Mulder and Department of Family and Community Services - [2000] AATA 452

DECISION AND REASONS FOR DECISION [2000] AATA 452

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1385-1388

GENERAL ADMINISTRATIVE DIVISION       )
           Re      JACK DENIS MULDER
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Deputy President A M Blow OAM QC.,

Date8 June 2000
PlaceSydney

Decision      The Tribunal sets aside the four decisions under review and substitutes a single decision decision to recover $29,559.94 in respect of unemployment benefit, jobsearch allowance and newstart allowance, and a further $1,147.40 in respect of family allowance, family payment and additional family payment, less any sums already recovered from the applicant that have not been applied by the Commonwealth in total or partial satisfaction of any other debts.
   [Sgd A M Blow]
  Deputy President
CATCHWORDS
Social Security – overpayments – recovery – false representations.
Social Security Act 1947 – s.246(1)
Social Security Act 1991 – s.1224(1)

REASONS FOR DECISION

8 June 2000 Deputy President A M Blow OAM QC.,

The applicant has applied for the review of four decisions for the recovery of overpayments from him. The first three decisions were made by a delegate of the Secretary of the Department of Social Security on 6 May 1997. The fourth was made by a delegate of the Secretary on 19 August 1997. All were affirmed by the Social Security Appeals Tribunal ("SSAT") on 18 August 1999.
The decision made on 19 August 1997 was a decision to recover $13,690.60 paid to the applicant by way of unemployment benefit, jobsearch allowance and newstart allowance over the period from 23 February 1991 to 8 January 1993. For most of that period the applicant was receiving the benefit or allowance in question at the rate applicable to a recipient with a partner and one child. The decision of 19 August 1997 related only to the component referable to the applicant alone, and not to the component referable to a partner and child.
The decisions of 6 May 1997 were decisions to recover the following from the applicant:

(a)$13,879.70, representing the partner and child component of the unemployment benefit, jobsearch allowance and newstart allowance paid to the applicant from 23 February 1991 until 8 January 1993;
(b)$2,619.24 in respect of rent assistance paid between 23 February 1991 and 8 January 1993; and
(c)$1,221.40 in respect of family allowance, family payment and additional family payment paid between 2 May 1991 and 8 January 1993.

In February 1991 the applicant had unsuccessfully tried to get the Department of Social Security to pay him an unemployment benefit. He has a twin brother. Some years previously his twin brother had changed his name from Robert Denis Mulder to either Robert Miller or Robert Denis Miller. In 1990 the twin brother had left Australia with his wife and child and gone to live in the Netherlands. The twin brother had had a bank account with Westpac at Nanango in Queensland, a Western Australian driver's licence, and an Australian pilot's licence. When he left, he left the applicant in control of his bank account, and gave him his bank keycard, his driver's licence, and his pilot's licence. The applicant overcame his difficulties with the Department of Social Security by lodging an unemployment benefit claim in the name of Robert Miller on 25 February 1991. He produced the driver's licence and the pilot's licence as evidence of identity. The unemployment benefit was granted. He had it paid into the account at Nanango. Initially unemployment benefit was paid to him at the rate applicable to a single man, which he was.
On or about 31 March 1991 a "Partner Details" from was lodged with the department in relation to the applicant's sister-in-law Hermina Anna Miller, the wife of his twin brother Robert Miller. Apparently as a consequence of the lodgment of that form, the payments of unemployment benefit that were being made into the account at Nanango were increased to the rate applicable to a couple with one child.
On or about 5 April 1991 a "Claim for Family Payments-1991" form bearing that date were was lodged with the department in relation to Hermina Anna Miller. It was not signed by her, but was signed "R D Miller" in the space provided on the form for the claimant's partner's signature. Apparently as a result of the lodgment of that form, the department commenced to make payments of family allowance into the bank account at Nanango.
On or about 23 July 1991 an officer of the Department of Social Security sent the applicant, under the name Robert Denis Miller, a rent assistance questionnaire which he signed and returned. The completed questionnaire dated 26 July 1991, showed that since 28 June 1991 he had been paying $95 per week rent to a Mr B Hoxton, and that he and his partner did not own a home. Apparently on 5 August 1991, a rent book was produced to an officer of the department recording payments of $95 per week for premises at an address in Kerang, Victoria. Each entry in the rent book was signed "B Hoxton" in a space provided for the signature of the landlord. Apparently as a result of the lodgment of this questionnaire and the production of this rent book, the department commenced to make payments of rent assistance into a bank account in the name of Robert Miller with effect from 2 August 1991.
The payments of rent assistance apparently continued until 7 January 1993 in respect of various allegedly rented premises. The payments of unemployment benefit, subsequently jobsearch allowance (from 1 July 1991), and subsequently newstart allowance (from 9 March 1992) apparently continued until 8 January 1993. The payments of family allowance continued until 27 June 1991. Later, family payment and additional family payment were paid in the name of Hermina Anna Miller from 8 April 1992 until 7 January 1993. The various payments were paid into a number of different bank accounts, all in the name of Robert Miller, over the period in question. Apparently the payments of family allowance were stopped after 27 June 1991 as a result of a letter addressed to Mrs. Miller at an address in Maryborough, Queensland being returned unclaimed. Departmental forms were completed at the department's office in Swan Hill, Victoria on 11 March 1992 as a result of which instalments of family payment commenced to be paid into the same bank account in Victoria that the applicant's newstart allowance was then being paid into. The address recorded for Mrs. Miller when these payments resumed was the same address that was then recorded for the applicant. Mrs. Miller, however, was still overseas. She had not returned to Australia.
The respondent contends that at all material times the applicant was deliberately deceiving officers of the department into thinking he was his twin brother Robert Miller; that the applicant lodged the "Partner Details" form and the claim for family allowance; that the applicant was not at any material time paying rent to a Mr. B Hoxton or anybody else; that the applicant arranged the reinstatement of family payment in 1992; and that the applicant received all the money paid in the names of Robert Miller and Hermina Anna Miller in respect of unemployment benefit, jobsearch allowance, newstart allowance, rent assistance, family allowance, family payment and additional family payment, including the components of such benefits and allowances referable to a partner and child, at all material times.
The respondent contends that he did not ever intend anyone to confuse him with his twin brother. He says he happened to adopt the use of the name Robert Miller, just as his brother had done, without any dishonest intent. He says that he was entitled to use the driver's licence and pilot's licence in the name of Robert Miller because he had chosen to adopt that name, was a licensed driver, and was a licensed pilot. He denies that he lodged the "Partner Details" form. He denies that he lodged the claim for family allowance. He says that he did not ever withdraw from any bank account any of the money that had been paid by way of the partner and child component of his unemployment benefit, jobsearch allowance and newstart allowance, nor any of the money so paid by way of family allowance, family payment, or additional family payment. He says that he was entitled to all the money that was paid by way of rent assistance. He says that he was entitled to receive unemployment benefit, jobsearch allowance and newstart allowance as a single person, and that he received no more than he was entitled to receive as a single person.
The applicant said that as from about 5 April 1991 he was living with a woman known to him as Rae Royd and her daughter. He said that he had allowed Rae Royd to have access to the bank account or accounts. He suggested that she might have been the person who withdrew the various monies received from the department that he denied withdrawing. He was unable to call Rae Royd as a witness because she no longer lives with him, and he does not know where she is now. The respondent contends that Rae Royd does not exist. A departmental officer named Neville Hill gave evidence by telephone, which the applicant did not challenge, to the effect that he had searched a number of databases and that, so far as he could ascertain, it appeared that no-one named Rae Royd had ever been known to the Department of Family and Community Services or its predecessor, the Department of Social Security, nor ever enrolled on the Australian electoral roll. The applicant suggested that Ms Royd might, like himself, have had another name. He said he only knew her as Rae Royd.
The applicant said he had most probably told Rae Royd the pin number of his brother's account. He said his brother had never met Rae Royd. When asked whether his brother had authorised him to give Rae Royd the pin number of the bank account, he said that his brother could have. In relation to a comment made by the SSAT, he said that there was no evidence Rae Royd had put a false claim in. As I understand him, he was saying that, if it was Rae Royd that put in the claim for a partner and child component dated 31 March 1991, and arranged the payments of family allowance, family payment and additional family payment, there was no evidence that she was not entitled to be paid accordingly in respect of herself and her child.
During 1996 the applicant was charged with a number of offences contrary to the Social Security Act 1947 ("the 1947 Act") and the Social Security Act 1991 ("the 1991 Act") in relation to moneys paid in the names of Robert Miller and Hermina Miller during the period relevant to these proceedings. He defended the charges, which were heard in the Local Court at Campbelltown NSW over four days in May and September 1997. He was convicted, but appealed to the District Court of New South Wales. After a hearing de novo his appeals were dismissed and, in lieu of certain sentences that were imposed in the Local Court, he was sentenced to a total of 2 years' imprisonment, subject to an order permitting his release after 10 months. The District Court judge made a reparation order under the Crimes Act 1914, but the applicant apparently appealed to the Court of Criminal Appeal and had that order quashed.
The applicant's convictions related only to the partner and child component of his unemployment benefit, jobsearch allowance and newstart allowance, the rent assistance, and the family allowance, family payment and additional family payment. Apparently it was decided, for the purpose of the criminal proceedings, not to allege that he had unlawfully obtained the component of unemployment benefit, jobsearch allowance and newstart allowance that related to him alone.
The applicant paid $10,000 to the department on 17 December 1996. He took exception to a comment by the SSAT that he had paid this amount as "gesture of good faith". As I understand him, he made this payment whilst maintaining his innocence, continues to maintain his innocence, and says he believes that that money should be refunded to him. If I understand him correctly, his evidence is that he made that payment with a view to enhancing his chances of remaining at large on bail.
The unemployment benefit claim form of 25 February 1991 showed details of Hermina Anna Miller's maiden name and her date and country of birth. Immediately above the relevant part of the form, someone has written "Partner O/S". Obviously "O/S" was short for "overseas". Obviously this was written by a departmental officer. The applicant's evidence was to the effect that he had not said anything about having a partner, or about a partner being overseas. He submitted that that information must have been available to the department from other sources. That is so highly improbable as to be unbelievable. I infer that the applicant must have provided the details of his sister-in-law, pretending that she was his wife, and said that she was overseas. It was, of course, true that Mrs. Miller was overseas.
One of the exhibits tendered by the applicant is a copy of an affidavit sworn by him on 12 January 1999 in connection with proceedings in the Court of Appeal. In paragraph 22 of that affidavit he admitted that he had registered for an unemployment benefit on 25 February 1991 in the name of Robert Miller. He asserted that he had first used the name Denis Miller, but had realised that the officer attending to him had registered him as Robert Miller. He admitted that he had told that officer that "Hermina Anna Miller (wife), was still overseas".
Over the period to which these applications relate, a lot of forms were lodged at offices of the department in relation to the various benefits and allowances to which these proceedings relate. The applicant asserts that quite a number of them were not completed, signed or lodged by him. In relation to a number of them, he asserts that departmental officers must have provided the information in relation to his brother and sister-in-law that appears on them. I have no reason to think that that was the case.
On or about 25 March 1991 the applicant lodged with the department a form showing that he wanted his unemployment benefit paid to a different bank account, namely a savings account with the Commonwealth Bank at 367 Collins Street, Melbourne. That account was in the name of Robert Miller. On the same day a departmental officer noted the tax file numbers of Robert Miller and Hermina Miller. Also on that day, an "Asset Details" form was lodged bearing the signature "R D Miller" and the signature "Paree", that being Hermina Miller's maiden name. The driver's licence and the pilot's licence were produced again, together with a rent receipt and a bank statement, both in the name of Robert Miller. A statement of that date signed "R D Miller" said, "…My wife at this stage does not work". The statement also referred to him taking a form for his wife to fill in later. The applicant points out that the tax file numbers had apparently previously been disclosed to the department.
On 5 April 1991, the same day that the claim for family allowance was lodged, a form was lodged giving the department notice that the applicant would be moving to Maryborough in Queensland. On that day a copy of Robert Miller's income tax assessment notice for the year ended 30 June 1990 was produced and copied for the department's file. A form giving tax file number details for Robert Miller and Hermina Miller was also completed and lodged.
On page 2 of a document entitled "Applicant's Response" (Exhibit A47) the applicant asserted that an interstate transfer form dated 11 April 1991 and signed "R D Miller" (document T23) appeared not to have been made by him. That document was lodged at the department's Maryborough office in Queensland. It showed that Robert Denis Miller was living at 221 Lennox Street, Maryborough, had just arrived from Melbourne, and was paying rent of $70 per week to a Mr. Hoxton of 221 Lennox Street. I infer that the applicant must have signed and lodged that form himself. I infer that he is claiming not to have done so because evidence has emerged that he changed his name to Boz Hoxton in 1997 by deed poll, but changed it back to Jack Denis Mulder by a second deed poll in 1988. For some reason he was claiming to have paid rent to Mr. Hoxton, when he was really Mr. Hoxton himself.
On 19 April 1991 a form signed "Paree" and dated 17 April 1991 was received at the department's Maryborough office. It purported to come from Hermina Miller, and sought to have family allowance payments paid into an account with the Commonwealth Bank in Maryborough. That account was in the name of Robert Denis Miller. The applicant concedes that this form could not have been signed by Hermina Miller as she was overseas. Also on 19 April 1991, the applicant, using the name Robert Miller, asked to have his unemployment benefit paid into the same bank account. Both the unemployment benefit and the family allowance had previously been paid into the account in Melbourne.
Subsequently the applicant moved to Kerang in Victoria. Whilst there he received payments of jobsearch allowance and newstart allowance through the department's office in Swan Hill. On 24 July 1992 his fortnightly application for the payment of newstart allowance was received at that office. It shows that he had changed his home address and postal address to one in Mount Druitt, NSW. It appears that the form was originally completed so as to show that there had been no change of address, but that the form was subsequently altered. The applicant contends that somebody else must have altered the form. It appears that on 24 July 1992 a departmental officer also completed a statement form in relation to Hermina Miller notifying that she was moving to the same address in Mount Druitt, and requesting the transfer of her family allowance file to the department's office at Blacktown, NSW. That form was not signed by Mrs. Miller or anyone purporting to be her. The applicant contends that it appears to be a misleading, false statement. It suggests to me that the departmental officer was given this information in some manner that did not involve face to face contact with anyone purporting to be Mrs. Miller.
On 8 December 1992 a departmental officer photocopied and placed on the applicant's file a rent receipt dated 5 December 1992 showing that Robert Miller had paid $110 rent for a flat. On the back of the receipt, the address 75 Brunskill Avenue, Forest Hill was noted. Forest Hill is close to Wagga Wagga. On the same date, a change of address form signed "R.D. Miller" dated 8 December 1992 was received at the department's Wagga Wagga office, showing that the applicant and Hermina Miller had changed their address to 75 Brunskill Avenue, Forest Hill. Also received at the Wagga Wagga office that day was a statement signed "R.D. Miller" showing that he had moved to that address from Ararat, Victoria. The applicant contends that he did not ever live in Ararat or Forest Hill, and that he did not produce the rent receipt.
On 8 February 1993 another rent receipt was produced at the Wagga Wagga office and photocopied, and the photocopy placed on the applicant's file. It showed $110 having been paid as rent for a flat at "7/5 Brunskill Avenue". Also received at that office that day were a fortnightly application for the continuation of the applicant's newstart allowance in the of Robert Miller, and a "Duplicate Form Questionnaire" showing that Robert Miller had not received his last fortnightly form because, he thought, it had been sent to 75 Brunskill Avenue instead of 7/5 Brunskill Avenue. The applicant contends that he did not produce the rent receipt that was photocopied that day.

I have tried to catalogue the more significant assertions made by the applicant to the effect that he was not responsible for information and documents on the department's files relating to Robert Miller and Hermina Miller. No doubt he made other such assertions that I have not referred to here. No purpose would be served by me giving details of any more of them.
The applicant placed great emphasis on a departmental manual, particularly in relation to the department's practices as to requiring proof of identity. He submitted that the claim for family allowance must have been made by the mother of the child in question, and that departmental requirements as to proof of identity must have been met, since family allowance would not otherwise have been paid. He submitted that it should have been inferred that documents amounting to proof of identity for Rae Royd and her child must have been sighted by departmental officers for the various payments in relation to a partner and a child to have been made.
There is nothing in the documentary evidence before the Tribunal to suggest that there was ever any face to face contact between anyone purporting Hermina Miller and any departmental officer. It is an undisputed fact that Hermina Miller, her husband and their daughter were absent from Australia 9 September 1990 until 25 February 1995. The evidence that I have referred to compels the inference that all of the documents lodged with the department were completed and lodged either by the applicant or at his instigation. There is simply no rational hypothesis that is inconsistent with that conclusion. There is no reason why any departmental officer should have recorded any of the information that I have referred to unless it was provided to the department by the applicant or at his instigation. Further, the manner in which the applicant presented his evidence and submissions to the Tribunal has led me to think that I should not accept the truth or reliability of anything controversial that he has said without convincing corroborative evidence. He was evasive and aggressive when cross-examined. He seemed keen to disrupt the proceedings as much as he could. He behaved as though he had a naïve belief that I would accept irrational arguments as to his innocence, even after a magistrate and a judge had both found him guilty of obtaining benefits to which he was not entitled, and even after he had been to prison as a result.
I am satisfied that all of the payments to which the decisions under review relate were received as a result of the applicant representing himself to be his twin brother and deceiving departmental officers into believing that he was supporting Hermina Miller and her child. I am satisfied that, although these moneys were paid into accounts in the name of the twin brother, each of those accounts was at all relevant times controlled by the applicant, and was simply used by him as a vehicle by which he obtained all the relevant payments.
During the hearing the applicant made a number of requests for the production of evidence by the respondent which I did not rule on. For example, he asked for the production of the benefits manual that was in use in 1991. He also asked for the production of unspecified and unidentified documents that are the subject of a separate proceeding before this Tribunal concerning the Freedom of Information Act 1982, but I was told that the department had found all the documents described in his request in that Act that it was ever likely to be able to find. All such requests by the applicant appeared to relate his contention that he had not received any payments that he was not entitled to receive. In my view I have received all the evidence that I needed to receive in order to do justice to the applicant in relation to that contention, and there was no purpose to be served in requesting or requiring the respondent to produce any additional witnesses or documentary evidence.
At the hearing the applicant tendered a large number of exhibits. All related to his contention that he had not received any payments that he was not entitled to receive. After the end of the second day of the hearing, I was informed that the applicant wanted to remove a number of exhibits that he had tendered. I took the unusual course of allowing him to do so since he lived in the country, was unrepresented, and apparently wanted to study the exhibits while the case was adjourned, and since I thought some of them too bulky to warrant copying. On the third day of the hearing, the applicant declined to return most of the exhibits that he had removed. I warned him that I would not take into account any exhibit that he had not returned unless I had a clear recollection of it. Despite that warning, he has chosen not to return many of the exhibits that he earlier sought to rely on. From what I remember of the exhibits not returned, I concluded that their absence would not make any difference to my decision. I saw no reason to issue a summons requiring the applicant to return any uplifted exhibits or to seek to inform myself in any other way as to their contents.
In respect of each payment made prior to l July 1991, the amount paid became a debt due to the Commonwealth by virtue of s.246(1) of the 1947 Act, which read as follows:
"Where, in consequence of a false statement or representation, or in consequence of a failure or omission to comply with any provision of this Act, an amount has been paid by way of pension, allowance or benefit under this Act which would not have been paid but for the false statement or representation, failure or omission, the amount so paid is a debt due to the Commonwealth."

It is implicit in that sub-section that the debtor is to be the recipient of the amount paid. I find that the applicant was the recipient of each such payment, since each was paid into a bank account controlled by him.

With effect from 1 July 1991, the 1947 Act was repealed. From that date it was replaced by the 1991 Act, s.1224(1) of which reads as follows:
"If:
(a) an amount has been paid to a recipient by way of social security payment; and
(b)the amount was paid because the recipient or another person:
( i)made a false statement or a false representation; or
(ii)failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth."

It follows that the amount of each of the payments made after 1 July 1991 to which the decisions under review relate also became a debt due by the recipient to the Commonwealth. As with the payments under the 1947 Act, I find that the applicant was the recipient of each such payment, since each was paid into a bank account controlled by him.

Because of the wording of the provisions I have quoted from the 1947 and 1991 Acts, there is a debt due to the Commonwealth in respect of each relevant payment whether or not the applicant was entitled in his own right to unemployment benefit, jobsearch allowance, newstart allowance or rent assistance, and whether or not Rae Royd (if she existed) was entitled to family allowance, family payment or additional family payment. The plain policy behind both Acts is that any payments procured by means of false statements or false representations will be recoverable as debts owing to the Commonwealth. All of the payments in question were procured as a result of false statements and false representations. It makes no difference whether the recipient in such circumstances honestly, or evenly correctly, believed that he or she was entitled to receive such payments, and resorted to false statements and/or false representations for the purpose of procuring what he or she believed to be a legal entitlement.
Part 5.4 of the 1991 Act makes provision for the writing off of such debts and for the waiver of the Commonwealth's right to recover all or part thereof.
So far as writing off is concerned, s.1236(1A) of the 1991 Act provides as follows:
"The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c)the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)the debtor is not receiving a social security payment under this Act and it is not cost effective for the Commonwealth to take action to recover the debt."

The meaning of the term "irrecoverable at law" is dealt with by s.1236(1B), which reads as follows:
"For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a)the debt cannot be recovered by means of deductions from a person's youth training allowance, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the discharge and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt."
The applicant's whereabouts are known. He told me he was unemployed. I am not sure whether he is receiving a newstart allowance, but there seems a good chance that he is either receiving one or will receive one in the future. In time, the full amount owing might be recovered by deductions from his fortnightly payments or even from his estate after his death. I believe the evidence available from departmental records would be capable of sustaining legal proceedings for the recovery of each of the debts in question. There is no suggestion that the applicant has been a bankrupt. In any event, each of the debts in question was incurred by fraud. I therefore conclude that the provisions of s.1236(1A) are all inapplicable, and that there is no discretion to write off any of the debts in question.
Under s.1237(1) of the 1991 Act, there is a discretion to waive the Commonwealth's right of recovery wholly or partly but only "in circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD". Those sections relate to cases involving administrative error (s.1237A); cases when a debtor has been given a longer custodial sentence than he or she would otherwise have received because of unwillingness to pay the debt (s.1237AA); debts under $200 whose recovery would not be cost effective (s.1237AAA); debts relating to the settlement of civil actions (s.1237AAB); situations where there has been an unclaimed entitlement to family payment or family allowance (s.1237AAC); and special circumstances in relation to debts not resulting from false statements or false representations (s.1237AAD).
The provisions of s.1237A in relation to administrative error are not applicable because, by virtue of s.1237A(1), that section only applies in relation to debts that are "attributable solely to an administrative error made by the Commonwealth" and only in relation to payments received by the debtor "in good faith". The applicant contends that there were many administrative errors made by departmental officers, but I do not think it can be said that the debt was attributable solely to any such errors. To the extent that there were any such errors, they resulted from the applicant's deception. He did not act in good faith. Section 1237A is inapplicable.
There is nothing in the comments of the sentencing judge in the District Court proceedings to suggest that any unwillingness to pay the relevant debt or debts was taken into account against the applicant. Indeed His Honour took into account in the applicant's favour the payment of a little over $10,000. Whilst, technically speaking, some of the individual debts might be less than $200, the total amount involved is such that it must be cost effective for the Commonwealth to take action to recover the debts. I am conscious that a 6-year limitation period is imposed by s.1232 of the 1991 Act, but by virtue of s.1232(3) that period did not commence to run until, in the case of each payment, the first day on which an officer became aware or could reasonably be expected to have become aware of the circumstances giving rise to the debt. From the transcript of the court proceedings, it seems to me that the full facts of this case did not emerge until some time during the investigation of the matter by the Australian Federal Police, probably less than 6 years ago. In any event, the limitation period relates only to the institution of court proceedings, and not to the recovery of moneys by deductions from benefits. I am therefore satisfied that it would be cost effective for the Commonwealth to take action to recover the debt, at least in that way. So far as s.1237AAC is concerned, I am not satisfied that the applicant was living with a partner at any material time. I am simply not prepared to accept his evidence that Rae Royd existed.
For these reasons, I have concluded that none of the provisions in the 1991 Act as to the waiver of debts can be applicable. But that is not the end of the matter. The applicant has challenged the accuracy of the calculations in relation to the amounts that it has been decided to recover.
So far as unemployment benefit, jobsearch allowance and newstart allowance are concerned, I accept the accuracy of a certificate by Neville Hill dated 7 May 1997 which shows the total amount received by the applicant in respect of the period from 23 February 1991 to 8 January 1993 inclusive was $29,559.94. However the amounts that it has been decided to recover total $630 more than this, as follows:
Single person's component          -           $13,690.60
Partner and child components     -           $13,879.70
Rent assistance   -           $ 2,619.24
Total   $30,189.54
The rent assistance figures are set out in a schedule (T128, page 251) which seems to be accurate. I therefore think someone must have miscalculated either the single person's component or the partner and child component. Perhaps someone read $180 as $810, or read $290 as $920, for example. I am not satisfied that any more than $29,559.94 is recoverable in respect the relevant payments.
So far as family allowance, family payment and additional family payment are concerned, Mr. Hill issued another certificate dated 7 May 1997 showing that only $816.10 had been paid. That certificate includes a payment of rental assistance on 7 January 1993 which has apparently also been taken into account in relation to newstart allowance. That figure should be excluded. However the certificate omits payments totalling $404.90 in respect of the period 11 July 1991 to 2 April 1992. Details of those payments appear in another document apparently produced by Neville Hill (T128, page 250). That document arrives at a total of $1,147.40, which is still $74 short of the sum of $1,221.40 that it was decided to recover. The figure of $1,147.40 does not include the payment of rent assistance on 7 January 1993. It seems likely that someone counted that payment in by mistake in arriving at the figure of $1,221.40. I am reasonably satisfied that the sum of $1,147.40, but not any greater sum, was paid by way of family allowance, family payment and additional family payment.
In the circumstances I think the appropriate course is to set aside the four decisions under review and to substitute a single decision to recover $29,559.94 in respect of unemployment benefit, jobsearch allowance and newstart allowance, and a further $1,147.40 in respect of family allowance, family payment and additional family payment, less any sums already recovered from the applicant that have not been applied by the Commonwealth in total or partial satisfaction of any other debts.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President A M Blow OAM QC.,
Signed:         .....................................................................................
  Personal Assistant
Dates of Hearing  10,11 and 31 May
Date of Decision  8 June 2000
Solicitor for the Applicant  Applicant appeared in person.
Representative for the Respondent        Mr J Kenny (Centrelink)