Walker, K. v Secretary, Department of Social Security [1995] FCA 130

CATCHWORDS SOCIAL SECURITY - overpayment of sickness benefit - whether statutory entitlement to receive payments from consolidated revenue created a debt enforceable by action - whether over-payment and entitlement could be set off at law or in equity - Chapter 5 of the Social Security Act 1991 constitutes a code for the recovery of over-payments. Social Security Act 1947 Social Security Act 1991 s.1224, s.1231, s.1232, s.1233, Chapter 5 Imperial Acts Application Act 1984 (Qld.) s.7 Health Insurance Commission v. Peverill (1994) 179 CLR 226 Appl. Josephson v. Walker (1914) 18 CLR 691 Appl. Pasmore v. Oswaldtwistle Urban Council [1898] AC 387 Appl. Federal Commissioner of Taxation v. Official Receiver (1956) 95 CLR 300 Peverill v. Meir (1990) 95 ALR 401 Phillips v. Mineral Resources Developments Pty. Ltd. [1983] 2 Qd.R. 138 Herst v. Mayes, Ex parte Mayes [1903] QWN 29 Hanak v. Green [1958] 2 QB 9 Stehar Knitting Mills Pty. Ltd. v. Southern Textile Converters Pty. Ltd. [1980] 2 NSWLR 514 Sydmar Pty. Ltd. v. Statewise Developments Pty. Ltd. (1987) 73 ALR 289 Buttrose v. Versi (Young J., Unreported, 14 May, 1992 Re K.L. Tractors Ltd. [1954] VLR 505 Rawson v. Samuel (1841) Cr. & Ph. 161; 41 ER 451 Hill v. Ziymack (1908) 7 CLR 352 J. & S. Holdings Pty. Ltd. v. NRMA Insurance Ltd. (1982) 61 FLR 108 FC Lord v. Direct Acceptance Corporation (1993) 32 NSWLR 362 CA Indrisie v. General Credits Ltd. [1985] VR 251 FC James v. Commonwealth Bank of Australia (1992) 37 FCR 445 Griffiths v. Commonwealth Bank of Australia (1994) 123 ALR 111 Kevin Walker v. Secretary, Department of Social Security No. QG 227 of 1993 Spender, Drummond and Cooper JJ, Brisbane, 17 March, 1995

IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) No. QG 227 of 1993 GENERAL DIVISION ) On Appeal from a Judge of the Federal Court of Australia BETWEEN : KELVIN WALKER Appellant AND : SECRETARY, DEPARTMENT OF SOCIAL SECURITY Respondent CORAM: Spender, Drummond and Cooper JJ PLACE: Brisbane DATE: 17 March 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. That the appeal be allowed. 2. The orders of von Doussa J. made on 22 December, 1993 be set aside. 3. That the decision of the Administrative Appeals Tribunal given on 11 August, 1992 by Senior Member Mr. D.W. Muller be set aside. 4. The respondent pay the applicant's costs of the application and of the appeal. AND it be declared that the respondent is obliged to discharge the statutory duty to pay to the appellant a sickness benefit for the period 20 October, 1988 to 12 April, 1989 calculated in accordance with the provisions of the Social Security Act 1947 unless such payment is garnished in accordance with the provisions of section 1233 of the Social Security Act 1991. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.