law Practice and Procedure (4th ed.) |
| Appellant: | MR KINDREE |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS GIVENS |
| File Number: | SYC 4722 of 2009 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 30 November 2009 |
| Date of Last Submission: | 30 November 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 22 April 2010 |
REPRESENTATION
| Counsel for the Appellant: | The Appellant appearing in person. |
| Counsel for the First Respondent: | Ms Wild |
| Solicitors for the Respondent: | Child Support Agency |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the First Respondent. |
ORDERS
That the decision of the Social Security Appeals Tribunal, appeal SC226591 be set aside.
The matter be remitted to the Social Security Appeals Tribunal to hear and determine according to law.
IT IS NOTED that publication of this judgment under the pseudonym Kindree & CSR & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYC 4722 of 2009
| MR KINDREE |
Appellant
and
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS GIVENS |
Second Respondent
REASONS FOR JUDGMENT
The appellant and the second respondent are the parents of two children, P and A, who were born 1991 and 1996 respectively. There has been a child support assessment in place since 2001. There have been a number of applications to change the child support assessment during that time.
This appeal concerns the decision of the Social Security Appeals Tribunal, made 3 July 2009. The review is with respect to a decision that the child support rate for the period 1 July 2007 to 30 October 2008 be set at $5200 per annum, and for the period 31 October 2007 to 8 October 2008 it be set at $4160. In the decision, the tribunal was required to consider whether or not a special circumstance was established within the meaning of s.117(2)(c)(i)(a) and (i)(b) of the Child Support (Assessment) Act.
The assessment is based on the appellant having substantial care of A, and the second respondent having sole care of P and major care of A.
The case for the appellant before the tribunal was summarised in the decision:
[17] [The appellant] sought a departure from the administrative assessment on the ground that his income, property, earning capacity and financial resources, were less than suggested by the income used in his child support assessment (from 1 July 2007 an amount of $104,702).
…
[22] [The appellant] asked that the tribunal assess him on the basis of the actual income that he received. He said that the CSA had assessed him on the basis that he could access his superannuation, but this was not the case.
[23]He told the tribunal that he ceased work in October 2006 after his employment was terminated due to the time off he was taking in order to see his children. Since then he has sought [omitted work] and has maintained his [qualifications]. For most of the time he has been in receipt of newstart allowance.
[24] [The appellant] stated that in the 2007/08 financial year his taxable income from newstart and his work, less his expenses, was about $5,000. His income will be about the same for the 2008/09 financial year. He said that in those two years he has conducted about ten [work omitted] (earning $500 each) and has earned about $2,000 from other [omitted] work.
The appellant described to the tribunal the attempts that he made to obtain work, which were recounted by the tribunal at para.26 of their decision:
[26] The tribunal asked [the appellant] about the attempts he has made to obtain work. He said that he attends Centrelink for about half a day each week and has completed several courses to help him in the job market. He applied for the NEIS programme but was unsuccessful as he had already done [omitted] work. When asked how many jobs he had applied for since Christmas 2008, [the appellant] said that it does not really come down to job applications as much of the work comes from networking. He said that he rings a recruitment office about once a month and has been talking to a friend who wants to set up a [business omitted] on the Central Coast. He said that he has limited his attempts to find work to [omitted] to which he is best suited. He said that he is not sure that he would get a more menial job even if he tried. He said that he had even applied for a position at the tribunal but had not been successful.
It appears clear that the appellant also received some financial support from his current partner.
The tribunal accepted that the appellant had not ceased seeking employment, and therefore was not entitled to seek payment of his superannuation, and focused upon his earning capacity. In determining earning capacity the tribunal had regard to ss.117(7B), which provides as follows:
(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b) the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent's caring responsibilities; or
(ii) the parent's state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
When considering earning capacity the tribunal identified the correct approach (at para.36) of considering the earning capacity of the appellant and then the 3 criteria set out in s.117(7B): see Rawlings & Rawlings [2010] FMCAfam 65 and Forbes & Bream [2010] FamCAFC 6.
With respect to s.117(7B)(a), the tribunal concluded:
[38] [The appellant] was formerly employed as a [omitted]. It has been almost three years since he ceased full time work. Since that time his work has been sporadic and has consisted mainly of the conduct of a relatively small number of [omitted]. The tribunal accepts that [the appellant] has been looking for work but considers that he has made a relatively small number of applications and has limited the scope of those applications to positions concerning [omitted] work. His attempts to obtain work in the last two years appear to have decreased when the tribunal compared his current activities to statements he made to the CSA in 2006. The tribunal finds that despite his age, [the appellant] has considerable experience that would have enabled him to obtain work in other areas, perhaps in positions that are lesser paid such as junior government positions or in local government. Such jobs are advertised regularly. Large employers such as the Australian Taxation Office are often advertising for staff. [The appellant’s] [omitted] qualifications and office skills would certainly make him employable in that market.
[39] The tribunal is satisfied that, at least since 1 July 2007 [the appellant] should have been able to secure full time employment. He has had ample opportunity to do so since he became unemployed in October 2006. The tribunal finds that paragraph 117(7B)(a) is satisfied.
With respect to s.117(7B)(b), the tribunal concluded:
[40] The tribunal notes that [the appellant] does not claim to be suffering from ill health, nor does he suggest that his opportunities for employment have been reduced because of his caring responsibilities. Whilst the tribunal notes that there have been protracted proceedings concerning the care of [A] and that [the appellant] lived in [OB], in the [T] area, for a period, the tribunal is not convinced that [the appellant’s] employment opportunities were limited for that reason but rather his decision to seek employment within a limited field. The tribunal finds that paragraph 117(7B)(b) is satisfied.
The tribunal then moved on to the third factor, concluding:
[41] The tribunal is not satisfied that [the appellant] has demonstrated that a reduction in child support was not a major purpose of his decision to remain unemployed or underemployed since 1 July 2007. He therefore satisfies paragraph 117(7B)(c). The loss of his employment coincided with a time when he was involved in legal proceedings in relation to his contact with [A]. There have been a number of applications for change of assessment made in this case, both before and after [the appellant] became unemployed. The tribunal has not been dissuaded that the payment of child support has not been a consideration in [the appellant’s] attempts to obtain employment, particularly since the middle of 2007 when it may have been reasonable for [the appellant] to cast his net more widely after having been largely unemployed for close to a year.
In this case the tribunal considered s.117(7B) before determining the appellant’s earning capacity. As s.117(7B) sets out ‘limiting factors’ (see Forbes & Bream [2010] FamCAFC 6 at [22]), it would ordinarily be considered after determining the appellant’s earning capacity on usual principles. However, having regard to the comments in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2; (1996) 41 ALD 1, this does not appear to me to be an appealable error in the context of this case.
In determining the earning capacity of the appellant, the tribunal said:
[42] Although [the appellant’s] earning capacity in the last few years may not have been the same as when he was employed previously on a full time basis the tribunal is satisfied that he has had the opportunity for employment since 1 July 2007. The tribunal is satisfied that [the appellant] has, and had, the capacity to earn in the vicinity of $55,000 per annum (the annual salary of a public servant at a fairly junior level).
The appellant raises eight grounds of appeal.
Ground 1
The appellant’s first ground simply alleges that the SSAT made errors of law. The substantive grounds follow.
Ground 2
The appellant argued that the SSAT erred in setting the child support for the period 1 July 2008 to 31 December 2009. He insists that the tribunal is limited to the period for which an assessment can be altered to a period of some 15 months.
In this regard, the appellant appears to be referring to s.7A of the Child Support (Assessment) Act, which provides for assessment periods for the purposes of carrying out formula assessments by the child support agency. It does not appear to me that this limits the powers of the tribunal, pursuant to s.98S, to set a particular rate for any given length of time. The fact that there may be more than one administrative assessment period under ss.7A and 77, though the assessment is altered pursuant to s.98S, does not limit the tribunal’s powers. It would simply mean that there are a number of administrative assessments periods at the same rate, in accordance with the tribunal decision.
I find no merit in this ground.
Ground 3
The appellant complains that the SSAT altered the child support assessment for the period 1 July 2008 to 31 December 2009, and this was not part of the objection decision being reviewed.
Section 98S(2) of the Child Support (Assessment) Act 1989 states that the power of the Registrar to vary an annual rate of child support is ‘not limited by the terms of the application’. Section 103T(1) of the Child Support (Registration and Collection) Act 1988 confers on the tribunal ‘all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar’ As a result, the tribunal stands in the shoes of the Registrar and therefore has the power to vary an annual rate of child support beyond the period referred to in the application.
Given the breadth of power under Part 6A, the only real issue is procedural fairness: see PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31; (2007) FLC ¶98-03, although I note the limits if the original decision is not pursuant to pt.6A, see: C.S.R & MMB & DEJ(SSAT Appeal) [2007] FMCAfam 944.
The appellant in this case has not provided a copy of the transcript of the hearing before the SSAT. It is, therefore, not possible for me to determine whether or not the appellant had notice that the SSAT would consider a period beyond that covered by the initial objection decision.
It is quite conceivable that the tribunal would have raised the period that it was considering during the course of the hearing to allow submissions to be made with respect to that period. It is not appropriate to proceed to make determinations of this type, effectively finding that the tribunal failed to accord the appellant procedural fairness, on the basis of a contentious affidavit alone when transcript could be obtained. In these circumstances I find no merit in this ground.
Ground 4
In support of ground 4 it is alleged that the SSAT failed to have regard to orders of the Family Court and the Federal Magistrates Court when making the decision. The orders the appellant refers to are interim orders by the Federal Magistrates Court on 18 January 2007, and interim orders from the Family Court on 11 October 2007, together with final orders made by the Family Court on 5 May 2008. These orders provided for the time the appellant was to be able to spend with his child, A. He raises them on the basis that the time that he was to be able to spend with this child pursuant to the orders means, on his argument, that it was not practicable for him to take up a full-time position in Sydney, some distance from where his daughter lives in [T].
At paragraph 40 the tribunal touches on this issue, identifying that there had been protracted legal proceedings, and that during a period of time the appellant lived in the [T] area. The tribunal concluded:
[40] …the tribunal is not convinced that [the appellant’s] employment opportunities were limited for that reason but rather his decision to seek employment within a limited field.
It appears clear that the tribunal had regard to this circumstance, and found that it placed few restrictions upon the appellant in obtaining employment in that area. To the extent that this ground directly attacks the decision on the basis of a failure to have regard to the care arrangements, it must be dismissed.
Ground 5
In ground 5 the appellant says that the tribunal failed to identify the amount of the arrears that would arise as a result of the decision and how they would be funded. The terms of the determination at para.91 set out only child support income amount figures.
With respect to the actual expenses of the children, the tribunal concludes that it is unable to accept the evidence given by the mother as to the weekly costs of supporting the children, but does not go on to make findings with respect to the reasonable expenses that would be incurred. However, it seems clear that the Tribunal did have regard to the expenses of the children and the rate that the assessment would produce. Whilst it was far from a fulsome analysis of the matters set out in s.117(4), it was at least a consideration of the costs of the children. Unfortunately, it did not lead to specific findings as to those costs, however the decision read as a whole implies that the costs were likely to be those set out in the formula tables.
Consideration is given to the actual expenses of the appellant compared to the earning capacity the tribunal concludes he had, and his necessary commitments including a debt, in order to determine whether he nonetheless has the capacity to meet the child support that would be assessed. Again, the extent of those considerations were very brief, but nonetheless appear to have addressed the relevant matters in s.117(4) by considering his earning capacity, expenses and the rate of child support. The tribunal referred to the arrears that would be created by the decision, and considered this in making its determination, although not making a finding of a dollar value for arrears.
It appears the tribunal has had regard to the matters required by s.117(4). However, the discussion is very brief. In determining whether the tribunal have complied with s.117(4), it is important to note that they are not required to slavishly follow the subsections. However, the key factors must be addressed. To this extent, I have identified the core considerations in Wright & Wright [2009] FMCAfam 979; (2009) 42 Fam LR 281 below. It is a borderline case, however I am not satisfied that the tribunal has erred in this regard on the limited material before it in the unusual circumstances of this case.
Ground 6
In support of ground 6 the appellant claims that the SSAT failed to properly construe the provisions of s.117 of the Child Support Assessment Act. The tribunal identified the relevant parts of the section, however, specifically failed to address each of the considerations under s.117(4). These are outlined in the previous ground. In this respect I repeat my comments from Wright & Wright [2009] FMCAfam 979; (2009) 42 Fam LR 281:
[25] Put simply, s117(4) requires the tribunal to identify and consider what the practical outcome of the actual change in week to week income and expenses will be for the parties and children. The importance of this process is clear: a simple mathematical formula cannot be expected to model the complexities of the vast array of modern family situations. The departure provisions are designed to provide a method of identifying cases where the formula does not produce an appropriate outcome, and then to set a rate of child support that meets the unique needs of each of those individual families.
A slavish following of each item in s.117(4) is not required in every case. Whilst the reasons with respect to s.117(4) are brief (as set out above), it appears to me that those reasons do go to the substantive practical matters that s.117(4) addresses sufficiently, in the circumstances of this case, for the reasons set out above.
Grounds 7 and 8
In support of grounds 7 and 8 the appellant claims that the decision is perverse, unreasonable and offends logic. The gravamen of this ground is the argument that the tribunal made findings of fact with respect to the availability of employment which were not supported by any evidence before the tribunal. In this regard he made submissions that the SSAT restricted its consideration to jobs available in Sydney, when he lived in [T]. Further, he says that there was no evidence before the tribunal that particular positions, referred to as government positions and Australian Tax Office positions, were available to be filled, nor of the income amounts that could be earned.
A fair reading of the decision indicates that the tribunal had in mind not only the Sydney Australian Tax Office positions but other government positions in New South Wales.
The SSAT have approached the question on the basis that he had ample time to find work and that he ‘should have been able to find work.’ The appellant had no impediments to finding work, provided that work was available. I find no error on the part of the tribunal in this regard if these were opportunities for the appellant to work.
The relevant issue is whether there was evidence of the opportunity for the appellant to work. The Tribunal have not addressed whether it was reasonably open for the appellant to simply commence his own [business], nor made a finding as to whether he had actually registered with a recruitment agency or offered his services as a locum in the area (given his seniority) in the relevant [workplaces]. No findings were made that the appellant could obtain work as a [omitted] in the area.
The findings as to availability of employment are in 2 parts. Firstly, the tribunal found the appellant could work in junior government positions or local government, having regard to his skills. Secondly, it is that such positions are advertised regularly and would be likely to pay around $55,000 per year.
In Commonwealth Shipping Representative v P & O Service [1923] AC 191 at 212 Lord Sumner held:
[212] Judicial notice refers to facts, which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.
The common law doctrine of judicial notice was replaced by s.144 of the Evidence Act 1995: see Gattellaro v Westpac Bank Banking Corp [2004] HCA 6; (2004) 78 ALJR 294 and Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247; (2004) 139 FCR 215; (2004) 63 IPR 1. Section 144 states:
s.144[Matters of common knowledge] (1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
Section 144(4) reiterates the common law requirement that the parties be given the opportunity to comment on a matter of judicial notice. It requires the judge to ‘refer to relevant information which puts the party in the position of identifying the source of the information.’
There is no apparent consensus, in the common law, as to when something is considered to be a matter of common knowledge or specialist knowledge. Freckelton discusses this problem (in Expert Evidence: Law Practice and Procedure, 4th ed. at p.151), providing the following examples:
Young (1990, p201) quotes the following comments of Kirby P in Bond Corp Holdings Ltd v Australian Broadcasting Commission (unreported, New South Wales Court of Appeal, 28 June 1989):
The broadcast in question occurred in the “PM” programme which the respondent put to air on 4 November 1988. Most judges occasionally listen to the radio. They are entitled to take note that the programme [“PM”] is a major item of the respondent’s current affairs service. It has a large audience and is broadcast throughout the country. It is generally speaking a serious and responsible programme, making an important contribution to the community’s understanding of news events at home and abroad.
Commenting on Kirby P’s remarks, Meagher JA differed in the extreme:
There was certainly no evidence before the court to that effect, and it would defy belief that judicial notice could be taken that any programme of [the respondent] fitted that extravagant description.
(See Young (1990, p2010).)
However, Samuel KA, speaking on the same subject, has held in the Court of Appeal (Dystra v Head (unreported, New South Wales Court of Appeal, 6 October 1989)) that it is mistake to apply the doctrine of judicial notice with “undue rigidity”:
Judges are criticised in one breath for living in ivory towers, and another for attempting to steal out of their seclusion, and indicating the very basic knowledge they do in fact have of the real world. Obviously, the doctrine of judicial knowledge must be maintained. Its purpose is really to ensure fairness of trials. One cannot have a tribunal using secret information which is not available to checking and cross-examination.
This is a fundamental principle and the most important restriction upon a judicial or magisterial officer using what could otherwise be designated expert specialist information by the mechanism of judicial notice.
The tribunal is not a court, nor subject to the rules of evidence. Section 103N of the Child Support (Registration and Collection) Act1988 provides:
s.103N [Hearing procedure] (1) The SSAT, in reviewing a decision under this Part:
(a) is not bound by legal technicalities, legal forms or rules of evidence; and
(b) is to act as speedily as a proper consideration of the review allows; and
(c) in determining what a proper consideration of the review requires, must have regard to the objective laid down by section 88.
(2) The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
Note: The SSAT Executive Director may give directions as to the procedure to be followed in connection with reviews (see section 103ZA).
Whilst the rules of evidence do not apply, there must nonetheless be some evidentiary foundation for the findings of the availability of employment of the relevant type.
At paragraph 32 the Tribunal outlines the evidence it had before it, saying:
[32] The tribunal considered the evidence provided by both [the appellant] and [the second respondent] and the information available on the CSA file.
As there was no evidence of the parties or in the CSA files on this issue, the key question in this case appears to be whether the availability of public service employment is within the realm of common knowledge and thus able to be relied upon by the tribunal.
There does not appear to be any evidentiary foundation for the finding that there are regular advertisements for public service positions in the area in which the appellant lived, as there is nothing in the tribunal documents, nor any specific reference to such evidence in the decision. Similarly, the income amount selected does not appear to relate to any particular pay scale, nor a statistical average of the income earned by public servants in a particularly category, or even full time employees generally. The reference to the availability of public service employment and pay rates by the tribunal was, at best, the tribunal relying on its general knowledge.
In industrial cases before specialist commissions or arbitrators, a less restrictive approach has sometimes been taken as to general knowledge. For example, in J & H Timbers Pty Ltd vNelson (1971) 126 CLR 625 at 651, Gibbs J noted:
The Commission can use its general knowledge of the labour market, but it is not expected to have, or if it has cannot use, particular knowledge of the facts of an individual case (cf. Reynolds v Llanelly Associated Tinplate Co., Ltd (4)).
In Reynolds v Llanelly Associated Tinplate Co Ltd [1948] 1 All ER 140, the Court of Appeal said:
[A]lthough the arbitrator was entitled to use his knowledge, properly applied and within reasonable limits, of matters which were within the common knowledge of persons in the district, the present was a special and individual case, and the arbitrator must, wrongly, have based his decision on some particular knowledge which he had relating to the possibility of a workman of such skill and age obtaining work at so high a rate of wages.
More recently, in Secretary, Department of Social Security v Murphy [1998] FCA 809, Drummond J, considering the question with respect to the members of the AAT, said:
Material necessary to support the Tribunal’s decision will generally have been provided by the parties themselves. But it can be obtained by the Tribunal from its own inquiries: see s.33(1)(c) of the AAT Act. It would also be open to the Tribunal to satisfy itself as to a critical fact by noticing the existence of that fact, if it were a notorious fact which tribunals bound by the rules of evidence could notice either under the common law doctrine of judicial notice or under statutory provisions such as s 11 [of] the Evidence Act 1995 (Cth). … There is also an area in which the Tribunal can rely upon its own expertise to acquire information necessary to the making of its determination.
…
Where the Tribunal obtains material of importance to its decision otherwise than from the parties, it will be a breach of the rules of natural justice if the Tribunal fails to alert the party affected that it has obtained material of potential importance to its decision in sufficient time to give that party an opportunity to deal with that material. Such a breach would, of course, result in the decision being affected by appealable error of law. … The Tribunal did not say anything in its reasons to suggest it had sought out for itself information which might have justified what it had to say about the matter now in question. [Emphasis added]
Whilst the SSAT is a specialist tribunal, its speciality lies in social security and child support law. It is not an industrial tribunal. It is difficult to conclude that it has specialist expertise with respect to the availability of employment. It appears to me that the comments of Drummond J in Secretary, Department of Social Security v Murphy [1998] FCA 809 are apposite and I ought to apply them in this case.
Whilst the appellant is often the person possessed of the best evidence (that of diligent search and application for employment, as well as exploration of options for self employment in appropriate cases), its absence does not prove availability of employment. A bare allegation of employment availability, without an appropriate response by the appellant, is not sufficient as this would be proof without any evidentiary foundation. This is a practical reflection of the fact that it is logically possible that there may be no work opportunities for a person even if they have not sought work.
In the absence of any evidence as to the availability of employment of the relevant type, the failure of the appellant to seek that type of employment does not show he has an earning capacity, simply that he had not explored a possible option. The relevant question has two parts:
a)whether income earning opportunities are available, and
b)whether he has made appropriate endeavours.
Only slight or circumstantial evidence of opportunity to work may be sufficient to shift the persuasive onus back to the appellant, particularly in a case where there is a lack of appropriate endeavours by the appellant to obtain employment. However lack of appropriate endeavour without any evidence at all of available opportunity to work is not sufficient to support findings of earning capacity.
I have considered whether the Tribunal have referred to the public service positions and income of $55,000 per annum in order to take a cautious approach, given that the appellant’s last income as a [omitted] was around double this rate. However, there is no finding that he could earn an income as a [omitted] at the previous rate, nor evidence of average earnings of employed [omitted] in the region.
I must therefore find that this ground of the appeal succeeds and the appeal must be allowed. Whether the outcome is better or worse for the appellant once the matter is reheard will depend upon the actual evidence before the Tribunal, including any evidence the Tribunal gathers under s.103N(2) on the re-hearing.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Katherine Sudholz
Date: 19 April 2010
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