Sanderson and Decision Maker

[2021] AATA 284

Sanderson and Decision Maker [2021] AATA 284 (17 February 2021)

Division:GENERAL DIVISION

File Number:          2021/0046

Re:MICHAEL SANDERSON

APPLICANT

Decision MakerAnd  

RESPONDENT

DECISION

Tribunal:  R Cameron, Senior Member

Date of decision:               17 February 2021

Date of written reasons:         19 February 2021

Place:Melbourne

The Tribunal does not have jurisdiction to hear the application for review.

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R Cameron, Senior Member

Catchwords

Australian Financial Complaints Authority – review – Corporations Act – Tribunal has no jurisdiction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Corporations Act 2001 (Cth)

REASONS FOR DECISION

R Cameron, Senior Member

19 February 2021

INTRODUCTION.

1. The Applicant sought a review of a decision made by the Australian Financial Complaints Authority (“AFCA”).

2. On 17 February 2021, the Tribunal ruled that it had no jurisdiction.

3. The Applicant has requested the reasons for this ruling be provided in writing.

4. Extensive written material, including submissions and correspondence addressed to the Tribunal, was filed by the Applicant in support of his contention that this Tribunal has jurisdiction. Reference was made to several learned authors[1] and academic articles which need not be referred to for the purposes of these reasons.

   [1] They were Professor Finn, Dr Orchard and Mr T Smith QC. The material has been read and considered by the Tribunal.

5. The Applicant contends that jurisdiction enabling the Tribunal to review a decision made by AFCA arises under “Part 9.4A — Review by Administrative Appeals Tribunal of certain decisions”of the Corporations Act 2001 (Cth) (“Corporations Act”).

6. He developed the argument that under section 1317B(1)(a) of the Corporations Act, a decision of AFCA is a decision of the Minister made under the Corporations Act. He also contended that AFCA is a “delegate” of the Minister.

7. Another contention mounted by the Applicant was that a foundation or platform enabling review of a decision by AFCA by this Tribunal was that the Minister and/or AFCA had not adhered to the “Mandatory Requirements” and “General Considerations” specified in sections 1051 and 1051A of the Corporations Act. It is not necessary to reproduce such sections for the purposes of these reasons.

8. The Applicant also contended that the Minister in some way is a “trustee” who has a duty which is nondelegable to AFCA. Therefore, a decision of AFCA is a decision of the Minister within the meaning of section 1317B(1)(a) of the Corporations Act.

   CONSIDERATION.

9. This Tribunal is created under the provisions of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). It only has jurisdiction to review decisions that are specifically provided for in any enactment.[2]

   [2] See sections 25(1), (2) and (3) of the AAT Act.

10. There is no enactment that enables a party aggrieved by a decision of AFCA to apply to this Tribunal for review of such decision. Accordingly, there is no jurisdiction.

11. A decision of AFCA is not a decision of the Minister within the meaning of

    
    

    section 1317B(1)(a) of the Corporations Act. As was pointed out by the Tribunal to the Applicant, AFCA has separate legal personality together with separate functions from the Minister. The Minister is not the decision-maker. There is no appropriate legal or factual foundation contained in AFCA’s enabling statute that permits review in this Tribunal.

12. AFCA is not a delegate of the Minister as contended.

13. The argument concerning sections 1051 and 1051A of the Corporations Act does not have any foundation in law. These sections do not attach or apply to any decision made by AFCA so as to give rise to a right of review in this Tribunal.

14. As for the contention that the Minister is in some way a trustee possessed of a nondelegable duty, the Tribunal cannot accept this argument. The Minister is not a trustee or for that matter a fiduciary as was contended for in aspects of the Applicant’s submission. Even if in some way, a Minister was a fiduciary in the relevant sense, it is not as a matter of law possible to construe section 1317B(1)(a) in such a way as to rely upon such section to review a decision of AFCA.

    DECISION

15. The Tribunal does not have jurisdiction to hear the application for review.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the written reasons for the decision of R, Cameron Senior Member

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

Associate
Dated: 19 February 2021

Date of interlocutory hearing	17 February 2021
Applicant	Michael Sanderson