Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127

Federal Court of Australia

Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127 Appeal from: Frugtniet v Secretary, Department of Social Services [2019] FCA 1617

File number(s): VID 1148 of 2019

Judgment of: O'CALLAGHAN, WHEELAHAN aND SNADEN JJ

Date of judgment: 30 July 2021

Catchwords: SOCIAL SECURITY – appeal from the primary judge's order dismissing an appeal from a decision of the Tribunal which affirmed a decision of a delegate of the Secretary to apply an amount of family tax benefit due to the appellant in partial discharge of the appellant's indebtedness to the Commonwealth – where the appellant's entitlement to family tax benefit arose from the Secretary's failure to give the required notice to the appellant prior to the recovery of overpayments of that benefit – where the appellant's indebtedness to the Commonwealth arose from his receipt of parenting payments to which he was not entitled under the Social Security Act 1991 (Cth) – whether s 84A of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Administration Act) authorised the set off of the appellant's entitlement against his debt to the Commonwealth – whether the primary judge erred in failing to find that s 84A did not allow such set off – in the circumstances, s 84A does authorise such set off – no error by the primary judge was demonstrated. SOCIAL SECURITY – whether the Secretary's decision to set off the appellant's entitlement against the debt was made for an improper purpose, namely because it was prevented by s 86 of the Administration Act as previously in force or because the invalid recovery of overpayments giving rise to the entitlement was not recoverable – whether the primary judge erred in failing to find an improper purpose – the decision was not for an improper purpose – no error by the primary judge was demonstrated. PRACTICE AND PROCEDURE – where the appellant submitted to the court post-hearing submissions and a proposed further amended notice of appeal without leave – whether the court should entertain such submissions and proposed notice of appeal – the submissions and proposed further amended notice of appeal should not be entertained. HIGH COURT AND FEDERAL COURT – application for recusal of a judge on the basis of apprehended bias – where the judge heard two other matters involving the appellant or the appellant's former spouse – in the circumstances, no basis for recusal.