Walsh v Department of Employment, Education, Training and Youth Affairs
[1998] FCA 351
•9 APRIL 1998
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW - ‘appeal’ from Administrative Appeals Tribunal - decision affirming determination cancelling New Start Allowance - findings of non-compliance with Case Management Activity Agreement - conceded failure of Tribunal to take into account medical certificate - whether question of law raised - whether Tribunal failed to take into account a relevant consideration
Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Employment Services Act 1994 (Cth), ss 45(5), 45(6)
Creednz Inc v Governor-General [1981] 1 NZLR 172, approved
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, approved
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, approved
Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295, referred to
Waterford v Commonwealth (1987) 163 CLR 54, followed
MARK WALSH v DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
WAG 110 of 1997
R D NICHOLSON J
PERTH
9 APRIL 1998
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY
WAG 110 of 1997
BETWEEN:
MARK WALSH
ApplicantAND:
DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
Respondent
JUDGE:
R D NICHOLSON J
DATE OF ORDER:
9 APRIL 1998
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
The respondent’s motion be allowed.
The “appeal” be dismissed.
Costs reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY
WAG 110 of 1997
BETWEEN:
MARK WALSH
ApplicantAND:
DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS
Respondent
JUDGE:
R D NICHOLSON J
DATE:
9 APRIL 1998
PLACE:
PERTH
REASONS FOR JUDGMENT
HIS HONOUR: The applicant seeks to appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 8 September 1997 where by the Tribunal affirmed a determination of the respondent dated 1996 to cancel his New Start Allowance for non-compliance with his Case Management Activity Agreement (“the Agreement”).
The respondent has brought a motion to dismiss the appeal. It is supported on two grounds. The first is appeals from decisions of the Administrative Appeals Tribunal may only be made in respect of a “question of law”: Administrative Appeals Tribunal Act 1975(Cth) s 44(1). Alternatively it is contended none of the grounds of appeal contain “a real question to be determined” so that the Court should dismiss the application pursuant to O 20 r 2 of the Federal Court Rules on the ground it discloses no reasonable cause of action.
The Tribunal’s decision includes the following findings on material questions of fact drawn from the evidence before it:
(a)The Applicant signed the Agreement on 16 September 1996 by which he agreed to attend a 10 week job club, every day for the full ten weeks starting on 19 September 1996;
(b)The Applicant did not attend the job club on 19, 23, 24, 25, 27 of September 1996 and 3 and 4 of October 1996 and only had a medical certificate to cover 23 - 25 September absences;
(c)On 26 September 1996 and 2 October 1996 the Applicant was late and was issued with a notice stating that the starting time was 9.00 am;
(d)On 7 October 1996 the Applicant was requested to leave on the basis of again turning up late;
(e)The Applicant’s performance and attendance at the job club was not satisfactory as he did not participate in job club activities;
(f)The Applicant presented himself at the job club in an inappropriate manner; and
(g)The Applicant did not meet the requirements of the Agreement.
The Tribunal stated in the course of its reasons:
“When this matter first came on for hearing on the 15 August 1997 the applicant failed to attend. Being satisfied that the applicant had been served with notice of the hearing by letter posted to the address provided by him, 27/8 Garnett Place, Balga, Western Australia, 6061, the Tribunal proceeded in his absence to hear evidence from Ms Deana Ronzan, the applicant’s case manager, and Ms Marcia Brennan, the applicant’s job club leader. The Tribunal then adjourned further hearing of the matter to the 8 September 1997 and directed that the applicant be served with notice of the resumed hearing date in order to give him another opportunity to attend and give evidence. This notice was sent by certified mail to 27/8 Garnett Place, Balga, and also to another address, 1 Harfleur Place, Hamilton Hill, Western Australia, 6163 which the applicant had supplied to the Respondent. At the resumed hearing the applicant failed to appear and the Tribunal then determined the matter on the materials and evidence before it.”
The matters relied upon in the notice of appeal as questions of law are: (1) the Agreement was signed under pressure; (2) false statements were made by case managers; and (3) the job club didn’t assist the client [the applicant].
In the course of the applicant’s submissions it became apparent that, in support of these grounds, he wished to contest the findings of fact made by the Tribunal and in particular pars (c), (e) and (f) above. He submitted he had in fact turned up and spoken to Tribunal members on 15 August 1997. He maintained his evidence then given had not been taken into account by the Tribunal.
In addition, the applicant filed an affidavit shortly before the hearing in which he swore he had attended the medical surgery of a medical practitioner on 4 October 1996. He exhibited a certificate from the practitioner supporting that assertion and containing the note the practitioner did not recall issuing a medical certificate to the applicant on that date. The applicant submitted he had in fact submitted a medical certificate to the Tribunal which accounted for his non-appearance on 3 and 4 October 1996 and that the Tribunal had failed to take that evidence into account. In view of these assertions and although they lay outside the stated grounds supporting the appeal, leave was given to the applicant to file a written statement on the basis it was to be sworn under oath upon resumption of the hearing. Opportunity was provided to the respondent in the meantime for affidavit response. Cross‑examination was permitted to both parties.
As a consequence of the hearing of that evidence it is now conceded for the respondent the Tribunal erred in its finding of fact that the applicant did not have a medical certificate explaining his absences from the job club on 3 and 4 October 1996.
It is not necessary to address the question whether the ground that the Agreement was signed under pressure is a valid ground of appeal because the applicant does not bring any credible evidence to support it. Neither of the other two grounds in the notice of appeal supported, if they were to qualify as valid grounds.
The applicant’s case in relation to the findings of fact in pars (c), (e) and (f) does not make out any contention there was no evidence before the Tribunal on which it could have based its decision and so does not contend for any error of law. The jurisdiction of this Court on appeal is confined to consideration of questions of law, not of fact: Administrative Appeals Tribunal Act 1975 (Cth) s44(1).
As to the applicant’s assertion that he attended the Tribunal on 15 August 1997 and the Tribunal had failed to take into account the evidence given by him on that occasion, I find the applicant has not made out his case in that respect. It was apparent from his evidence and cross-examination on the point that more probably than not he mistook his attendance on that date with an earlier attendance at a preliminary conference. He was unable to identify the gender or number of persons he appeared before and at best could only say that he was “pretty sure” he was there that day because he was out shopping, although he accepted he had been to a lot of conferences.
There remains the question whether the Tribunal was in error of law in failing to take into account the medical certificate. The factors which a decision-maker is bound to consider in making a statutory decision are determined by the construction of the statute conferring the discretion, whether expressly stated or arising by implication from the subject matter, scope and purpose of the legislation. The ground of failure to take into account a relevant consideration will only be made good if it is shown the decision-maker has failed to take into account a consideration which in the circumstances the decision-maker was bound to take into account: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. It is not sufficient that a consideration be one which may properly be taken into account, or that many persons may have taken it into account: Creednz Inc v Governor-General [1981] 1 NZLR 172 at 183.
The relevant statutory framework is found in Ch 4 of the Employment Services Act 1994 (Cth) (“the ES Act”) which establishes the case management system. The scheme of the case management system is fully described by Mansfield J in Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 147 ALR 295 at 297:
“Chapter 4 of the ES Act establishes the case management system. It provides how persons become participants in that system, and how such a participant is then interviewed and then referred to a nominated case manager. That sets in train a one-to-one service to job seekers to endeavour to place them in suitable and sustainable employment. The vehicle for that arrangement is a case management activity agreement, to be negotiated between the job seeker and the case manager: s 38. There are provisions as to how it is negotiated in s 38, and as to its terms in s 39. Section 44 deals with the consequences of failure to negotiate a case management activity agreement. Section 45 deals, among other things, with the consequences of not performing a case management agreement...”
In this case the relevant provisions are subs 45(5) and 45(6) of the ES Act which provide:
“45(5) The person is not qualified for a new start allowance or a youth training allowance in respect of a period unless (in addition to meeting any other requirements set out in the Social Security Act 1991 or Pt8 of the Student and Youth Assistance Act 1973) as the case may be:
(a) when the person is required under s38 to enter into a Case Management Activity Agreement in relation to the period, the person enters into that agreement; and
(b) while the agreement is in force, the person satisfies the Employment Secretary that the person is taking reasonable steps to comply with the terms of the agreement; and
(c) at all times during the period when the person is a party to the agreement, the person is prepared to enter into another such agreement instead of the existing agreement if required to do so under s38.
45(6) For the purposes of para(5)(b), a person is taking reasonable steps to comply with the terms of the Case Management Activity Agreement unless the person has failed to comply with the terms of the agreement and:
(a) the main reason for failing to comply involved a matter that was within the person’s control; or
(b) the circumstances that prevented the person from complying were reasonably foreseeable by the person.”
It is important to bear in mind also that Mason J in Peko‑Wallsend at 39‑40, when speaking about ‘relevant and irrelevant considerations’, expressly spoke of ‘factors’ or statutory criteria (express or implicit), not about bits or pieces of evidence. In Li Shi Ping & Anor v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 Carr J (with whom Sheppard and Gummow JJ agreed) said at 236‑237:
“In my view, the [appellants’] submission [that by failing to refer to certain DFAT cables the delegate’s decision miscarried] confuses taking into account relevant considerations with taking into account particular pieces of evidence. The relevant consideration which the respondent was obliged to take into account was - what might happen to the appellants if they returned to China?”
The Full Court’s decision in Li Shi Ping was followed by French J in Xie Mian Shen v MIEA (unreported, Federal Court, 9 August 1995) where his Honour said at 15-16:
“There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Li Shi Ping v Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.
The allegations that the Tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the Tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the Tribunal failed to take into account relevant factors.”
The express terms of par 45(5)(b) and subs 45(6) of the ES Act require that in deciding whether a person is taking reasonable steps to comply with the terms of a Case Management Activity Agreement a decision-maker is bound to take into account the following factors:
whether the person has failed to comply with the terms of the Agreement.
whether, in the event of a failure to comply with the Agreement the main reason for failing to comply involved a matter within the person’s control.
whether, in the event of a failure to comply with the Agreement and the main reason for failing to comply involved a matter that was not within the person’s control, whether the circumstances that prevented the person from complying were reasonably foreseeable by the person.
whether, notwithstanding a failure to comply with the Agreement which was either within the person’s control or reasonably foreseeable by the person, the person can show that he is taking reasonable steps to comply with the terms of the Agreement.
The findings of fact of the Tribunal have earlier been set out. Based on those findings the Tribunal concluded the applicant had not met the requirements of the Agreement. It accordingly affirmed the decision under review.
When regard is had to the findings it is apparent the Tribunal’s decision was clearly open to it as a result of the applicant’s breaches of the Agreement apart from his absences on 3 and 4 October 1996.
Furthermore, the relevant consideration which the Tribunal was required to take into account was whether or not the applicant had breached the terms of the Agreement. The evidence of the medical certificate was a piece of evidence and failure to consider it did not amount to a failure to take into account a relevant consideration.
While the Tribunal was in error in its finding of fact concerning the medical certificate, there is no error of law in making a wrong finding of fact: Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J.
For these reasons the motion should be allowed and the appeal dismissed.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON
Associate:
Dated: 9 April 1998
Counsel for the Applicant: In person Solicitor for the Applicant: None on record Counsel for the Respondent: P D Parentich Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 5 December 1997, 3 March 1998 Date of Judgment: 9 April 1998
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