Filardo and National Disability Insurance Agency
[2020] AATA 1138
•21 April 2020
Filardo and National Disability Insurance Agency [2020] AATA 1138 (21 April 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2018/5608
Re:Vincenzo Filardo
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Member K. Parker
Date:21 April 2020
Place:Melbourne
The Tribunal decides that Francesco Filardo being the Applicant’s father and appointed plan nominee under the National Disability Insurance Scheme Act 2013 (Cth) will continue to represent the Applicant in this application and that as from the date of this interlocutory decision, the Association of Employees with Disabilities Inc (AED) (formerly engaged by Francesco Filardo) and counsel briefed by AED are excluded from doing so.
[sgd]................................................................
Member K. Parker
Catchwords
PRACTICE AND PROCEDURE – issue regarding representation of applicant – applicant is a participant under National Disability Insurance Scheme (NDIS) – father of participant appointed by National Disability Insurance Agency (NDIA) as plan nominee – father engaged pro bono lawyers and counsel who appeared at hearing – application adjourned part-heard following open offer made by NDIA – after adjournment father terminated existing agreement with pro bono lawyers and counsel – pro bono lawyers and counsel sought to remain as representatives of applicant – father sought to continue to represent applicant – father requested funding for participant for specialist disability accommodation (SDA) at identified location by identified service provider – NDIA contended that father had conflict of interest due to his involvement with identified SDA service provider which was founded by and is controlled by father – father and applicant’s mother own the premises at identified SDA location – consideration of role of appointed plan nominee – consideration that NDIA has not, at this stage, sought to cancel or suspend the appointment of father as applicant’s plan nominee – acknowledgement of role of father who provides daily care to applicant – consideration of wishes of applicant – consideration of termination of previous agreement between father and pro bono lawyers and counsel – Tribunal decides father will continue to represent participant in this application and that previously engaged pro bono lawyers and counsel are excluded from doing so
Legislation
Administrative Appeals Tribunal Act 1975
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (Nominees) Rules 2013REASONS FOR INTERLOCUTORY DECISION
Member K. Parker
21 April 2020
BACKGROUND
The principal application before this Tribunal seeks review of an internal review decision made by the National Disability Insurance Agency (NDIA) on 28 August 2018 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) (Internal Review Decision). The principal application was not signed by the Applicant, Vincenzo Filardo, when it was lodged with the Tribunal. It was purportedly lodged on behalf of Vincenzo Filardo and was signed by a representative of a disability advocacy service. This disability advocacy service is no longer involved in representing either Vincenzo Filardo or his current appointed plan nominee, Francesco Filardo.
Francesco Filardo is Vincenzo Filardo’s father.
The Internal Review Decision affirmed an earlier decision by a delegate of the CEO of the NDIA made on 27 February 2018 (Original Decision) which in effect, approved a statement of participant supports forming part of Vincenzo Filardo’s former National Disability Insurance Scheme (NDIS) plan which commenced on 26 February 2018 (February 2018 plan). This plan has been superseded by subsequent NDIS plans.
The approved statement of participant supports in Vincenzo Filardo’s February 2018 plan (and statements of participant supports in his subsequent plans), do not include funding for specialist disability accommodation (SDA) to be provided to Vincenzo Filardo. Prior to and after the Original Decision, Francesco Filardo requested that SDA be included in Vincenzo Filardo’s statement of participant supports, and that SDA be specified as an apartment contained within premises located at 35 Godber Road, Diamond Creek, Victoria (Premises).
The Premises are owned by Francesco Filardo and his wife, Anita Filardo. Francesco Filardo has informed the Tribunal that the SDA at the Premises would be provided by an incorporated association that Francesco Filardo has founded and of which, he is the sole officeholder or committee member. This incorporated association is the Australian Dual Diagnosis Recovery Network Inc (the Network Inc).
Currently, Francesco Filardo lives in the Premises with his wife, Vincenzo Filardo and their other son. They have lived there for quite some time. The Premises is a very large house situated in a semi-rural setting. The whole of the Premises is on one title. There are different sections to the house which Francesco Filardo has described as Apartments 1, 2 and 3. Francesco Filardo told the Tribunal that he and his wife sleep in a bedroom next to the bedroom of Vincenzo Filardo, in the same two-bedroom “apartment” within the house.
On 7 February 2017, the Network Inc was registered by the NDIA as a service provider to provide “accommodation/tenancy” at the Premises with effect from 1 July 2016.[1] Two “dwellings” at the Premises (i.e. two of the “apartments”), were registered as eligible dwellings with effect from 14 January 2017.[2]
[1] Provider registration no. 4050005828.
[2] Registration numbers for the two eligible dwellings: No.VIC1469-U1 and No.VIC1469-U2 with a registration no.4-3-LLK-2321.
When asked by the Tribunal at the hearing, Francesco Filardo said that he was a member of Network Inc and that there were seven members in total. He was asked to provide the names of all members of the Network Inc. He was unable to do so. Francesco Filardo was asked to produce the Register of Members. He undertook to do so in due course. Directions were made for this document, among others identified at the hearing, to be provided by Francesco Filardo to the Tribunal. To date, the Register of Members for Network Inc has not been produced to the Tribunal. The Certificate of Incorporation for the Network Inc was produced, showing that it was registered in Victoria as an incorporated association on 29 June 2007.
STATUS OF APPLICATION FOR REVIEW
The principal application is part-heard. Vincenzo Filardo did not attend the first three days of the hearing of this application which took place from 3 to 5 March 2020.
Francesco Filardo previously engaged the provision of legal services by legal staff employed with the AED Legal Centre operated by an incorporated association by the name of Association of Employees with Disabilities Inc (AED), and counsel briefed by the AED Legal Centre. A representative from the AED Legal Centre and counsel appeared on behalf of the Applicant at the hearing of this application from 3 to 5 March 2020.
Francesco Filardo was present at the hearing and gave oral evidence. He did so in his capacity as Vincenzo Filardo’s appointed plan nominee and as his father.
Neither Francesco Filardo, nor any other person, has been appointed as a legal or litigation guardian of Vincenzo Filardo by the Victorian Civil and Administrative Tribunal (VCAT). However, the Tribunal was informed that Anita Filardo has been appointed by VCAT to manage Vincenzo Filardo’s financial affairs. Anita Filardo was not present at the hearing at any stage.
On the third day of the hearing, the NDIA made an “open offer” to Vincenzo Filardo which, if accepted, would have had the effect of adding several supports or increased level of supports to his statement of participant supports. The NDIA tendered this “open offer” to the Tribunal. This offer did not include the SDA at the apartment at the Premises that had been requested by Francesco Filardo, purportedly on behalf of Vincenzo Filardo. After the “open offer” was made, an adjournment was sought by counsel briefed by AED and the Tribunal granted the adjournment. Francesco Filardo was present when this adjournment application was made and no objection to this request was made by him.
ISSUE ARISING AS TO REPRESENTATION OF THE APPLICANT
Shortly after the hearing was adjourned on 5 March 2020, Francesco Filardo wrote to the Tribunal to advise that he had terminated the agreement in place with AED. Further correspondence received from AED Legal Centre, the NDIA’s representatives and Francesco Filardo, informed the Tribunal that an issue had arisen about whether Vincenzo Filardo should be represented in this application and if so, by which person or entity.
A representative of AED and Francesco Filardo signed an agreement entitled “AED Client Agreement” in about July 2019. Francesco Filardo was described in this agreement as the “Client”. The agreement does not refer to Vincenzo Filardo in any place or to the proceeding before this Tribunal. The Tribunal’s understanding is that the legal staff from the AED Legal Centre and counsel briefed in the matter were both acting on a “pro bono” basis.
After the adjournment of the hearing on 5 March 2020, Francesco Filardo immediately wrote to AED Legal Centre to terminate the AED Client Agreement.
The Tribunal received a letter from AED Legal Centre dated 20 March 2020 stating as follows:
…
Kindly note that it is our view that as a matter of law, as we are lawyers representing the Applicant (Vincenzo Filardo), AED and counsel are not able to withdraw from the proceedings. AED and counsel wish to participate and make submissions at the Case Conference by Telephone on Friday 30 March 2020 at 9:30AM.
At the telephone directions hearing on 25 March 2020, AED Legal Centre and counsel briefed by it appeared and contended that despite the termination by Francesco Filardo of the AED Client Agreement, AED was originally engaged to represent Vincenzo Filardo in the present application for review before the Tribunal and considered that AED and counsel, remained as Vincenzo Filardo’s representatives in this application.
SEEKING THE NDIS PARTICIPANT’S VIEWS
One of the primary objectives of the NDIS Act is to support the independence of people with disability and to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.[3] This objective is reflected within several of the laws and regulations establishing the scheme and the way it is to be implemented.
[3] Refer subsection 3(1)(c) and (e) of the NDIS Act.
The provisions in the NDIS Act reflect that plan nominees are to be appointed as a last resort. Where a plan nominee is appointed, the rules which govern nominees highlight that the statutory objective of enabling people with disability to exercise choice and control is particularly relevant to the operation of the rules concerning nominees. This is set out in r 1.2 of National Disability Insurance Scheme (Nominees) Rules 2013 (Nominees Rules). The Nominees Rules also highlight several general principles for the NDIS that should be applied including that:
(a)people with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports, as set out in r 1.2(b);
(b)people with disability have the same right as other members of the Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity, as set out in r 1.2(c);
(c)people with disability should be supported in all their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs, as set out in r 1.2(d);
(d)the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected, as set out in r 1.2(e); and
(e)where acts or things are done on behalf of persons with disability, among other things, they should be involved in decision-making that affects them, including making decisions for themselves, to the extent possible; they should be encouraged to engage in the life of the community; and the judgements and decisions they would have made for themselves should be taken into account, as set out in r 1.2 (f)(i), (ii) and (iii).
Being appointed as a nominee for a NDIS participant carries with it significant responsibilities. The NDIS Act and the Nominees Rules provide that the nominee will have several duties that they owe to an NDIS participant upon being appointed as his or her nominee.
The first is a duty to ascertain the wishes of and to promote the personal and social wellbeing of the participant, as set out in s 80 of the NDIS Act and as reflected in r 5.3 and r 5.4 of the Nominees Rules.
The nominee also has a duty to avoid and manage any conflicts of interest as set out in r 5.12 of the Nominee Rules and is obligated to inform the CEO of the NDIA of any such conflict if it arises. Rule 5.13 specifies without limiting r 5.12, that a conflict will arise if the nominee is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the provision of any services for fee or reward to the participant.
Further, r 5.10 and r 5.11 of the Nominees Rules provide that the nominee has a duty to apply their best endeavours to developing the capacity of the participant to make their own decisions, where possible to a point where the nominee is no longer necessary, and that the NDIA will assist the nominee in fulfilling this duty.
In light of the issues raised by the correspondence referred to in paragraph [14] to [17] above and the overarching objectives, principles and duties owed to NDIS participants, as outlined above, the Tribunal listed the matter for an urgent telephone directions hearing on 25 March 2020. The Tribunal requested that Francesco Filardo make the necessary arrangements for Vincenzo Filardo to be available on the telephone at this directions hearing, so that the Tribunal could seek his views relevant to the issue of representation and this application generally.
At the commencement of the telephone directions hearing, the Tribunal asked Francesco Filardo whether Vincenzo Filardo was present. Francesco Filardo informed the Tribunal that Vincenzo Filardo was not present as he was “still under control of the medication he is taking”. Francesco Filardo informed the Tribunal that Vincenzo Filardo was taking the medication Clozapine and that he is “always sedated”. When asked whether there were times of the day when Vincenzo Filardo was not on that medication, Francesco Filardo said “No, he has to take it every day. If not, he would have to go to hospital”.
After further questioning by the Tribunal, Francesco Filardo said there were some times in the day when Vincenzo Filardo was sedated and other times when he was not. The Tribunal asked Francesco Filardo whether it would be possible to arrange for Vincenzo Filardo to call the Tribunal at a time of his choosing to answer some questions. Francesco Filardo said “No” and explained that Vincenzo Filardo did not speak to anyone and only came out to eat.
Subsequently, at the suggestion of the Tribunal, Francesco Filardo indicated that he would not oppose a process whereby Ms Anja Jesbera-Hoogendijk, an occupational therapist (who has previously met with Vincenzo Filardo in person and spoken to him on the telephone), arranged to contact Vincenzo Filardo by telephone to ask him some questions that the Tribunal would like answered. Ms Jesbera-Hoogendijk holds a Master of Occupational Therapy Practice from La Trobe University. It was proposed by the Tribunal that Ms Jesbera-Hoogendijk would then prepare a report recording Vincenzo Filardo’s responses to the Tribunal’s questions and provide it to the Tribunal and the parties.
Ms Jesbera-Hoogendijk undertook the above process. On 6 April 2020, Ms Jesbera-Hoogendijk was able to speak to Vincenzo Filardo by telephone and she prepared a report of the same date. The relevant part of Ms Jesbera-Hoogendijk’s report is set out below:
The following questions were put to Vincenzo Filardo. His answers are noted verbatim. Additional questions, which the OT asked to clarify, are also noted verbatim.
a. Do you know that you have a Government disability plan in place to pay for certain things that might help you?
“Yeah”
b. Do you know that your father has been appointed to make decisions for you about what help you will receive under that plan?
“Yes”
c. Are you happy for your father to keep making these decisions for you? Or would you prefer to make your own decisions about these things?
“Depends what it is. I would like to be asked at the same time. We both have to agree.”
d. Do you know there is a legal case going on in a Tribunal about what should be included in your plan?
“I am not sure.”
Additional question asked by the OT: “Do you understand the question?”
“Yeah, I understand the question. I never knew there was a legal case.”
e. Would you like to be involved in the hearing of this case, even if this only involved making a short telephone call to the Tribunal to say what you would like included in your plan?
“I am not sure. I don’t know what all this stuff is about.”
f. Who would you like to have represent you at this hearing?
i. Do you want your father to represent you?
ii. AED Legal which is a law firm has told the Tribunal that they think they are presently representing you in this case, but your father does not want them to be involved anymore – would you like AED Legal to continue representing you?
iii. Or would you like some other person to represent you and if so, who?
“I don’t know”
g. If you were free to choose, where would you like to live now?
“Here”
h. If you were free to choose, where would you like to live in the future, if your parents were no longer able to care for you?
“Here”
i. If you were free to choose, are there some activities you would like to start doing to help fill your days (when it is safe to do so)?
“No, it’s not safe because of that virus.”
Additional information provided by the OT: “Let’s say when this virus is over? Somewhen in the future?”
i. Would you like to start the weekly sessions again with your personal trainer?
“Not at the moment.”
Additional question asked by the OT “Why not?”
“Because I got a sore back.”
ii. Would you like someone to start coming to the house to help you get involved in gardening or to do some go-carting on the track you have there?
“I don’t know, my life is up and down.”
iii. Would you like someone to take you to places outside of the house?
“Sort of, yeah…When are you coming back to visit me at my house again? We could cook another meal.”
The OT advised that she was currently asked to only call Vincenzo but that she might be able to visit him again in the future.
PROCEDURES BEFORE THE TRIBUNAL AND REPRESENTATION OF VINCENZO FILARDO
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) established the Administrative Appeals Tribunal. The AAT Act provides that in carrying out its functions the Tribunal is to pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal, quick, proportionate to the importance and complexity of the matter, and promotes public trust and confidence in the decision-making of the Tribunal.[4]
[4] Refer s 5 and s 2A of the AAT Act respectively.
Section 27 of the AAT Act provides that where the AAT Act or any other enactment[5] provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons whose interests are affected by the decision.
[5] Other than the Australian Security Intelligence Organisation Act 1979.
Section 30 of the AAT Act describes who may be a party to a proceeding before the Tribunal and provides that the parties are:
(a)any person who, being entitled to do so, has duly applied to the Tribunal for review of the decision;
(b)the person who made the decision;
(c)the Attorney-General if he intervenes under s 30A of the AAT Act; and
(d)any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A), being a person whose interests are affected by the decision.
Section 32 of the AAT Act deals with issue of representation before the Tribunal and is set out below (as relevant):
Parties
(1)At the hearing of a proceeding before the Tribunal, the following parties may appear in person or be represented by another person:
(a)a party to a proceeding in a Division…;
(b)…
(2) …
(3) …
Persons required to appear
(4) A person who is required to appear in a proceeding before the Tribunal may, with the permission of the Tribunal, be represented by another person.
As provided for in s 33 of the AAT Act, the procedure of the Tribunal in a proceeding is within the discretion of the Tribunal, subject to the AAT Act and its regulations and any other enactment. The proceeding shall be conducted with as little formality and technicality and with as much expedition as the requirements of the AAT Act and of every other relevant enactment, in this case the NDIS Act, and a proper consideration of the matters before the Tribunal require.
Section 33 of the AAT Act also allows the Tribunal to inform itself on any matter in such manner as it thinks appropriate. Subsection 33(1AA) and (1AB) impose an obligation on the decision-maker and on a party to a proceeding or their representative to use their best endeavours to assist the Tribunal to make a decision (in the case of decision-makers) or to fulfil the Tribunal’s objective under s 2A of the AAT Act (in the case of the parties or their representative). Section 33(2A)(a) expressly empowers the Tribunal to make directions requiring any person who is a party to the proceeding to provide further information in relation to the proceeding.
At the present time, the Applicant in the proceeding before the Tribunal is Vincenzo Filardo. Until Ms Jesbera-Hoogendijk telephoned him on 6 April 2020, it seems that Vincenzo Filardo had no knowledge of this proceeding which has been on foot since September 2018.
As mentioned above, the principal application was lodged by a disability advocate who is no longer involved in assisting Vincenzo Filardo. The application has continued since the time of lodgement under the instruction and direction of Francesco Filardo and as represented by legal staff from the AED Legal Centre and counsel, from about July 2019 until shortly after the hearing on 5 March 2020.
Francesco Filardo’s position has been consistent leading up to, at and since the hearing, in that he has urged the Tribunal to consider only his request for an additional support of SDA at the apartment located within the Premises to be included in Vincenzo Filardo’s statement of participant supports. He has been resistant to address any consideration of the other supports that are either available to Vincenzo Filardo presently, or have been offered to him by the NDIA, unless the NDIA agrees to fund SDA at the apartment within the Premises.
At the hearing, Francesco Filardo was asked by counsel representing the NDIA whether he regarded himself as having a conflict of interest given his role with the service provider, i.e. Network Inc, which is to provide the SDA being the apartment with the Premises if it becomes a support under Vincenzo Filardo’s NDIS plan. Francesco Filardo was adamant that there was no conflict of interest. The NDIA subsequently wrote a letter dated 25 March 2020 once again asserting that Francesco Filardo had a conflict of interest and that he had failed to disclose this to the NDIA. The Tribunal can understand the NDIA’s concerns in this regard and this issue will be ventilated when the hearing of the principal application resumes.
However, the situation at present is that Francesco Filardo is currently appointed by the NDIA as Vincenzo Filardo’s plan nominee. As far as the Tribunal is aware, no action has been taken by the NDIA, at this stage at least, to either cancel or to suspend that appointment.
On 31 March 2020, Francesco Filardo wrote to the Tribunal indicating that he was unable to attend to this matter as his wife had been unexpectedly hospitalised and he described himself at the base of this letter as Vincenzo Filardo’s “ex-nominee”. Francesco Filardo subsequently clarified with the Tribunal that was not stepping down and that he would remain as Vincenzo Filardo’s plan nominee.
For now though, the Tribunal notes that a delegate of the CEO of the NDIA issued an Instrument of Appointment on 20 December 2018 appointing Francesco Filardo as Vincenzo Filardo’s plan nominee under s 86 of the NDIS Act. The appointment took effect on 20 December 2018. This instrument and the NDIA’s covering letter of the same date was produced to the Tribunal.
In the NDIA’s covering letter, the delegate referred to Vincenzo Filardo having requested that a plan nominee be appointed, and that Vincenzo Filardo wished for Francesco Filardo to be appointed. The delegate also stated in this letter that Francesco Filardo “had agreed to” the requested appointment.
Subsection 86(3) of the NDIS Act provides that the appointment may limit the matters in relation to which a person is appointed as the plan nominee. The appointment of Francesco Filardo as plan nominee was expressly limited in that he is not permitted to manage the funding for the supports under the plans.
The Tribunal called for documentation, such as file notes, from the NDIA to confirm whether Vincenzo Filardo had been consulted by representatives of the NDIA or had agreed to his father becoming his plan nominee prior to his appointment. The NDIA provided documents it had in its possession relating to this appointment. The NDIA indicated that there were no file notes retained due to a computer issue. In short, there were no documents provided that confirmed details of any consultations with Vincenzo Filardo prior to his father’s appointment as plan nominee, other than the general references made in the delegate’s covering letter.
The Tribunal is satisfied that based on the recent dialogue between Vincenzo Filardo and Ms Jesbera-Hoogendijk as set out in paragraph [29], that as at 6 April 2020 Vincenzo Filardo is aware that he has a plan under which he receives supports and also that Francesco Filardo had been appointed to make decisions for him about the supports he is to receive under that plan. From Vincenzo Filardo’s answers given to Ms Jesbera-Hoogendijk, the Tribunal gained an impression that he seemed content for this to continue to be the case depending on what decisions were being made and provided that he was asked about it and agreed to those decisions.
Division 1 of Part 5 of Chapter 4 of the NDIS Act deals with the functions and responsibilities of nominees, and s 78 sets out the actions that a plan nominee may take on behalf of a participant, relevantly, for a plan nominee appointed at the request of the participant, as follows:
(1)Any act that may be done by a participant under, or for the purposes of, this Act that relates to:
(a) the preparation, review or replacement of the participant’s plan; or
(b)the management of the funding for supports under the participant’s plan;
may be done by the participant’s plan nominee, other than to the extent specified in the instrument of appointment of the plan nominee.
(2)Without limiting subsection (1), a request that may be made under this Act by a participant may be made by the participant’s plan nominee on behalf of the participant.
(3)An act done by a participant’s plan nominee because of this section has effect, for the purposes of this Act (other than this Part), as if it had been done by the participant.
…
Currently, while the appointment of Francesco Filardo as plan nominee stands, the apparent breadth of a 78(1)(a) of the NDIS Act potentially encompasses allowing for Francesco Filardo to do an act that Vincenzo Filardo would otherwise be entitled to do as a party to the principal application for review before this Tribunal. A view could be taken that this principal application “is related to” the review of Vincenzo Filardo’s NDIS plan because it seeks review of a decision which may ultimately affect the statement of participant supports in his February 2018 plan and potentially, his subsequent NDIS plans.
However, the Tribunal considers that it does not need to decide this question in order to resolve the issue relating to representation in a proceeding before this Tribunal, because:
(a)the procedures for a proceeding before the Tribunal are within the discretion of the Tribunal as provided for in s 33 of the AAT Act, subject to s 32 which provides that a party to a proceeding may be represented by another person and the Tribunal may give permission for a person required to appear at a proceeding to be represented; and
(b)the Tribunal is empowered to inform itself on any matter in such manner as it thinks appropriate as also provided for in s 33 of the AAT Act.
The Tribunal is also mindful that the processes that take place before it when hearing review applications are intended to be informal.
CONCLUSION
Considering the matters referred to above, the Tribunal regards it as appropriate for this application to proceed on the following bases.
In preparation for the resumed hearing of this application, the Tribunal will make directions to ensure that the Tribunal hears from Vincenzo Filardo (either directly or if necessary, indirectly through an appropriate medical or allied health practitioner), in relation to his lived experience and preferences for ongoing supports to be provided to him under the NDIS as relevant to this application. The Tribunal is satisfied that Vincenzo Filardo is able to express his views, as demonstrated by the cogent answers he provided to Ms Jesbera-Hoogendijk when she contacted him by telephone on 6 April 2020, and in fact, he insisted that depending on the decision to be made, that he wanted to be consulted and that alongside his plan nominee, he had to agree to it. The Tribunal considers that consistent with the objectives and principles under the NDIS Act as set out in these Reasons for Interlocutory Decision, all parties concerned, including Francesco Filardo as his current plan nominee, the Tribunal and the NDIA, must actively seek out, respect and be guided by Vincenzo Filardo’s stated wishes in this regard.
The Tribunal is content for Francesco Filardo to remain as Vincenzo Filardo’s representative in the principal application as his current appointed plan nominee and as his dedicated father who provides him with daily care. The examination of Francesco Filardo as a witness in this application will resume at the resumed hearing. Before the hearing is concluded, Francesco Filardo will be given an opportunity to examine the expert witness intended to be called by the NDIA and to make oral closing submissions in support of Vincenzo Filardo’s application for review. The Tribunal will provide Francesco Filardo with the assistance of an Italian interpreter should he require one.
The Tribunal considers that while it is honourable the AED and counsel briefed by AED wish to remain involved as the representative of Vincenzo Filardo in this proceeding, absent a new agreement for the provision of legal or advocacy services being reached between Vincenzo Filardo (either directly or via his plan nominee) and AED, the Tribunal does not consider it appropriate to permit AED and counsel briefed to represent Vincenzo Filardo from this point forward. The previous basis upon which AED and counsel were briefed to represent Vincenzo Filardo, being the agreement reached between AED and Francesco Filardo, has now been terminated by the person who made that agreement with AED. The Tribunal is unable to identify any other reasonable justification or basis upon which to permit AED and counsel to remain as Vincenzo Filardo’s representative in this proceeding. The Tribunal acknowledges the tremendous assistance that has been provided by AED and counsel to the Tribunal in this proceeding to date. That assistance has been greatly appreciated by the Tribunal.
INTERLOCUTORY DECISION
For the reasons outlined above, the Tribunal decides that Francesco Filardo being the Applicant’s father and appointed plan nominee under the NDIS Act will continue to represent the Applicant in this application and that as from the date of this interlocutory decision, AED (formerly engaged by Francesco Filardo) and counsel briefed by AED are excluded from doing so.
56. I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the interlocutory decision of Member K. Parker
[sgd].....................................................................
Associate
Dated: 21 April 2020
Date of interlocutory hearing: 25 March 2020 Advocate for the Applicant: Francesco Filardo Counsel for the Respondent: Darren A Bruno Solicitors for the Respondent:
Counsel briefed by AED:
Maddocks
Murray McInnis
2
0
0