FEDERAL COURT OF AUSTRALIA

Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810

Administrative Appeals Tribunal Act 1975 (Cth), ss 42A(1A), 42A(1B), 42A(4), 44(1) and 44(2A)

Guardianship and Administration Act 1993 (SA)

Powers of Attorney and Agency Act 1984 (SA), s 10

Federal Court Rules, O 53 r 7  

ANDREW JAMES PECK v SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS and THE ADMINISTRATIVE APPEALS TRIBUNAL

NSD 668 of 2009

FOSTER J

30 JULY 2009

SYDNEY (VIA VIDEO LINK TO ADELAIDE)

THE COURT ORDERS THAT:

1.                  The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs be joined as a respondent party to the proceedings. 

2.                  The application for an extension of time within which to appeal from two decisions of the Administrative Appeals Tribunal given on 26 September 2008 in matters numbered 3931 of 2008 and 4050 of 2008 be dismissed.  

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant has applied for an extension of time within which to file and serve a Notice of Appeal from two decisions of the Administrative Appeals Tribunal (the Tribunal).  

2                     Present at the Federal Court in Adelaide and connected to the Court in Sydney via a video link throughout the proceedings this morning were the applicant and his wife, Monika Peck (Ms Peck) and a legal representative of the Public Trustee of South Australia (the Public Trustee), Ms Hill.  Present in Sydney was Mr Carter, solicitor, representing the Secretary of the Department responsible for the operation of Centrelink.  The Tribunal did not formally appear this morning but a representative of the Tribunal was present in the body of the Court.

3                     In his Application, the applicant refers to the Tribunal’s decisions as decisions given on “Oct 2008”.  Notwithstanding that imprecise reference, the decisions in respect of which the applicant seeks an extension of time are decisions of the Tribunal given on 26 September 2008 in two matters, being proceedings numbered 3931 of 2008 and 4050 of 2008.  The Tribunal decided to dismiss matter No 4050 of 2008 pursuant to the provisions of s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and to dismiss the other matter (No 3931 of 2008) under s 42A(1A) and s 42A(1B) of that Act.

4                     Proceeding No 4050 of 2008 was a proceeding in which the applicant attempted to seek a merits review of a decision of a federal magistrate.  Matter No 3931 of 2008 was a matter in which the applicant sought review of a decision of the Social Security Appeals Tribunal dated 18 August 2008.  The Social Security Appeals Tribunal had affirmed a decision made by a Centrelink officer on 2 July 2008 in which that officer affirmed an earlier Centrelink decision to appoint the Public Trustee as nominee for the applicant, insofar as Centrelink was concerned.  The first respondent was the Commonwealth officer responsible for the operation of Centrelink at the relevant time.

5                     The grounds advanced by the applicant in support of his application are as follows:

1.         Under financial hardship, arrest and no work rights of wife, we financially could not lodge the appeal.

2.         Appeal has been lodged previously and got lost (References:  Registrar Dimitra Foultsos [sic]) -

6                     A draft Notice of Appeal was attached to the applicant’s affidavit filed in support of his application.  In essence, the proposed ground of appeal is that the applicant has granted an Enduring Power of Attorney in favour of Ms Peck and that, in the absence of a Supreme Court order setting aside that Power of Attorney, it is valid and continues even after the making of a full administration order in respect of the applicant.  It was then suggested that the applicant and/or Ms Peck were entitled to bring and maintain proceedings No 3931 of 2008 in the Tribunal and that the Tribunal had erred in holding that neither the applicant nor Ms Peck could bring those proceedings. The draft Notice of Appeal contains claims for relief setting aside the orders made by the Tribunal.

7                     In support of the Application, the applicant swore an affidavit on 2 July 2009, the text of which is as follows:

1.         That AAT disrespected my private (and federal) appointed Donee as my Enduring Power of Attorney and End. Power of Guardianship since 4.1.07 being my wife.

2.         That AAT erred in law by deciding under paragraph 42 of their Act (Person not available) and I have been available via phone or see 1).

3.         An acceptable representation (wife) has been available.  That no Supreme Court order takes this federal and private power of my wife.

4.         That I appointed my wife earlier than any Guardianship and Administration Order (1^st: limited from 16.3.07, 2^nd full Admin order from 17.5.08) – which was done with full mental capacity, together with opening of my plumbing business on the 4.1.07.

5.         That any South Australian G& B order is not federal (if it would cease – what it does not: see Power of Attorney Act and my wife has the duty to go by this Act) and I choose to live outside of South Australia.

6.         My assets are caviated [sic] + Centrelink does not pay on our account.

7.         That we both (wife & myself) are still happy with our Powers.

8.         That I have been brought into hardship through that error in law by AAT.

9.         Enduring Power of Attorney listed as Annex “1”.

10.       Centrelink Statements listed as Annex “2”.

11.       Supreme court Applications listed as Annex “3”.

8                     Various documents were annexed to the affidavit, including a copy of the Enduring Power of Attorney to which reference was made in the applicant’s affidavit.

9                     The present application was first listed before me on 22 July 2009.  At that stage, the only respondent to the application was the Tribunal.  On that occasion, I dealt with the matter by having a representative of the Tribunal assist in Sydney and via video link in conversation with Ms Peck.  The applicant was not present either by video link or any other means last week when the matter was called on.  I should say that Ms Peck was in Adelaide throughout the hearing.

10                  I adjourned the proceedings until this morning in order to ensure that the applicant appeared before the Court personally so that I could be satisfied that he was aware that these proceedings had been brought and was also in a position to deal with them as he saw fit. 

11                  Last week I made certain requests of the representative of the Tribunal who appeared before me then in order to ensure that Centrelink was informed of the existence of these proceedings and also that the Public Trustee was informed of the existence of these proceedings.  As part of the process engaged in last week I indicated that I would be receptive to receiving any submission or application from either of those parties should either one of them wish to make some appropriate submission or application.  I should record in this judgment that I am most grateful to the Tribunal for assisting the Court in the way in which it did during the course of the last week.

12                  This morning, when the matter was called on, Mr Carter appeared for the first respondent and applied for an order that his client be joined as a respondent party to the proceedings.  I made that order. 

13                  Yesterday I received a letter from the Crown Solicitor of South Australia dated 29 July 2009.  I have provided a copy of that letter to the applicant and have given him an opportunity to read and consider it.  I have also provided a copy to Mr Carter and to the representative of the Tribunal who has attended Court again today.  I propose to mark that letter as Exhibit A on this application and to treat it as a submission.

14                  The decisions of the Tribunal in respect of which the indulgence is sought by the applicant were, as I have mentioned, delivered on 26 September 2008.  Any appeal from those decisions had to be lodged not later than the 28th day after the day on which the documents setting out the terms of those decisions were given to the applicant or within such further time as the Court (whether before or after the expiration of that day) might allow and must be instituted in such manner as is prescribed by the Rules of this Court (see s 44(2A) of the AAT Act).  Thus, the foreshadowed Notice of Appeal should have been lodged by 24 October 2008.

15                  It is clear, therefore, that the applicant has not filed any Notice of Appeal within the time stipulated by s 44(2A)(a) of the AAT Act and that, therefore, subject to any extension that I may grant, is out of time.  It is fair to say that the present application was brought almost nine months after the date by which any appeal should have been instituted.

16                  Order 53 r 7 of the Federal Court Rules deals with applications of this sort.  Order 53 r 7(3) requires that the application be accompanied by an affidavit showing: 

(a)        the nature of the case;

(b)        the questions involved; and

(c)        the reason why an extension of time should be given.

17                  In essence, the Court requires a satisfactory explanation for the delay and usually considers other factors such as the applicant’s actions in contesting the decision otherwise by appeal, prejudice to the respondent and the merits of the application.

18                  During the course of exchanges which took place today between the applicant and me and, on occasion, between Ms Peck and me, I have endeavoured to point out to the applicant what is required for his application to succeed.  I asked him if he wished to put on further evidence and, whilst initially saying that he did, ultimately he decided that he did not wish to do that.  I asked him whether he required further time to consider his position and he said no.  For those reasons, I have moved to deal with the matter today because it seems to me that, in the absence of any desire on the part of the applicant for further time, the matter should be dealt with today.

19                  There is no explanation let alone any satisfactory explanation as to why an appeal from the Tribunal decisions to which I have referred was not lodged within the time required by s 44(2A)(a) of the AAT Act.  There is nothing in the affidavit which has been filed in support of the present application or in the materials attached to it which could be described as an explanation for that delay let alone a satisfactory explanation for that delay.  Much of the affidavit is confused and unclear.  On that ground alone, I would refuse this application.

20                  However, there are other reasons for refusing the present application.  The most significant of these is that, in my judgment, an appeal relying upon grounds in the terms of the grounds set out in the draft Notice of Appeal tendered before me would be bound to fail. 

21                  The applicant has granted in favour of Ms Peck an Enduring Power of Attorney.  He appears to have done so on 31 January 2007.  In January 2007, he was living in South Australia and the document was executed pursuant to the Powers of Attorney and Agency Act 1984 (SA) (the Powers of Attorney Act).

22                  As far as the applicant and Ms Peck are concerned, the applicant himself has not revoked that Power of Attorney.

23                  On 16 June 2008 the Guardianship Board of South Australia (the Board) made the following orders in respect of the applicant pursuant to the provisions of the Guardianship and Administration Act 1993 (SA), namely:

THE BOARD ORDERS:

1.         THAT PUBLIC TRUSTEE of 25 Franklin Street, Adelaide 5000 be appointed full administrator of the estate of the protected person.

2.         THAT PUBLIC TRUSTEE shall provide a report to the Board when requested, with annual reports to the protected person on its administration of the estate of the protected person;

3.         THAT the protected person shall not make any will or other testamentary disposition after this date except in the presence of, and with the consent of, Public Trustee;

4.         THAT the Administration Order will remain in full force and effect until revoked or varied by the Board provided always that the protected person, the applicant and any other person entitled may be at liberty to apply to the Board for a review of its orders at any time.  The Board recommends that this order be reviewed on or before 16 March 2010.

24                  As far as the evidence before me goes, that order remains in full force and effect although it is likely to be reviewed early next year.

25                  It appears also that the orders made by the Board on 16 June 2008 were sighted by Centrelink on 26 June 2008.  The making of those orders by the Board was the foundation for Centrelink’s decision to appoint the Public Trustee as the applicant’s nominee for Centrelink’s purposes.  It seems to me that, in the circumstances, Centrelink was entitled to make that decision.

26                  By letter dated 27 August 2008 from the Public Trustee to Ms Peck, the Public Trustee revoked the Enduring Power of Attorney to which I have referred.

27                  The Tribunal dismissed the proceedings No 4050 of 2008 upon the basis that the Tribunal had no power to review decisions of the Federal Magistrates Court.  That decision was correct.  There is, therefore, no basis at all upon which the applicant could successfully overturn that decision.

28                  As far as the decision in proceedings No 3931 of 2008 is concerned, the Tribunal affirmed the decision of the Social Security Appeals Tribunal on the ground that there was no competent application for review before it because the applicant did not have capacity to make such an application to the Tribunal in the circumstances of the present case, given that a full administration order had been made in respect of him.  The Tribunal analysed various sections of the South Australian legislation in order to support the conclusion to which it came.  Critical to that analysis was acceptance by the Tribunal that, pursuant to s 10 of the Powers of Attorney Act, the Public Trustee had the power to revoke the Enduring Power of Attorney granted by the applicant in favour of Ms Peck.  The Tribunal held that, unless and until that were done, the donee of the power would be accountable to the Public Trustee as if the latter were the donor of the power.  The Tribunal held that the Public Trustee had revoked the Power of Attorney in late August 2008 pursuant to its undoubted power to do so by reason of s 10 of the Powers of Attorney Act.

29                  The Tribunal also put its dismissal of the second matter on an alternative ground.  That is captured in par 20 of the Tribunal’s reasons which I set out in full: 

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.

30                  I think that this ground also justified the orders which the Tribunal made in proceedings No 3931 of 2008. 

31                  I have not gone through the Tribunal’s reasons in great detail for it seems to me that the reasons correctly deal with the questions of law thrown up by the matter and that the applicant has no prospect of overturning the Tribunal’s decision were I to extend the time within which the foreshadowed Notice of Appeal might be filed.

32                  It must also be borne in mind that the decision which is sought to be challenged is one which results in the channelling of the applicant’s Centrelink payments to the Public Trustee of South Australia for the benefit of the applicant and in order to protect him and his assets from those who would seek to spirit them away fraudulently or otherwise inappropriately against his interests.  The external compulsory control of a person’s assets and affairs in the case of mental illness, whilst being a very serious interference with one’s personal rights, unfortunately in appropriate cases is the necessary and appropriate way of protecting persons who are vulnerable by reason of their mental illness to being damaged both personally and financially.  The independence of the Public Trustee and the statutory oversight of the Guardianship Board are mechanisms in place specifically designed to protect those who are rendered vulnerable by reason of mental illness.

33                  It is not for me to gainsay what has occurred in respect of the applicant to date in respect of the activities of the Guardianship Board or the Public Trustee or indeed what has occurred in respect of the applicant’s assets and affairs to date.  I simply cannot examine whether the orders made by the Board on 16 June 2008 were made on proper grounds nor can I investigate the conduct of the Public Trustee in relation to the affairs of the applicant.  The present application is narrow in compass and does not enable this Court to interfere in such matters.  The only matter before me is the applicant’s application for an indulgence in respect of the lodgement of his foreshadowed appeal from the two decisions of the Tribunal to which I have referred.  That is the only matter with which I am dealing and the only matter with which I can deal.  A great deal of what has fallen from Ms Peck both last week and today is utterly irrelevant to the matters with which I am concerned. 

34                  For these reasons I dismiss the applicant’s application.

Associate:

Dated:         31 July 2009