PRACTICE AND PROCEDURE - jurisdiction - whether person whose interests are affected by decision permitted to be joined as a party under FEG Act - whether provision in s 40(2) that s 40(1) of FEG Act has effect despite s 27(1) of the AAT Act should be read as excluding personal representative of deceased applicant (or person in like position) from being joined as a party - s 40(2) should not be given that restrictive interpretation.

Acts Interpretation Act 1901 ss 15AB(1)(b), 15AB(3)

Administrative Appeals Tribunal Act 1975 ss 25(1), 25(6), 27, 27(1), 42A(2), and 42B(1)

Commonwealth Constitution

Corporations Act 2001 s 560

Fair Entitlements Guarantee Act 2012 Long Title and ss 5, 6, 6(4), 10, 16, 16(1), 17, 22, 25, 28, 28(1), 29, 30(1A), 34, 34(1), 37, 37(1), 37(5), 38(4), 40, 40(1), 40(1)(a), 40(1)(b), 40(2), and 54

Safety, Rehabilitation and Compensation Act 1988 ss 55, 55(1), 64, 64(1)(a), 64(3)

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 s 3, Schedule 2 Items 41 and 42

Social Security Act 1991 ss 91, 91(1), and 91(2)

Veterans' Entitlements Act 1986 ss 126, 126(1), and 126(2)

Commonwealth Employees' Rehabilitation and Compensation Amendment Bill 1992

Australian Capital Territory v Pinter [2002] FCAFC 186; (2002) 121 FCR 509

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10;

[1995] HCA 10; (1995) 183 CLR 245; 127 ALR 1; 37 ALD 340

Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234; 52 ALR 231

Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153

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; (1995) 61 FCR 134; 134 ALR 217; 41 ALD 229

Masu Financial Management v Financial Industry Complaints Service Pty Ltd [2004] NSWSC 826; (2004) 186 FLR 289

McEvoy v Public Trustee (1989) 16 NSWLR 92

Peebles v Oswaldtwistle Urban District Council [1896] 2 QB 159

Premiership Investments Pty Ltd v White Diamond Pty Ltd [1995] FCA 1678

Re Andreatta and Commissioner for Superannuation (1991) 23 ALD 326; 14 AAR 1

Re Secretary, Department of Employment and Workplace Relations and Brentnall [2007] AATA 2099

Ryan v Davies Bros Ltd [1921] HCA 53; (1921) 29 CLR 527

Sugden v Sugden [1957] P 120

Black's Law Dictionary with pronunciations, 5th edition, 1989, West Publishing Company, St Paul

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

Explanatory Memorandum to Commonwealth Employees' Rehabilitation and Compensation Amendment Bill 1992

Explanatory Memorandum to Federal Entitlements Guarantee Bill 2012

1. The late Mr Lester Bates was employed as a Senior Rubber Technologist and then as a Quality Assurance Manager at Automotive Components Ltd (ACL) until that company was sold to Logic Australia in 2005. In May 2013, Logic reduced Mr Bates' working hours from full time to three days, or 22.8 hours, each week. His hourly rate of pay remained the same. Early in 2014, Logic Australia (Logic) went into liquidation and, as a result, Mr Bates' employment was terminated without his being paid his accrued annual leave, long service leave and redundancy entitlements. He claimed an advance under the Fair Entitlements Guarantee Act 2012 (FEG Act) and he was advised that he was entitled to an amount of, before tax, $98,834.30. That amount was determined by reference to unpaid wages, annual leave payments, payment in lieu of notice (PILN), redundancy and long service leave entitlements. Apart from PILN, all amounts were calculated on the basis of Mr Bates' hourly rate of pay. Mr Bates' PILN was calculated by reference to his being paid the sum of $707.71 each week. He challenged the calculation of PILN on the basis that it should have been calculated by reference to the full-time hours that he had worked for most of his employment, first with ACL and then with Logic. A delegate of the Secretary of the Department of Employment (Secretary) affirmed the decision on 1 July 2015. Mr Bates lodged an application for review

1. Before the matter could be heard, Mr Bates died on 10 February 2016 and the question arises as to whether the matter can proceed. Mr Bates' son, Mr Barry Bates, advised that his mother and he would like to continue with the application in accordance with his father's wishes. On behalf of the Secretary and referring to the cases of Re Andreatta and Commissioner for Superannuation[1] (Andreatta) and Re Secretary, Department of Employment and Workplace Relations and Brentnall[2] (Brentnall), Mr Holcombe submitted that Mrs Bates could continue her late husband's applications provided some procedural steps were followed.

1. I have decided that principles relating to the survival of causes of action and devolution or rights do not apply in the Tribunal. The matter must be decided by reference to s 27(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Although s 40(2) of the FEG Act qualifies the operation of s 27(1), I have decided that s 40(2) must be read as not excluding a deceased applicant's personal representative (or person entitled to the estate without need to obtain probate or letters of administration) from applying to be joined as a party to the proceeding. I have adjourned further consideration in order to determine the position of Mr Bates' widow in this regard.

1. I will begin with the case of Andreatta, to which Mr Holcombe referred. Mr Andreatta died after the hearing of the matter had concluded but before the Tribunal had delivered its decision. The essential points made by the Tribunal in that case were:

(1) The judgment of the High Court in Ryan v Davies Bros Ltd[3] has no application to proceedings in the Tribunal and Tribunal decisions relying on it should not be followed.

(2) "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 upon the language of the statute under which that right arose; ..."[4]

(3) " 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) Administrative Appeals Tribunal Act 1975 (the AAT Act), includes the power of the AAT upon review) to decide that the entitlement is properly payable to the applicant ..."[5]

(4) " 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. ..."[6]

1. The person to whom a grant of probate had been made applied to be joined as a party and the Tribunal subsequently joined him as a person whose interests were affected by the decision under review. The Tribunal did not explain in its reasons why it considered that the subject of the proceeding before it "devolved" upon the death of the late Mr Andreatta. The decision under review in that case was a decision to issue a Benefit Classification Certificate (BCC) under s 16 of the Superannuation Act 1976 (Superannuation Act) and specifying "backache and leg pain". The Tribunal's ultimate decision was that the statement of condition in the BCC was too general to establish the degree of linkage required by s 16(11) of the Superannuation Act between it and the condition that contributed to Mr Andreatta's decision. Therefore that condition was deleted from the BCC and the matter remitted to the Commissioner for Superannuation to recalculate the greater level of entitlements that would have been payable to Mr Andreatta in his lifetime.

1. I agree with the outcome in Andreatta, with the inapplicability of Ryan v Davies Bros Ltd and with the pivotal role of the terms of the legislation under which the decision has been made. Where I hesitate to follow is in relation to analysing the issues in terms of devolution of an applicant's entitlement to continue with an application to his or her personal representative upon the death of that applicant. My doubt is centred on whether an application can be regarded as a cause of action. I will return to that as well as to my preference for analysing the issue in terms of the interests of the late applicant's personal representative or other person in the decision under review and so whether he or she should be joined as a party to the proceeding under s 30(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

1. In Ryan v Davies Bros Ltd, Mr Ryan had instituted a libel action in the High Court. A verdict had been given for Davies Bros Ltd but judgment for costs only was entered against Mr Ryan. After instituting an appeal against that judgment for costs to the Full Court, Mr Ryan died. Mr Ryan's executor applied for an order that he be substituted for Mr Ryan as the appellant. That order was opposed by Davies Bros Ltd.

1. The Court acknowledged that there is a maxim stating "Actio personalis moritur cum persona" or that the right of action for tort is put to an end by the death of either party. The initial action instituted by Mr Ryan for libel was an action for tort. Had he died before it was heard or decided, his action would have died with him. That is what is at the heart of the maxim but it is not a maxim that has any application in the case of an action in which a judgment has been entered for the plaintiff. The right of action for the original wrong or tort (being the libel) has merged in the judgment and a new, higher and different obligation has been created by the judgment. The right under the judgment is not an actio personalis or a right of action based on the original wrong. That new, higher and different obligation was an obligation:

"... created by the judgment to pay the costs does not end with the death of the plaintiff. It survives to the defendant and can be enforced against the plaintiff's representative. It is an obligation which the plaintiff's representative must discharge out of the assets of his testator.

If this obligation survives the death of either party to the original action, then it cannot be an actio personalis within the doctrine expressed by the maxim already mentioned. ..."[7]

The outcome was that the executor was permitted to carry on the appeal that had been instituted by the late Mr Ryan.

1. The principles in this case are not relevant to a proceeding in the Tribunal for, as the Tribunal said in Andreatta, "... the appeal before the High Court in Ryan v Davies Bros Ltd involved a fundamentally different species of right (viz the right created by a judgment of a court) from that in an appeal from an administrative decision to the AAT."[8] I would add s 27 of the Judiciary Act 1901 i.e. that the costs awarded in that case were not in the discretion of the Court. Under Order LIV, r 1, those costs followed the event unless for good cause the trial Judge had ordered otherwise. By way of contrast, any right that a person may have to pursue a matter in the Tribunal is a right created by statute. The right is created when, consistently with s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), an enactment provides that an application may be made to the Tribunal for review of decisions made under that enactment. The right is a right to apply for review of an administrative decision and is not an "appeal" in the sense in which that word is understood in the courts. A decision on that application is not a judgment but another administrative decision. While the matter remains in the Tribunal, it is concerned with an administrative decision made in the agency and reviewed in the Tribunal. Its essential character does not change.

"To pass or to be transferred from one person to another; to fall on, or accrue to, one person as the successor of another; as a title, right, office, liability. The term is said to be peculiarly appropriate to the passing of an estate from a person dying to a person living."[9]

In Ryan v Davis Bros Ltd, Mr Ryan's obligation to satisfy the judgment and his right to pursue an appeal passed to his executor, who took his title from his will and not from the grant of probate. That was a matter of general law.

11. Whether an executor or administrator of a deceased person's estate was appointed:

"... At common law, personal representatives could neither sue nor be sued for any tort committed against or by a deceased in his or her lifetime: JG Fleming, The Law of Torts_, 8th ed at 675. This was known as the principle of 'actio personalis moritur cum persona' ('a personal cause of action dies with the person'). This was a rule which for the most part was limited to causes of action in tort (but not with respect to claims for restitution of property misappropriated and added to the estate of a deceased) but also extended to some causes of action in contract, for example, breach of promise of marriage or negligence of a medical practitioner where only a personal injury was involved:_ Broom's Legal Maxims_, 7th ed (1900) at 681;_ Phillips v Homfray (1883) 24 ChD 439; McEvoy v Public Trustee (1989) 16 NSWLR 92 at 100 per Powell J. However, in the 14th century, legislation was introduced which enabled representatives to sue for any injury done to the personal or real estate of the deceased and, later, even to be sued in corresponding circumstances: Civil Procedure Act 1883_; Fleming (supra) at 676. With regard to personal injuries, however, the non-survival rule remained in full force so that any action, not brought to a verdict before either of the parties died, abated and could not be recommenced by or against personal representatives: Fleming (supra) at 676. ..._"[10]

1. This is a passage from Premiership Investments Pty Ltd v White Diamond Pty Ltd[11] (Premiership Investments) in which RD Nicholson J considered whether or not a cause of action conferred by a statute could survive. Premier Investments had claimed damages under the Trade Practices Act 1974 (TP Act) and the Fair Trading Act 1987 (WA) (FTA) on the basis that it had suffered loss or damage by reason of the respondent's conduct in contravention of Part IV or V of the TP Act. Section 4(1) of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) (MP Act) provided that:

'Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate. Provided that this subsection does not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims made under section ninety-four of the Supreme Court Act 1935, for damages on the ground of adultery."

1. Nicholson J concluded that there was nothing under the FTA to bring it into the category of cases where the right or liability had not accrued at the date of death. Finally:

"An examination of the history of the 'maxim' actio personalis shows that it did not extend to actions ex contractu (apart from those relating to personal services) nor to actions whereby the estate of a deceased was enriched by misappropriation: Winfield, op cit, 248: Phillips (supra). The survival of a statutory right in respect of alleged unfair conduct by misrepresentation sits consistently with the above exceptions to the long history of the application of the rule ... In the end, what is decisive is that the cause of action given by s 10 of the FTA is a right enforceable at the time of death: Sugden (supra) per Denning LJ. It not in the nature of a claim yet to be made enforceable. It is of the character which survives by operation of s 4(1) of the MP Act."[12]

1. While Premiership Investments was concerned with a right created by statute, it was a right that could be enforced by a proceeding instituted in a court. Rights that can be enforced or liabilities that can be redressed by legal proceedings in the courts are causes of action. The courts have been slow to extend the meaning of the expression "cause of action" beyond that. That reluctance has been shown in the case of matrimonial or family matters heard by the courts. In McEvoy v Public Trustee,[13] Powell J summarised the relevant principles in terms consistent with those set out by Nicholson RD J a few years later. He did so in the course of considering a case in which the executor of a deceased person sought orders under the Family Provision Act 1982 (NSW) (Family Provision Act). Powell J said:

"... [O]ne must guard against being overly ready to extend, or widen, the meaning of the phrase 'cause of action' into the different area of the law, particularly when that area of the law is the creature of statute, whether enacted before, or after, the coming into operation of the MP Act.

Whether that be so or not, the decisions in the 'family law' cases decided after the coming into operation of the MP Act, or other like Acts, appear to be based upon the relevant judge's views as to the proper construction to be applied to the relevant 'matrimonial causes' statute or order ..."[14]

1. His Honour was prepared to find that there was a cause of action but he concluded that it was a cause of action personal to the deceased. As such, it could not survive the death of the person for whose benefit the order was sought whether that death occurred after the person had instituted proceedings or before and the person's personal representative wished to institute them. The language of the Family Provision Act indicated that the power it conferred on the courts could only be exercised in favour of a living person. It was a cause of action personal to a particular person. Consequently, even if the deceased person would have qualified as an eligible person under the Family Provision Act, that person's personal representative did not have the right to commence proceedings under that legislation.[15]

1. The provisions of the MP Act are reflected in Victoria in the Administration and Probate Act 1958 (Vic) (AP Act). Section 29(1) provides:

"Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other."

Sections 29(2)-(5) of the AP Act go on to qualify s 29(1). Section 29(2), for example, limits the damages that might be recovered when a cause of action survives for the benefit of the estate of a deceased person. Sections 29(3) and (3A) limit the time within which proceedings must be instituted against the estate of a deceased when a cause of action in tort survives the death. Under s 29(5), the rights conferred by the provision are stated to be in addition to any conferred on dependants of a deceased person under the Wrongs Act 1958 (Vic). The expression "cause of action" is not defined in the AP Act.

1. I have referred to the judgment of Nicholson RD J in Premiership Investments regarding the meaning of "cause of action". In Do Carmo v Ford Excavations Pty Ltd,[16] Wilson J said:

" The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of a wrongful act or omission and the consequent damage ... Knowledge of the legal implications of the known facts is not an additional fact which forms part of a cause of action. Indeed, a person may be well appraised of all of the facts which need to be proved to establish a cause of action but for want of taking legal advice may not know that those facts give rise to a right of relief."[17]

1. Some years earlier, what is encompassed in the expression arose in Sugden v Sugden.[18] When Mr and Mrs Sugden's marriage was dissolved, they consented to an order that was made to the effect in 1946 that Mr Sugden would pay his former wife maintenance for each of their two children until each child attained the age of 21 years. When Mr Sugden died, Mrs Sugden applied for an order that Mr Sugden's executrix comply with the order and pay arrears of maintenance accruing since his death. Although negotiations had been in place to secure payment should Mr Sugden die, they had not been finalised. That order would have been made under the Matrimonial Causes Act 1950 in a way that would have ensured continuing payment following his death. The issue was whether the order that had been obtained in 1946 survived.

1. Hodson and Morris LLJ decided the matter on the basis of the terms of the order that had been made. Those terms were that the respondent (Mr Sugden) would pay the petitioner (Mrs Scargill) maintenance as I have said. The payments would be made periodically. Hodson and Morris LLJ decide that the order connoted "... periodical payments to be paid by a living man to the petitioner, and in my view it connotes payments to be made during joint lives."[19] In those terms, the order came to an end with his death.

1. Denning LJ took no different view but did look to the Law Reform (Miscellaneous Provisions) Act 1934 (UK), which was in terms similar to the MP Act. He expanded upon the reasoning underlying his view:

" In an action in the Queen's Bench there is usually no difficulty in determining when the right or liability accrued due: but there is more difficulty in proceedings in the Divorce Court. In that court there is no right to maintenance, or to costs, or to a secured provision, or the like, until the court makes an order directing it. There is, therefore, no cause of action for such matters until an order is made. ..."[20]

1. A hope of obtaining an order is not enough, Denning LJ said. The fact that the relief sought is discretionary does not automatically mean that there is no cause of action. Denning LJ continued:

"... An injunction is a discretionary remedy, but, if a cause of action for an injunction subsisted at the death, I should have thought it would survive against the personal representatives. The only thing which takes a case out of the Act is the absence of an enforceable right at the time of death.

I would add that, in divorce proceedings, in order that the cause of action should subsist at the death, the right under the order must itself have accrued at the time of death. Thus a cause of action subsists against a husband for arrears of maintenance due at his death, but not for later payments."[21]

1. What is essential is that there is a fact or combination of facts which gives rise to a right to sue. That fact or combination of facts may lie in the common law or it may lie in statute. In the case of Peebles v Oswaldtwistle Urban District Council,[22] any right lay in statute. Mr Peebles had instituted proceedings against the Oswaldtwistle Urban District Council for an order of mandamus requiring it to cause to be made such sewers as might be required for the purposes of the Public Health Act 1875. Section 15 of that legislation required every local authority to do that and s 21 gave powers to owners and occupiers within the district to drain into the sewers of the local authority. After instituting the proceedings, Mr Peebles died and, having proved his will, his four executors applied for an order that they should be permitted to carry on the proceedings. Kennedy J granted the order and the local authority lodged an appeal.

"... The deceased man brought an action founded on a statutory duty which he alleged to exist on the part of the defendants. It is not necessary at this stage to inquire whether such a duty did in fact exist. ... Under these circumstances it is not wrong to say that if a duty was owed by the defendants to the deceased with regard to his property the non-performance of that duty gave rise to a cause of action that survived to his executors. ..."[23]

1. The outcome in Peebles v Oswaldtwistle Urban District Council was that the four executors were permitted to carry on the proceeding. That does not mean that the same outcome will be achieved whenever provision is made in an enactment entitling a person to take proceedings. An example arises in the case of 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[24] (Dibble). The late Ms Dibble had lodged a complaint with the Human Rights and Equal Opportunity Commission under the Sex Discrimination Act 1984 (SDA). The basis of her complaint was that she had been discriminated against by the hospital on the ground of her sex in the provision of goods and services being those provided in a drug trial from which she was excluded.

1. After reviewing previous authorities, Beazley J concluded that an analysis had been conducted in each of them in order to determine the nature of any statutory cause of action and whether or not it fell outside the actio personalis moritur cum persona principle. Her Honour referred to the judgment of Denning LJ in Sugden v Sugden and continued:

"The position is similar under the SDA. There is no entitlement to a remedy. HREOC may find that a complaint is substantiated but refuse to make any declaration. More fundamentally, a finding or declaration made by HREOC cannot be enforced - either by HREOC or by a court: see Brandy [Brandy v Human Rights and Equal Opportunity Commission[25]] . In other words, a complaint under the SDA is 'in the nature of a claim yet to be made enforceable': see Premiership Investments Pty Ltd v White Diamond Pty Ltd ... Sugden v Sugden."[26]

Did the late Mr Bates have a cause of action in the Tribunal under the FEG Act?

1. The answer to the question that I have posed in the heading lies in an analysis of the legislation giving a person a right to apply to the Tribunal for review of a decision. That analysis begins with the AAT Act. Before the Tribunal has power to review an administrative decision, an enactment must provide that an application may be made to it:

"(a) for review of decisions made in the exercise of powers conferred by that enactment;

(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."[27]

27. In the case of the FEG Act, s 40(1)(b) is relevant in the circumstances of this case:

"An application may be made to the Administrative Appeals Tribunal by a person for review of:

(b) a decision by the Secretary on the amount of an advance the person is eligible for that has been affirmed or varied under Subdivision B or substituted under that Subdivision for an earlier decision."

1. I will first put that decision in its context in the FEG Act. That is:

"An Act to provide for financial assistance for workers who have not been fully paid for work done for insolvents or bankrupts, and for related purposes".[28]

29. Part 2 of the FEG Act prescribes the eligibility for an advance. Section 10 provides:

"A person is eligible for an advance if the Secretary is satisfied of all of the following:

(a) the person's employment to a particular employer has ended;

(b) after the commencement of this section, an insolvency event happened to the employer;

(i) was due to the insolvency of the employer: or

(ii) occurred less than 6 months before the appointment of an insolvency practitioner for the employer; or

(iii) occurred on or after the appointment of an insolvency practitioner for the employer;

(d) the person is (or would, apart from the discharge of the bankruptcy of the employer, be) owed one or more debts wholly or partly attributable to all or part of one or more employment entitlements;

(e) the person has taken steps, so far as reasonable, to prove those debts in the winding up or bankruptcy of the employer;

(f) if the person was owed any of those debts before the insolvency event happened, the person took reasonable steps before that event to be paid those events;

(g) when the employment ended, the person was an Australian citizen or, under the Migration Act 1958, the holder of a permanent visa or a special category visa;

(h) an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person.

Note: Subdivision B excludes certain persons from eligibility."

1. Part 3 of the FEG Act sets out how to work out the amount of the advance. If a person is eligible for an advance for the person's employment by an employer, the amount of the advance is the total of the amount worked out under Division 2 of Part 3 for each of the person's employment entitlements.[29] An "employment entitlement" is annual leave entitlement, long service leave entitlement, payment in lieu of notice entitlement, redundancy pay entitlement or wages entitlement.[30] Section 16 excludes some basic amounts if the person was offered similar work. Section 17 provides that the Secretary may reduce the amount of an advance worked out under s 16 for a person's employment by an employer by an amount not exceeding the sum of the person's debts to the employer. If the liquidator or bankruptcy trustee expects to have enough money to pay the person the amount of the advance in the next 112 days, the Secretary may reduce the amount of the advance to nil.

1. Each of the employment entitlements is defined in s 6. As Mr Bates lodged his application for review because he was not satisfied with the calculation of his PILN entitlement, I will set out only the definition of that term:

"The person's payment in lieu of notice entitlement is the amount the person is entitled under the governing instrument from the employer for a shortfall in the period of notice of termination of the employment."[31]

"... for employment means any of the following that governs the employment:

(a) a written law of the Commonwealth, a State or Territory;

(b) an award, determination or order that is made or recorded in writing;

(d) an agreement (whether a contract or not)."[32]

1. Section 22 sets what is comprised in the basic amount for payment in lieu of notice entitlement. It is so much of the entitlement that is not a cost of the winding up or bankruptcy of the employer and that does not exceed 5 weeks' pay at the rate relevant to working out that entitlement.

1. Section 25 requires an examination of the terms and conditions of an employee's terms and conditions of employment.

1. Once a person's eligibility and the amount of the advance have been determined, the Secretary must pay that advance:

(b) to the liquidator or bankruptcy trustee of the employer, for the liquidator or trustee to pass on to the person, subject to the liquidator or trustee withholding or deducting an amount as required by law; or

(c) to another person (the payee) for the payee to pass on to the person in accordance with the contract between the payee and the Commonwealth, subject to the payee withholding or deducting an amount as required by law."[33]

1. Section 560 of the Corporations Act 2001 (Corporations Act) relates to situations in which a payment has been made by a company on account of wages, superannuation contributions or in respect of leave of absence or termination of employment under an industrial instrument and that payment was made as a result of an advance of money made by a person for the purpose of doing so. In general terms, the person by whom the money was advanced has the same rights under Chapter 5 of that legislation as a creditor of the company. In a winding up, that person has the same priority of payment in respect of that money as the person who received the payment would have had if the advance had not been made. That means that, when the Secretary pays an advance to the person, s 560 of the Corporations Act gives the Commonwealth the same rights that the person would have had in a winding up. When a payment of an advance is made under s 28 of the FEG Act to a liquidator of the employer, s 29 of that legislation treats those advances as advances within the meaning of s 560 of the Corporations Act. That means that the Commonwealth is treated as a creditor with the same priority in the liquidation as would have been enjoyed by the employee if the advance had not been made.

1. What is clear from the structure of the FEG Act is that it creates an entitlement or right to recover financial assistance for workers who, by reason of the insolvency or bankruptcy of their employers, have not been able to pursue rights that they already have under their governing instrument. That is a right that is provided for by the FEG Act but, until a claim is made by a person and the Secretary makes a decision that the person is eligible and determines the amount of the advance, that right remains inchoate. It only comes choate by virtue of the decision of the Secretary. It is a right entirely separate from the rights that arose under the governing instrument and is not in any way an enforcement of those rights. Not only is it not expressed to be enforcement by the FEG Act, it cannot be for enforcement would be to grant to the executive arm of government judicial power that must rest with the judicial arm under the Commonwealth Constitution. As Isaacs J said in Federal Commissioner of Taxation v Munro,[34] and approved in Brandy v Human Rights and Equal Opportunity Commission,[35] an indication that Parliament intended a body to exercise judicial power:

"... may appear simply from the nature of the functions assigned, where they are appropriate exclusively to judicial action, as ... trial of actions for breach of contract or for wrongs. ..."[36]

1. The situation is no different in the Tribunal which reviews the Secretary's decision. The Tribunal's role is that of the Secretary. It undertakes again the task first undertaken by the Secretary and completes the task by affirming the Secretary's decision, varying that decision or setting it aside and substituting another. The body is not a body enforcing an existing right or entitlement but a body that is creating one just as the Secretary did before it. That means that it cannot be said that the proceedings in the Tribunal give rise to a cause of action. The proceedings do not lead to an "... ascertainment and enforcement of existing legal rights ..."[37] on a combination of facts alleged to give rise to a right to sue as they would in a cause of action and so before a court, but to a right or entitlement determined according to the administrative criteria set out in the FEG Act.

1. It might be suggested that my conclusion is contrary to s 54 of the FEG Act on the basis that the section creates a right without the intervention of the Secretary. The role of the Secretary and, ultimately the Tribunal, is to ascertain what the right is. Section 54 provides that:

"A right to payment of financial assistance under this Act is granted on the basis that:

(a) the amount of the assistance may be reduced under Part 3; and

(b) the right may be cancelled, revoked, terminated or varied by or under later legislation; and

(i) the amount of financial assistance is reduced under Part 3; or

(ii) the right is cancelled, revoked, terminated or varied as mentioned in paragraph (b)."

1. There are three reasons why I do not accept that s 54 creates a right of this sort. The first is that to assign to the Tribunal the role of ascertaining and, by implication, enforcing a right, is to assign judicial power. To do so would be contrary to the Commonwealth Constitution. My second reason is that it is clear from the structure of the FEG Act that any right that is granted is subject to a person's making a claim for an advance and for the Secretary's deciding whether that person meets the eligibility criteria and, if so, the amount of any advance. Finally, it is clear that the purpose of s 54 is to ensure that a person who has a right to make a claim under the FEG Act and to have that claim determined according to its terms, cannot bring separate proceedings against the Commonwealth for damages for compensation for forfeiture of property should the FEG Act be amended in a way that cancels, revokes, terminates or varies that right or if the amount of assistance is reduced under Part 3. In the absence of that section, it might be argued that the right given under the FEG Act has the status of a statutory property right. It might be thought that the argument would not succeed but s 54 puts the matter beyond question: the Commonwealth would not be liable in an action brought in a court in proceedings for acquisition of property in the circumstances it sets out.[38]

1. It follows that the late Mr Bates had a right to apply to the Tribunal for review of the Secretary's decision. The Tribunal's duty was to review the decision and make a decision determining his eligibility and, if eligible, the amount of any advance. Mr Bates exercised his right but, for the reasons I have given, the proceedings in the Tribunal are not a cause of action. As it was not a cause of action, it does not survive his death according to the principles of devolution.

1. My conclusion that the late Mr Bates' application does not survive his death by reason of the principles of devolution, does not mean that the application is deemed to be dismissed by virtue of his having died. The Tribunal's powers to dismiss an application do not address the situation. The closest is s 42A(2) of the AAT Act, which gives the Tribunal power to dismiss an application if the applicant fails to appear at the hearing of a proceeding or at an alternative dispute resolution process. The power is expressed in terms of "may", and not of "shall" or "must" and so I think that the power is properly characterised as discretionary.

1. The other provision of the AAT Act that might be thought relevant is s 42B(1). It provides:

"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."

Again, this is a discretionary power. The death of an applicant does not necessarily lead to a conclusion that the application should be characterised as coming within one or other of the three categories specified in ss 42B(1)(a), (b) or (c). It might lead to that conclusion if, for example, the application sought review of a decision to refuse to licence a person to be a tax agent, migration agent, pilot or the like. Had the person been successful on the application, the decision would have been to grant the person registration or a license to carry on the relevant functions or occupation. Once the person has died and the person could not carry on the relevant functions or occupation, there is no point in continuing the proceeding. That might be a situation in which it might be appropriate to exercise the power granted by s 42B of the AAT Act.

1. Other situations might raise different considerations. The Social Security Act 1991 (SS Act) provides several examples of what happens when a person receiving a pension dies. Section 91, which relates to payment of age pension after death, is one such provision and I shall touch upon that payment only. Where the recipient is single, the Secretary must pay "to such person as the Secretary thinks appropriate" an amount equal to that which would have been payable to the person on the pay day after his or her death.[39] The effect of s 91(2) is that there may be other people, such as the deceased recipient's personal representative, who have an interest in that final payment for it provides:

"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."

1. No provision is made in either the SS Act or the Social Security (Administration) Act 1994 (SSAA) when an applicant in the Tribunal seeking review of entitlement to an age pension or of a decision to recover amounts of age pension said to have been overpaid dies before the application is heard. Provisions such as these would, however, be relevant in forming a view on the issue. So too would the debt provisions in Part 5.2 of the AAT Act. They set out the circumstances in which a social security payment made to an individual becomes a debt due to the Commonwealth. Once an amount becomes a debt due to the Commonwealth, it may be recovered from the recipient. If the recipient dies, the debt may be recovered from the deceased's estate for it is a chose in action and the Commonwealth's right to recover does not die with the recipient. That would suggest that those concerned with the deceased's estate would have an interest in ensuring that the amount of any debt sought to be recovered was correct and that all pension entitlements payable under the SS Act to the deceased had been properly paid.

1. It is arguable that the personal representative would be a person whose interests are affected by the decision under review for that decision affects the size of the estate available to be distributed to the beneficiaries. Section 179 of the SSAA permitting an application to be made to the Tribunal would not exclude such a person. Arguably, he or she would have been a person whose interests are affected by the decision for the purposes of the application to the former Social Security Appeals Tribunal or now the first tier review in this Tribunal.

1. If a person is such a person and an enactment provides that an application may be made to the Tribunal for review of a decision, s 27(1) of the AAT Act provides that:

"... the application may be made by or on behalf of any person or persons ... whose interests are affected by the decision."

1. Unless a particular enactment provides otherwise or to do so would be inconsistent with the nature of the decision, it seems to me that s 27(1) 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. The Secretary's decision in this case is an example of such a decision.

Does the FEG Act allow joinder of a party after the death of an applicant?

1. Section 25(6) of the AAT Act provides that an enactment providing for applications to be made to the Tribunal may add to, exclude or modify the operation of provisions of the AAT Act including s 27. This is what s 40 of the FEG Act has done. I have already set out s 40(1)(b) at [27] above. It entitled the late Mr Bates to lodge his application for review of the Secretary's decision regarding the amount of the advance that he was eligible for. Section 40(2) of the FEG Act, however, modifies the operation of s 27(1) of the AAT Act when it provides:

"Subsection (1) [i.e. s 40(1)] has effect despite subsection 27(1) of the Administrative Appeals Tribunal Act 1975."

1. The ordinary meaning of the word "despite" is "in spite of". Having regard to the meaning of "spite" the expression "in spite of" means "regardless, notwithstanding".[40] Therefore, s 40(1) of the FEG Act is saying that, regardless of what s 27(1) of the AAT Act provides, an application may be made to the Tribunal by "a person for review of ... a decision by the Secretary on the amount of an advance the person is eligible for ...". I have emphasised the words "a" and "the" in this extract from s 40(1)(b) because, read together, they identify the "person" who may apply. It is the person about whom the decision has been made. The wording of s 40(1)(b) does not allow for an application to be made by a third party.

1. The same result is reached when regard is had to s 40(1)(a) of the FEG Act. This is not the provision under which the late Mr Bates made his application but it is in the same vein. It provides:

"An application may be made to the Administrative Appeals Tribunal by a person for review of:

(a) a decision by the Secretary whether the person is eligible for an advance that has been affirmed under Subdivision B or has been substituted under that Subdivision for an earlier decision ..." (emphasis added).

1. The wording of s 40(1)(a) suggests that there is no room for an application to be made by a third party for review of a decision regarding the eligibility of a person for an advance under the FEG Act. This is consistent with the structure of the internal review provisions in s 38. "A person" may apply to the Secretary for review of a decision "whether the person is eligible" or a decision on the amount of an advance "the person is eligible for". Section 38(4) provides that "The person may withdraw the application at any time before the review is completed" (emphasis added). The review provisions initiated by the person are to be contrasted with the language used in s 37, which provides for review on the Secretary's own initiative. Section 37(1) provides that:

"If the Secretary is satisfied that there is sufficient reason, the Secretary may review:

(a) a decision whether a person is eligible for an advance; or

(b) a decision on the amount of an advance a person is eligible for."

Having made a decision, the Secretary "must give the person written notice of the review decision"[41] (emphasis added). The focus of those review provisions is clearly upon the person who was the employee who has not been fully paid for work done for employers now insolvent or bankrupt.

1. In the absence of s 40(2) of the FEG Act, I would not have said that this focus upon "the person" indicates Parliament's intention to exclude the person's personal representative as a person interested in the decision made by the Secretary were that person to die. A personal representative is responsible for bringing in the estate of a deceased person and for paying the debts of that deceased person. It is to be presumed that, if s 34 applied and a debt were due to the Commonwealth by the late Mr Bates, the Secretary would have come to his personal representative to recover it. I am not suggesting that s 34 does apply in this case or that a debt has arisen but mention it simply to show that the Commonwealth would have a right to recover an amount in certain circumstances. Its decision is not reviewable in the Tribunal. Section 34 applies if:

"(a) the Commonwealth pays someone (the payee) an advance for a person's employment by an employer; and

(b) an amount (the later amount) for an employment entitlement of the person for which an amount was included in the advance is later paid by someone (the later payer) to the person or for the benefit of the person or in accordance with the person's directions; and

(ii) the liquidator or bankruptcy trustee of the employer; or

1. Although I realise that I cannot interpret one enactment by reference to unrelated enactments, I want to look for a moment at the provisions of two of them in order to gain a perspective on how Parliament has addressed the issue in other contexts. The first is the Veterans' Entitlements Act 1986 (VE Act). Section 126 provides for the situation in which a claimant dies. Section 126(1) provides:

"On the death of a claimant, the claim does not lapse in respect of any period before the death of the claimant, but the legal personal representative of the claimant, or a person approved by the Commission, may take such action in respect of the claim as the claimant could have taken if the claimant had not died and, for that purpose, the legal personal representative or person so approved shall be treated as the claimant."

A similar provision is made in s 126(2) where a pensioner dies. Both provisions are drafted in terms broad enough to permit the personal representative to follow through proceedings in the Tribunal.

1. The second enactment, the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), takes a different approach. Section 55 is concerned with the survival of claims in providing:

"(1) Where a person who is entitled to make a claim for compensation under this Act dies without making a claim, a claim may be made by the person's personal representative.

(2) A claim is not affected by the death of the claimant after the claim was served.

(3) Section 111 applies in relation to an amount payable under a determination made in respect of a claim referred to in this section as if the deceased person had died after the determination was made.

(4) This section does not apply in relation to a claim for compensation under section 27."

1. Section 64 provides for applications to be made to the Tribunal for review of a reviewable decision in the Tribunal:

"(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

(a) the claimant; or

(b) if the decision affects the Commonwealth - the Commonwealth; or

(c) if the decision affects a Commonwealth authority - the Commonwealth authority; or

(d) if the decision affects a corporation that holds a licence under Part VIII - the licensed corporation.

(3) Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section."

1. Where an employee dies before lodging a claim and a claim is lodged by the personal representative as permitted by s 55(1), the personal representative will be the claimant for the purposes of s 64(1)(a) when making an application for review of a reviewable decision to the Tribunal. When the claimant dies after the determination has been but before making an application to the Tribunal for review of the decision, the personal representative of that person will not be the claimant. It might be open to argue that the claim survives by operation of law under s 54 and that, as a consequence, so do the rights that are attached to that claim and any determination it leads to. That would allow the personal representative simply to step in to the shoes of the deceased employee without regard to the joinder provisions of s 27 of the AAT Act.

1. If that is not a correct interpretation and regard must be had to s 27 of the AAT Act, regard must also be had to s 64 of the SRC Act. On its face, s 64(3) would not permit the personal representative to be joined as a party but that interpretation would not seem consistent with the Explanatory Memorandum to the Commonwealth Employees' Rehabilitation and Compensation Amendment Bill 1992. On enactment, s 64 was repealed and a new provision substituted. The Explanatory Memorandum said:

"... The proposed new section 64 provides for the parties to apply to the Administrative Appeals Tribunal for review of a reviewable decision. The essential principle to which the Act will give effect is that any party affected by a decision, except one that has made the decision either itself or by its contracted agent, may seek review of the decision."[43]

1. Given the fact that a debt could be recovered from the estate of the person entitled to an advance under the FEG Act, it seems manifestly unreasonable to read s 27(1) as excluding the personal representative as a person who might be joined as a party to the proceeding on an applicant's death. It seems unreasonable because it would mean that a personal representative of the deceased person would be required to pay out of the deceased estate any debt that arose but not able to ensure that the estate receives all that was due to the deceased employee as a consequence of his or her labour. Furthermore, it would seem inconsistent with the FEG Act's purpose to "... provide for financial assistance for workers who have not been fully paid for work done for insolvents or bankrupts ...".[44] Death does not expunge the fact that a worker has not been fully paid for work while alive. While mindful that it is desirable that persons should be able to rely on the ordinary meaning conveyed by the text of a provision, in this case that ordinary meaning does not appear to be consistent with the purpose of object of the FEG Act.

1. Therefore, with s 15AB(1)(b) of the Acts Interpretation Act 1901[45] in mind, I have looked to the Explanatory Memorandum that accompanied the Federal Entitlements Guarantee Bill 2012. Paragraph 161 explained that, without cl 40(2), later s 40(2):

"... any person whose 'interests are affected by the decision' would have standing to seek AAT review of a decision. The pool of individuals 'affected by the decision' could potentially include all other creditors of the employer. Given the purpose of the scheme is to advance unpaid employee entitlements, it would be inappropriate to allow other creditors to seek to have decisions about a person's eligibility or entitlements reviewed by the AAT."

1. That passage expressly points to Parliament's desire to exclude the possibility of the creditors of the insolvent or bankrupt employer applying for review of the Secretary's decision. Whether those creditors would have been successful in their submissions that they were persons affected by the decision regarding the amount of an advance is debatable. Even if they were joined under s 27(1) of the AAT Act and the size of an advance to an employee increased, the effect of s 28 of the FEG Act and s 560 of the Corporations Act would have been to substitute the Commonwealth as a creditor in place of the employee in the winding up or liquidation of a corporate employer. The creditors of the employer would gain nothing out of that. Even if I think it is debatable whether creditors of the employer would have been regarded as persons whose interests are affected by the decision within the meaning of s 27(1) of the AAT Act, it is clear that Parliament wanted to remove any possibility of its succeeding. What is equally clear is that there is no suggestion that the entitlements of the employee should be compromised.

1. Section 40(2) of the FEG Act is drafted in terms of s 40(1) having effect despite s 27(1) of the AAT Act. As I have said, that means that it has effect in spite of or regardless or notwithstanding s 27(1). For the reasons I have given, I have concluded that to read that provision literally so as to exclude review of the proper amount of an employee's entitlement to an advance because that employee has died, would leave the employee's beneficiaries without recourse under the FEG Act. If the decision of which review is sought denies eligibility, denying a person's personal representative the right to continue the application would mean that the personal representative is left to pursue the deceased applicant's rights as a creditor in the winding up or liquidation. That would also be the case if review were sought of a decision made by the Secretary regarding the amount of advance under the FEG Act. To permit a personal representative to continue an action after a worker has died would be consistent with the object of the FEG Act to provide financial assistance for workers who have not been fully paid. To read it as not permitting a personal representative to do so would be contrary to that purpose. It would be to read it in a way that is manifestly absurd or contrary to the intention of the FEG Act.

1. I have been speaking of a person's personal representative. That suggests that the person had a will and that the executor has proved the will and probate been granted. It might also suggest that an administrator has been appointed. Some deceased estates are of a size that does not require a grant of probate or letters of administration to be obtained. As I do not know the situation in the case of the late Mr Bates, I will conclude that a person who is in the position of Mr Bates' personal representative or who is entitled to administer the estate without doing so is a person whose interests are affected by the decision made by a delegate of the Secretary under the FEG Act. Therefore, that person is entitled to apply to be joined as a party to the application lodged by the late Mr Bates. That may be Mrs Bates but I will give the parties an opportunity to consider these reasons.

I certify that the sixty-two preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: ...............................[sgd].................................

[1] (1991) 23 ALD 326; 14 AAR 1; Deputy President Todd and Dr Travers and Mr Attwood, Members

[2] [2007] AATA 2099

[3] [1921] HCA 53; (1921) 29 CLR 527; Knox CJ, Higgins and Starke JJ

[4] (1991) 23 ALD 326; 14 AAR 1 at 327; 2-3

[5] (1991) 23 ALD 326; 14 AAR 1 at 327; 3

[6] (1991) 23 ALD 326; 14 AAR 1 at 327; 3

[7] [1921] HCA 53; (1921) 29 CLR 527 at 533-534

[8] (1991) 23 ALD 326; 14 AAR 1 at 327; 2

[9] Black's Law Dictionary with pronunciations, 5th edition, 1989, West Publishing Company, St Paul

[10] Premiership Investments Pty Ltd v White Diamond Pty Ltd [1995] FCA 1678 at [17]; 183; 68 per RD Nicholson J

[11] [1995] FCA 1678; (1995) 61 FCR 178; 133 ALR 64

[12] [1995] FCA 1678; (1995) 61 FCR 178; 133 ALR 64 at [32]; 187-188; 72

[13] (1989) 16 NSWLR 92

[14] (1989) 16 NSWLR 92 at [2]-[3]; 100

[15] (1989) 16 NSWLR 92 at [3]; 100

[16] [1984] HCA 17; (1984) 154 CLR 234; 52 ALR 231; Wilson, Brennan, Deane and Dawson JJ; Murphy ACJ dissenting

[17] [1984] HCA 17; (1984) 154 CLR 234; 52 ALR 231 at 245; 240

[18] [1957] P 120; Denning, Hodson and Morris LLJ

[19] [1957] P 120 at 137 per Hodson LJ and see also at 138 per Morris LJ

[20] [1957] P 120 at 135

[21] [1957] P 120 at 135

[22] [1896] 2 QB 159; Lord Esther Mr and AL Smith LJ

[23] [1896] 2 QB 159 at 161

[24] [1995] FCA 1757; (1995) 61 FCR 134; 134 ALR 217; 41 ALD 229; Beazley J

[25] [1995] HCA 10; (1995) 183 CLR 245; 127 ALR 1; 37 ALD 340

[26] [1995] FCA 1757; (1995) 61 FCR 134; 134 ALR 217; 41 ALD 229 at [67]; 146; 229; 240

[34] [1926] HCA 58; (1926) 38 CLR 153

[35] [1995] HCA 10; (1995) 183 CLR 245; 127 ALR 1; 37 ALD 340 at 269; 9; 346 per Deane, Dawson, Gaudron and McHugh JJ

[36] [1926] HCA 58; (1926) 38 CLR 153 at 175

[37] Masu Financial Management v Financial Industry Complaints Service Pty Ltd [2004] NSWSC 826; (2004) 186 FLR 289 at [13]; 293 per Shaw J

[38] See, for example, Australian Capital Territory v Pinter [2002] FCAFC 186; (2002) 121 FCR 509; Black CJ, Spender, Higgins, Finn & Dowsett JJ

[40] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers

[43] Explanatory Memorandum; Cl 14. Section 64 was subsequently amended by s 3 and Items 41 and 42 of Schedule 2 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001 by omitting ss 64(1)(c)-(h) and 64(2), which related to determinations affecting a licensed corporation. Those provisions are now reflected in s 64(1)(d) of the SRC Act as I have set it out above. They do not change the substance of the provision as reflected in s 64.

[45] "Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(b) to determine the meaning of the provision when:

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act leads to a result that is manifestly absurd or unreasonable."

Section 15AB(3) provides that "In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage."