D'Ambrosio and Secretary, Department of Social Services (Social services second review)

[2021] AATA 1109

D'Ambrosio and Secretary, Department of Social Services (Social services second review) [2021] AATA 1109 (3 May 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0240

Re:Felicia D'Ambrosio

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Deputy President Brian Rayment OAM QC

Date:3 May 2021

Place:Sydney

The deceased applicant’s personal representative is not a party to the proceedings and as such, the Tribunal has no jurisdiction to hear the decision under review.

..........................[sgd]..............................................

Deputy President Brian Rayment OAM QC

CATCHWORDS

PRACTICE AND PROCEDURE – whether personal representative of deceased applicant is a party to the proceedings – where application made by personal representative of the applicant – where death of applicant occurred before decision delivered –  where decision appealed by personal representative of the applicant – where legal personal representative may be joined by application under s 30 Administrative Appeals Act (Cth) – where Tribunal finds personal representative of deceased applicant is not a party to the proceedings

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)

CASES
Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326

SECONDARY MATERIALS

Dennis Pearce, Administrative Appeals Tribunal (Lexis Nexis, 5^th ed, 2020)

REASONS FOR DECISION

Deputy President Brian Rayment OAM QC

3 May 2021

1. An application was made on behalf of the late Mrs Felicia D’Ambrosio for review of a decision of the Secretary relating to her pension.

2. Before the proceedings were decided in the Social Services and Child Support Division, the applicant passed away.  The applicant had apparently authorised her son Silvano D’Ambrosio to conduct the proceedings on her behalf.

3. The Social Services and Child Support Division of this Tribunal purported to give a decision affirming the decision of the Secretary, and being dissatisfied with that decision, Mr Silvano D’Ambrosio purported to appeal to the General Division of this Tribunal against the decision of the Social Services and Child Support Division. 

4. The Secretary has challenged the standing of Mr Silvano D’Ambrosio to bring the appeal.

5. In my opinion at this time Mr Silvano D’Ambrosio has no standing to bring an appeal at the present time.  In any event, and additionally, it seems to me that the Social Services and Child Support Division had no authority to make the order which it did make, because at that time the applicant had passed away and without the appointment of a legal personal representative in the estate of Mrs Felicia D’Ambrosio.

6. According to her son, the applicant died without leaving a will.  Also according to him, he is the only surviving relative of the deceased.

7. The Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) makes no provision as to what is to happen when the applicant dies after the commencement of the proceedings.

8. If the application for review is made under the Migration Act 1958 (Cth), for example, the application cannot proceed if the applicant dies. Only the person specified in the Migration Act may seek review, and if that person dies before being disposed of, no one is entitled to continue it.

9. On the other hand, the estate may proceed with other kinds of application for review, including the challenge to the Secretary’s decision in this case. 

10. The means by which the estate may proceed is by obtaining from the Supreme Court a grant of probate, or a grant of letters of administration and then seeking from the Tribunal an order joining the legal personal representative to the Tribunal proceedings under s 30(1A) of the AAT Act. After such an order is made by the Tribunal, the pending application may be the subject of an order resolving the application and the losing party may appeal to the General Division of the Tribunal. See generally, Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326 DP Todd and Members Travers and Attwood, and D C Pearce, Administrative Appeals Tribunal (5^th ed) s 7.10, 117.

11. The matter should proceed accordingly, and after obtaining a grant of representation, the legal personal representative may apply under s 30(1A) of the AAT Act, and the matter should be brought before the Social Services and Child Support Division in the first instance.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Brian Rayment OAM QC

...............................[sgd].........................................

Associate

Dated: 3 May 2021

Date(s) of hearing:	9 April 2021
Applicant:	In person
Solicitors for the Respondent:	Ms B Erak, Services Australia