Dewar and National Disability Insurance Agency

Dewar and National Disability Insurance Agency [2023] AATA 3884 (20 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/3947
Re:Wayne David Ronald Dewar
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Tribunal:Senior Member Joanne Collins
Date:20 November 2023
Place: Brisbane

Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.
Pursuant to section 42B(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal directs that that the Applicant may not, without the leave of the Tribunal make a subsequent application to the Tribunal in relation to the Respondent’s decision to grant the Applicant access to the National Disability Insurance Scheme pursuant to section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
................................[SGD]................................
Senior Member J Collins

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – application for review of a decision to grant the Applicant access to the National Disability Insurance Scheme – Applicant meets access requirements of the National Disability Insurance Scheme Act 2013 (Cth) – 42D(4)(b)(i) AAT Act – grant of access made on remittal – review of new decision following remittal – application misconceived – no reasonable prospect of success – abuse of the Tribunal process – 42B AAT Act – application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) sections 42C, 42B, 42D
National Disability Insurance Scheme Act 2013 (Cth) sections 21, 22, 23, 24, 25, 27, 100(6)
REASONS FOR INTERLOCUTORY DECISION

This is an interlocutory decision in respect of an application for review of a decision by the National Disability Insurance Agency (‘the Agency’) to grant Mr Dewar access to the National Disability Insurance Scheme (‘the scheme’) pursuant to section 21 of the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’).
The Agency seeks dismissal of the application pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) on the grounds that the application has no reasonable prospect of success. The Agency also seeks a direction pursuant 42B(2) of the AAT Act, that Mr Dewar may not, without the leave of the Tribunal make a subsequent application to the Tribunal in relation to the Agency’s decision to grant the him access to the scheme pursuant to section 21 of the NDIS Act.[1]
[1] Respondent’s Submission at Interlocutory Hearing on 17 November 2023
Mr Dewar opposes the dismissal and seeks a substantive hearing in relation to the decision of the Agency to grant him access to the scheme.
Relevant legislation
Section 42B of the AAT Act provides as follows:
Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) 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.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3) The direction has effect despite any other provision of this Act or any other Act.
BACKGROUND
Mr Dewar is a 54-year-old man who applied to the Agency for access to the scheme on 9 February 2022.
When applying for access to the scheme, Dr Richard Miller, General Practitioner, completed section 2 of Mr Dewar’s NDIS application form. Dr Miller stated that Mr Dewar’s main disability was ‘Post Traumatic Stress Disorder’ (‘PTSD’).[2]
[2] T3.
On 2 March 2022 Dr Miller subsequently completed an ‘NDIS Access Request - Supporting Evidence Form’ in support of Mr Dewar’s application. In this form Dr Miller stated that Mr Dewar’s primary impairments were anxiety and PTSD and that these impairments were ‘likely lifelong with different degrees of severity’.[3] Dr Miller’s opinion was that Mr Dewar’s impairments affected his functional capacity in relation to his ability for social interaction and learning. Dr Miller considered that Mr Dewar would benefit from psychological input to assist with his social interactions with people, hypervigilance and anxiety around people.[4]
[3] T4.
[4] T4.
To become a participant in the scheme, Mr Dewar is required to satisfy the access criteria which are set out in subsection 21(1) of the NDIS Act and provide as follows:
When a person meets the access criteria
(1) A person meets the access criteria if:
(a) The CEO is satisfied that the person meets the age requirements (see section 22); and
(b) The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) The CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
On 3 March 2022 the Agency notified Mr Dewar of its decision to refuse him access to scheme.[5]
[5] T1G.
In refusing access to the scheme the Agency accepted that Mr Dewar met the age requirements in section 22 of the NDIS Act and the residence requirements in section 23 of the NDIS Act. Notwithstanding, the Agency stated that whilst the available information confirmed that Mr Dewar had PTSD[6] it was not satisfied that Mr Dewar satisfied the remaining disability requirements under either section 24 of the NDIS Act or the early intervention requirements under section 25 of the NDIS Act (‘the original decision’).[7]
[6] Section 24(1)(a) NDIS Act.
[7] T1G.
The disability requirements are contained in section 24 of the NDIS Act provide as follows:
1. A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2. For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
……………………………..
The early intervention requirements are contained in section 25 of the NDIS Act and provide as follows:
1. A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent;
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
The requirements of both section 24 and section 25 of the NDIS Act are cumulative and all criteria must be met.
On 24 March 2022 Mr Dewar sought an internal review of the decision by the Agency to refuse him access to the scheme.[8]
[8] T1H; Section 100(2) NDIS Act.
On 26 April 2022, following an internal review, the Agency confirmed the original decision (‘the decision under review’). In doing so, the Agency was satisfied that Mr Dewar had a ‘psychosocial impairment’ in relation his diagnoses of PTSD, paranoid ideation and anxiety.[9] The Agency however remained not satisfied that Mr Dewar met each of the remaining criteria of the disability requirements in section 24 of the NDIS Act or the early intervention requirements in section 25 of the NDIS Act.[10]
[9] Section 24(1)(a) NDIS Act
[10] T1I.
Dissatisfied with the outcome of the internal review, on 17 May 2022 Mr Dewar applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the decision under review.[11] In applying to the Tribunal Mr Dewar stated:
[11] T1.
‘Decision refers to paranoid ideation and anxiety and insomnia and hypervigilance, however these are not formal/current diagnoses and I was seeking access for PTSD’.[12]
[12] T1.
Evidence provided to the Tribunal
Substantial documentary evidence was filed with the Tribunal in respect of Mr Dewar’s application to the Tribunal. Mr Dewar also underwent assessments at the request of the Agency. These assessments were undertaken by Ms Rebecca Thomson, Occupational Therapist, and Dr Jonathan Spear, Psychiatrist. Having considered the evidence before the Tribunal, summarised as relevant is the following evidence.
Medical records
In early 2020 Mr Dewar was referred by Dr Robert Watt, General Practitioner at the Streaky Bay Medical Clinic, to the Country & Outback Mental Health Services (‘CAOMHS’).
Ms Danielle Evans, a mental health clinician at CAOMHS, subsequently assessed Mr Dewar and reported that Mr Dewar ‘showed excess paranoia and reported that he hasn’t been able to sleep a lot since he thought someone was in his home’.[13]
[13] T1B.
20. In her report Ms Evans also stated that Mr Dewar:
·Had been under extreme stress due to a workplace altercation;
·Had moved to Streaky Bay to ‘get away from everyone...’;
·Had been experiencing disrupted sleep on the basis of a belief his home had been broken into, his computer hard drives stolen and then subsequently returned a few weeks later;
·Was very paranoid and suspicious about somebody wanting to break into his home; and
·Was experiencing rapid thoughts that people were talking about him and hence was wanting ‘to withdraw and isolate himself’.[14]
[14] T1B.
Ms Evans recommended a referral to Dr Fiekle, Psychiatrist, for treatment. Notably, Ms Evans stated in her report ‘If there is a waiting list for Dr Fiekle then I would advise for Wayne to be referred to Rural and Remote for a VC appointment with a psychiatrist at the first available appointment time’.[15]
[15] T1B.
On 26 February 2020, Dr John McCormick, General Practitioner, Streaky Bay Medical Clinic referred Mr Dewar to Dr Fiekle, Psychiatrist. In his letter of referral, Dr McCormick stated:
‘Thank you for seeing Mr Wayne Dewar……. He has been suffering from Hyperanxiety, Insomnia, & Paranoid ideation since a Workplace incident last year.
He lost his job. Had to leave due to Workplace Bullying…..’.[16]
[16] T1C.
On 2 June 2020 Ms Evans wrote again to Dr Watt. At this time Mr Dewar had completed six appointments with CAOMHS involving Cognitive Behavioural Therapy (‘CBT’) which focussed on cognitive reframing, mindfulness and sleep hygiene. Ms Evans noted that Mr Dewar had ‘declined his psychiatrist appointment, which was made after our first session’. Ms Evans also reported that Mr Dewar remained fixated on avoiding all people, that he did not trust ‘anyone’ and that this was ‘mainly due to his traumatic history’. Ms Evans referred to Mr Dewar’s intention to travel to Western Australia when the state borders re-opened following the Covid-19 pandemic.[17]
[17] T1D.
On 1 July 2021 the medical records of Ms Jenny Everett, Psychologist, stated; ‘He is physically well but his anxiety is completely over-whelming him’. Also that ‘He scored in the extremely severe range for anxiety, depression and stress on the DASS’.[18]
[18] Medical records titled ‘My Further Evidence’ page 33.
25. In or about December 2021 Dr Richard Miller, General Practitioner, in Albany, Western Australia referred Mr Dewar for counselling with Ms Danita Walsh, Mental Health Occupational Therapist. Ms Walsh however recommended referral to another private practitioner specialising in PTSD and depression. In her correspondence dated 1 December 2021 Ms Walsh stated:
‘Having reviewed Mr Dewa’s (sic) referral and following a conversation with him today, I feel his specific needs would be better met through an alternative counselling service specialising in PTSD’. [19]
[19] T1F.
Evidence of Ms Rebecca Thomson, Occupational Therapist
Ms Thompson assessed Mr Dewar functional capacity in December 2022 at the request of the Agency. Her opinion was that Mr Dewar’s PTSD and anxiety impacted severely on his ability to interact with others and access the community.[20]
[20] Report of Rebecca Thompson dated 22 December 2022.
Evidence of Dr Jonathon Spear, Psychiatrist
Dr Spear, Psychiatrist, conducted an ‘on the papers’ assessment of Mr Dewar in January 2023. Dr Spear has over twenty years of expertise as a psychiatrist, and his clinical expertise includes the treatment of various psychiatric conditions including depressive disorder, schizophrenia, bipolar disorder, anxiety disorders, post-traumatic stress disorder, adjustment disorder, alcohol abuse, dementia and other organic mental health disorders.
28. Dr Spear’s assessment involved the review of the following medical records in respect of Mr Dewar:
·Brecken Health Albany;
·County and Outback Health Ceduna;
·Eyre and Far North Local Health Network;
·Streaky Bay and District Medical;
·WA Country Health Service Great Southern;
·WA Country Health Service Midwest; and
·Report of Ms Rebecca Thompson dated 22 December 2022.
Dr Spear’s opinion was that Mr Dewar suffers from paranoid personality disorder. Dr Spear stated that Mr Dewar’s documented somatic and psychological symptoms are, in his opinion, insufficient to meet the DSM-5 criteria for PTSD.[21]
[21] Report of Dr Jonathon Spear dated 21 February 2023
Agency’s request for section 42D remittal
Subsequent Mr Dewar’s application to the Tribunal, and in light of this further evidence, the Agency re-assessed its position.
In undertaking this re-assessment the Agency satisfied itself that Mr Dewar did in fact meet each of the disability requirements contained in section 24 of the NDIS Act. In particular, in respect of section 24(1)(a) of the NDIS Act, the Agency was satisfied that Mr Dewar had an impairment arising from a diagnosis of paranoid personality disorder.
On the basis that the Agency was satisfied that Mr Dewar met the disability requirements, on 8 March 2023 the Agency requested that Mr Dewar enter into terms of a consent agreement pursuant to section 42C of the AAT Act. The terms of the agreement proposed by the Agency requested that the Tribunal set aside the decision under review and in substitution make a decision that Mr Dewar meets the access criteria pursuant to section 21 of the NDIS Act.
Relevantly, section 42C of the NDIS Act provides as follows:
Power of Tribunal if parties reach agreement
(1) If, at any stage of a proceeding for a review of a decision:
(a) agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and
(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c) the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
(2) If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing.
…………………………………………………………….
Mr Dewar however refused to consent to the terms of agreement proposed by the Agency. This was despite the fact that by executing the terms of agreement Mr Dewar would thereafter be granted access to the scheme and could proceed to obtain funding for the reasonable and necessary supports he requires as a consequence of his disability.
Mr Dewar’s refusal arose for a number of reasons including what he considered was the egregious conduct of the Agency and the Tribunal towards him. Mr Dewar also took exception to the opinion of Dr Spear and the diagnosis of paranoid personality disorder. In this regard Mr Dewar considered that the report of Dr Spear was ‘both dangerous and reckless and given without duty care’.[22] Mr Dewar’s position was he refuted Dr Spear’s diagnosis and accepted only his diagnosis of PTSD.[23]
[22] Applicant’s Letter to Dr Spear received 15 March 2023.
[23] Applicant’s Medical Records dated 21 November 2021, 24 November 2021 and 14 June 2022.
In refusing to consent to terms of agreement pursuant to section 42C of the AAT Act Mr Dewar’s position at that time was that he wished to proceed to a substantive hearing with a view to cross-examine Dr Spear.
On the basis of an obvious impasse between the parties, on 22 August 2023 the Agency, through its solicitors, sent to the Tribunal and copied to Mr Dewar an email which stated:
‘The Agency requests that a directions hearing be listed for the above matter. The Agency has made a s42C offer to grant the Applicant access to the scheme effectively resolving the substantive issue. The Applicant has not responded to the offer. As such the Agency seeks a decision for a remittal of the matter back to the Agency to make a decision granting access and to dismiss the Application on the basis there is no issue remaining in dispute’.
On 23 August 2023 an officer of the Tribunal telephoned Mr Dewar and his Advocate Ms Selina van Elburg, Sussex Street Community Law Service Inc., in order to obtain a date and time convenient for Mr Dewar to attend a Directions Hearing. In the context of being unable to contact either Mr Dewar or Ms van Elburg by phone an email was sent to Mr Dewar and copied to Ms van Elburg which stated:
‘Dear Parties
The Tribunal requests the availability of the Parties in this matter to attend a Directions Hearing by Telephone this Friday 25 August 2023 at 12:00PM Perth Time.’
Later that same day a listing notice was sent to Mr Dewar and copied to Ms van Elburg. The Listing Notice advised of a Tribunal Directions Hearing on 25 August 2023.
Shortly thereafter on 23 August 2023 Mr Dewar responded by email to the Listing Notice as follows:
‘I am unavailable.
I also do not agree to the directions hearing for the reasons being proposed’.

On 24 August 2023 a further email was sent to Mr Dewar by the Tribunal which stated as follows:
‘Dear Mr Dewar

Thank you for your email dated 23 August 2023.

As you are aware the Respondent has requested a Directions Hearing to assist this matter. In this regard you are referred to the attached email request of the Respondent dated 22 August 2023.

Senior Member Collins has agreed to conduct a further Directions Hearing. We note that you are not available on Friday 25 August at midday (Perth time) in accordance with the recent Listing Notice.

Accordingly the Tribunal asks you please advise of your availability to attend a Directions Hearing on either 30 or 31 August 2023 or 1 September 2023 so that we may best endeavour to accommodate your availability’.
On 24 August 2023 Mr Dewar responded to the Tribunal by email as follows:
‘Good Morning Brisbane Registry,
Again please read my email sent to you yesterday as all I had stated still stands (I have copied it below at the end of this email).
I do not agree to a directions hearing based on the current request of the NDIA.
I do not agree the issue / issues I made in my application to the AAT have been resolved, along with subsequent issues in this matter’.
A second Listing Notice was sent to both Mr Dewar and the Agency’s representatives on 24 August 2023. This Listing Notice advised of a Tribunal Directions Hearing on 30 August 2023 at 10.00am Perth Time.
On 29 August 2023 the Tribunal received an email from Mr Dewar in which he stated:
‘Good Morning Brisbane Registry,
I am unable to attend the hearing tomorrow due to having an x-ray done on my throat and there may be a possibility of an ultrasound being booked in after the x-ray’.
On 30 August 2023 at 8:32am Perth Time the Tribunal received an email from Ms van Elburg as follows:
‘Mr Dewar advised in email yesterday that due to medical appointments today he is not available for the directions hearing. Mr Dewar has given a reasonable explanation as to why he can’t attend the meeting today and has asked for the meeting to be rescheduled. Mr Dewar has disclosed to the tribunal that he is receiving treatment for lymphoma, it is irresponsible of the Tribunal to force Mr Dewar to cancel his medical appointments as this is directly impacts his health and well-being. The Tribunal should have called Mr Dewar and asked what his availability for the meeting was.
We ask if the Tribunal can please reschedule the directions hearings to another date so that Mr Dewar can attend’.
Ms van Elburg attended the Directions Hearing on 30 August 2023. She advised the Tribunal that Mr Dewar now wished to attend a Directions Hearing, that she had asked Mr Dewar to provide some suitable dates for a Directions Hearing; however she had not yet received a reply.
In the absence of Ms van Elburg, as an advocate, being in a position to provide alternative dates convenient to Mr Dewar, the Tribunal sent an email to Mr Dewar and Ms van Elburg after the directions hearing on 30 August 2023 as follows:
‘Dear Mr Dewar,
As you aware Senior Member Collins has decided to conduct a directions hearing in relation to your matter.
The Tribunal has today received an email from your advocate which indicates that you now wish to attend the directions hearing. A copy of this email is attached.
On this basis would you please confirm which of the following dates are convenient for you to attend:
1 September 2023
4 September 2023
6 September 2023
7 September 2023
8 September 2023.
We kindly ask you provide your reply as soon as possible’.
Mr Dewar’s subsequent email on 31 August 2023 to the Tribunal did not address or provide any alternative date for a Directions Hearing to take place. Mr Dewar did however state that ‘the Tribunal did not call me in the AM hearing’. Mr Dewar also requested ‘reassignment of Member Collins from my case, Member Collins is not a fit and proper person to be hearing case's of those with a disability…’.
On 4 September 2023 an Associate of the Tribunal telephoned both Mr Dewar and Ms van Elberg endeavouring to ascertain suitable dates for a Directions Hearing but was unsuccessful in making contact with either person.
A third Listing Notice was therefore sent to both Mr Dewar and the Agency’s representatives on 5 September 2023. This Listing Notice advised of a Tribunal Directions Hearing on 8 September 2023 at 10:00am Perth Time.
Mr Dewar and the Agency attended the Directions Hearing on 8 September 2023. In the context of Mr Dewar’s refusal to enter into terms of agreement pursuant to section 42C of the NDIS Act, the Respondent sought remittal of the application to the Agency pursuant to section 42D of the AAT Act.
Section 42D of the AAT provides as follows:
Power to remit matters to decision-maker for further consideration
(1) At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
Powers of person to whom a decision is remitted
(2) If a decision is so remitted to a person, the person may reconsider the decision and may:
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and make a new decision in substitution for the decision set aside.
Note: For time limits, see subsection (5).
(3) If the person varies the decision:
(a) the application is taken to be an application for review of the decision as varied; and
(b) the person who made the application may either:
(i) proceed with the application for review of the decision as varied; or
(ii) withdraw the application.
(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision; and
(b) the person who made the application may either:
(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.
Time limits
(5) The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a) if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision--that period;
(b) in any other case--the period of 28 days beginning on the day on which the decision was remitted to the person.
(6) The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
(7) If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
(8) If the person affirms the decision, the proceeding resumes.
Mr Dewar opposed remittal essentially for the reasons previously enunciated.[24]
[24] See paragraphs [16], [35] and [36].
On 12 September 2023 pursuant to section 42D(1) of the AAT Act the Tribunal remitted the decision under review to the Agency for reconsideration within 28 days.
In accordance with its statutory obligation the Agency reconsidered Mr Dewar’s application seeking access to the scheme. Having done so, on 22 September 2023 the Agency forwarded correspondence to Mr Dewar advising that it was now satisfied that Mr Dewar met the access criteria under the NDIS Act and that he was now a participant of the scheme. In this regard the Agency set aside the decision under review and substituted a new decision granting Mr Dewar access to the scheme.[25]
[25] Section 42C(2) AAT Act.
Notwithstanding the fact that the substantive issue in respect of the decision under review had been resolved in Mr Dewar’s favour, Mr Dewar thereafter has sought to exercise his rights under section 42D(4) of the NDIS Act. Practically speaking Mr Dewar wishes to proceed with his application for review of the new decision.
In an email to the Tribunal and the Agency on 31 October 2023 Mr Dewar stated:
‘I wish to be in attendance at a Final Hearing and still request a Final Hearing as my original application concerns have NOT been addressed by the NDIA’.
Mr Dewar again indicated that he wished to proceed with an application for review of the decision of the Agency to grant him access to the scheme on the basis he continued to dispute the opinion and diagnosis of Dr Spear and accordingly wished to cross-examine Dr Spear in a substantive hearing.[26]
[26] Email from Wayne Dewar to the AAT Brisbane Registry dated 31 October 2023.
In oral evidence Mr Dewar strongly disputed the Agency’s reliance on the opinion of Dr Spear in respect of its decision to grant him access to the scheme. Mr Dewar remains of the view that Dr Spear’s opinion is ‘dishonest and flawed’ and that Dr Spear had lied in his report.[27] Mr Dewar also raised concerns regarding the nature of the supports he would be likely to receive upon access to the scheme on the basis of the Agency relying on the diagnosis and recommendations of Dr Spear.
[27] Submission by Mr Dewar at the Interlocutory Hearing on 17 November 2023.
In this regard Mr Dewar contends as a remaining issue in dispute and for determination by the Tribunal, his specific diagnosis for the purposes of section 24(1)(a) of the NDIS Act. He also contends that the matter should proceed to a substantive hearing for the purposes of making a ‘public record’ in respect of the conduct of the Agency, both prior to the filing of his application for review and thereafter in these Tribunal proceedings.
Consideration
Pursuant to section 42B(1) of the NDIS Act I have decided to dismiss Mr Dewar’s application for a review of the Agency’s decision to grant him access to the scheme.
Section 42B(1) provides as follows:
Power of Tribunal if a proceeding is frivolous, vexatious etc.
(1) 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.
(2) If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
(3) The direction has effect despite any other provision of this Act or any other Act.
My considerations are as follows:
·In the absence of a dispute as to section 24(1)(a) of the NDIS Act it is not the function of the Tribunal to determine, as an issue, Mr Dewar’s ‘specific diagnosis’. Such an application by Mr Dewar misconceives the function and jurisdiction of the Tribunal.
·The Tribunal has no jurisdiction to review the conduct of the Agency as the Respondent to Mr Dewar’s application. Such a proposition also misconceives the function and jurisdiction of the Tribunal.
·To proceed to a substantive hearing in circumstances where the substantive issue in respect of the decision under review has been resolved is an inappropriate use of public funds and is otherwise an abuse of the Tribunal process.
·To proceed with an application to review of the decision of the Agency to grant Mr Dewar access to the scheme is non-sensical and misconceived.
·I am satisfied, on the evidence, that Mr Dewar meets the access criteria and that Mr Dewar has a disability which is attributable to a psychosocial disability.[28]
·I am also satisfied that any application to review the Agency’s decision to grant Mr Dewar access to the scheme has no reasonable prospects of success of a decision to the contrary.
[28] Section 24(1)(a) NDIS Act.
Finally, the Agency seeks a direction pursuant to section 42B(2) of the NDIS Act that Mr Dewar be not permitted to make a subsequent application to the Tribunal in relation to the Agency’s decision to grant him access to scheme without the leave of the Tribunal. Having determined that Mr Dewar’s application for a review of the Agency’s decision to grant him access to the scheme is non-sensical, misconceived and otherwise an abuse of the Tribunal process, I make such a direction.[29]
[29] Section 42B(1)(a),(b) and (c) AAT Act.
Accordingly my decision is as follows:
·Pursuant to section 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Dewar’s application made pursuant to section 42D(4)(b)(i) of the NDIS Act is dismissed.
·Pursuant to section 42B(2) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Dewar may not, without the leave of the Tribunal make a subsequent application to the Tribunal in relation to the Agency’s decision to grant him access to the Scheme pursuant to section 21 of the National Disability Insurance Scheme Act 2013.

66.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

.........................[SGD].........................
Associate
20 November 2023

[2023] AATA 3884

20 November 2023

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Administrative Law

Statutory Interpretation

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Judicial Review

Abuse of Process

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Procedural Fairness

Appeal

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