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7.12.3 Referral to Legal Services Group
220.127.116.11 — If it is considered that legal action is both desirable and appropriate then the matter should be formally referred to the Director, Advising and Public Law, Legal Service Group, NO. It is not possible to refer a matter directly to the Court. While the AGS is responsible for instituting legal proceedings and represents the Department in these matters, Legal Services Group has responsibility for instructing AGS.
18.104.22.168 — Prior to referring a matter to Legal Services the referring officer must be satisfied that the following criteria are met:
- Action to recover the debt is within the period available for recovery – that is, the commencement of any Court action will be within the period permitted for your State. As a general rule, the period will commence on the date that the debt was incurred. Court action to recover a debt outside this period cannot be undertaken by the Australian Government.
- The debtor's current residential address is known.
- Proof of the existence of the debt is available for use in Court - this may be that the debtor has acknowledged the debt and/or all the required documentation to support the assessment of the overpayment is available and must be provided.
- Normal recovery action has failed.
- The debtor is not in receipt of income support from either DVA or Centrelink.
- The debtor has the capacity to repay the debt.
- It is cost effective (i.e. a substantial amount is likely to be recovered).
- The debtor has not applied for a review of the overpayment within 3 months of the date of the first debt notification notice and this review and all other avenues for appeal are exhausted.
22.214.171.124 — A referral to Legal Services must include a submission commenting on each of the above points. A referral does not mean the matter will be accepted for legal action. The matter will be assessed in Legal Services on the basis of the information provided to establish whether Court action is appropriate and should be commenced – this consideration may involve consultation with AGS.
126.96.36.199 — Advice will be provided to the recovery officer when the case has been accepted and once this has occurred Legal Service will be responsible for all contact with AGS. Legal Services will keep the recovery officer informed of progress.
188.8.131.52 — Once a case has been referred to the AGS for legal action, they are responsible for liaising with the debtor over the debt. DVA should not initiate any contact with the debtor without prior approval from Legal Services.
184.108.40.206 — Legal Services should be advised immediately if the debtor contacts the Department, makes a refund, or claims a benefit.
220.127.116.11 — Where the Court makes an order in favour of DVA, the result is called a 'judgement debt'. Several methods can be employed to enforce a judgement, including bankruptcy. The case should be discussed with Legal Services for advice on the appropriate course of action. A recovery officer should never discuss with a debtor the possible courses of action available to the Department in enforcing the Court order.
18.104.22.168 — If the debtor successfully defends the action in Court, the debt should be waived, written off or deferred, as appropriate.
22.214.171.124 — Once a debt has been recovered, the monies paid to AGS will be forwarded to the relevant office through Legal Services