Briggs and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered an application by Mr Briggs, a participant in the National Disability Insurance Scheme, for review of his statement of participant supports. Mr Briggs had lodged a notice of withdrawal of his application for review, which was accepted by the Tribunal. However, Mr Briggs later sought to reinstate his application, arguing that the withdrawal was based on mistaken and misleading advice from his disability advocate. The National Disability Insurance Agency (NDIA) opposed the reinstatement and any extension of time for Mr Briggs to lodge his application.

The primary legal issues before the Tribunal were whether the withdrawal of Mr Briggs' application for review was made in error, and if so, whether the Tribunal had the discretion to reinstate the proceeding. Additionally, the Tribunal had to determine whether to grant Mr Briggs an extension of time to lodge his application for review, considering the significant delay, the reasons for that delay, potential prejudice to the NDIA, and the public interest, particularly in the context of beneficial legislation.

The Tribunal acknowledged the general principle that an application is taken to be dismissed upon lodgement of a notice of withdrawal, as established in *Kalafatis*. However, the Tribunal qualified this principle, holding that if it is aware at the time of lodgement that a withdrawal may be based on a mistake or misapprehension about the Tribunal's processes, it is appropriate to make enquiries to ensure the applicant understands the potential error. The Tribunal found that while Mr Briggs' withdrawal notice was unambiguous and the application was effectively dismissed upon lodgement, the circumstances surrounding the mistaken advice from his advocate meant the withdrawal constituted an application being "dismissed in error." Consequently, the Tribunal's discretion to reinstate the proceeding under s 42A(10) of the *Administrative Appeals Tribunal Act 1975* (Cth) was enlivened.

The Tribunal exercised its discretion in favour of reinstating the application and granted Mr Briggs an extension of time to lodge his application for review to 8 March 2023. The Tribunal concluded that the factors favouring the grant of the extension of time, including the context of beneficial legislation and the applicant's circumstances, outweighed the factors against it, such as the delay and potential prejudice to the NDIA.