Secretary to the Department of Family & Community Services v Giannekas [2001] FCA 1161

FEDERAL COURT OF AUSTRALIA

Secretary to the Department of Family & Community Services v Giannekas

[2001] FCA 1161 SOCIAL SECURITY – preclusion period Social Security Act 1991 (Cth) s 1184(1)

Secretary to the Department of Family and Community Services v Allan [2001] FCA 1160 followed SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v GIANNEKAS V 292 of 2001 HEEREY J 23 AUGUST 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 292 of 2001

BETWEEN: SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

AND: THEODOSIA GIANNEKAS

Respondent

JUDGE: HEEREY

DATE OF ORDER: 23 AUGUST 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant pay the respondent's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 292 of 2001

BETWEEN: SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

AND: THEODOSIA GIANNEKAS

Respondent

JUDGE: HEEREY

DATE: 23 AUGUST 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This matter was heard at the same time as Secretary to the Department of Family and Community Services v Allan [2001] FCA 1160. It also concerns s 1184(1) of the Social Security Act 1991 (Cth) (the Act). I incorporate by reference what I said in Allan as to the relevant provisions of the Act. 2 The respondent is a forty eight year old former food service worker who was injured in a workplace accident on 9 December 1996. Up until 16 July 1998 she received workers' compensation payments. On 3 September 1998 she was granted a disability support pension (DSP). 3 In March 2000 the respondent's solicitors corresponded with Centrelink as to the amount she would be required to pay back out of any lump sum settlement and the length of any preclusion period. On 28 March 2000 Centrelink advised the respondent's solicitors that the estimated charge would be $15,686.25 and the preclusion period 151 weeks. 4 On 5 April 2000 the respondent's compensation claim was settled for a lump sum of $130,000. 5 On 26 April 2000 Centrelink cancelled the respondent's DSP effective from 22 April 2000 for 151 weeks and sought repayment of DSP paid to her from 3 September 1998 to 21 April 2000 of $16,595.45. This amount was recovered under s 1174 of the Act. The decision of 26 April 2000 was affirmed by internal review and, on 3 October 2000, by the Social Security Appeals Tribunal (SSAT). 6 On 22 March 2001 the Administrative Appeals Tribunal (the Tribunal) set aside the decision of the SSAT. It remitted the matter to the Secretary for reconsideration in accordance with directions that the Secretary treat that part of the respondent's compensation payment which would end the preclusion period on the next pension pay day after the date of the decision as not having been made in the special circumstance of this application. 7 The evidence before the Tribunal at its hearing on 22 March 2001 disclosed that: · the respondent's telephone had been cut off and her utilities were about to be cut off as she had no money to pay such accounts; · in part she was depending on her neighbour supplying her with food; · she had sought employment but as she could not afford to register her motor vehicle or pay for petrol the only opportunities available to her were to leave her name at local shops as a potential employee; · in September 1998 she had suffered a marriage break-down as a result of the difficulties experienced since the time of her injuries; · she had developed a gambling addiction following the onset of her injuries and that addiction had contributed to the marriage break-down and loss of her family home; · because of her gambling addiction she had signed over her share in the matrimonial home so it could not be lost to the family; · because of credit restrictions placed upon her following her gambling debts she could not obtain any loan or credit facility using her unit as security; · she had purchased a unit from the settlement monies on the advice of her solicitor to purchase an asset rather than leave money in the bank; · she attempted to sell her motor vehicle for $5,000 but received no offers · she continues to use medication for relief of pain which she was obtaining with the use of her healthcare card but could not afford to see doctors and already had two operations on her arm which had not provided pain relief; · she needed dental treatment which she could not afford and was on a waiting list for treatment at the dental hospital but could not accept her place in the queue as she had no money to make the required contribution. 8 All in all her evidence satisfied the Tribunal that she was in "dire straits". 9 The Tribunal said: "14. In Re Stephens the Tribunal was satisfied that the effect of the introduction of the GST in July 2000 had increased Mr Stephens' cost of living. It is difficult to make the same finding with respect to Mrs Giannekas as she is apparently not paying for anything at all. Even if her utilities are cut off however, debts which she already has outstanding must be paid. The Tribunal assumes that people, such as Mrs Giannekas, who are not in receipt of a payment under the Act have no entitlement to the services of providers who assist those in receipt of pensions or benefits find employment. 15. If Mrs Giannekas did have money with which to pay for her daily needs, the introduction of the GST would be impacting upon her and this is reflected in the considerable increase in the compensation divisor on 1 July 2000. The break-up of Mrs Giannekas's marriage has also impacted upon her and the Tribunal is satisfied that those factors make her circumstances special such that the preclusion period should end earlier than it otherwise would. The Tribunal will remit the matter to the Secretary for reconsideration in accordance with directions that her preclusion period now come to an end." 10 It seems that the question of the GST did not loom very large in the consideration of the Tribunal. For the reasons discussed in Allan I do not consider it was necessarily irrelevant. However, it rather pales into insignificance in the light of the total misery of the respondent's circumstances. I cannot see any error in the Tribunal finding there was special circumstances or in the discretionary order it made as a consequence. 11 The appeal will be dismissed with costs including reserved costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.