HGMZ v Secretary, Department of Social Services

• Jurisdiction: Australia Federal only
• Judgment Date: 29 March 2021
• Neutral Citation: [2021] FCA 280
• Court: Federal Court
• Date: 29 March 2021

Federal Court of Australia

HGMZ v Secretary, Department of Social Services [2021] FCA 280

Appeal from:	Application for an extension of time: Re HGMZ and Secretary, Department of Social Services [2020] AATA 978
File number:	NSD 612 of 2020
Judgment of:	FLICK J
Date of judgment:	29 March 2021
Catchwords:	PRACTICE AND PROCEDURE – making of a suppression order – onus – necessary to prevent prejudice – onus not discharged ; ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – need to identify question of law with precision – failure to do so – issues nevertheless identifiable – form not substance – appeal dismissed ; PRACTICE AND PROCEDURE – precedent – submission that earlier decision should not be followed – earlier decision not clearly wrong
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG Health and Other Services (Compensation) Act 1995 (Cth) s 33A Income Tax Assessment Act 1936 (Cth) s 196 Social Security Act 1991 (Cth) ss 17, 1169, 1170, 1184K Social Security Amendment Act 1988 (Cth) Federal Court Rules 2011 (Cth) r 33.12
Cases cited:	ASE16 v Australian Securities and Investments Commission [2016] FCA 321 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198, (1999) 88 FCR 438 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 ELA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 230 Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94, (2010) 186 FCR 410 Giddings v Australian Information Commissioner [2017] FCAFC 225 Haritos v Federal Commissioner of Taxation [2015] FCAFC 92, (2015) 233 FCR 315 Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 Hogan v Australian Crime Commission [2010] HCA 21, (2010) 240 CLR 651 Indooroopilly Children Services (Qld) Pty Ltd v Commissioner of Taxation [2006] FCA 734, (2006) 63 ATR 106 Liverpool City Council v McGraw-Hill Financial, Inc [2018] FCA 1289 Marr v Australian Telecommunications Corporation (1991) 105 ALR 647 Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 Phillips v Inspector-General in Bankruptcy [2013] FCA 552 Roncevich v Repatriation Commission [2005] HCA 40, (2005) 222 CLR 115 Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67, (2002) 116 FCR 348 TNT Skypack International (Aus) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 Weeks v Commissioner of Taxation [2012] FCA 342, (2012) 88 ATR 183
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	73
Date of last submissions:	30 December 2020
Date of hearing:	23 December 2020
Solicitor for the Applicant:	Elias Attia of Attia Lawyers and Consultants
Solicitor for the Respondent:	Stephen Thompson of Sparke Helmore

ORDERS

		NSD 612 of 2020
BETWEEN:	HGMZ Applicant
AND:	SECRETARY, DEPARTMENT OF SOCIAL SERVICES Respondent

order made by:	FLICK J
DATE OF ORDER:	29 MARCH 2021

THE COURT ORDERS THAT:

1. The application made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) is refused.

2. Time is extended in which to commence the proceeding to 1 June 2020.

3. Leave is granted to file and rely upon the Further Amended Notice of Appeal dated 17 December 2020, other than Ground 6.

4. The proceeding is dismissed.

5. The Applicant is to pay the costs of the Respondent, either as taxed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1. On 27 April 2020, the Administrative Appeals Tribunal (the “Tribunal”) published its reasons for decision in Re HGMZ and Secretary, Department of Social Services [2020] AATA 978.

2. In very summary form, the Applicant in that proceeding, identified by the pseudonym HGMZ, had been in receipt of a disability support pension since January 2008. In May 2013, however, she was involved in a motor vehicle accident and made a claim for compensation for injuries suffered in the District Court of New South Wales. The vehicle she had been driving was involved in a collision with a bus. The District Court proceeding was ultimately settled in August 2017 upon payment of $135,000.

3. Difficulties for the Applicant emerged when the Department of Human Services (the “Department”) formed the view that part of the settlement monies for the motor vehicle accident included a component for economic loss and sought recovery of $31,142.86. The Respondent took the view that the settlement of the motor vehicle accident claim involved compensation for economic loss. It informed HGMZ that a “preclusion period” was to be applied to her disability support pension. On the same day the Respondent informed HGMZ of its decision, the Respondent wrote to the insurer requesting recovery of $31,142.86 from the compensation payment. A calculation had been undertaken as to when the “preclusion period” was to start and finish, with that period commencing on the day of her accident in May 2013 and finishing in September 2014. The $31,142.86 was the amount of the social security payment paid to her during that period. On internal review of its decision to seek recovery, the Respondent advised HGMZ by letter on 7 November 2017 that it rejected her contention that the discretion conferred by s 1184K of the Social Security Act 1991 (Cth) to waive payment of that amount should also be exercised in her favour.

4. HGMZ sought review of the Respondent’s decision by the Social Services and Child Support Division of Administrative Appeals Tribunal. That Division of the Tribunal affirmed the Respondent’s decision. A second level review by the General Division of the Tribunal again affirmed the decision and it published reasons on 27 April 2020.

5. On 1 June 2020, HGMZ (the “Applicant”) caused to be filed in this Court an Application for an extension of time in which to appeal the Tribunal decision.

6. The matter came on for hearing on 23 December 2020. The Application for an extension of time was not opposed and, accordingly, by consent time was extended. An application made to rely upon a Further Amended Notice of Appeal dated 17...