Suzor v Secretary, Department of Family and Community Services
[2005] FCAFC 103
•20 MAY 2005
FEDERAL COURT OF AUSTRALIA
Suzor v Secretary, Department of Family & Community Services
[2005] FCAFC 103GREGORY JOHN SUZOR v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
QUD 227 OF 2004
SPENDER, DOWSETT and HELY JJ
20 MAY 2005
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 227 OF 2004
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
GREGORY JOHN SUZOR
APPELLANTAND:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
RESPONDENTJUDGES:
SPENDER, DOWSETT and HELY JJ
DATE OF ORDER:
20 MAY 2005
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.
3. The notice of motion filed 30 November 2004 also be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD 227 OF 2004
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
GREGORY JOHN SUZOR
APPELLANTAND:
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
RESPONDENT
JUDGES:
SPENDER, DOWSETT and HELY JJ
DATE:
20 MAY 2005
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE COURT
SPENDER J:
As earlier expressed, the Court has had the benefit of very extensive written submissions by the parties to this appeal, and has considered those submissions, as well as hearing from the parties today. The Court is of the unanimous view that the appeal must be dismissed. I will ask Justice Dowsett to give the reasons of the court.
The motion is also dismissed. The order of the Court is that the appeal be dismissed with costs and the notice of motion filed by the respondent is unnecessary to answer in the light of the circumstances. The stay motion is dismissed.
DOWSETT J:
On 30 August 2004, Centrelink issued a document styled “Account Payable” to the appellant, notifying him that his Newstart allowance had been overpaid to the extent of $182.81 on 13 August 2004 and that the due date for repayment of that amount was 28 September 2004. The document stated:
‘Your Centrelink and/or Family Assistance Office payments may be reduced to help recover the amount payable.’
The appellant instituted proceedings in this Court seeking an injunction to prevent the unlawful taking of moneys pursuant to s 15HB of the Crimes Act 1914 (Cth) (the “Act”) and an order for the repayment of any moneys deemed unlawfully obtained. The application was dismissed by the primary Judge with costs. The appellant appeals from that order. The respondent moves for an order under O 52 r 18, dismissing the appeal as incompetent. Both the appeal and the motion are listed before the Full Court this morning.
The applicant has made extensive written submissions concerning numerous sections of the Act and the proper construction thereof. Those submissions have been placed with the papers and have been considered in reaching our conclusion in this matter.
Under s 1223(1) of the Social Security Act 1991 (Cth) (the “SSA”), the amount of the overpayment is a debt due to the Commonwealth. The debt is recoverable by deduction in an amount determined by the Secretary from the appellant’s social security payments (see SSA, ss 1231(1) and 1231(1A)) provided action under s 1231 is taken within six years of the discovery of the overpayment (s 1231(2A)) or if the debtor acknowledges that he or she owes the debt within that period, within six years of that acknowledgment (s 1231(2D)).
Section 60(1) of the Social Security (Administration) Act 1999 (Cth) (the “SSAA”) provides that a social security payment is inalienable, but s 60(2) expressly provides that s 60 is subject to s 1231 of the SSAA. The amount of the overpayment has been recovered by the respondent by deduction from social security payments to which the appellant was otherwise entitled. As this recovery was effected within six years of the debt arising, whether or not the appellant has acknowledge the debt is immaterial.
None of the questions identified in the appellant’s submissions arises. They are based upon a misconception of the operation of the SSAA. There is no conceivable basis on which the appellant is entitled to the relief he seeks. The appeal should be dismissed with costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Dated: 6 June 2005
Counsel for the Appellant:
The Appellant appeared in person.
Counsel for the Respondent:
Mr B Porter
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
20 May 2005
Date of Judgment:
20 May 2005
0
0
0