Stearman and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2072

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2072

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4444

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STEARMAN, JAMES

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date14 December 2007  

PlaceSouthport

Decision The decision of the Social Security Appeals Tribunal on 3 August 2007 that Mr Stearman committed a newstart participation failure on 8 May 2007 is affirmed.  This means Mr Stearman’s application for review is unsuccessful.

.....................[Sgd].........................

Member

CATCHWORDS

SOCIAL SECURITY – Newstart – Newstart allowance cancelled due to participation failure – inconsistent evidence – decision affirmed

Social Security Act 1991 (Cth) s 629

Rejfek v McElroy (1965) 112 CLR 517

Briginshaw v Briginshaw (1938) 60 CLR 336

SUMMARY OF ORAL REASONS FOR DECISION

19 December 2007   Dr EK Christie, Member     

1.      It is a well established legal principle that the decision-maker must be reasonably satisfied of the occurrence or existence of facts upon which findings based on provable facts can be established:  Rejfek v McElroy (1965) 112 CLR 517 at 519.

2.      The problem with the applicant’s case is that his oral evidence contains inconsistencies, contradictions and retractions when explaining the factual basis for his reasons for failing to attend the Apple job interview on 8 May 2007.

3.       For example, he stated that he attended the interview but later, he stated that he did not attend the interview – and then offered various explanations for his non-attendance.  Furthermore, no supporting evidence was provided by Mr Stearman as to the correctness, or otherwise, of the many versions of events that he raised as the basis for a reasonable excuse for not attending this job interview.

4.      Consequently, it was difficult to attach weight to Mr Stearman’s evidence in terms of assisting the Tribunal’s objective for better-informed decision-making.  At best, it can only be concluded that Mr Stearman’s evidence was “indefinite testimony” (but see Briginshaw v Briginshaw (1938) 60 CLR 336 (para 5.0).

5.      Consequently, the limitations in Mr Stearman’s evidence must be considered in terms of the legal principles for proof in civil matters, such as Mr Stearman’s application for review.  In Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court of Australia stated that the civil standard of proof cannot be satisfied where the facts before the Tribunal can be described as inexact proof, indefinite testimony [ie evidence] or indefinite inferences.

6.      These limitations are, in fact, the case in the evidence of Mr Stearman that is before me.

7.      On consideration of all these reasons and in the overall circumstances, there is no option for me other than to conclude that little weight can be given to Mr Stearman’s evidence.  I am not reasonably satisfied that the proved facts that represent a reasonable excuse for his not attending the Apple job interview.

8.      As a consequence of this finding, consideration needs to be given to any other newstart participation failures by Mr Stearman in a 12 month period.

9.      Senior Member McDermott of this Tribunal has decided, in two other applications for review brought by Mr Stearman, that he committed a newstart participation failure on two other occasions:  18 May 2006 and 5 January 2007 and that he had no reasonable excuse for doing so (Q2007/2228)).

10. As the newstart participation failure on 8 May 2007 is the third such failure in a 12 month period, then the application of section 629(1) of the Social Security Act 1991 can only lead to one inevitable conclusion in terms of the payment of newstart allowance to Mr Stearman.  That is, a cancellation of newstart allowance for an eight week period must follow.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  14 December 2007
Date of Decision  14 December 2007
Written reasons for decision     19 December 2007
Applicant  Mr Stearman, himself
Respondent  Mr B Hamilton, departmental advocate