Secretary, Department of Employment, Training & Youth Affairs v Fitzalan [2000] FCA 1061

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Employment, Education, Training & Youth Affairs v Fitzalan [2000] FCA 1061

SOCIAL SECURITY ) EMPLOYMENT ) – newstart allowance and case management system – Case Management Activity Agreement – relationship between s 45(5) and s 45(6) of the Employment Services Act 1994 – whether a person who has failed the test of s 45(6) can still succeed under the general provision of s 45(5)(b) – discussion of conflicting authority on this point – whether an agreement expressed by the words "I will do everything I can to get a job" is valid or void for uncertainty – whether work was "unsuitable" in the particular circumstances because it involved staying away from home four nights in the week during a period of three to four months and also some overtime – discussion of the meaning of "unsuitable" having regard to the objects of the legislation and of the Case Management Activity Agreement – circumstances in which a person might satisfy s 45(5)(b) though not satisfying s 45(6) – whether it was open to the AAT to conclude that the unemployed person had satisfied s 45(6) or s 45(5)(b) – circumstances in which it was "appropriate" within s 44(4) of the Administrative Appeals Tribunal Act to set aside the Tribunal's decision without referring it back for reconsideration and to substitute the appropriate decision. Administrative Appeals Tribunal Act 1975 (Cth), s 44(1), (3), (4) Employment Services Act 1994 (Cth), ss 37(1), 39(1), 42, 45(5)(b), 45(6) Secretary, Department of Employment, Education and Youth Affairs v Ferguson (1997) 76 FCR 426 followed Secretary, Department of Employment, Education, Training and Youth Affairs v Messenger (1997) 48 ALD 26 followed Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 followed Garnys v Secretary, Department of Employment, Education, Training and Youth Affairs (1999) 164 ALR 319 discussed, in part not followed Secretary, Department of Employment, Education, Training and Youth Affairs v Baker (1997) 48 ALD 33 followed Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 applied Meehan v Jones (1982) 149 CLR 571 applied Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 applied SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION, TRAINING AND YOUTH AFFAIRS v BARRY JAMES FITZALAN NG 996 of 1997 BURCHETT J 4 AUGUST 2000 SYDNEY