Peck and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 863

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 863

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3931 and 4050

GENERAL ADMINISTRATIVE DIVISION        )

Re             Andrew James PECK

Applicant

AndSecretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

JURISDICTION DECISIONS

TribunalProfessor GD Walker, Deputy President

Date26 September 2008

PlaceSydney

DecisionThe applications are dismissed under ss 42A(1A) and (1B), or 42A(4), or both.

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

Professor GD Walker
  Deputy President

CATCHWORDS – Jurisdiction – two applications – application 2008/3931 – applicant is the subject of a full administration order – whether public trustee revoked power of attorney of applicant’s wife before or after application lodged – if revoked after application lodged, public trustee does not wish to proceed with the application so the application is taken to have been withdrawn and dismissed – if revoked prior to application being lodged, application is not competent and the tribunal has no jurisdiction – application 2008/4050 - tribunal has no power to review decisions of the Federal Magistrate’s Court – applications are dismissed.

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RELEVANT ACT/S:

Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act): ss 42A

Guardianship and Administration Act 1993 (SA) (the GA Act): ss 35, 39

Powers of Attorney and Agency Act 1984 (SA) (the PAA Act): ss 10

Mental Health Act 1977:

Acts Interpretation Act 1915 (SA): ss 24

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CITATIONS

Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711, 28 ALR 551

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REASONS FOR JURISDICTION DECISIONS

26 September 2008	Professor GD Walker, Deputy President
Basic facts

1.      A jurisdiction hearing by telephone was held on 5 September 2008.  Mrs Monika Peck appeared on behalf of the applicant, her husband Mr Andrew Peck, Mr Anthony Cox represented the respondent and Ms Jennifer Hill appeared for the Public Trustee of South Australia.

AAT application 2008/4050

2.      This application sought review of a decision of a federal magistrate.  This tribunal has no power to review decisions of the Federal Magistrates’ Court.  On the contrary, that court can hear appeals on points of law from non-presidential members of this tribunal.

3. At the hearing I made an oral order dismissing that application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

AAT application 2008/3931

4.      This application sought review of a Social Security Appeals Tribunal (SSAT) decision dated 18 August 2008 by presiding member S Raymond dismissing the applicant’s application to review a decision made by a Centrelink officer on 2 July 2008 affirming an earlier decision to appoint the public trustee as the nominee for Andrew Peck.  A copy of the SSAT’s decision and reasons is attached to these reasons and marked Annexure A, as it conveniently sets out the background to the current proceedings.

5. The SSAT dismissed the application on the ground that there was no competent application for review as Mr Peck did not have capacity to make the application and the Guardianship Board of South Australia had made an order under s 35 of the Guardianship and Administration Act 1993 (SA) (the GA Act) appointing the public trustee as administrator.

6. Under s 39 of the GA Act, an administrator has the control and management of the person’s estate, including the power to institute or defend any proceedings (s 39(2)(j)).

7. Initially, the public trustee had only partial administration powers over Mr Peck’s estate, but on 16 June 2008 a full administration order had been made pursuant to s 35 of the GA Act.

8.      Mrs Peck made detailed written submissions by emails dated 5 and 8 September 2008.  They present insuperable problems of interpretation, but the point that emerged with some emphasis was her claim that a South Australian magistrates’ court had held that Mr Peck was mentally competent.  A letter to that effect signed by Mr Peck was sent to the tribunal by mail.  Mrs Peck also faxed parts of an affidavit by an Adelaide police prosecutor containing the statement that there was nothing to suggest that Mr Peck was mentally incapacitated.

9.      If that were the case it would presumably have a bearing on any review of the guardianship order, but it would not affect the issue of jurisdiction in this tribunal.

10.     Mrs Peck also alleged a conspiracy between a named Supreme Court judge and Ms Hill.  I need not deal with that claim.

11. Mrs Peck also made extensive and highly voluble oral submissions at the hearing. She canvassed matters irrelevant to the question of jurisdiction, but the essence of her argument appeared to be that as she was the donee of an enduring power of attorney, she had the power to make the relevant application, to the SSAT or this tribunal or both. She could lose that power only pursuant to an order to that effect made by the Supreme Court of South Australia. An appeal had been lodged against the guardianship tribunal’s decision of 16 June 2008 to appoint the public trustee as full administrator. The GA Act could not override her enduring power of attorney.

Relevant legislation

12.     The Powers of Attorney and Agency Act 1984 (SA) (the PAA Act) relevantly provides:

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9.Donee may not renounce power during incapacity of donor except with permission of Supreme Court

The donee of an enduring power of attorney may not renounce the power during any period of legal incapacity of the donor except with the permission of the Supreme Court.

10.Effect of appointment of committee, administrator or manager of estate of donor of an enduring power

Where the administration of the estate or a part of the estate of the donor of an enduring power of attorney is vested in another person as committee, administrator under the Mental Health Act 1977 or manager under the Aged and Infirm Persons' Property Act 1940:

(a)the donee of the power is accountable to the other person as if the other person where [sic] the donor of the power; and

(b)the other person has the same power to vary or revoke the power as the donor would have if he were competent and not incapacitated.

11.Powers of Supreme Court in respect of enduring powers

(1)Any person who has, in the opinion of the Supreme Court, a proper interest in the matter may, at any time, apply to the Supreme Court for an order:

(a)requiring the donee (or former donee) of an enduring power of attorney to file in the Supreme Court and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in pursuance of the power; or

(b)requiring such records and accounts to be audited by an auditor appointed by the Supreme Court and requiring a copy of the report of the auditor to be furnished to the Supreme Court and the applicant for the order; or

(c)revoking or varying the terms of an enduring power of attorney or appointing a substitute donee of such a power.

(2)The donee of an enduring power of attorney may apply to the Supreme Court:

(a)for an order referred to in subsection (1)(c); or

(b)for advice and direction as to matters connected with the exercise of the power or the construction of its terms.

(3)The Supreme Court has, upon an application under this section, jurisdiction:

(a)to make an order referred to in subsection (1); or

(b)to make such other order (declaratory or otherwise) as to the exercise of the power, or the construction of its terms, as the Court thinks fit.

(4)An order under this section may be made subject to such terms and conditions as the Supreme Court thinks fit.

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13. The GA Act relevantly provides:

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35.     Administration orders

(1)If the Board is satisfied, on an application made under this Division:

(a)that the person the subject of the application has a mental incapacity; and

(b)that an order under this section should be made in respect of the person,

the Board may, by order, appoint an administrator, or administrators, of:

(c)a specified part of the person's estate (a limited administration order); or

(d)if satisfied that an order under paragraph (c) would not be appropriate, the whole of the person's estate (a full administration order).

(2)Any of the following may be appointed as an administrator under this section:

(a)the Public Trustee;

(b)a trustee company under the Trustee Companies Act 1988;

(c)any natural person who the Board considers suitable to act as administrator of the person's estate.

(3)The Public Trustee may only be appointed as a sole administrator under this section.

(4)An administration order:

(a)may be subject to such conditions or limitations (including a limitation as to the duration of the order) as the Board thinks fit and specifies in the order; and

(b)may confer such further powers (beyond those conferred by this Act) on the administrator as the Board thinks necessary or desirable for the proper administration of the estate and specifies in the order.

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39.     Powers and duties of administrator

(1)Where an administrator is appointed under this Division:

(a)the estate the subject of the order does not vest in the administrator but, subject to this Act, he or she has the control and management of it;

(b)the administrator has the duties and obligations of and is accountable as a trustee in relation to the estate and the protected person.

(2)Subject to this Act and the terms of the administration order, an administrator may:

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(j)institute or defend, in the administrator's own name or in the name of the protected person, any action or other proceeding relating to the protected person's estate and suffer judgment to go by default, or consent to any judgment, decree, or order in the action or proceeding, upon such terms as he or she thinks fit; or

(k)compromise any claims or demands made against or by or on behalf of the protected person or his or her estate, upon such terms as the administrator thinks fit; or

(l)submit or join in the submission of any claim or dispute to arbitration, and take any action necessary to facilitate the arbitration of any claim or dispute; or

(m)take criminal proceedings concerning the property; or

(n)demand and receive all money payable or belonging to the protected person and take any action necessary to recover that money; …

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14.     The Mental Health Act 1977 was repealed in 1993 and replaced by the GA Act (see Acts Interpretation Act 1915 (SA), s 24). During the second reading speech on 6 May 1992, the then minister of Health stated that the Guardianship and Administration (Mental Capacity) Bill had “several important purposes … it removes the guardianship and administration from the legislative base of the Mental Health Act and establishes it under its own legislation, which more accurately reflects the broad range of the people the board can assist”.

Consideration

15.     The application to this tribunal for review of the SSAT decision is undated, but it notes that the applicant received notice of the SSAT decision on 19 August 2008 and tribunal records indicate that it was lodged on 21 August 2008.

16. The public trustee has the power under s 10 of the PAA Act to revoke an enduring power of attorney. Unless and until that is done, the donee of the power is accountable to the public trustee as if the latter were the donor of the power (s 10). An application to the Supreme Court under s 11 is thus not the only way in which a power can be revoked.

17. The public trustee has revoked the power of attorney pursuant to the power in s 10. On the material before me, it is not clear on what date that was done, but it was no later than 27 August 2008 (letter to Mrs Monika Peck dated 27 August 2008 from the Public Trustee revoking the power of attorney) and no earlier than 18 August 2008 (SSAT decision).

18. It is therefore possible the power was revoked either before the application to this tribunal was lodged, or after it was lodged. If the application to this tribunal was lodged before the enduring power of attorney was revoked, AAT application 2008/3931 might have been competent at the time it was lodged. A letter from the Crown Solicitor of South Australia dated 28 August 2008 makes it clear, however, that the public trustee does not wish to proceed with the application. On that basis, the application must be taken to have been withdrawn and dismissed pursuant to s 42A(1A) and (1B) of the AAT Act.

19. If the application to this tribunal was lodged after Mrs Peck’s enduring power of attorney was revoked by the public trustee, it is not competent and this tribunal has no jurisdiction to review the SSAT’s decision. The application must therefore be dismissed under s 42A(4) of the AAT Act.

20. There is an alternative ground for dismissal under s 42A(4). This tribunal has jurisdiction to review a decision by a decision-maker declining to act on the basis of lack of jurisdiction: Deputy Commissioner of Patents v Board of Control of Michigan Technological University (1979) 2 ALD 711, 28 ALR 551. In that case, however, Keely J observed that the AAT might not have jurisdiction to review a decision refusing to act where it was plain that the applicant’s claim was “totally misconceived” and the decision-maker plainly and indisputably was correct in deciding that he or she was not authorised to act (2 ALD at 728). In this case, it is clear that the applicant is not authorised to act and consequently, the tribunal is without jurisdiction.

21. Consequently the application is dismissed under s 42A(1A) and (1B) or, alternatively, under s 42A(4) of the AAT Act.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   .......................[sgd].......................................................
               Renée Wallace, Associate

Date/s of jurisdiction hearing:           5 September 2008
Date of jurisdiction decision:             26 September 2008
Solicitor for the Applicant:                  Mrs M Peck, applicant’s wife
Solicitor for the Respondent:             Mr A Cox, Centrelink Legal Services

Attachments removed