Andrews and National Disability Insurance Agency

[2022] AATA 4399

Andrews and National Disability Insurance Agency [2022] AATA 4399 (20 December 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2020/6194

Re:John Andrews

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Member I Thompson

Date:20 December 2022

Place:Adelaide

For the reasons set out below, the Tribunal declines to make the orders sought by the Applicant to set aside the decisions/orders made on 9 June 2022 and relist proceedings for a directions hearing.

...............[Sgnd]................................

Member I Thompson

Catchwords

PRACTICE AND PROCEDURE – National Disability Insurance Scheme (NDIS) – application for access to the NDIS – request to set aside a decision staying the proceeding – request for recusal of the member – request for referral to the Federal Court – requests for listing for a final hearing – requests refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Luck and Department of Human Services [2010] AATA 6
The Medical Board of SA v N, JRP and Anor [2006] SASC 19
The Medical Board of SA v T, R and Anor [2006] SASC 312

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] 209 CLR 597

Secondary Materials

NDIS (Becoming a Participant) Rules
1419015 [Practice and Procedure] [2016] AATA 3075

REASONS FOR DECISION

Member I Thompson

20 December 2022

1. The substantive application concerns a request by Mr Andrews to become a participant in the National Disability Insurance Scheme (NDIS).

2. By correspondence dated 16 June 2022, Mr Andrews applied to the Tribunal for five orders which included that an order of the Tribunal made on 9 June 2022 for a stay of the substantive application be set aside.

3. In written submissions dated 5 August 2022, Mr Andrews set out his reasons for the application. He reiterated his request that the order for a stay be set aside and he applied for four other orders regarding the conduct of the review.

4. Counsel for the Agency provided written submissions opposing Mr Andrews’ application. Mr Andrews provided written submissions in reply. Both parties made oral submissions at an interlocutory hearing on 30 August 2022.

5. While there is some repetition in the content of the 10 cumulative orders sought, broadly they relate to: (i) the stay; (ii) renewal of a request for recusal of the member; (iii) the future conduct of the proceedings.  

   STAY

6. The application for setting aside the stay arises out of orders which the Tribunal made on 9 June 2022 for a stay of the proceedings and that the proceedings not be listed for final hearing unless Mr Andrews voluntarily attends appointments in person or via video conference with a bariatric surgeon and with an occupational therapist for the purpose of independent assessments. The Tribunal provided written reasons for granting the Agency’s application for a stay. Those written reasons include the history of the case management of this matter in the Tribunal, which need not be repeated now. Previously, the Tribunal had provided written reasons (28 September 2021) regarding interlocutory matters which included directions about independent assessments.

7. Mr Andrews had provided written submissions on 11 March 2022 regarding the Agency’s request for a stay. In those submissions he argued that the Tribunal does not have the power to stay its own proceedings. The Tribunal gave consideration to those submissions, and to oral submissions which the parties made, in its deliberations prior to making the stay direction. The question whether this Tribunal has the power to stay its own proceedings under s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) or otherwise was discussed in the reasons for decision provided on 9 June 2022,[1]  with particular reference to the matters set out by Deputy President Forgie in Luck and Department of Human Services.[2]

   [1] See paragraphs 22-34

   [2] [2010] AATA 6

8. In its reasons for decision on 9 June 2022, the Tribunal determined that it has the power to stay its own proceedings. In his current interlocutory application Mr Andrews reiterated his contention that the Tribunal does not have that power. His contention is contained in his oral submissions, written submissions and written submissions in reply. Those submissions are largely a reiteration of the arguments that he made previously that the power does not exist. There is no need to outline those points again, as the Tribunal has determined that it has that power. Mr Andrews referred in his current submissions   to decisions of the SA Supreme Court in The Medical Board of SA v N, JRP and Anor[3] and in The Medical Board of SA v T, R and Anor.[4] Those cases concerned decisions which a Medical Practitioners Professional Conduct Tribunal made in the exercise of a disciplinary function to hear and determine complaints about unprofessional conduct. The nature and power of that Tribunal bear little relationship to the nature, function, responsibilities and powers of the Administrative Appeals Tribunal. Those decisions are of little relevance to the issue in this review.

   [3] [2006] SASC 19

   [4] [2006] SASC 312

9. Counsel for the Agency submitted that in certain circumstances the stay direction which the Tribunal made in this matter could be revisited in accordance with the procedural power which the Tribunal has under s 33 of the AAT Act. The Tribunal might consider revisiting the stay direction if there was a change of facts or circumstances which would justify that course. It was also submitted that reconsideration of the stay direction may be warranted if it is affected by jurisdictional error.

10. There is no change of facts or circumstances which Mr Andrews has brought to the Tribunal’s attention which would warrant a revisiting of the stay direction. He commented[5] on the prospect of undergoing bariatric surgery and asserted that the Tribunal failed to take into account “extensive relevant considerations”. He listed those considerations in some detail. They include propositions about the efficacy of bariatric surgery and its unsuitability for him. These propositions may become relevant at a later stage, depending upon the evidence, at a hearing of the substantive application, and they may require consideration in relation to the criteria under s 24(1)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) about permanency of an impairment.[6]. At this stage of the proceedings, however, the Tribunal has given careful consideration to the state of the medical evidence and concluded, in its reasons for decision on 9 June 2022, that it was not adequate to enable the Tribunal to undertake its review.[7]

    [5] Applicant's submission 30 August 2022 at [21}

    [6] (S 24(1)(b)) NDIS Act; R 5.4-5.7 NDIS (Becoming a Participant) Rules

    [7] Paragraphs 74–76

11. Counsel for the Agency submitted that there was no basis which had been identified for revisiting the decision and no new fact or circumstance which could lead the Tribunal to consider the making of a different decision regarding the stay. The Tribunal accepts this submission.

12. Counsel for the Agency submitted that if the stay direction was affected by jurisdictional error there may be justification for reconsidering the stay direction. Both parties referred to the High Court decision in Minister for Immigration and Multicultural Affairs v Bhardwaj.[8] 

    [8] [2002] 209 CLR 597

13. Mr Andrews submitted that the Tribunal has fallen into jurisdictional error. In his written submission[9] he contended that the Tribunal has the power to change and correct decisions that would amount to jurisdictional error. But he does not identify where a jurisdictional error lies. On the Agency’s submission the stay decision is not affected by error. The Tribunal agrees with this submission.

    [9] 30 August 2022

    RECUSAL

14. In the application dated 16 June 2022, Mr Andrews asserted (item 4) that the member must recuse himself as the order for a stay is ultra vires of the AAT Act.

15. In his application and written submissions dated 5 August 2022 Mr Andrews asserted that the member must recuse himself because of direct bias, apprehended bias, undisclosed conflict of interest and incorrect interpretation and application of the law.

16. Previously, Mr Andrews applied for recusal of the member from taking further part in the conduct of the review application. He provided written submissions on 30 November 2021 and further written submissions on 20 December 2021. Counsel for the Agency provided written submissions. The Tribunal convened an interlocutory hearing on 7 January 2022, when oral submissions were made. For reasons which were provided in detail orally on 19 January 2022 the application for recusal of the member or reconstitution of the Tribunal was declined, as there was not a proper basis for recusal on the grounds of actual bias or apprehended bias. Key principles were explained by the Tribunal at that time, and they  included: whether there is a real possibility of bias rather than a remote possibility; that the apprehension of bias must be reasonable; inaccurate or incomplete information cannot be relied upon in the assertion of bias; the material facts to be considered are the objective facts rather than the subjective views of a party; and a judge or Tribunal member against whom criticisms are made should resist the temptation  to recuse herself or himself although it might  be comfortable to do so.

17. To the extent that Mr Andrews’ submissions reiterate assertions made about the member on the previous application for recusal, they have already been addressed at length on that occasion and rejected. The only new ground in support of the recusal request appears to be that the stay direction is one more direction that is adverse to Mr Andrews, incorrect as a matter of law, and cumulatively a further indicator of bias against him. 

18. The interlocutory decisions which the Tribunal has made in this matter have been considered and made after written and oral submissions by each party on matters that are procedural. They have not involved findings on credibility. The various directions have not provided any basis for speculation about findings in, or the possible outcome of, the substantive application. Mr Andrews is entitled to his own view of the interlocutory decisions and the written reasons supplied for each of them. However, the decisions and their reasoning do not constitute a ground for recusal of the member.

    FUTURE CONDUCT OF THE PROCEEDINGS – RE-CONSTITUTION

19. Mr Andrews sought an order in his application dated 16 June 2022: “(5) that the Registrar do all things necessary to ensure the proceedings are relisted with a differently constituted Tribunal.”

20. To similar effect, Mr Andrews sought an order in his application dated 5 August 2022: “(5) That the Tribunal makes orders setting a date and time for a full hearing within the shortest time frame available (within 6 weeks) and that two members and/or Deputy President and member preside over the hearing.”

21. The provisions for constituting the Tribunal for the purposes of a proceeding are set out in the AAT Act. Section 18A provides that the President of the Tribunal is responsible for the arrangement of the business of the Tribunal. Section 18B provides that the President may give written directions regarding the arrangement of business of the Tribunal. Section 19A provides that the President may give written directions regarding the members who are to constitute the Tribunal for the purposes of a proceeding. Section 19B is concerned with the constitution of the Tribunal. In accordance with s19D, the President has power to reconstitute the Tribunal for the purposes of a proceeding in the circumstances set out in that subsection. A former President of the Tribunal, Kerr J, explained various aspects of these provisions:

    The AAT as an organisation does not make decisions or conduct reviews as a corporate body. It is fundamental to recognise that, although the President can give written directions in relation to the operation and procedures of the Tribunal (s 18B) the President has no role in hearings and decisions except if he or she is a member of a Tribunal as constituted for a particular proceeding.[10]

    [10] 1419015 [Practice and Procedure] [2016] AATA 3075

22. Therefore, it follows that:

    35. Once a member has, or members have, been constituted to hear and determine a particular review that member or those members are alone responsible for the conduct and outcome of that review.[11]

    [11] As above

23. President Kerr explained the responsibility of a Tribunal member for the conduct of a review, including the determination of a request for recusal:

    43. Having been constituted for the purpose of a proceeding the member or members so constituted exercise the deliberative and decisional powers of the AAT. A member, whatever their status, having been constituted for a proceeding, is independently responsible for exercising all of the powers and duties of the AAT in respect of that proceeding. It should be expected that that includes the responsibility to hear and determine, according to law, any recusal application.[12]

    [12] As above

24. Mr Andrews’ request for recusal of the member is declined. The provisions for constitution and reconstitution of the Tribunal to determine this proceeding do not provide for the constituted member to make the orders which Mr Andrews seeks to reconstitute the Tribunal, or by implication to facilitate a process whereby, as Mr Andrews requests, “the Registrar do all things necessary to ensure the proceedings are relisted with a differently constituted Tribunal.”[13]

    [13] Mr Andrews’ application, 16 June 2022, item 5

    REFERRAL

25. In his written submissions on 5 August 2022 and 30 August 2022,[14] Mr Andrews sought orders that the Tribunal refers “a question of law” to the Federal Court for “interpretation and determination of a stay order.” The Agency responded that it is unclear what this means as Mr Andrews “has not identified any question of law that is appropriate to be referred to the Federal Court.”[15]

    [14] Items 3 and 4 of the orders sought

    [15] Respondent's written submissions, 17 August 2022 at [13]

26. Mr Andrews made submissions previously about the effect both of s 33 and s 41 of the AAT Act, and those submissions were taken into account in the Tribunal’s earlier consideration of the power to stay its own proceedings. In the current application he emphasised, once more, his interpretation of s 41 of the AAT Act concerning the power of the Tribunal to order a stay. In effect, it is the same submission as the one he made before. The Tribunal has previously resolved to address and determine the issue itself. In doing so, it referred to numerous other decisions of the Tribunal in which it was determined that the Tribunal has the requisite power.

    SUMMARY

27. Items 1, 2 and 3 in Mr Andrews’ application dated 16 June 2022, and items 2 and 5 in his application dated 5 August 2022, are requests for orders that the stay direction (9 June 2022) be set aside, and the proceedings be listed for hearing. The Tribunal declines to make those orders.

28. Item 4 in Mr Andrews’ application dated 16 June 2022, and item 1 in his application dated 5 August 2022, are requests for the recusal of the member from this proceeding. The Tribunal declines the request for recusal.

29. Items 3 and 4 in Mr Andrews’ application dated 5 August 2022 are requests for reference of questions of law to the Federal Court. Those requests are declined.

30. Item 5 in Mr Andrews’ application dated 16 June 2022, and item 5 in his application dated 5 August 2022, are requests for the reconstitution of the Tribunal. Those requests are declined.

    DECISION

31. For the reasons set out, the Tribunal declines to make the orders sought by the Applicant to set aside the decisions/orders made on 9 June 2022 and relist proceedings for a directions hearing.

    I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member Thompson

    ........[Sgnd]..............................

    Associate

Date of Decision:	20 December 2022
Date of Hearing:	30 August 2022
Counsel for the Applicant:	Self-represented
Counsel for the Respondent:	Mr J Bird Blackburn Chambers
Solicitor for the Respondent:	Ms A Ryan Clayton Utz