Secretary, Department of Social Security v Southcott, Anthony [1998] FCA 323

FEDERAL COURT OF AUSTRALIA BANKRUPTCY and SOCIAL SECURITY - Recovery of overpayments made by the Commonwealth - Right to recovery when there is a debt due to the Commonwealth - Effect of bankruptcy of the recipient of the overpayment - Whether recovery procedures still available after bankruptcy of the recipient of the overpayment - Issue of garnishee notice after bankruptcy of the recipient of the overpayment - Whether waiver or write off available after bankruptcy of the recipient of the overpayment

Bankruptcy Act 1996 (Cth) s 58(3)(a) Social Security Act 1991 (Cth) ss 1233, 1224 Social Security Legislation Amendment (Carer Pension and Other Measures) Act 1995 (Cth) s 1237AAD Data-Matching Program (Assistance and Tax) Act 1990 (Cth) s 11(1)(d) Social Security Act 1947 (Cth) s 181 Income Tax Assessment Act 1936 (Cth) s 218 Re Stewart v Secretary, Department of Social Security (1985) 8 ALD 515, considered Taylor v Secretary to the Department of Social Security (1988) 18 FCR 322, distinguished Clyne v Deputy Commissioner of Taxation(1984) 154 CLR 589, considered Edelsten's Trustee v Commissioner of Taxation (1987) 16 FCR 386. applied Deputy Commissioner of Taxation (NSW) v Donnelly (1989) 25 FCR 432, applied Deputy Commissioner of Taxation v Government Insurance Office of NSW (1993) 45 FCR 284, applied SECRETARY, DEPARTMENT OF SOCIAL SECURITY v SOUTHCOTT No VG 180 of 1997 JUDGE: NORTH J PLACE: MELBOURNE DATE: 13 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 180 of 1997

ON APPEAL FROM THE GENERAL DIVISION OF

THE ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY Mrs JOAN DWYER, SENIOR MEMBER

BETWEEN SECRETARY, DEPARTMENT OF SOCIAL SECURITY

AppELLANT

AND: ANTHONY SOUTHCOTT