JTBJ and Secretary, Department of Social Services (Social security) - [2025] ARTA 464

JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464 (22 April 2025)
Applicant:JTBJ
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/C189714
Tribunal:Justice Kyrou, President
Place:Melbourne
Date:22 April 2025

Decision:The Tribunal’s earlier decision dismissing the application for review is of no effect. The Tribunal has jurisdiction to review the decision of the Authorised Review Officer dated 6 May 2024.

..............................[Sgd]..........................................
Justice Kyrou, President
Catchwords
PRACTICE AND PROCEDURE – application for review dismissed – application to reinstate under s 102(5)-(6) of Administrative Review Tribunal Act 2024 – whether application for review dismissed in error within meaning of s 102(6) – meaning of ‘error’ – whether decision to dismiss application for review vitiated by jurisdictional error such that it has no legal effect within the principle in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 – decision to dismiss held to be vitiated by such error and of no legal effect
PRACTICE AND PROCEDURE – whether any discretionary factors militate against Tribunal treating decision to dismiss application for review as of no legal effect and to exercise afresh its powers in relation to the application for review – no such factors found to exist
SOCIAL SECURITY – whether interests of executor of estate of deceased age pension recipient who alleges Secretary’s decision involved underpayments to recipient prior to their death are affected by that decision so as to enable executor to seek review of the decision – executor’s interests found to be so affected – distinction between age pension for periods post-dating death of recipient and alleged debts arising from underpayments of age pension prior to death – decision dismissing executor’s application for review found to be vitiated by jurisdictional error in determining that executor’s interests were not so affected
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Bates and Secretary, Department of Employment [2016] AATA 250
Brehoi v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 385; [1999] FCA 772
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 383
Katterns v Comcare [2002] FCA 1366
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Mora [2016] AATA 4198
Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326, [1991] AATA 532
Re Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457; [2006] AATA 227
The Estate of Veronika Komaromi and Secretary, Department of Social Services [2024] AATA 3117
Table of Contents
Statement of Reasons
INTRODUCTION AND SUMMARY
ISSUES FOR RESOLUTION
RELEVANT STATUTORY PROVISIONS
Social Security (Administration) Act
Social Security Act
Administrative Appeals Tribunal Act
Administrative Review Tribunal Act
ISSUE 1: WHAT TYPES OF ERRORS FALL WITHIN S 102(6) OF THE ART ACT?
Cases relevant to Issue 1
Parties’ submissions on Issue 1
Decision on Issue 1
ISSUES 2 AND 3: ERROR IN PRESENT CASE; WHETHER WITHIN S 102(5), (6)
Summary of previous cases relevant to Issues 2 and 3
Reasons for the Dismissal Decision
Parties’ submissions on Issues 2 and 3
Decision on Issues 2 and 3
ISSUE 4: EXERCISE OF DISCRETION
DECISION
Statement of Reasons
INTRODUCTION AND SUMMARY

The applicant is the executor of the estate of an individual who, prior to her death, had applied for an age pension. On 25 March 2024, the respondent decided that the deceased was entitled to an age pension, commencing from 1 February 2019.
The deceased died on 20 April 2024.
On 6 May 2024, an authorised review officer decided to vary the decision of 25 March 2024 by increasing the amount payable by a modest amount (‘ARO Decision’).
Probate of the deceased’s will was granted on 6 June 2024, and the applicant was appointed executor on that day.
On 11 July 2024, the applicant lodged an application for review of the ARO Decision with the Administrative Appeals Tribunal (‘AAT’), in which the applicant asserted that the calculations in the ARO Decision were incorrect, resulting in an underpayment of age pension to the deceased. The applicant does not claim any age pension payment for any period post-dating the deceased’s death. In substance, the applicant contends that the respondent owes a debt to the deceased for age pension payments up to the time of death, and that the applicant is entitled to pursue that debt as the executor of the deceased’s estate.
On 10 October 2024, the applicant made an application to the respondent under s 58 of the Social Security (Administration) Act 1999 (‘SSA Act’) for payments to him in his capacity as executor of amounts due to the deceased.[1]
[1]Section 58 of SSA Act is set out at [‎15] below.
As is customary in first instance social security matters, the respondent did not participate in the proceeding. Because the application for review was not determined prior to 14 October 2024, when the AAT was replaced by the Administrative Review Tribunal (‘ART’ or ‘Tribunal’), the application fell to be determined by the ART in accordance with item 24 in schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (‘Transitional Act’).
On 3 December 2024, a general member of the ART decided that the ARO Decision was not reviewable by the ART and made an order dismissing the application for review pursuant to s 97 of the Administrative Review Tribunal Act 2024 (‘ART Act’).[2] I will refer to the member’s decision as the ‘Dismissal Decision’.
[2]Section 97 of the ART Act is set out at [‎24] below.
On 16 December 2024, the applicant applied to the ART for reinstatement of the application for review pursuant to s 102(5) of the ART Act on the ‘grounds of error’ within the meaning of that subsection.[3] Under s 102(6), if ‘the Tribunal considers that the application was dismissed in error’, it ‘may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.’
[3]Section 102 of the ART Act is set out at [‎24] below.
On 5 February 2024, I made an order under s 63(2) of the ART Act requiring the respondent to appear at a directions hearing scheduled for 25 February 2025 and to lodge written submissions to assist the Tribunal in resolving the reinstatement application. The directions hearing took place as scheduled. Both parties appeared and made written and oral submissions. The applicant was represented by his son, who is not a lawyer. The respondent was represented by an external solicitor. The parties were given opportunities to file further written submissions and did so in mid-March 2025 and again in early April 2025.
The question I need to determine is limited to whether the application for review should be reinstated under s 102(6) of the ART Act or on any other legal basis. The merits of the application for review concerning any amount payable are not presently before me.
For the reasons that follow, I have decided as follows:
(a)The application for review was not ‘dismissed in error’ within the meaning of s 102(6) of the ART Act, and therefore the power to reinstate it in that section is not engaged.
(b)In making the Dismissal Decision, the Tribunal did not perform its review function of deciding whether the Tribunal has jurisdiction in relation to the application for review and therefore, in accordance with the principle in Minister for Immigration and Multicultural Affairs v Bhardwaj,[4] I can now perform that function and make this decision.
(c)There are no discretionary factors militating against treating the Dismissal Decision as having no legal effect and the Tribunal performing afresh the function of deciding whether it has jurisdiction in relation to the application for review.
(d)The Tribunal has jurisdiction to review the ARO Decision.
[4](2002) 209 CLR 597 (‘Bhardwaj’). The Bhardwaj principle is discussed at [‎37] below.
ISSUES FOR RESOLUTION
In order to decide whether to reinstate the application for review or treat it as being extant, it is necessary to address the following issues:
(a)What types of errors fall within s 102(6) of the ART Act?
(b)What is the error the applicant alleges the Tribunal made in the Dismissal Decision?
(c)Does that error fall within s 102(6) of the ART Act, and, if not, is the Bhardwaj principle engaged?
(d)If the Tribunal made an error falling within s 102(6) of the ART Act or the Bhardwaj principle is engaged, are there any discretionary factors militating against the reinstatement of the application for review or treating it as being extant?
Before addressing the above issues, it is necessary to set out the relevant provisions of the SSA Act, the Social Security Act 1991 (‘SS Act’), the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) and the ART Act.
RELEVANT STATUTORY PROVISIONS
Social Security (Administration) Act
Section 58 of the SSA Act relevantly provides:
58 Payment of social security payment after death
(1)If:
(a)an amount representing a social security payment (other than pension bonus, pension bonus bereavement payment or a student start‑up loan) is payable to a person; and
(b)the person dies; and
(c)another person applies to receive the amount; and
(d)the application is made:
(i)within 26 weeks after the death; or
(ii)within such further period as is allowed by the Secretary in the special circumstances of the case;
the Secretary may pay the amount to the person who, in the Secretary’s opinion, is best entitled to it.
(2)If the Secretary pays an amount of a social security payment under subsection (1), the Commonwealth has no further liability to any person in respect of that amount.
Section 59 of the SSA Act sets out circumstances in which a pension bonus or a pension bonus bereavement payment are payable to a deceased’s legal personal representative after the deceased’s death.
Section 60 of the SSA Act relevantly provides:
60 Protection of social security payment
(1)A social security payment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
(2)This section has effect subject to:
(a)sections 61 and 238 of this Act; and
(aaa)Part 3AA of this Act; and
(aa)Part 3B of this Act; and
(b)sections 1231 and 1234A of the 1991 Act.
It is common ground that an age pension is a ‘social security payment’ for the purposes of s 60(1) of the SSA Act. The provisions referred to in s 60(2) set out the circumstances in which deductions from social security payments can be made for certain purposes (including to make payments to third parties, such as the Commissioner of Taxation) or to repay debts due to the Commonwealth.
Section 144(g) of the SSA Act provides that the ART does not have jurisdiction to review a decision made under s 58 of the SSA Act. Prior to 14 October 2024, s 144(g) referred in similar terms to the AAT.[5]
[5]SSA Act s 144(g) as at 13 October 2024.
Social Security Act
Section 91 of the SS Act relevantly provides:
91 Death of recipient
(1)If:
(a)a person is receiving age pension; and
(b)either:
(i)the person is not a member of a couple; or
(ii)the person is a member of a couple and the person’s partner:
(A)is not receiving a social security pension; and
(C)is not receiving a service pension, income support supplement or a veteran payment; and
(c)the person dies;
there is payable, to such person as the Secretary thinks appropriate, an amount equal to the amount that would have been payable to the person under this Act on the person’s payday after the person’s death if the person had not died.
(2)If an amount is paid under subsection (1) in respect of a person, the Commonwealth is not liable to any action, claim or demand for any further payment under that subsection in respect of the person.[6]
[6]Note 1 to s 91(2) of the SS Act refers to s 65. No such section is currently in force. Section 65 was repealed in 1999 by the Social Security (Administration and International Agreements) (Consequential Amendments) Act 1999. The terms of that provision now appear in near identical form at s 58 of the SSA Act set out at [‎15] above.
Administrative Appeals Tribunal Act
Section 27(1) of the AAT Act, as in force on 11 July 2024 (when the application for review was lodged),[7] relevantly provided as follows:
[7]Unless otherwise indicated, all references to the AAT Act in these reasons are to that Act as in force on 11 July 2024.
27 Persons who may apply to Tribunal
(1)Where this Act or any other enactment … provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth … ) whose interests are affected by the decision.
Section 30(1) and (1A) of the AAT Act relevantly provided as follows:
30 Parties to proceeding before Tribunal
Parties
(1)… the parties to a proceeding before the Tribunal for a review of a decision are:
(a)any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b)the person who made the decision;
(c)…; and
(d)any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).
…
Person whose interests are affected may apply to be a party
(1A)Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
Section 42A of the AAT Act relevantly provided as follows:
42A Discontinuance, dismissal, reinstatement etc. of application
Dismissal if parties consent
(1)Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.
…
Deemed dismissal—applicant discontinues or withdraws application
(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
…
(1B)If notification is given in accordance with subsection (1A) … , the Tribunal is taken to have dismissed the application without proceeding to review the decision.
Dismissal if party fails to appear
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or
(b)in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.
Dismissal if decision is not reviewable
(4)The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
…
Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction
(5)If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
Dismissal if party fails to appear—giving of appropriate notice
(7)Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.
Reinstatement of application
(8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(8A)If the Tribunal dismisses an application under subsection (2) … , a party to the proceeding may, within the period referred to in subsection (11), apply to the Tribunal for reinstatement of the application.
(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(11)For the purposes of subsections (8), (8A) and (10), the period is:
(a)28 days after the party receives notification that the application has been dismissed, unless paragraph (b) applies; or
(b)if the party requests an extension—such longer period as the Tribunal, in special circumstances, allows.
Administrative Review Tribunal Act
The provisions of the ART Act that are similar to ss 27, 30 and 42A of the AAT Act above, are ss 17, 22, 95, 96, 97, 99 and 102. Those provisions of the ART Act are in the following terms:
17 Who can apply
(1)A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision.
…
…
22 Parties to proceeding for review
Parties to proceeding
(1)Each of the following are parties to a proceeding for review by the Tribunal of a decision:
(a)the applicant for the review;
(b)the decision‑maker;
(c)any other person, if:
(i)the person applies to the Tribunal to become a party to the proceeding; and
(ii)the Tribunal is satisfied that the person’s interests are affected by the decision; and
(iii)the Tribunal considers it appropriate that the person become a party to the proceeding.
…
…
95 Applicant may withdraw application
(1)The applicant may, at any time, by:
(a)giving written notice to the Tribunal; or
(b)notifying the Tribunal in any other manner specified for the application in the practice directions;
withdraw an application made to the Tribunal.
(2)If the applicant withdraws the application, the Tribunal is taken to have dismissed the application.
96 Tribunal may dismiss application if parties consent
The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal has the consent of the parties to the proceeding in relation to the application (other than any non‑participating party to the proceeding).
97 Tribunal must dismiss application if decision is not reviewable decision
The Tribunal must dismiss an application if:
(a)the application is made for review of a decision; and
(b)the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
…
99 Tribunal may dismiss application if applicant does not appear
If:
(a)the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and
(b)the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event;
the Tribunal may dismiss the application.
…
102 Reinstatement of application
When this section applies
(1)This section applies if the Tribunal dismisses an application.
Note: An application may be dismissed in specified circumstances (see sections 20, 84 and 96 to 101). In addition, an application is taken to have been dismissed if the applicant withdraws it (see section 95).
Tribunal may reinstate on own initiative
(2)If the Tribunal considers that the application was dismissed in error, the Tribunal may on its own initiative reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
(3)Despite subsection (2), the Tribunal must not reinstate an application under subsection (2) if the application was dismissed under section 96 (Tribunal may dismiss application if parties consent).
(4)Despite subsection (2), if more than 28 days have passed since an application was dismissed, the Tribunal must not reinstate the application under subsection (2) unless the Tribunal is satisfied that special circumstances justify reinstating the application.
Party may apply for reinstatement if application dismissed in error
(5)A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(6)If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
Parties can apply for reinstatement in other specified circumstances
(7)If the application is dismissed under … [ss 95, 99 or 100] … a party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(8)However, the applicant cannot apply if the application is dismissed under section 95 (applicant may withdraw application).
(9)If a party applies under subsection (7) and the Tribunal considers it appropriate to reinstate the application, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
ISSUE 1: WHAT TYPES OF ERRORS FALL WITHIN S 102(6) OF THE ART ACT?
Cases relevant to Issue 1

There are two decisions of the Full Court of the Federal Court which have directly considered the scope of the phrase ‘dismissed in error’ in s 42A(10) of the AAT Act.
The first decision is Brehoi v Minister for Immigration and Multicultural Affairs.[8] In that case, the AAT dismissed Mr Brehoi’s application for review under s 42A(2) of the AAT Act on the basis that he had failed to appear at a scheduled hearing even though he was aware of the time and place of the hearing. A single judge of the Federal Court refused to grant Mr Brehoi an extension of time to file a notice of appeal out of time. Mr Brehoi applied to the Full Court for an extension of time within which to file a notice of appeal from the primary judge’s decision. The Full Court (Whitlam, Moore and Katz JJ) refused the application for an extension of time on the basis that Mr Brehoi did not satisfy the Court that there was a sufficient basis to grant it. Having made that decision, the Full Court proceeded to discuss, in obiter, a matter it had itself raised during the hearing, namely, the applicability of s 42A(10).
[8](1999) 58 ALD 385; [1999] FCA 772 (‘Brehoi’).
The Full Court considered the history of s 42A(10) of the AAT Act, including the 1991 Report of the Review of the Administrative Appeals Tribunal[9] (‘1991 Report’) and the Senate Explanatory Memorandum for the Administrative Appeals Tribunal Amendment Bill 1992 (‘EM’). The 1991 Report and the EM described the power to reinstate a dismissed application for review in the provision which became s 42A(10) as applying to applications which had been dismissed through ‘administrative error’ on the part of the AAT.[10] The Full Court did not expressly say that the power to reinstate in s 42A(10) was confined to administrative errors on the part of the AAT. However, the Full Court stated that the problem identified by the 1991 Report was ‘the absence of a “slip” rule’[11] and that the purpose of inserting s 42A(10) in the AAT Act was ‘as disclosed’ in the 1991 Report and EM.[12] The Full Court did not express a view on whether the AAT had made an error of the type referred to in s 42A(10) in dismissing Mr Brehoi’s application for review.
[9]Steering Committee of the Review of The Administrative Appeals Tribunal, Report of the review of the Administrative Appeals Tribunal (29 November 1991).
[10]Brehoi (1999) 58 ALD 385, 390 [28]-[29]; [1999] FCA 772.
[11]Brehoi (1999) 58 ALD 385, 390 [28]; [1999] FCA 772.
[12]Brehoi (1999) 58 ALD 385, 391 [39]; [1999] FCA 772.
The second decision is Goldie v Minister for Immigration and Multicultural and Indigenous Affairs.[13] In that case, counsel for Mr Goldie appeared at the commencement of a hearing before the AAT, in the absence of Mr Goldie, to seek an adjournment. As counsel’s instructions were confined to applying for that adjournment, upon the application being refused, counsel withdrew. Because Mr Goldie was not present at the hearing, the deputy president conducting the hearing dismissed the application for review pursuant to s 42A(2) of the AAT Act on the basis of Mr Goldie’s failure to appear. Mr Goldie’s application for reinstatement of the application for review was refused by a second deputy president of the AAT who, applying Brehoi, held that the AAT had no jurisdiction under s 42A to reinstate the application for review because it had not been ‘dismissed in error’.[14]
[13](2002) 121 FCR 383; [2002] FCAFC 367 (‘Goldie’).
[14]Goldie (2002) 121 FCR 383, 394 [60], 397 [72].
A majority of the Full Court of the Federal Court (Wilcox and Downes JJ, Carr J dissenting) dismissed an appeal from the decision of the second deputy president. The majority held that the AAT’s decision to reject the reinstatement application was correct because there was no material before the second deputy president that would have justified a determination that the application for review had been ‘dismissed in error’.[15] Carr J would have allowed the appeal on the basis that it was fairly arguable that the application for review was dismissed in error for two reasons: first, Mr Goldie had not failed to appear and, secondly, there had been a denial of procedural fairness.[16]
[15]Goldie (2002) 121 FCR 383, 391-92 [42].
[16]Goldie (2002) 121 FCR 383, 399 [86]-[88].
Although Carr J dissented in relation to the outcome of the appeal, the Full Court was unanimously of the view that the ‘error’ to which s 42A(10) referred was not confined to an ‘administrative error on the part of the Tribunal’ and that Brehoi was incorrect insofar as it suggested, in obiter, that the section was so confined.[17] The majority and Carr J made separate, but not inconsistent, observations about the scope of such ‘error’.
[17]Goldie (2002) 121 FCR 383; 388 [27], 389-90 [33]-[35], 397 [72]-[73], [75].
The majority stated that s 42A(10) does not impose any qualification or limitation on the word ‘error’, and that it would be erroneous to place any limitation on the ‘error’ referred to in s 42A(10).[18] However, they added that ‘[t]he only limitations that we can see in s 42A(10) are that the Tribunal has dismissed the application’ and ‘the act of dismissal was attended with error’.[19] They also stated that s 42A(10) ‘only covers default dismissals under s 42A, not dismissals after a hearing on the merits.’[20] They said that s 42A(10) does not require that any member or employee of the AAT should have been at fault in relation to the dismissal; the fault may have been that of a representative for a party (such as where a representative wrongly consents to a dismissal order or files a notice of discontinuance) provided that the fault or mistake induced the erroneous dismissal.[21]
[18]Goldie (2002) 121 FCR 383, 388 [27], 389 [32].
[19]Goldie (2002) 121 FCR 383, 388 [28].
[20]Goldie (2002) 121 FCR 383, 389 [31].
[21]Goldie (2002) 121 FCR 383, 388 [29].
Carr J said that he would construe the word ‘error’ in s 42A(10) of the AAT Act ‘as including administrative error but extending beyond mere administrative error.’[22] He stated that there was ‘a significant degree of desirability of persons being able to rely on the ordinary meaning conveyed by the word “error”.’[23] He observed that all of the circumstances in which s 42A enabled the AAT to dismiss an application for review had a common result, namely, that ‘the dismissal takes place without the Tribunal reviewing the merits of the decision, even without review on a prima facie basis of those merits.’[24] Because a dismissal of an application for review under s 42A did not involve review of the decision the subject of the application on the merits, he described the dismissal as involving the exercise of the AAT’s ‘default jurisdiction’.[25] He also described such a decision to dismiss under s 42A as a ‘default decision’, stating that such a decision was made ‘in default of consideration of whether there were even any prima facie merits in the application’. [26]
[22]Goldie (2002) 121 FCR 383, 397 [73].
[23]Goldie (2002) 121 FCR 383, 398 [77].
[24]Goldie (2002) 121 FCR 383, 396, [67].
[25]Goldie (2002) 121 FCR 383, 398 [77].
[26]Goldie (2002) 121 FCR 383, 397 [75].
Carr J stated that s 42A(10) of the AAT Act did not involve ‘some sort of appeal procedure’, but rather provided a mechanism to reinstate an application for review which avoided prolonged legal proceedings.[27] He added:
The mechanism is a relatively informal method of bringing a matter back to the Tribunal for reconsideration with a view to it being considered on the merits. It can be seen as a convenient, prompt and inexpensive means whereby errors which may have occurred in the exercise of the Tribunal’s default jurisdiction can be rectified. That is, any sort of error in dismissing an application summarily, whether the error be administrative error or any other error.[28]
[27]Goldie (2002) 121 FCR 383, 398 [77], [79].
[28]Goldie (2002) 121 FCR 383, 398 [77].
Carr J stated, in obiter, that where the AAT is to be regarded as not having made a decision at all, in accordance with the Bhardwaj[29] principle, the AAT retains jurisdiction to make a decision on the application for review without the need to rely on s 42A(8), (9) or (10).[30]
[29](2002) 209 CLR 597.
[30]Goldie (2002) 121 FCR 383, 399 [83]-[84].
The Full Court was unanimously of the view that the power to reinstate could be exercised by either the member who dismissed the proceeding or by any other member.[31] The Full Court implicitly held that if the first deputy president had erred in dismissing the application for review, that error would have fallen within s 42A(10).[32] Carr J stated that the application for review had been ‘summarily dismissed by the Tribunal’.[33] He also stated that the dismissal decision ‘can … be properly characterised as in the nature of a default decision’, that is, ‘in default of consideration of whether there were even any prima facie merits in the application [for review].’[34]
[31]Goldie (2002) 121 FCR 383, 389 [31], 398-99 [81].
[32]Goldie (2002) 121 FCR 383, 390 [36], 391-92 [41]-[42], 399 [82].
[33]Goldie (2002) 121 FCR 383, 392 [44].
[34]Goldie (2002) 121 FCR 383, 397 [75].
Section 42A(10) of the AAT Act was also considered briefly in Katterns v Comcare.[35] In that case, the AAT dismissed an application for review under s 42A(5) on the basis that Mr Katterns failed to comply with its directions. The AAT did so without giving prior notice to the parties, so that Mr Katterns did not have an opportunity to explain his non-compliance. The AAT refused Mr Katterns’ application under s 42A(10) for reinstatement of the proceeding, on the basis that there was no error of law involved in the dismissal. Dowsett J held that the AAT ‘erred in proceeding as it did’ in dismissing the application for review without notice to the parties.[36] He said that he considered that ‘there was certainly a significant procedural error’ and that he had ‘no difficulty in categorising it as an error for the purposes of subs 42A(10).’[37]
[35][2002] FCA 1366 (‘Katterns’).
[36]Katterns [2002] FCA 1366, [2].
[37]Katterns [2002] FCA 1366, [3].
In Bhardwaj, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that, where a tribunal decision on a matter is infected by jurisdictional error so that it can be said that the tribunal did not exercise its jurisdiction in making that decision, the tribunal has power to make a new decision on that matter. In that case, Mr Bhardwaj’s agent had sent a letter to the Immigration Review Tribunal (‘IRT’) seeking a new hearing date because Mr Bhardwaj was unavailable, but this letter was not brought to the attention of the member who proceeded to determine the application without Mr Bhardwaj. Following representations by Mr Bhardwaj’s agent, the IRT held a further hearing and made a new decision. Although the majority judges delivered separate judgments (save for Gaudron and Gummow JJ, who delivered a joint judgment) with some differences in reasoning, the principle expressed above (which I will refer to as the Bhardwaj principle) is broadly consistent with all of the majority judgments.[38]
[38]Bhardwaj (2002) 209 CLR 597, 602 [1], 606 [15] (Gleeson CJ), 612 [43]-[44], 614-15 [51], 616 [53] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 642 [141], 644-45 [149], 646-47 [152], 647 [155] (Hayne J), 649-50 [163], [165] (Callinan J).
A well-known example of the application of the Bhardwaj principle to the AAT is Mora.[39] In Mora, the AAT stated that ‘a tribunal should consider treating an earlier decision as a nullity only if the existence of jurisdictional error in its earlier decision is so obvious as to leave no real doubt about that conclusion, and there are no plausible countervailing considerations weighing against doing so, including but not limited to fairness to the parties’.[40] In that case, the AAT had decided that it did not have jurisdiction in relation to the applicants’ applications for review in reliance on a decision of the Federal Circuit Court of Australia which, four months after the AAT’s decision, was overruled by the Full Court of the Federal Court. Upon application by the applicants to the AAT to treat its earlier decision as a nullity and to make a new decision, the AAT held that ‘it is both lawful and sound’ to do so based on a collective consideration of the following factors:
(1)there is clear, recent and unambiguous judicial authority available to support the conclusion that the tribunal’s earlier ‘no jurisdiction’ decision was plainly wrong;
(2)the application to reopen was filed promptly;
(3)the tribunal has not yet considered, let alone made a decision on, the merits of the review;
(4)the ‘parties’ (using that term loosely to include the Secretary) agree as to what course the tribunal should adopt;
(5)[the tribunal] discern[s] neither unfairness nor any detriment to sound administrative practice that might flow from acceding to that common view;
(6)there appear to [the Tribunal] to be no discretionary reasons that might have been raised as reasons for a court to refuse the applicants relief had they instead sought judicial review; and
(7)the outcome is consistent both with the tribunal’s objectives of providing a mechanism of review that is fair, just, economical and quick, and not inconsistent with promoting public trust in its decision-making.[41]
[39][2016] AATA 4198 (‘Mora’).
[40]Mora [2016] AATA 4198, [17] (emphasis original).
[41]Mora [2016] AATA 4198, [19]-[21].
In Mora, the AAT referred to an earlier decision of Downes P in Re Michael and Secretary, Department of Employment, Science and Training.[42] The AAT in Mora approved the following statements made by Downes P after he discussed Bhardwaj: a tribunal should ‘act with extreme caution before reconsidering a matter that has already been decided’; ‘it will very rarely be “wise” for a tribunal to reconsider its own decisions’; and ‘it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong’.[43] The AAT in Mora added the ‘caveat’ that, if judicial review proceedings are commenced in respect of an AAT decision, the AAT should submit to the supervisory jurisdiction of the court and should not reconsider its decision.[44]
[42](2006) 90 ALD 457; [2006] AATA 227 (‘Michael’).
[43]Michael (2006) 90 ALD 457, 460 [13], 461 [15], [17]; [2006] AATA 227.
[44]Mora [2016] AATA 4198, [95].
Parties’ submissions on Issue 1
The applicant submitted that the Tribunal should follow the decision in Goldie that the word ‘error’ should not be read as confined to ‘administrative errors’. He contended that ‘error’ includes an error of law. He argued that, having regard to the object and purpose of the ART Act, reading down the meaning of ‘error’ would undermine the Tribunal’s mechanism of efficiently, flexibly and accessibly bringing an application back before the Tribunal to be determined on its merits.
The respondent submitted that the meaning of ‘error’ in subs 102(5) and (6) of the ART Act reflects the grounds for judicial review in s 5(1) of the Administrative Decisions (Judicial Review) Act 1977. The respondent contended that ‘error’ is not limited to the kinds of dismissal decisions listed in the note to s 102(1), nor the species of ‘administrative error’ discussed in Brehoi. The respondent argued that ‘error’ in subs 102(5) and (6) includes a legal error, such as a failure of procedural fairness that in Bhardwaj and Katterns resulted in the AAT’s purported decision to dismiss being assessed by the courts as no decision at all. However, so it was said, this must be limited to the Tribunal’s dismissal taking place without the Tribunal reviewing the merits of the decision. According to the respondent, subs 102(5) and (6) do not apply to a Tribunal decision made under s 105 of the ART Act.
Decision on Issue 1
The reasoning of the Full Court in Goldie for its conclusion that the errors to which s 42A(10) of the AAT Act referred were not confined to administrative errors applies equally to the errors to which subs 102(5) and (6) of the ART Act refer. Further, in accordance with Goldie, those provisions are not confined to errors on the part of the ART. Although there are no express limitations on the scope of the errors falling within subs 102(5) and (6), Goldie identified two limitations arising from the context of the provisions which apply in the case of dismissal of an application for review. The limitations are as follows:
(a)Section 102(1) of the ART Act makes it clear that subs 102(5) and (6) apply only where an application for review has been dismissed. This means that those provisions do not apply where an order is made under s 105 of the ART Act after the ART considers the merits of the application either at a substantive hearing or without holding a hearing in accordance with s 106. That is because such an order does not include dismissal of the application for review.[45]
(b)The act of dismissal was attended with error, that is, the error induced the dismissal.[46]
[45]See [‎31] above.
[46]See [‎31] above.
In Goldie, the Full Court unanimously stated that s 42A(10) of the AAT Act applied only to ‘default dismissals’. Carr J used the expressions ‘default jurisdiction’, ‘default decision’, ‘error in dismissing an application summarily’ and ‘summarily dismissed by the Tribunal’ interchangeably to encapsulate dismissals which were not preceded by ‘consideration of whether there were even any prima facie merits in the application.’[47] The underlying principle to be taken from these observations for the purposes of subs 102(5) and (6) of the ART Act is that these provisions do not apply to dismissals which were preceded by a hearing being conducted at which the applicant appeared and presented their case on the issues being considered at that hearing.
[47]See [‎32]-[‎33], [‎35] above.
It is not unusual for a respondent to an application for review to challenge the ART’s jurisdiction in relation to that application. Often, such a challenge is identified as a preliminary issue and is listed for an interlocutory hearing before a member at which the applicant is afforded the opportunity to participate. In such a case, if, following the interlocutory hearing, the member makes a decision that there is no jurisdiction, dismisses the application on that basis and gives reasons for that decision, the applicant could not seek reinstatement of the application under s 102(5) and (6) of the ART Act on the ground that the decision contains an error. That is because, as the applicant participated in the hearing and had an opportunity to present their case on whether the ART had jurisdiction, the dismissal in such a case cannot be described as a ‘default decision’ or a ‘summary dismissal’. The appropriate remedy in such a case is an appeal to the Federal Court of Australia under s 172 of the ART Act. An important recent case falling in this category is Baumgarten and eSafety Commissioner.[48]
[48][2025] ARTA 59.
The Bhardwaj principle summarised at [‎37] above is a general law principle which does not depend on statutory provisions such as s 102(5) and (6) of the ART Act. Whilst an error of the type falling within the Bhardwaj principle may also potentially fall within subs 102(5) and (6), that principle operates independently of those provisions. Consistent with the obiter observation of Carr J in Goldie, when the Bhardwaj principle is engaged, it should be applied according to its terms without any reliance on s 102(5) and (6).[49]
[49]See [34] above.

It is not possible to comprehensively set out the types of errors that may fall within s 102(5) and (6) of the ART Act. By way of example only, the following errors have been held (expressly or by implication) to fall, or can be regarded as clearly falling, within the predecessor provision of s 102(5) and (6), namely s 42A(10) of the AAT Act:
(a)Where an application for review is dismissed due to a significant procedural error, such as:
(i)a dismissal without notice to the parties when the statutory provision relied upon required notice to the parties;[50] or
[50]Katterns [2002] FCA 1366, [2]-[3].
(ii)a dismissal on the basis that particular information was not included in the application for review where that information is not necessary for the validity of the application for review.[51]
[51]Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 278 CLR 628, 638-641 [30]-[38].
(b)Where an application for review is dismissed on the basis that the applicant consented to the dismissal, when in fact:
(i)the applicant did not consent;[52]
(ii)the applicant communicated consent (including by requesting that the proceeding be withdrawn) in circumstances that objectively demonstrate that, at the time of the communication, the applicant so misunderstood the nature and consequences of that consent that it was not a true consent.[53] This principle would not be engaged, for example, where the ART or a representative of the applicant explained to the applicant the effect of a consent to dismissal or a request for withdrawal, or where the applicant simply changes their mind about whether to continue with the proceeding.[54]
(c)Where an application for review is dismissed on the basis that the applicant did not appear at a Tribunal case event, and:
(i)the applicant did in fact appear;[55]
(ii)a notice of the case event was not received by the applicant and in the circumstances could not be deemed to have been delivered to the applicant;[56] or
(iii)a notice of the case event was received by the applicant but was defective (such as where the wrong date for the case event was specified).[57]
[52]See s 96 ART Act.
[53]Re Clinnick and Australian Securities and Investments Commission (2021) 172 ALD 392, 395 [14]; [2021] AATA 71 (‘Clinnick’).
[54]See Re White and Secretary, Department of Families, Community Services and Indigenous Affairs (2007) 97 ALD 204, 271 [42]; [2007] AATA 1712 (‘White’); Re Wicke-Fitzgerald and Secretary, Department of Education, Employment and Workplace Relations (2008) 104 ALD 662, 665-66 [18]-[23]; [2008] AATA 811; Clinnick (2021) 172 ALD 392, 394-95 [12]; [2021] AATA 71 (‘error of judgment when making a choice about withdrawal’).
[55]Goldie (2002) 121 FCR 383, 399 [86]-[88].
[56]See e.g. Weinrichova v Secretary, Department of Social Services [2018] AATA 4254, [17]-[32].
[57]See ss 55 and 72 of the ART Act.
Insofar as the parties’ submissions contended for a wider meaning of ‘error’ than I have outlined above, I have not accepted them. The ART’s statutory objective in s 9 of the ART Act requires the Tribunal to resolve applications quickly. Where the ART Act intends to confer on the ART power to provide a second review on the merits, it does so expressly.[58] Subsections 102(5) and (6) do not provide for a second review on the merits. Consistent with the observations of the Full Court in Goldie, the term ‘error’ should not be construed so widely as to confer what would amount in substance to a right to an additional review on the merits.
[58]See ss 128(1), 131D of the ART Act.
ISSUES 2 AND 3: ERROR IN PRESENT CASE; WHETHER WITHIN S 102(5), (6)
Before addressing issues 2 and 3, it is first necessary to summarise some previous cases that have dealt with the standing of executors and other legal personal representatives seeking to pursue an application for review on behalf of the estates of individuals who have died.
Summary of previous cases relevant to Issues 2 and 3
In Re Andreatta and Commissioner for Superannuation,[59] the applicant sought review of a decision to issue a benefit classification certificate pursuant to s 16 of the Superannuation Act 1976. The applicant died after the AAT heard the application but before the AAT delivered its decision. The respondent submitted that the AAT did not have jurisdiction to determine the application unless a person with sufficient interest in the proceeding became a party. In response to this submission, the executor of Mr Andreatta’s estate applied to become a party. Being satisfied that the executor was a person whose interests were affected by the decision under review, the AAT made an order under s 30(1A) of the AAT Act that the executor be made a party to the proceeding.[60] The AAT then proceeded to determine the application for review. The AAT adopted, as part of its reasons, the following submission of the respondent:
A distinction should be drawn between the entitlement that is the subject of a proceeding before the AAT and the person in whose name the proceeding is brought. Whether or not a statutory entitlement devolves upon the death of a person depends on the language of the statute under which that right arose …
Where the statutory entitlement that is the subject of the proceeding does not devolve upon the death of an applicant, then the death of the applicant will extinguish the availability of that entitlement and, with it, the power of any decision-maker (which, by s 43(1) [of the AAT Act], includes the power of the AAT upon review) to decide that that entitlement is properly payable to the applicant.
Where the statutory entitlement that is the subject of the proceeding does devolve upon the death of an applicant, then the person to whom the statutory entitlement devolves must make application pursuant to s 30(1A) AAT Act to be made a party to the proceeding. Unless and until such application is made the Tribunal will have no jurisdiction to review the decision.[61]
[59](1991) 23 ALD 326 (‘Andreatta’).
[60]Andreatta (1991) 23 ALD 326, 326-28 [3]-[6].
[61]Andreatta (1991) 23 ALD 326, 326-27 [3] (citations omitted). The first two paragraphs of the quote from Andreatta were reflected in the reasoning of Kenny J in V120/00A v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 576, 589 [53] (‘V120/00A’).
In Bates and Secretary, Department of Employment,[62] Mr Bates applied to the AAT for review of a decision relating to a payment under the Fair Entitlements Guarantee Act 2012. He died before the application could be heard. The AAT decided that the right of review that Mr Bates had was not a cause of action and therefore it did ‘not survive his death according to the principles of devolution.’[63] The AAT held that ‘a person who is in the position of Mr Bates’ personal representative or who is entitled to administer the estate without [obtaining probate or letters of administration] is a person whose interests are affected by the decision [under review].’[64] The AAT stated:
Unless a particular enactment provides otherwise, or to do so would be inconsistent with the nature of the decision [under review], it seems to me that s 27(1) [of the AAT Act] would generally permit the personal representative of a deceased applicant to apply to be joined as a party in a proceeding that could potentially have an impact on the size of the deceased estate that he or she is administering.[65]
[62][2016] AATA 250 (‘Bates’).
[63]Bates [2016] AATA 250, [40].
[64]Bates [2016] AATA 250, [62].
[65]Bates [2016] AATA 250, [41].
In The Estate of Veronika Komaromi and Secretary, Department of Social Services,[66] following the death of Ms Komaromi prior to the hearing of her application for review of a decision regarding arrears of age pension payments, her son was joined as a party after he applied to be joined and provided evidence that he was the executor of Ms Komaromi’s estate. The AAT was satisfied that the son was an ‘affected party’ and that ‘statutory entitlement to age pension arrears would devolve to [Ms Komaromi’s] estate.’[67]
[66][2024] AATA 3117 (‘Komaromi’).
[67]Komaromi [2024] AATA 3117, [10].
Reasons for the Dismissal Decision
In the Dismissal Decision, the Tribunal member stated that, in deciding whether the application for review should be dismissed, the question that had to be resolved was whether the applicant was a person whose interests were affected by the ARO Decision. The member referred to ss 17, 22 and 97 of the ART Act and ss 58 and 60 SSA Act.
The Tribunal member decided to dismiss the application for review under s 97 of the ART Act for the following reasons:
(a)Section 60 of the SSA Act had the effect that a social security payment cannot be transferred to another person or devolve to another person.[68]
(b)The deceased was the only person who had a statutory entitlement to the age pension. The entitlement was specific to her. Upon her death, the age pension was not capable of devolving to any person. Accordingly, the deceased was the only person ‘affected by’ any decision made by the respondent regarding her age pension.[69]
(c)Neither the estate of the deceased nor the applicant as its executor have an ‘interest’ in the form of an existing statutory entitlement to be paid or receive the age pension that was payable to the deceased. They are not entitled to any part of the deceased’s age pension, and therefore neither is ‘a person affected by’ the ARO Decision.[70]
(d)Section 58 of the SSA Act does not change the above analysis because it does not create a statutory entitlement for another person to a payment due to a deceased estate. Therefore it does not confer a right upon the applicant to be paid any part of the deceased’s age pension.[71]
(e)As the applicant in his capacity as the executor of the deceased’s estate is not a person whose interests are affected by the ARO Decision, the standing requirement of s 17 of the ART Act was not satisfied. It followed that the ARO Decision is not reviewable by the Tribunal and that the application for review must be dismissed under s 97.[72]
[68]Dismissal Decision [18].
[69]Dismissal Decision [18], [22], [29].
[70]Dismissal Decision [20], [29].
[71]Dismissal Decision [23].
[72]Dismissal Decision [30].
The Tribunal member referred to Andreatta with approval. The member declined to follow Komaromi because the member did not ‘agree that a statutory entitlement to arrears would devolve to the Estate’.[73]
[73]Dismissal Decision [23].
Parties’ submissions on Issues 2 and 3
The applicant submitted that the ARO Decision was wrong because the calculations underpinning it understated the amount of the age pension due to the deceased prior to her death. He contended that because he had made an application under s 58 of the SSA Act and there was a prospect that a favourable decision might be made under that section, which would enable him (as executor) to receive any outstanding payments of the deceased’s aged pension, he was a person whose interests were affected by the ARO Decision. He argued that, accordingly, the application for review was dismissed in error by the Tribunal member and therefore it should be reinstated under s 102(6) of the ART Act.
The respondent submitted that the ART erred in law in the Dismissal Decision because it applied the wrong test in determining the applicant’s standing. It was said that the ART should have applied the test in Bates,[74] instead of determining the matter by reference to ss 58 and 60 of the SSA Act. According to the respondent, the ART’s error of law falls within s 102(5) of the ART Act.
[74]See [‎50] above.
The respondent contended that ss 58 and 60 of the SSA Act are not relevant to the question of whether the applicant’s interests are affected by the ARO Decision. The respondent argued that s 60 says no more than that a person cannot inherit another person’s age pension when the other person has died, subject to the limited exception in s 91 of the SS Act. It was said that this limited exception is not relevant to the Tribunal’s determination as to whether the applicant has standing.
Decision on Issues 2 and 3
In my opinion, the error relied upon by the applicant does not fall within s 102(5) or (6) of the ART Act. That is because, as the Dismissal Decision was made after a hearing at which the applicant fully participated and made submissions on the jurisdictional issue, the Dismissal Decision is not a default decision or a summary decision in the sense discussed at [‎42] to [‎44] above.
The applicant’s application for review was lodged on 11 July 2024, when the AAT Act was in force. However, as the application was not determined prior to 14 October 2024 when the AAT was replaced by the ART, the jurisdictional question that arose in relation to the application had to be determined by the ART pursuant to item 24 in schedule 16 of the Transitional Act. In Baumgarten, a panel of three members of the ART held that, in such a case, the jurisdictional question must be determined by reference to the provisions of the AAT Act in force at the time the application was lodged, rather than the provisions of the ART Act in force at the time that question is determined by the ART.
In the present case, the member who made the Dismissal Decision erred in deciding the jurisdictional issue by reference to the provisions of the ART Act instead of the provisions of the AAT Act in force at the time the application for review was lodged. The member relied upon ss 17 and 22 of the ART Act instead of ss 27 and 30 of the AAT Act. However, in my opinion, such an error is not sufficient on its own to warrant reinstatement of the application for review because the abovementioned provisions of the ART Act are substantially the same as the abovementioned provisions of the AAT Act.
For the above reasons, the Dismissal Decision was not attended with an error of the type falling within s 102(6), and therefore the power to reinstate in that section is not enlivened.
However, the conclusion at [‎61] above is not the end of the matter. I also need to consider whether the Bhardwaj principle is engaged, such that the Dismissal Decision can be treated as having no legal effect and the ART can consider afresh the issue of jurisdiction. In my opinion, the Bhardwaj principle is engaged for the reasons that follow.
The logical starting point is the subject matter of the application for review. It was not in respect of payment of age pension in the future, that is, for any period post-dating the deceased’s death. Rather, it was in relation to the correctness of the amount of age pension payable for a period preceding the deceased’s death. If, on the correct application of the SSA Act the deceased was underpaid age pension for any such period, a debt for the underpaid amount was accruing in her favour which she was capable of recovering prior to her death. Upon her death, that debt devolved to her deceased estate in accordance with the succession laws of the State or Territory in which the estate is being administered. Unless it would be inconsistent with a provision of the SSA Act, the SS Act, or any other Commonwealth law for him to do so, the applicant (as executor of the deceased’s estate) has legal authority under the applicable State or Territory succession laws to collect that debt on behalf of the estate.
There is nothing in the SSA Act, the SS Act or any other relevant Commonwealth law that displaces State or Territory succession laws in relation to an age pension. Section 58 of the SSA Act does not do so. It simply confers a wide power on the Secretary to determine who is to receive an amount due, irrespective of whether that person is an executor or other legal personal representative of the estate of a deceased benefit recipient. Such a power is particularly helpful for deceased estates with no assets other than amounts payable by the Secretary or where the assets are of limited value and would not justify the costs of applying for probate or letters of administration. Similar considerations apply to s 91 of the SS Act. Further, the fact that s 59 of the SSA Act provides for the payment of a pension bonus or a pension bonus bereavement payment to a deceased’s legal personal representative is not inconsistent with my analysis, as those types of payment are of a limited and specific kind.
Section 60 of the SSA Act is not relevant in the present context. It is a provision grounded in common sense – as the age pension is personal to the recipient, it ceases to be payable for any period post-dating their death. That is what the word ‘inalienable’ means in the present context. However, here we are not dealing with an amount of age pension accruing for any day following the date of death which, if claimed by the applicant, would be contrary to the inalienable nature of the age pension benefit. Rather, we are dealing with a dispute about an amount payable that relates to a period prior to death.
As appears from [‎49] above, the AAT in Andreatta, which was cited with approval in V120/00A, focused on whether an amount claimed by an executor devolves to the estate upon the death of the person originally entitled to it. The analysis in that case is consistent with my analysis. An age pension does not devolve to a recipient’s deceased estate, but a debt for unpaid age pension accrued prior to death does.
Following the death of a recipient of age pension, their legal personal representative has an interest (in that capacity) in ensuring that any amounts of age pension payable to the deceased prior to their death are correctly calculated. Such a representative (in that capacity) has an interest in engaging with the Secretary with a view to securing payment of the correct amounts. If the Secretary disputes any claim for unpaid amounts, the representative has an interest in pursuing an application for review in the Tribunal in order to resolve the dispute. Accordingly, such a representative’s interests (in that capacity) are affected by the Secretary’s decision which is sought to be impugned. Those interests are sufficient to enable such a representative to apply to the Tribunal to be joined as a party to a proceeding already commenced by the deceased prior to their death (and thus be substituted as the applicant), or to commence a new proceeding as the initiating applicant in their own right.
Section 84(2) of the ART Act expressly provides that a legal personal representative may apply to the Tribunal to continue a proceeding already commenced by a deceased applicant. There was no equivalent provision in the AAT Act. However, this is not determinative. That is because, in accordance with the principles discussed above, the interests of a legal personal representative are affected in respect of a claimed underpayment to the deceased prior to their death, which interests are sufficient to enable the representative to be joined to a proceeding previously commenced by the deceased or to commence a new proceeding which names the representative as the applicant.
It follows that, in the present case, the interests of the applicant as the executor of the deceased’s estate are affected by the ARO Decision which determined the amount of age pension payable to the deceased for periods preceding her death, and those interests were sufficient to enable him to commence the present proceeding.
The Tribunal member who made the Dismissal Decision did not perform the function of determining the AAT’s jurisdiction because the member purported to determine jurisdiction by reference to whether the deceased’s age pension devolved to the applicant as executor of her estate. Having found that the age pension did not devolve to the applicant because it was ‘inalienable’, the member held that the ARO Decision was not a reviewable decision. By adopting this analysis, the member posed and answered the wrong question regarding the AAT’s jurisdiction.

There is no doubt that the ARO Decision was a reviewable decision. The sole question for the Tribunal was whether the applicant’s interests were affected by the reviewable decision so as to enable him to pursue the application for review. The fact that the deceased’s age pension was inalienable was irrelevant to this question because the applicant did not seek a continuation of the deceased’s age pension after her death. The relevant question was whether the applicant, as executor, had an interest in ensuring that any amounts due to the deceased prior to her death – and which devolved by law to her estate – did not involve an underpayment. The applicant undoubtedly has such an interest. His interests were affected by the ARO Decision, and the Secretary’s position that there was no underpayment.
There are many cases which state that the purpose of the age pension and other social security benefits is to provide support to pensioners and others in financial need.[75] Consistent with that purpose, the benefits are personal to the recipient and, except where a statute otherwise provides, cease with their death. My analysis is not inconsistent with this approach. My analysis focuses not on the continuation of the benefit after the recipient’s death, but on whether the executor or other legal personal representative of their estate has an interest in the correct determination of any amounts payable for periods preceding the death.
[75]See e.g. Read v The Commonwealth (1988) 167 CLR 57, 68-69; Secretary, Department of Social Security v Garvey (1989) 22 FCR 132, 136; Secretary, Department of Social Security v McLaughlin (1997) 81 FCR 35, 42.
In summary, the Tribunal member in the present case did not discharge the function of determining the AAT’s jurisdiction because the member:
(a)asked and answered the question whether the applicant had an interest (as executor) in the deceased’s age pension, which the applicant was not claiming in the application for review and therefore that question was not relevant to the AAT’s jurisdiction; and
(b)did not ask or answer the question whether the applicant had an interest (as executor) in a debt he alleged was due to the deceased’s estate arising from underpaid age pension prior to the deceased’s death, which the applicant was claiming in the application for review.
The Tribunal member’s failure to discharge the function of determining the AAT’s jurisdiction is of such a fundamental nature that it engages the very stringent Bhardwaj principle. However, the fact that this case falls within that principle does not necessarily mean that the Tribunal should treat the Dismissal Decision as having no legal effect and proceed to perform afresh the function of deciding the jurisdictional question. That is because consideration must be given to whether there are any discretionary factors militating against the adoption of that course. I now turn to consider whether there are any such factors in the present case.
ISSUE 4: EXERCISE OF DISCRETION
In their submissions, the parties focused on s 102 of the ART Act and the Tribunal’s power of reinstatement in that section, and whether there were any discretionary considerations in relation to the exercise of that power. In that context:
(a)The applicant submitted that, where the Tribunal has made an error falling within s 102(5), it should exercise its discretion under that section to reinstate the proceeding for the following reasons:
(i)If an application was dismissed in error, then it should generally follow that the application should be reinstated as the application should not have been dismissed in the first place. Reinstating the application will ensure that any incorrect decision is corrected.
(ii)The ARO Decision contained ‘general information’, lacked ‘specific analysis or reasoning’ and relied on computer-generated calculations. In order to promote transparency and quality of government decision-making, the application for review in the present case should be reinstated so that the ARO Decision can be properly scrutinised and potentially corrected, including ensuring that a computer program had not been inappropriately used to make the decision.
(iii)Reinstating the application for review may allow for the dispute between the applicant and the respondent to be most efficiently resolved.
(b)The respondent submitted that the Tribunal should reinstate the application for review under s 102(2) or 102(5), subject to considering the Tribunal’s discretion to reinstate. The respondent noted that the Tribunal may have regard to the merits of the application for review when considering whether to exercise its discretion.
It is not in contention that the power to reinstate in s 102(6) of the ART Act is discretionary. In the context of s 42A(10) of the AAT Act, a number of cases have explained some of the discretionary considerations that may be relevant to the exercise of that discretion.[76] One of the considerations is a balancing of any prejudice to the applicant if a reinstatement order is not granted against any prejudice to the respondent if such an order is granted. Another consideration is the merits of the application for review, in the sense that a reinstatement order should not be granted if, based on a high-level (rather than detailed) assessment, it appears that a reinstatement order would be inutile because the application for review is bound to fail.
[76]See e.g. Re White (2007) 97 ALD 204; 211-13 [21]-[28], [2007] AATA 1712; Re Walls and Comcare (2015) 148 ALD 185, 189-92 [18]-[30]; [2015] AATA 697.
It is not necessary for me to analyse any discretionary factors relevant to a consideration of whether a reinstatement order should be made under s 102(6) of the ART Act. That is because I have found that s 102(6) is not engaged in the present case.
As I have relied on the Bhardwaj principle to find that the Dismissal Decision is to be treated as having no legal effect, what is relevant to my consideration of whether I should make a fresh decision on whether the Tribunal has jurisdiction in relation to the application for review are the observations in Michael and Mora as to the cautious approach that tribunals should adopt in applying the Bhardwaj principle.
Adopting such an approach, I have concluded that the Dismissal Decision falls within the rare category of case where the only fair and appropriate course is to treat it as having no legal effect and for the Tribunal to consider afresh the jurisdictional question. My reasons for my conclusion are as follows:
(a)Both parties agree that the Dismissal Decision was wrong in law.
(b)The respondent has not contended that it was not open to the Tribunal to treat the Dismissal Decision as having no legal effect and to consider afresh the jurisdictional question.
(c)The applicant has at all times maintained his entitlement to seek review of the ARO Decision and lodged his application for reinstatement promptly.
(d)On a high-level assessment of the merits of the application for review, it cannot be said that it would be inutile for it to proceed.
(e)The applicant would be prejudiced if he were not able to seek substantive review on the merits of the ARO Decision and, if successful, recover amounts due to the deceased’s estate, whereas the respondent has not contended that he would be prejudiced if the application for review were to proceed.
(f)An outcome that results in this application for review being heard and determined by the Tribunal in accordance with the Bhardwaj principle is more conducive to the Tribunal pursuing its objective in s 9 of the ART Act than an outcome whereby the application does not proceed further. Unless the Bhardwaj principle is applied in the present case, the application for review cannot be reinstated under s 102(6) and, in the absence of reinstatement, neither a first review nor a second review would be available in relation to it. The applicant is also precluded from seeking review of the Dismissal Decision by the Guidance and Appeals Panel (‘GAP’).[77] As both parties agree that the Dismissal Decision is wrong in law, the applicant should not have to incur the costs and inconvenience of pursuing an appeal to the Federal Court to obtain an order setting aside the Dismissal Decision and remitting the matter for reconsideration by the Tribunal.
[77]See ss 131C and 131W of the ART Act, which have the effect of excluding applications to the GAP under s 123 for eligible social services decisions and second review social services decisions. Further, s 123 of the ART Act does not apply to a dismissal decision under s 97; it only applies to Tribunal decisions made under s 105.
An additional factor which is relevant in the present case is that the reasoning in the Dismissal Decision is also being adopted by some other members in similar social security cases. There is therefore a public interest in the Bhardwaj principle being applied in relation to the Dismissal Decision so as to give guidance in the form of these reasons for decision.
DECISION
The Tribunal’s earlier decision dismissing the application for review is of no effect. The Tribunal has jurisdiction to review the decision of the Authorised Review Officer dated 6 May 2024.
I certify that the preceding 81 paragraphs are a true copy of the written reasons for the decision of Justice Kyrou, President.
.......................[Sgd]...........................
Associate:
Dated: 22 April 2025

Applicant:
In-person

Respondent’s Representative: Dr Stephen Thompson (Sparke Helmore)

Applicant:	In-person
Respondent’s Representative:	Dr Stephen Thompson (Sparke Helmore)