Commonwealth of Australia (as represented by the Department of Human Services) v Mitchell [2014] NSWSC 1364

Supreme Court New South Wales

Medium Neutral Citation: Commonwealth of Australia (as represented by the Department of Human Services) v Mitchell [2014] NSWSC 1364 Hearing dates: 3 September 2014 Decision date: 03 September 2014 Jurisdiction: Common Law Before: Adams J Decision: The orders sought in the notice of motion are made. Legislation Cited: Social Security Act 1947 (Cth) Social Security Act 1991 (Cth) Category: Interlocutory applications Parties: Commonwealth of Australia (as represented by the Department of Human Services) (Plaintiff) Pauline Mitchell (Defendant) Representation: Counsel: A Spencer (Plaintiff) Solicitors: Australian Government Solicitors (Plaintiff) File Number(s): 2014/259380

Judgment 1This is an application by the Commonwealth of Australia for what might be called a freezing order of assets relating to assets owned or controlled by the defendant Pauline Mitchell. 2The defendant filed a notice of motion that sets out a series of debts allegedly owed by the defendant to the plaintiff under the Social Security Act 1947 (Cth) and the Social Security Act 1991 (Cth). 3In substance these were the payments made by the Commonwealth of Australia of claims made by the defendant for the invalid pension to be paid to Kenneth Ross Mitchell who at the time had been dead for some forty years and an aged pension to be paid to one Mary Mitchell who at the time had been dead for some six years or so. 4Those claims in substance falsely represented that the dead persons were alive and as a consequence the plaintiff paid pensions under the relevant legislation, which was taken by the defendant. 5The sum personally claimed is in excess of $500,000 plus interest and costs. The affidavit relied on by the plaintiff is made by an investigations officer of the Department of Human Services which sets out a background and provides details of the relevant sums together with material in an exhibit proving the claims, their basis, payment and providing details of the defendant's assets. 6Since it has been established to a sufficient evidentiary level that the debt is owed to the Commonwealth by virtue of calculated dishonesty on the part of the defendant, it is reasonable to infer that should she become aware of the intention of the Commonwealth to commence proceedings for its recovery, that she may take action in an attempt to conceal from execution assets which otherwise would be available to compensate the Commonwealth for her frauds. 7It is for the same reason reasonable to require the defendant to provide evidence in the way proposed in the orders of her assets and liabilities. Accordingly I make the orders sought in the notice of motion.