Bird v Public Trustee of Qld
[2004] FMCA 278
•7 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BIRD v PUBLIC TRUSTEE OF QLD & ANOR | [2004] FMCA 278 |
| ADMINISTRATIVE LAW – Applicant seeking to become a “payment nominee”– refusal to appoint or consider appointment as payment nominee – Applicant seeking review under ADJR Act – whether Applicant is an “aggrieved person” within the meaning of the Act – whether general right for any person to apply to become a payment nominee – whether the Applicant has standing to proceed – whether financial interest as a debtor is sufficient to establish standing. Social Security Administration Act 1999, ss.202, 123O, 123D, 123B Administrative Decisions (Judicial Review) Act1977 Lohe v Bird [2004] QSC 023; Tooheys Ltd v Minister for Business & Consumer Affairs (1981) 36 ALR 64; Alapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250; Chilcott v Singh [2002] FMCA in Big Country Developments Pty Ltd v Australian Community Pharmacy Authority 60 FCR 85; Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 |
| Applicant: | GEOFFREY JAMES BIRD |
| First Respondent: | PUBLIC TRUSTEE OF QUEENSLAND |
| Second Respondent: | SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
| File No: | BZ17 of 2004 |
| Delivered on: | 7 May 2004 |
| Delivered at: | Brisbane |
| Hearing date: | 9 March 2004 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Applicant in person |
| Solicitors for the Second Respondent: | Mr Belcher Australian Government Solicitor |
ORDERS
That the Application for Administrative Review filed on 16 January 2004 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ17 of 2003
| GEOFFREY JAMES BIRD |
Applicant
And
| PUBIC TRUSTEE OF QUEENSLAND |
First Respondent
And
| SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The application before me seeks administrative review of a decision made by a delegate of the Department of Family & Community Services not to disclose information to the Applicant or to appoint him as a payment nominee for Elizabeth Jane Rickleman (“Rickleman”) pursuant to section 123B of the Social Security Administration Act 1999 (the “Act”).
On 24 February 2004, the matter was set down for a preliminary hearing with respect to the Applicant’s standing to bring this application. On 9 March 2004, during the course of this hearing, oral submissions were made by both the Applicant and Second Respondent as to whether the Applicant was an “aggrieved person” within the meaning of section 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).
Further written submissions were provided on whether a person seeking to become a payment nominee required the consent or approval of the principal and the process for seeking an appointment under the Act.
In response to these issues, the Second Respondent filed a further affidavit of Richard John McQuinlan sworn on 22 March 2004, and addressing the process for appointing a payment nominee under the Act and he attached the appropriate Centrelink form.
The Applicant in his latest affidavit, filed on 31 March 2004, annexes a completed Centrelink application form (allegedly signed by the principal) which the Applicant says is evidence of the principal’s consent to have him appointed as a payment nominee.
Although self-represented throughout these proceedings, the Applicant has presented some cohesive submissions which indicate his broad knowledge of legal principles.
Background
Rickleman is a “principal” within the meaning of Part 3A (see section 123A of the Act), and I shall refer to her as “the principal” hereafter in these reasons. The principal, who suffers from an intellectual impairment, was not a party to these proceedings.
The applicant describes himself as the carer for the principal, who is also his boarder. Attached to his affidavit sworn 16 January 2004, is a copy of an “Accommodation Agreement” (“the Agreement”) between the Applicant and the principal dated 5 February 2003. The Applicant says that this Agreement was in effect a continuation of the financial arrangements that existed between himself and the principal for the last 5 years.
On 11 March 2003, the Guardianship and Administration Tribunal (Qld) appointed the Public Trustee of Queensland as administrator for the principal “for all financial matters”. As a result of this order, the principal’s pension is currently paid to the Public Trustee. I note that in the same order, the Adult Guardian was appointed as guardian for the principal in respect of non-financial legal matters.
The Applicant appealed the Tribunal’s decision to the Supreme Court of Queensland, which was dismissed by Justice Helman on 7 January 2004. As a result of proceedings in other courts relating to the affairs of Rickleman, the Applicant has been declared a “vexatious litigant” (see Lohe v Bird [2004] QSC 023).
The Applicant wrote to Centrelink on 13 January 2004 requesting that he be appointed the payment nominee for the principal. By letter dated 14 January 2004, an officer of Centrelink advised the Applicant that he could not provide him with any information relating to the principal due to the privacy provisions under the Act. It is this decision, or failure to make a decision, which the Applicant contends should be reviewed.
The Applicant has been unsuccessful in his attempt to be appointed as administrator for the principal’s financial affairs in other Court proceedings, and he now seeks to be appointed as a payment nominee for the principal’s social security benefits.
It is premature to consider the merits of the application before determining the preliminary issue of Applicant’s standing to make this application.
Submissions by the Applicant
The Applicant submits that his legal rights are affected, and that he therefore has standing on the following grounds:-
a)The Accommodation Agreement; and
b)His position as carer for the principal.
The Accommodation Agreement
The Applicant submits that:-
a)The decision or failure to make a decision induces a breach of contract, as there is a clause in the agreement requiring the principal to pay social security benefits into a nominated joint bank account.
b)The purpose of the Agreement is to give him priority as a creditor and he will lose such priority if payments are not made into the account.
c)The second respondent is committing the tort of interfering with contractual relations by deciding other than to appoint him as a payment nominee.
The Applicant also raises the validity of the Agreement and goes into some detail about the arbitration clauses, neither of which assist me in determining the issue of standing.
The submissions appear to be shaped by the Applicant’s strong belief that the validity of the Agreement should be recognised by the Public Trustee and/or the Second Respondent, and the failure to do so causes him injustice. He makes allegations of mismanagement of funds by the Public Trustee.
The Carer Relationship
The Applicant alleges the Public Trustee has mismanaged funds, and seeks to become a payment nominee on the basis that it is his obligation as carer to ensure that the principal’s finances are effectively managed.
There is no probative evidence before me of the Public Trustee mismanaging the principal’s funds.
The Applicant’s assertion that he has an obligation to the principal to ensure that her finances are managed efficiently is inconsistent with his contention that the purpose of the Agreement is to secure his interest as a debtor. This would create a clear conflict of interest with the principal.
The Applicant perceives these proceedings are unfair to him and that the alleged misconduct by the Public Trustee “is calculated to cause harm” to himself and the principal and says that as a result “both he and Ms Rickleman lost their home”.
Submissions of the Second Respondent
The second respondent sought to have the proceedings dismissed on the following two grounds, namely:-
a)The court has no jurisdiction to grant the relief sought by the Applicant; and
b)The Applicant has no standing to bring the proceedings.
In respect of the issue of standing, it was submitted that:-
a)The Applicant had no actual or apparent authority to act on the principal’s behalf (they did not dispute that the principal or her legal representative could bring an action);
b)The meaning, scope and purpose of the Act did not create a general right for any person to apply, and therefore seek review of a decision to be appointed as a payment nominee; and
c)Even if the Applicant could apply under section 123B, he was not an “aggrieved person” within the meaning of section 5 of the ADJR Act.
The following sections were cited in support of the Second Respondent’s position that there is no general right to apply to be appointed as a payment nominee under the Act:-
a)Section 202 – protection of personal information;
b)Section 123O – duty of nominee to act in the best interests of principal ; and
c)Section 123D – the express right of the nominee to refuse or revoke the appointment.
The Second Respondent concedes that the Secretary may appoint any person as a payment nominee pursuant to section 123B, but disagrees that this creates a general right for any person to apply to be appointed. However, if there is no consent by the principal, then the person seeking to be appointed as nominee must be acting on the principal’s behalf.
The Second Respondent broadly submits that the Applicant’s financial interest with the principal does not fall within the subject, scope or purpose of the Act so as to give the Applicant a right of review under the ADJR Act; only the principal or his or her nominee, would have such a right.
Legal Principals
Legal standing is used by the Courts to determine who has the right to bring an application. It ensures that only parties with legitimate causes of action come before the Courts.
Section 5 of the ADJR Act states that:
“A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review…”
In order for the Applicant to have standing to bring his application pursuant to section 5 of the ADJR Act, it is necessary for him to be a person “aggrieved” by the Second Respondent’s decision. Pursuant to section 3(4) of the ADJR Act, a person aggrieved by a decision includes:
“ a person whose interests are adversely affected by a decision;”
It is not necessary for a person seeking standing pursuant to section 5 of the ADJR Act to establish that he has a legal interest at stake in the making of the decision concerned. In Tooheys Ltd v Minister for Business & Consumer Affairs (1981) 36 ALR 64 at 79 Ellicot J said:
“The words ‘a person aggrieved’ should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of a decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show grievance which will be suffered as a result of the decision complained of beyond that of an ordinary member of the public.”
The phrase “interests are affected” was considered in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 (by Gummow J at 272):
“Like the expression ‘a person aggrieved’, the phrase ‘a person whose interests are adversely affected by the decision’ and cognate terms, appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the ‘interests’ concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case the contents of the terms ‘affect’ and ‘interest’ are to be seen in the light of the scope and purpose of the particular statute in issue.”
I agree with what Brown FM said in Chilcott v Singh [2002] FMCA 39 at paragraphs 30 – 32 that:-
“ 30. In Alpharm, the Court held that the purely competitive or economic interest a person had in protecting his market share or profitability from a competitor was not in itself sufficient to render the person “aggrieved”, even if the decision ultimately could be said to have affected the person’s interests. The test as to whether or not the person was so aggrieved, for the purposes of administrative or judicial review, flowed from an analysis of the subject matter of the Act pursuant to which the decision had been made and the type or zone of interests which were regulated or protected by that particular statute. It was also necessary to consider the subject matter and content of the decision under review in this context.
31. Alpharm was applied in Big Country Developments Pty Ltd v Australian Community Pharmacy Authority 60 FCR 85 where at 93 Lindgren J said as follows:
“Such broad notions as ‘person aggrieved’ and ‘interests adversely affected’ by administrative decisions under enactments are intended to be relevant to the scope and purpose of the statutes involved in particular cases and are to be construed accordingly…Although such considerations as to whether an adverse affection is a direct or remote result of a decision and whether it is substantial or not will often be relevant to the issue of standing under the AD(JR) Act, that Act does not indicate a priori that any one consideration is to be conclusive: judgement must be suspended until the considerations revealed to be relevant by the facts of the particular case can be taken into account…”
32. In Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 at 269 Gummow J said as follows:
“Section 5(1) of the AD(JR) Act operates in an ambulatory fashion over a wide area of federal law. Questions as to whether a particular applicant is ‘aggrieved’ within the meaning of that provision arise in the context provided by the ‘enactment’ under which the administrative ‘decision’ in issue was made. The nature of the grievance and the justiciability of the complaint by the applicant concerning it will appear first by identifying the decision giving rise to the grievance and then by considering the enactment under which it was made.””
The authorities make it clear that the scope and purpose of the Act is relevant to whether the Applicant is “aggrieved” within the meaning of the ADJR Act and therefore has standing to bring an application for review.
In considering the scope and purpose of the Act, I refer to the following factors:-
a)Section 123D prevents the Secretary from appointing a payment nominee except with the consent of the person to be appointed (in this case the Applicant), and after taking into account any wishes of the principal. Consent of the principal, is therefore not required for the Secretary to appoint a person.
b)The Act is silent on whether there is a general right to apply, but there is an express right for the nominee to revoke or refuse appointment (section 123E).
c)Section 202 prevents disclosure of information to someone who is not the subject of that information, or does not have their express consent except in limited circumstances.
d)Section 123O creates an obligation for the nominee to act in the principal’s best interests.
There is nothing in the Act to suggest that a creditor seeking to protect his or her financial position can legitimately expect the Second Respondent to consider an application made pursuant to section 123B. Such a request would be contradictory to the intention and purpose of the Act.
The above sections indicate that only a principal or a person legitimately acting on their behalf can apply to be a payment nominee and expect the Secretary to consider that application. In this case, by reason of the orders of the Guardianship Tribunal, the Public Trustee is the only person or entity who has the right to apply to be payment nominee without perhaps the consent of the Adult Guardian. Clearly there is no evidence that either the Public Trustee or the Adult Guardian support the Applicant’s request to Centrelink.
Conclusions
The decision maker, in this situation, derives his power from the Social Security Administration Act 1999, and must exercise such power in accordance with the Act. The decision maker is not bound by the terms of the private agreement between the Applicant and the principal.
The Applicant cannot claim to be responsible for the principal’s financial affairs as a result of his carer relationship, as this responsibility was delegated to the Public Trustee, as a result of the Tribunal’s decision on 11 March 2003. The Public Trustee is responsible for the principal’s financial affairs.
It is clearly inconsistent with the purpose of the Act that a mere creditor or other person who has a contract with the principal should be entitled to apply under section 123B to control a recipient’s payment required for her support. The request was an attempt to overcome the orders of the Tribunal giving control of Rickleman’s affairs to other than the Applicant.
The Applicant has not established that he is a person “aggrieved” within the ADJR Act, and therefore his application must fail.
I make the orders set out at the commencement of these reasons.
I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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