Material on which a decision maker may act
In
Repatriation Commission v. Smith, M. J., the Court stated:"Yet, whilst the Tribunal was not bound by the technical evidentiary rules, especially the exclusionary rules, natural justice may require that it act on material that is relevant and logically probative ...
"The general position is well explained by Professor Campbell (op. cit. at pp. 49-50):
'The curial rules of evidence differentiate between those matters of fact which can only be proved by evidence and those facts which may be judicially noticed, i.e. which are not required to be proved by evidence. Tribunals which are not bound by the rules of evidence are certainly not constrained by the doctrine of judicial notice and may take 'official' notice of a much wider range of facts than the facts which may be judicially noticed. This facility is especially important to those tribunals whose members include experts in a particular field whose expertise has a direct bearing on the work of the tribunal, e.g. medical practitioners in relation to the assessment of claims for compensation or pensions for physical disability or incapacitation. Facts which may be officially noticed by a tribunal, may nonetheless be facts which, if noticed, must be disclosed to interested parties, for the sake of natural justice, in order to give those parties an opportunity to controvert the facts noticed.'
It is often the case that the only evidence concerning the veteran's intention is the veteran's own evidence. The fact that there is nothing against which that testimony can be tested does not prevent a decision maker from finding against the veteran having regard to all the circumstances of the case as they are known, including the applicant's age and time since last working:
Flannery v. Repatriation Commission; Cavell v. Repatriation Commission. However, there is no rule that there must be corroborative evidence in such circumstances before a claim can succeed: Maley v. Repatriation Commission; Repatriation Commission v. Maley.In
Repatriation Commission v. Strickland, Jenkinson J stated:"The Tribunal expressed its willingness to accept the suggestion by the respondent's counsel that many 'self-employed' persons work beyond the age of 65 years, but indicated, in my opinion, by its references to the absence of evidence about the proportion of such persons who work beyond that age, its unwillingness in the particular instance to use in its reasoning to a finding any belief the members of the Tribunal may have held about the incidence of that behaviour in the Australian community. This in my opinion they were legally free to do."
This statement was approved by Gray J in
Sherman v. Repatriation Commission. Thus, given that the decision maker must be reasonably satisfied that an applicant meets the relevant criteria, a veteran who merely makes unsubstantiated assertions as to usual or common work practices or probabilities of obtaining employment at a particular age, runs a serious risk of not satisfying the decision maker to the relevant standard.In Epeabaka v. Minister for Immigration and Multicultural Affairs, Finkelstein J said
:"In the course of deciding whether it has been persuaded, on the balance of probabilities of the existence of a particular fact or event the tribunal is not bound by the rules of evidence. That is to not say the rules of evidence should be set aside. In R v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 Evatt J pointed out that those rules were developed 'to prevent error and elicit truth'. Nevertheless, because it is not bound by rules of evidence the tribunal can act on any material that is helpful in coming to a decision. That includes material that might be admissible in a court of law. It includes hearsay that might not be admissible in a court; presumably the hearsay must be reliable: Kavanagh v. Chief Constable of Devon and Cornwall [1974] 1 QB 624 at 633. But in all cases the evidence relied upon must be logically probative of the fact to be determined."