Linck and Secretary, Department of Social Services (Social services second review) - [2021] AATA 3298

Linck and Secretary, Department of Social Services (Social services second review) [2021] AATA 3298 (14 September 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5046
Re:Simon Linck
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:14 September 2021
Place:Canberra

The Tribunal directs that a period of 28 days is allowed for Mr Linck, the executor of the Applicant’s estate or any other person whose interests may be affected to apply to be joined as a party under s 30(1A) of the AAT Act.
……………[sgd]…………
Mr S. Webb, Member
Catchwords
SOCIAL SERVICES – application for review of AAT Tier 1 decision – disability support pension – portability rules – applicant represented by his father – terminal illness and death of applicant – status of Tribunal proceedings - orders made
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 25, 27, 30, 32, 33, 39, 40, 42, 42A, 42B, 43, 179
Social Security (Administration) Act 1999 (Cth) 11, 43, 44, 52, 58, 60, 80
Social Security Act 1991 (Cth), ss 94, 1212, 1214, 1215, 1217
Cases
Andreatta and Commissioner for Superannuation [1991] AATA 532
Bates and Secretary, Department of Employment [2016] AATA 520
Kowalski and Repatriation Commission [2014] AATA 141
Linck and Secretary, Department of Social Services [2021] AATA 28
Lydia Stephenson as Executrix of the Estate of the Late Alyshia Dibble v Human Rights and Equal Opportunity Commission and St Vincent’s Hospital Limited [1995] FCA 1757
REASONS FOR DECISION
Mr S. Webb, Member
14 September 2021

The Applicant in these proceedings, Simon Linck, had a terminal illness and died. Prior to his death, he had proceedings on foot in the Tribunal. The proceedings involved review of a decision to deny him payment of disability support pension (DSP) during periods in which he was absent from Australia while obtaining specialist medical treatment.
In the proceedings, the Applicant was represented by his father, Mr Linck. For the avoidance of doubt, I will refer to Simon Linck as ‘the Applicant’ and to his father as ‘Mr Linck’ in this decision.
It is Mr Linck’s submission that the Tribunal should proceed to make a decision on the merits of the applicant’s case. This raises a question about the Tribunal’s jurisdiction. It is this issue alone that I will deal with in this decision.
Mr Linck and the Secretary provided written submissions and have been heard on the issue.
Facts
The Applicant suffered from squamous cell carcinoma of the head and neck.
He was granted DSP on 31 May 2006.
During 2019, the Applicant travelled to Germany on 4 occasions for the purposes of obtaining medical treatment for his cancer.
On 18 September 2019, a delegate of the Secretary decided under s 1212 of the Social Security Act 1991 (SS Act) that DSP was not payable to the Applicant while he was absent from Australia (primary determination).[1]
[1] Section 37 Documents filed on 9 October 2020, T8, 51-52.
This decision was affirmed by an Authorised Review Officer (ARO)[2] and subsequently by this Tribunal on first review (Tier 1 decision).[3]
[2] Section 37 Documents filed on 9 October 2020, T16, 66-70.
[3] Section 37 Documents filed on 9 October 2020, T2, 5-9.
On 26 May 2020, the Applicant applied for second-tier review by the Tribunal (application 2020/3212).[4]
[4] Section 37 Documents filed on 9 October 2020, T1, 1-4.
On 10 July 2021, the Applicant withdrew this application.
Shortly thereafter, he sought reinstatement of the application. This was granted in error.
Subsequently, the Applicant made a fresh application for review of the Tier 1 decision (application 2020/5046) and sought an extension of time in which to do so. This was granted on 20 January 2021.[5]
[5] Linck and Secretary, Department of Social Services [2021] AATA 28.
On 28 January 2021, the Tribunal issued procedural directions in order to prepare the application for hearing.
On 29 April 2021, the Tribunal attempted to schedule a hearing of the application. Mr Linck informed the Tribunal that the Applicant was too unwell and he would not be available in the foreseeable future.
On 12 May 2021, Mr Linck asked the Tribunal if he could proceed with the application as the Applicant’s representative. The Tribunal confirmed that he could do so.
On 4 June 2021, Mr Linck informed the Tribunal of the Applicant’s death on 20 May 2021.
On 28 June 2021, the Tribunal wrote to Mr Linck in the following terms –
Are you able to please advise the Tribunal of the name and contact details of the executor of Mr Linck’s estate? The Tribunal will make contact to enquire as to whether the executor intends to submit an application to be made a joint party (‘Third Party’) to these proceedings. This will allow the proceedings to continue on his behalf.[6]
[6] Email to Mr Linck from the Tribunal, 28 June 2021.
On 29 June 2021, Mr Linck informed the Tribunal that he will continue the proceedings, and to represent the Applicant, until this matter is brought to a satisfactory conclusion.[7]
[7] Email from Mr Linck, 29 June 2021.
On 1 July 2021, the Tribunal again wrote to Mr Linck, as follows –
Regarding my original email, could I please confirm whether you are the executor of the estate? To facilitate the progression of the matter, the Tribunal can then provide the information relevant to the requirement to submit an application in writing to be made a joint party to these proceedings.[8]
[8] Email to Mr Linck from the Tribunal, 1 July 2021.
On 2 July 2021, Mr Linck informed the Tribunal of the following –
[The Applicant’s] entire life savings have been expended on his cancer treatment. There is no Estate, no Will and no Executor. I am advised that as [the Applicant’s] authorised representative, formalised on 22 Jan 20, matters before the Tribunal can proceed to a determination without 30(1A) party application. My interest is to seek a just outcome for [the Applicant].
I look forward to an early determination on the basis of evidence presented.[9]
[9] Email from Mr Linck, 2 July 2021.
On 9 July 2021, I heard the parties in a telephone directions hearing and directed each party to provide written submissions addressing the jurisdictional point arising from Mr Linck’s email dated 2 July 2021.
On 23 July 2021, the Secretary’s legal representatives provided written submissions in which, unsurprisingly, the Secretary adopts a neutral position. Nonetheless, the Secretary has set out some principles distilled from previous decisions of the Tribunal and the Federal Court.
On 6 August 2021, Mr Linck provided written submissions and attached a document written by the Applicant and dated 26 December 2019. Mr Linck sets out the following assertion –
I stand by my informed advice that as [the Applicant’s] ‘authorised representative’ wef 22 Jan 20, [the Applicant] (whether alive or dead) is, IAW the 2018 Mavris/ATO established precedent, entitled to a decision with respect to AAT 2020/5046 matters under review.[10]
[10] Mr Linck’s written submissions, 6 August 2021, page 2.
In the unfortunate circumstances of this case, the Tribunal’s jurisdiction to continue with the review is to be determined by reference to relevant provisions of the SS Act, the Social Security (Administration) Act 1999 (Administration Act) and the Administrative Appeals Tribunal Act 1975 (AAT Act). Inevitably, issues of procedure arise.
In circumstances where an applicant dies in the course of Tribunal proceedings, the AAT Act does not set out the procedure to be followed or the effect of the death on the application and related proceedings.
Essentially, in a case of this kind, the DSP entitlement that is the subject of the decision under review in the Tribunal proceedings is to be distinguished from the person who applied for review and commenced the proceedings.[11] There are two key considerations.
[11] Andreatta and Commissioner for Superannuation [1991] AATA 532, [3]-[4].
The first consideration involves issues of statutory entitlement, extinguishment and devolution under the applicable legislation.[12] In order to address these issues, it is necessary to examine the legislation under which the statutory entitlement, including the nature and particular characteristics of the entitlement, and any related statutory rights arise.
[12] Ibid.
The second consideration involves the legislative scheme for merits review, including the statutory rights of the person who applied for review by the Tribunal and the procedural powers and discretions of the Tribunal. In order to address these issues, it is necessary to carefully examine relevant provisions of the Administration Act and the AAT Act.
Statutory entitlement, extinguishment and devolution
Even though the decision that is the subject of the Applicant’s application for review is the Tier 1 decision of the Tribunal, it is the primary determination (as subsequently affirmed by the ARO and the Tier 1 decision) and the legislation under which it was made that must be closely examined.
The primary determination suspended payment of DSP to the Applicant for the period from 25 August 2019 to 8 September 2019, during which he was absent from Australia while obtaining medical treatment for his cancer condition.
The decision was made under the portability provisions set out in Part 4.2 of Chapter 4 in the SS Act. These provisions provide for maximum portability periods in respect of DSP, during which a DSP recipient has a right to continue to be paid DSP during the period of absence from Australia.[13] Maximum portability periods are set out in s 1217 of the SS Act. Generally, the maximum portability period for an Australian resident DSP recipient during a temporary absence from Australia is 28 days. It is of specific relevance that, under s 1217(2AA), a 4 week maximum portability period applies where the person is temporarily absent for the purposes of obtaining eligible medical treatment. The term ‘eligible medical treatment’ is defined in s 1212 –
eligible medical treatment, in relation to a person, means medical treatment of a kind that is not available to the person in Australia.
[13] See Social Security Act 1991 ss 1214 - 1215.
The delegate who made the primary determination concluded that the medical treatment the Applicant obtained in Germany was not within the meaning of eligible medical treatment. It was for this reason that payment of the Applicant’s DSP was suspended during the period of his absence from Australia.
The decision is for the purpose of determining whether the Applicant had a continuing right to be paid DSP during the period in which he was absent from Australia.
There are some important characteristics of DSP that must be kept in mind, particularly in respect of the requirements for a claim, the determination of qualification and the right to be paid. Under s 11 of the Administration Act, a grant of DSP is subject to a claim being made. Qualification for DSP is not a matter of enforceable right. Rather the grant of DSP is a matter determined by the Secretary under applicable statutory provisions. The qualification requirements for DSP are set out in s 94 of the SS Act. These must be met for DSP to be payable during a period. Under s 43 of the Administration Act, DSP is paid by instalments in arrears in respect of a period determined by the Secretary (not exceeding 14 days). Section 44(1) of the Administration Act directs that DSP is to be paid to the person to whom it was granted (the exception in s 45 of that Act is not relevant or applicable), and s 60(1) of that Act provides that a social security payment (including DSP) is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise. Under s 52 of the Administration Act, DSP may be payable to a person during a period in which they are absent from Australia, subject to the portability rules set out in Part 4.2 of Chapter 4 of the SS Act.
In the event a DSP recipient dies, the qualification requirements for DSP will no longer be met, whereupon a cancellation decision under s 80 of the Administration Act might be made. In these circumstances the deceased person’s entitlement to periodic payment of DSP in respect of any subsequent period is extinguished.
A claim for and the grant of DSP is essentially personal, such that it abates on the death of the claimant. There is no statutory basis for arriving at any different conclusion. With regard to the common law, a claim for DSP is not a ‘cause of action’ relating to an enforceable right. Beazley J dealt with issues of this kind when dealing with the survival of a sex discrimination complaint following the death of the complainant in Lydia Stephenson as Executrix of the Estate of the Late Alyshia Dibble v Human Rights and Equal Opportunity Commission and St Vincent’s Hospital Limited (Dibble).[14] Even though that matter arose under different legislation and statutory provisions, the point of principle is apposite.[15] As in Dibble, a claim for payment of DSP in respect of a past period, is a claim yet to be made enforceable. Close consideration of the procedural requirements, evaluative thresholds and determinative processes set out in the SS Act and the Administration Act, including the procedural powers of and the discretions conferred upon the Secretary, reinforces this conclusion.
[14] [1995] FCA 1757.
[15] Ibid at [63]-[67].
No different result is obtained in the context of an application for review of a decision of the Secretary by the Tribunal, whereupon the Tribunal, in effect, steps into the Secretary’s shoes and makes a fresh decision within the statutory framework for the grant or payment of DSP.
The abatement of a claim for or grant of DSP on the death of a claimant does not, however, extinguish all rights to apply for payment of an amount of DSP that was payable at or before the death.
Provision is made in s 58 of the Administration Act provides for payment of a social security payment, including DSP, after the person’s death in certain circumstances –
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.
In these limited circumstances, while a person’s qualification and claim for DSP abates on the person’s death, payment of any DSP that was owing or due at the time of or in respect of a period prior to the death is not automatically extinguished by the death of the person.
As can be seen, payment of the amount referred to in s 58(1)(a) is subject to an application by another person within the specified period. On receipt of such an application, the Secretary is required to formulate an opinion about who is best entitled to receive the amount before deciding if it is appropriate to exercise discretion to pay it.
The term another person has no special meaning. It may include a dependant, spouse, family member or the executor of a deceased person’s estate, for example. Nevertheless, quite clearly, another person is a person other than the deceased DSP recipient.
The ability of another person to apply to receive the amount of DSP that is payable after the death of the person to whom the DSP grant was made may amount to a statutory right of action or a statutory entitlement, albeit not amounting to a ‘cause of action’ in the common law sense. That statutory right is preconditioned by the death of the DSP recipient. Thus, the right to apply for payment of an amount of DSP, a statutory entitlement, that was payable in respect of a period at or before the death devolves to another person.
The payment of such an amount, once proved, to another person may arise consequent to exercise of the Tribunal’s review jurisdiction in a matter of this kind, should it proceed. But the Tribunal’s jurisdiction is limited by conferral, and it is not expanded by the potential for consequential action. Nonetheless, where a statutory entitlement devolves by way of a statutory right to apply for payment to another person on the death of a DSP recipient, the entitlement is not extinguished and the power of the decision-maker, including the Tribunal, is not exhausted.
Legislative scheme for merits review
For the purposes of s 25(1) of the AAT Act, the Tribunal’s review jurisdiction is conferred upon it by other enactments –
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Specifically, in this case, the Tribunal’s jurisdiction to review the Tier 1 decision is conferred by s 179 of the Administration Act –
(1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if an AAT first review affirms a decision—that decision as affirmed; or
(b) if an AAT first review varies a decision—that decision as varied; or
(c) if an AAT first review sets a decision aside and substitutes a new decision—the new decision; or
(d) if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.
Section 27 (1) of the AAT Act provides that a person whose interests are affected may apply for review of a decision –
(1) Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) 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 or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
I note in passing that the right to apply under s 27(1) extends to include an application made on behalf of the person. Importantly, while the provision allows an application to be made on a person’s behalf, the right is vested in the person whose interests are affected.
It was in exercise of this statutory right that the Applicant applied for review of the Tier 1 decision in the manner set out in s 29 of the AAT Act.
When the Applicant lodged the application for review of the Tier 1 decision, the Tribunal’s review jurisdiction under s 179 of the Administration Act was engaged. Once engaged, the Tribunal’s jurisdiction persists until it is exhausted. The circumstances in which jurisdiction in a particular case may be exhausted include the discontinuance or dismissal of the application under s 42A or s 42B of the AAT Act, or the making of a final decision in the application under s 43.
Challenging the suspension of DSP payments during a past period involves the exercise of rights that are primarily vested in the DSP recipient, in this case the Applicant. Up to his death, it is he who had the statutory right under s 27 of the AAT Act to apply for review of the decision that affirmed the suspension of his DSP during the period in which he was absent from Australia for the purposes of obtaining medical treatment. It was this right the Applicant exercised, personally, when he lodged the application for review of the Tier 1 decision.

In so doing, the Applicant became a party for the purposes of s 30(1) of the AAT Act. His status as a party does not devolve upon his death to his personal representative.
Following the Applicant’s death, it is open for another person whose interests are affected to apply to be joined as a party to the proceedings. Commonly in such circumstances this might be the executor of the deceased person’s estate. It may also include another person who applies for payment of an amount that was payable under s 58 of the Administration Act. No such application has been made in this case.
Absent an application of that kind, it is necessary to consider the most appropriate procedure to be followed in the proceedings, including whether the application should be dismissed.
Under the AAT Act, there are three legislative mechanisms for ending proceedings. The first is the making of a final decision on the relative merits of the application under s 43 of the AAT Act. The second is the discontinuance or withdrawal of the application by the person who made it under s 42A(1A) of the AAT Act. And the third is the making of a decision using procedural powers to dismiss an application set out in Division 5 of Part IV of the AAT Act.
With regard to the first mechanism, no decision has yet been made under s 43 of the AAT Act in these proceedings. Mr Linck presses for a decision of this kind to be made.
There is are two obvious legal and practical difficulties with this proposition. Firstly, the Applicant is no longer able to press his case or to provide instructions to his representative. No evidence has been adduced that he gave instructions prior to his death about the further conduct of the proceedings. Secondly, the Applicant cannot give further evidence and any statements or assertions he has made cannot be tested in the usual way.
These may not be insurmountable difficulties. Proceedings in the Tribunal are not adversarial, and the Tribunal is not bound by the rules of evidence. Nevertheless, these difficulties raise issues of procedural fairness that must be addressed when deciding the appropriate procedure to be followed.
With regard to the second mechanism, no written notice has been given to the effect that the Applicant has discontinued or withdrawn his application. Notice has been given of his death. Where an applicant dies in the course of proceedings before the application has been fully heard and decided under s 43 of the AAT Act, and written notice of the person’s death is given to the Tribunal, it is conceivable that written notice of the death might be construed as notice of discontinuance for the purposes of s 42A(1A) of the AAT Act. The difficulty with such a construction is that it might be apt in some circumstances, but not in others. It would not be appropriate to construe notification of the death of an applicant as a deemed notice of discontinuance in circumstances where an interested person may apply to be joined, such as the executor of the deceased person’s estate for example. Legislation should not be construed on the particular facts of any case.
The language of s 42A(1A) and s 42A(1B) of the AAT Act suggests that something more is required than notification of an applicant’s death -
(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.
(1AA) …
(1B) If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
As can be seen, the essential content of the notification is that the application is discontinued or withdrawn. Notice that an applicant has died may not meet this threshold. Even though it is arguable that the words to the effect that may provide sufficient latitude to adopt notification of an applicant’s death as notice that the application is discontinued, in circumstances where the deceased person was represented by a lawyer or by a personal representative, and other interested persons might have statutory rights to apply for joinder under s 27 of the AAT Act, it may be unsafe to do so. More is required for the simple reason that it cannot be assumed that the deceased person either gave instructions to discontinue the application, or did not give instructions to continue with it post mortem. Without binding authority or evidence of express intent, a construction of this kind is unlikely to be accepted in circumstances where the deceased applicant was represented and the representative or another party continues to press for the proceedings to continue.
The third mechanism for bringing proceedings in an application, and jurisdiction, to an end involves the exercise of procedural powers to dismiss an application that are governed by the provisions in Division 5 of Part IV of the AAT Act. The most relevant of these provisions are s 42A (2) and (5), and s 42B:
42A Discontinuance, dismissal, reinstatement etc. of application
…
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 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.
…
42B Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
As can be seen, each of these provisions confers discretion on the Tribunal to dismiss an application in certain circumstances. Where the discretion is enlivened by a failure of the requisite kind under s 42A(2) or (5) of the AAT Act, or the Tribunal is satisfied the preconditions set out in s 42B(1) exist, the Tribunal must consider if it is appropriate to exercise the power to dismiss the application in the particular circumstances.
In this case, the preconditions set out in s 42A(2) are not satisfied – the Applicant has not failed to appear. He is represented by Mr Linck who has appeared at the directions hearings listed after the Applicant’s death.
Furthermore, the preconditions set out in s 42A(5) are not established – the Applicant has not failed to proceed or to comply with a direction of the Tribunal within a reasonable time. Once again, his representative is attempting to proceed with the case and has complied with Tribunal directions.
The remaining question is whether the application should be dismissed under s 42B(1).
Where the death of an applicant renders an application futile or without utility, or where the substantive statutory right or entitlement that is the subject of the application does not devolve on the person’s death, the application may be rendered frivolous, vexatious or misconceived in a legal sense, or an abuse of Tribunal process. An application may be found to be legally vexatious or frivolous if it is rendered pointless and without possible positive effect following the death of the applicant.[16] But the death of an applicant does not automatically or necessarily lead to such a conclusion. These are matters about which the Tribunal must be satisfied before the power to dismiss the application is enlivened.
[16] Bates and Secretary, Department of Employment [2016] AATA 520, [42]; Kowalski and Repatriation Commission [2014] AATA 141, [96].
These considerations raise issues of power, procedure and practicality rather than jurisdiction.
It is necessary to consider relevant provisions in some detail.
Under s 40(1)(b) of the AAT Act, for the purposes of reviewing a decision, the Tribunal may proceed in the absence of a party who has had reasonable notice of the proceeding. This provision is silent about, and it is not limited by, the nature or cause or duration of the absence. The discretion to proceed in the absence of a party is broad and unfettered. In circumstances of the present kind, where the Applicant clearly had notice of the proceeding he commenced, the Tribunal has discretion and power to proceed in his absence.
Under s 33 of the AAT Act, the Tribunal has a broad discretion to determine procedure, subject only to limits imposed by legislation –
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
It is to be noted that the Tribunal’s power to make directions under s 33(2A)(a) and (c) of the AAT Act is expressly related to any person who is a party. Under s 32(1) of the AAT Act, a party may be represented by another person.
Importantly, under s 39(1) of the AAT Act, each party must be given a reasonable opportunity to present their case, including inspecting and making submissions about any documents to which the Tribunal has regard in reaching a decision in the proceedings.
Where a party has died before proceedings have concluded, the Tribunal must consider if the deceased party has had a reasonable opportunity to present their case, or if they are represented by another person, whether that person is in a position to properly proceed with and present the deceased person’s case. Furthermore, the Tribunal must ensure that every other party to the proceedings has a reasonable opportunity to present their case, including making submissions about all relevant materials. Where issues of procedural fairness arise, it is for the Tribunal to determine the most appropriate response.
When deciding such matters and deciding whether to exercise discretion to proceed, the Tribunal must consider all relevant factors, including but not limited to the following matters.
(a)Any joinder applications under s 30(1A) of the AAT Act from persons whose interests may be affected, such as the executor of the deceased person’s estate for example.
(b)Whether the proceedings should be taken to be discontinued for the purposes of s 42A(1A) and (1B) of the AAT Act.
(c)Where the deceased person is the applicant in the proceedings, if there are grounds to dismiss the application under s 42A(2) or (5) of the AAT Act on grounds that the applicant failed to appear at a hearing, failed to comply with a Tribunal direction or to proceed with the application within a reasonable time.
(d)Whether the application has no utility or it is otherwise brought within the terms of s 42B(1) of the AAT Act and, if so, whether it is appropriate for the application to be dismissed.
42B(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
(e)If the deceased person was represented, any submissions from that representative in respect of continuation of the proceedings, including information about instructions given by the deceased person and details of the executor of the deceased person’s estate.
(f)Any submissions from any other party in respect of the continuation of the proceedings.
Findings
The Applicant’s DSP entitlement ended with his death.
His death does not terminate his application for review by the Tribunal and it does not extinguish the Tribunal’s jurisdiction. It does raise procedural issues, including whether the application should be dismissed.
On his death, the statutory right to apply for payment of an amount of DSP that was payable at or before that event devolved to another person. The period in which the statutory right may be exercised is 26 weeks following the person’s death, or such longer period as the Secretary allows. A person exercising that statutory right may be a person whose interests are affected by the application for review. No application from such a person to be joined as a party to the proceedings has been received by the Tribunal. However, the period in which the statutory right may be exercised has not yet expired.
It is open for Mr Linck or the executor of the Applicant’s estate (noting that Mr Linck asserts no such executor has been appointed) to exercise the statutory right.
Absent such an application, there are serious questions about the utility of the application for review, at least to the extent that it may be considered futile and lacking utility. In the circumstances, even if the Applicant’s case succeeded, a positive decision can have no effect for the deceased Applicant. This is because, if the Applicant’s case was to succeed, an amount of DSP may be payable in respect of the period in which it was suspended while the Applicant was absent from Australia for the purposes of obtaining medical treatment in 2019, but the amount would only be payable to a person who applied to the Secretary under s 58 of the Administration Act, over which the Tribunal has no jurisdiction in these proceedings. Any positive effect, therefore, would be confined to a person applying for payment under s 58 of the Administration Act. That being so, the utility of the application for review has a very narrow compass which hinges on a person other than the Applicant who is not a party to the proceedings. Without such a person being joined, the utility of the proceedings is likely to fall away.
I should note that the Tribunal proceedings and any resulting decision are not matters of abstraction, in which a proceeding should be permitted to continue where the only possible result is an abstract finding without real effect, or where the purpose served is the exposition or vindication of a perceived past wrong without any possible remedy. As I have said, the Tribunal is not a court. The decisions it makes are administrative in nature. There is a public interest in ensuring the Tribunal adheres to the objectives set out in s 2A of the AAT Act and that it does not exceed its authority or fail to exercise discretionary power on a reasonable basis in allowing proceedings without utility to continue.
Furthermore, there are serious questions about Mr Linck’s authority to continue to represent the Applicant, albeit on a personal basis. It is the Applicant who is party to the proceedings, not Mr Linck, and the Applicant is no longer able to express his wishes or to provide instructions or to give further evidence. It is open for Mr Linck to apply to be made a party under s 30(1A) of the AAT Act should his interests be affected, but he has not yet done so.
In these circumstances, the discretion to dismiss the application under s 42B(1)(a) may be enlivened. Before exercising this power, however, it is appropriate to issue directions allowing a reasonable time for a joinder application to be made under s 30(1A) of the AAT Act by Mr Linck or by any other person whose interests may be affected, such as the executor of the Applicant’s estate. Where no such application is made, a decision will be made forthwith about the appropriateness of dismissing the application under s 42B(1)(a) of the AAT Act.
Decision
The Tribunal directs that a period of 28 days is allowed for Mr Linck, the executor of the Applicant’s estate or any other person whose interests may be affected to apply to be joined as a party under s 30(1A) of the AAT Act.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

.................................[sgd]................................
Associate
Dated: 14 September 2021
Representatives

86.     Date of hearing:

87.     9 July 2021

88.     Date final submissions received:

89.     6 August 2021

90.     Solicitor for Respondent:

91.      Laura Hinwood, SPARKE HELMORE

86. Date of hearing:	87. 9 July 2021
88. Date final submissions received:	89. 6 August 2021
90. Solicitor for Respondent:	91. Laura Hinwood, SPARKE HELMORE