Jasen v D.E.W.R

[2007] FMCA 1861

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JASEN v D.E.W.R. [2007] FMCA 1861

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – appeal against an assessment of debt owing to the Commonwealth for overpayment of newstart allowance when applicant’s assets exceeded the allowable limit – whether Tribunal erred in law in not allowing body corporate fees to be deducted under s.1121(1) of Social Security Act 1991 from assets for purpose of the Act – waiver of debt – whether Tribunal failed to take into account considerations relevant to the existence of special circumstances under s.1237AAD(b) of the Act – failure to determine whether any proportion of the debt was attributable solely to administrative error.

WORDS & PHRASES – “a charge or encumbrance”.

Body Corporate and Community Management (Standing Module) Regulation 1997, s.99
Social Security Act 1991, ss.611(1), 1118, 1121(1), 1237A, 1237AAD(b)
Veterans’ Entitlement Act 1986, s.52C

Paul v Minister for Immigration & Multicultural Affairs: ex parte Durairajasingham (2000) 168 ALR 407 [65]
Re Beadle and Director – General of Social Security (1984) 6 ALD 1
Re Fawthorp v Repatriation Commission (1993) 36 ALD 140
Re Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 272
Repatriation Commission v Tsourounakis and Another (2007) 158 FCR 214
Ryde the Secretary, Department of Family and Community Services [2005] FCA 866

Applicant: CAROL DIANE JASEN

Respondent: SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

File Number: MLG 21 of 2007

Judgment of: O’Dwyer FM

Hearing date: 8 May 2007

Delivered at: Melbourne

Delivered on: 13 November 2007

REPRESENTATION

Counsel for the Applicant: Ms F. Ryan

Solicitors for the Applicant: Williams Winter

Counsel for the Respondent: Mr R. Knowles

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

THAT:

1. The application be amended to change the name of the respondent to, “Secretary, Department of Employment and Workplace relations”.

2. The appeal is allowed.

3. The decision of the Administrative Appeals Tribunal made on 27 September 2005 is set aside.

4. The matter be remitted to the Tribunal to be determined according to law.

5. The respondent pay the applicant’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 21 of 2007

CAROL DIANE JASEN

Applicant

And

SECRETARY DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from the decision of the Administrative Appeals Tribunal (the Tribunal) given on 27 September 2005. By that decision the Tribunal affirmed an earlier determination of the Social Security Appeals Tribunal (the SSAT) dated 13 November 2003 which had affirmed the decisions of the respondent to:

   ·raise and recover a newstart allowance debt of $19,998.62 for various debts between 12 February 1997 and 13 September 2001;

   ·cancelled a newstart allowance in February 2002 because the applicant's assets exceeded the limit;

   ·raise and recover a newstart allowance debt of $1354.23 for the period 14 December 2001 and 3 February 2002.

Grounds of Appeal

1. The applicant's stated grounds of appeal are:

   i)The Tribunal misapplied s.1237A of the Social Security Act 1991 (the Act) by failing…