Frost and National Disability Insurance Agency - [2024] AATA 114

Frost and National Disability Insurance Agency [2024] AATA 114 (24 January 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/2848
Re:Ms Katherine Frost
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member J Collins
Date:24 January 2024
Date of written reasons: 5 February 2024
Place:Brisbane

The Applicant’s application for an adjournment of the substantive hearing listed for 7, 8 and 9 February 2024 is refused.
..................................[SGD]....................................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME DIVISION – Application to adjourn three consecutive days of substantive hearing – Listing Notice provided to Applicant 16 weeks prior to request – Direction made for parties to attend Hearing 16 weeks prior to request – Applicant booked a holiday three weeks after receiving Listing Notice and Direction – Where only one support remains in dispute – Responsible use of public resources - Application refused.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013
Cases
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Aquamore Credit Equity Pty Ltd v Maroon (No 2) [2024] FCA 14
REASONS FOR DECISION
Senior Member J Collins
5 February 2024
BACKGROUND
History of the application

This decision concerns an interlocutory application by the Applicant, Ms Frost for an adjournment of the substantive hearing of a merits review of a decision made by the National Disability Insurance Agency (‘the Agency’).
Ms Frost is 38 years old. She currently has access to the National Disability Insurance Scheme (‘the Scheme’) for the following conditions:
(a)Primary conditions:
(i)Autism Spectrum Disorder (Level 2);
(ii)Fibromyalgia;
(b) Secondary conditions:
(i)Bipolar Disorder;
(ii)Rheumatoid Arthritis;
(iii)Osteoarthritis; and
(iv)Major Depressive Disorder.
On 10 March 2022 a delegate of the Agency approved a statement of participant supports for Ms Frost that included $76,058.25 of total funded supports for a 24-month period. On the same day Ms Frost requested a review of that decision.
On 30 March 2022 the delegate affirmed the decision to approve the statement of participant supports (‘the decision under review’). On 5 April 2022 Ms Frost made an application to the Administrative Appeals Tribunal (‘the Tribunal’) for review of that decision.
Between June and September in 2023 the Tribunal facilitated four directions hearings to narrow down the supports still in dispute between Ms Frost and the Agency and progress the matter towards a substantive Hearing.
The Directions Hearing
On 15 September a directions hearing was held for the purpose of determining whether the matter could be listed for a substantive hearing (‘the Directions Hearing’). Ms Frost and two representatives of the Agency attended the Directions Hearing.
At the Directions Hearing both parties confirmed to the Tribunal that no further evidence was to be provided and that the matter could be listed for a substantive hearing.
The Tribunal proposed a substantive hearing over their first available dates, namely 7, 8 and 9 February 2024 (‘the substantive hearing dates’).
In response to the Tribunal’s proposal of the substantive hearing dates Ms Frost expressed her opprobrium in stating “that sounds awful…that will be coming up on two years that this tribunal has taken to finalise. That’s- its ludicrous, it’s absolutely ludicrous. This is abominable.”
During the Directions Hearing Ms Frost also made the following comments directed at the Agency’s legal representative:
“How dare you drag this out till February next year? Putting me through this, this is ludicrous. It's unethical. This is disgraceful. You should all feel ashamed.”
Ms Frost also referenced the length of time which had transpired since the commencement of her application as “a waste of taxpayers’ money”.
Notwithstanding her displeasure at what she considered was an unacceptable delay in a substantive hearing of her application in February 2024, Ms Frost advised the Tribunal at Directions Hearing that she was “available” to attend a hearing on 7,8 and 9 February 2024.
In this regard the transcript records the following exchange:
Tribunal: “…are you available on those days”?

Ms Frost: “Yes.”
………
Ms Frost: “I’ll appear in person.”
The Direction
At the conclusion of the Directions Hearing the Tribunal made a Direction (‘the verbal Direction’) that Ms Frost’s application be listed for a substantive hearing on 7, 8 and 9 February 2024. The Tribunal also advised that this verbal Direction would be issued in writing (‘the Direction Order’).
Shortly after the Direction Hearing was adjourned, and on that same day, an officer of the Tribunal sent to Ms Frost an email dated 15 September 2023 (‘the September 2023 email’) with the subject description ‘Listing Notice & Direction’. The email stated:
Dear Ms Frost
Please find attached an order accompanied by a Listing Notice in this matter. (Tribunal emphasis)
Attached to the September 2023 email were two attachments:
-A Listing Notice for the substantive hearing; and
-The Direction Order.
The Listing Notice stated as follows:
Dear Ms Frost
APPLICANT: Katherine Frost
RESPONDENT: National Disability Insurance Agency
This application has been listed as shown below:
Hearing
Date: Wednesday, 7 February 2024
Time: 10:00AM
Location: Hearing Room 2.01, Level 2
Address: 295 Ann St
BRISBANE QLD 4000
Hearing - Resumed
Date: Thursday, 8 February 2024
Time: 10:00AM
Location: Hearing Room 2.01, Level 2
Address: 295 Ann St
BRISBANE QLD 4000
Hearing - Resumed
Date: Friday, 9 February 2024
Time: 10:00AM
Location: Hearing Room 2.01, Level 2
Address: 295 Ann St
BRISBANE QLD 4000
Directions [5] and [6] of the Direction Order stated:
[5] “On or before 11 January 2024 the parties agree upon and file with the Tribunal a correctly indexed and paginated Joint Index Bundle including all submissions that parties wish to rely on at hearing and schedule of witnesses.
[6] On 7, 8 and 9 February 2024 the parties attend a substantive hearing in person.”
Request for Adjournment
On 11 January 2023 the Tribunal received an email from Ms Frost which stated as follows:
Good afternoon,
I request a reschedule of dates for the upcoming hearing for the matter: 2022/2848.
I am unable to be available for Tribunal obligations, for the following dates;
5th February 2024 - 13th February 2024.
On that same day the Tribunal received the following email from the Agency’s legal representative:
We refer to the Tribunal direction which requires that on or before 11 January 2024, the parties agree upon and file with the Tribunal a joint index bundle and a schedule witnesses.
We confirm that a joint index bundle and schedule of witnesses has been provided to the applicant, however we have not received confirmation from the applicant that these can be filed. We will continue to liaise with the applicant and update the Tribunal.
On 19 January 2023 at 10:00AM an officer of the Tribunal telephone Ms Frost in regard to her request to reschedule. The officer referred Ms Frost to the September 2023 email from the Tribunal which attached the Listing Notice and the Direction Order. Ms Frost advised the officer that she had not received the September 2023 email. Ms Frost, subsequently during the conversation confirmed she had received the September 2023 email but not read it. Ms Frost also stated she would be in Bali for the dates of 5 - 13 February 2024.
Later that same day the Tribunal received an email from Ms Frost with the subject line ‘REQUEST ADJOURNMENT’ attaching a document titled ‘AAT RESCHEDULE REQUEST’ (‘the 19 January 2023 email’). Included as part of that document was the following submission:
Only (1) one funding request remains in contention; all other funding requests have been agreed upon and resolved via email.
The only funding request that is still being deliberated on, is how many hours of funding should be considered ‘reasonable and necessary’ for a Support Worker to transport and accompany myself to monthly social events.
(Emphasis in original)
On 22 January 2024 an email attaching a Listing Notice for an Interlocutory Hearing on 24 January 2024 (‘the January Listing Notice’) was emailed by the Tribunal to Ms Frost. The email stated as follows:
Dear Ms Frost
The Tribunal received your request by email dated 19 January 2024 to adjourn the hearing of this matter.
It is noted that on 15 September 2023 this matter was listed for hearing on 7, 8 and 9 February 2024.
Senior Member Collins is not prepared to adjourn the hearing of this matter at this late stage without a substantive explanation from the Applicant.
Senior Member Collins has therefore scheduled an interlocutory hearing on Wednesday 24 January 2024 at 9:00am. The purpose of the interlocutory hearing will be for Applicant to provide reasons for the request and for the Agency to provide its views in response. Senior Member Collins will thereafter consider the adjournment request.
The parties should be aware that if this hearing date is vacated a further hearing date prior to June 2023 is highly unlikely.
The Tribunal attaches a Listing Notice for an interlocutory hearing in this matter.
On 23 January 2024 Ms Frost telephoned an officer of the Tribunal asking if her 19 January 2024 email had been received by the Tribunal. The officer confirmed receipt of the 19 January 2024 email. The officer advised Ms Frost that her adjournment request would be considered at the Interlocutory Hearing on 24 January 2024. The officer also advised that a Listing Notice for the Interlocutory hearing on 24 January 2024 had been sent to Ms Frost by email on 22 January 2024 (‘the 22 January 2024 email’).
During this telephone conversation Ms Frost advised the Tribunal officer that she had not received the 22 January 2024 email with the attached Listing Notice. Subsequently, in the telephone conversation Ms Frost confirmed that she had received the 22 January 2024 email.

The Interlocutory Hearing

On 24 January 2024 Ms Frost and two representatives of the Agency attended the Interlocutory Hearing. Ms Frost was asked to provide reasons for her request to adjourn.
Ms Frost confirmed that on 7 October 2023 she purchased three return airline tickets to Bali in respect of travel arrangement for herself and her two children, aged 15 and 8. Ms Frost further confirmed that on that same day she also purchased seven nights accommodation at the Grand Inna, Kuta, Bali. Ms Frost stated that the purpose of the flight and the accommodation arrangements was for a holiday with her two children as a “conjoined birthday holiday” (‘the Bali Holiday’).
The Tribunal raised with Ms Frost her comments made at the September 2023 TDH including her acknowledgement that she would attend and was available to attend a substantive hearing on 7, 8 and 9 February 2024 as referred to at paragraphs [12] and [13] above. Ms Frost responded:
“I have not intentionally stuffed around the length of this Tribunal. Even those comments should highlight I have been personally outraged at how long this has taken. So yes, I have inadvertently extended the length of this trial with my request.”
When asked by the Tribunal if she had seen the September 2023 email which attached the Listing Notice and Direction Order Ms Frost stated:
“I'd read the first attachment. I suppose I did not read the second one. It's as simple as that. It's exactly what I say it is. It was an oversight on my part, and it's completely inadvertent.”
In regard to Direction [6] in the Direction Order the Agency advised that a draft Joint Index Bundle and a schedule of witnesses had been provided to Ms Frost on 11 January 2024. Further that no response had been received from Ms Frost to indicate whether or not she agreed to these documents.
Ms Frost was asked why she had not responded to the Agency’s email of 11 January 2024 in respect of the joint index bundle and schedule of witnesses, and stated:
“I haven't addressed it because I assumed this was the next matter to be addressed is and I put in my request for the rescheduled hearings that, let's be honest, there's one matter outstanding.”
The Agency’s legal representative confirmed to the Tribunal the Agency was in all respects ready to proceed to hearing.
The Agency also stated they had instructions to consent to Ms Frost's request for an adjournment, however, that they would not consent to any further requests for an adjournment.
THE ISSUE BEFORE THE TRIBUNAL
The Tribunal must determine whether an adjournment of Ms Frost’s substantive hearing, scheduled to commence on 7 February 2024 for three consecutive days should be granted.
THE LEGISLATIVE FRAMEWORK
Administrative Appeals Tribunal Act 1975
The Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) provides the legislative framework relevant to the Tribunal’s discretion in a decision of whether or not to grant an adjournment in these circumstances.
The Tribunal’s objectives in a merits review are set out in section 2A of the AAT Act and provides as follows:
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)       is accessible; and
(b)       is fair, just, economical, informal and quick; and
(c)       is proportionate to the importance and complexity of the matter; and
(d)       promotes public trust and confidence in the decision‑making of the Tribunal.
In a proceeding before the Tribunal the procedure to be adopted by the Tribunal is provided for in section 33 of the AAT Act, which states as follows:
33 Procedure of Tribunal
(1)       In a proceeding before the Tribunal:
(a)       the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)       the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)       the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Of further relevance is section 40 of the AAT Act which identifies the powers of the Tribunal in conducting its review and states as follows:
40 Powers of Tribunal etc.
(1)       For the purpose of reviewing a decision, the Tribunal may:
(a)       take evidence on oath or affirmation;
(b)       proceed in the absence of a party who has had reasonable notice of the proceeding; and
(c)       adjourn the proceeding from time to time.
(Tribunal emphasis)
Having regard to these statutory provisions, in an application to adjourn a proceeding the Tribunal must exercise its discretion mindful of the Tribunals objectives of conducting reviews that are fair, just, economical, quick and promote public trust and confidence.
Relevant case law
The High Court in Aon Risk Services Australia Limited v Australian National University[1] (‘Aon’) considered the ‘principles’ relevant to the exercise of the Court’s discretion in relation to an application for adjournment for the purpose of leave to amend pleadings. These principles inform the Tribunal and provide guidance in the exercise of its discretion in the context of an application for adjournment of a listed hearing date.
[1] [2009] HCA 27.
In Aon the High Court held that the approach to an application for an adjournment should not confined by reference to an arguable claim, subject to the payment of costs by way of compensation. Rather, the High Court identified additional considerations relevant to the exercise of a discretion to refuse or grant an adjournment. These additional considerations included the use of court resources, case management considerations, claims of other litigants, public interests and confidence in the judicial system.
French CJ explained; [2]
“Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system’.
[2] Ibid, at [5].
Of further guidance Gummow, Hayne, Crennan, Keifel and Bell JJ in their joint judgment made the following comments:
“…the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the Court and upon other litigants.
Further, that
An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend.”
Recently in Aquamore Credit Equity Pty Ltd v Maroon (No 2) [2024] FCA 14 Stewart J stated:
“...the matters that should be considered in the context of an adjournment application include: (a) the explanation for the adjournment; (b) the detriment to other parties; and (c) the detriment to the court and other litigants – this is not an exhaustive list. See Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175.”
Noting that the Tribunal’s jurisdiction does not extend to costs, it follows that these additional considerations, aside from any issue of prejudice, are of particular significance to the Tribunal in the exercise of its discretion as whether or not to grant an adjournment.

THE PARTIES CONTENTIONS

Ms Frost’s position

Ms Frost’s position is that the booking of the Bali holiday during the listed substantive hearing dates was an inadvertent oversight and that she has tried to rectify it “in every way possible”.

The Agency’s position.

The Agency consents to Ms Frost’s request for adjournment. Notwithstanding, the Agency is prepared for attendance at a substantive hearing on 7, 8 and 9 February 2024.

CONSIDERATION

Ms Frost’s application for the adjournment of the substantive hearing of her merits review listed for 7, 8 and 9 February 2024 is refused. My considerations are as follows:
Ms Frost acknowledges that during her attendance at the September 2023 Directions Hearing she confirmed her availability to attend a substantive hearing on 7, 8 and 9 February 2024.
At the September 2023 Directions Hearing Ms Frost also confirmed to the Tribunal that she would attend “in person” at a substantive hearing on 7, 8, 9 February 2024.
At the conclusion of the September 2023 Directions Hearing a direction was made in writing and provided to the parties by email. That direction stated that the parties were required to attend a substantive hearing on 7, 8 and 9 February 2024.
Ms Frost has conceded that she did in fact receive the September 2023 email, however that she had read only one of the two attachments to this email which were a Listing Notice and a Direction Order.
Irrespective of whichever attachment Ms Frost read, both the Listing Notice and the Direction Order clearly state that a substantive hearing of Ms Frost’s application was to take place on 7, 8 and 9 February 2024.
I do not accept that Ms Frost is impaired by any condition which affects her ability to remember, understand, comprehend, organise herself or prepare for the listed substantive hearing date. This is on the basis that Ms Frost has clearly demonstrated her ability and capacity to prepare and manage her application before the Tribunal including making substantive submissions in regard to her adjournment request at short notice. Further, on the basis of her ability to prepare and organise herself and her two children for overseas flight travel to Bali and make the associated accommodation arrangements.

Ms Frost has demonstrated an unacceptable level of disregard to the verbal direction made at the September 2023 Directions Hearing, the September 2023 email, the Listing Notice and the Direction Order.
Ms Frost has in my view failed to prioritise the listing of the substantive hearing of her merits review with the appropriate level of importance and priority that it deserves. This is particularly so in the context of the waste in the use of Tribunal resources that an adjournment will give rise to. This waste extends to the interests of other applicants who are ready to proceed to a substantive hearing and awaiting the allocation of a hearing date against a backlog of a large number of applicants.
Ms Frost’s reason for requesting the adjournment is for a purely elective and recreational purpose, being a holiday to Bali with her two children.
To grant an adjournment of a substantive hearing so close to the listed hearing date on the basis of an applicant’s preference for a holiday to Bali would in my view erode public trust and confidence in the processes of the Tribunal and its obligations to be economical and quick.
Likewise, to grant an adjournment in these circumstances would disregard the interests of the significant backlog of other applicants awaiting hearing of their merits review. In this regard I refer to those other applicants who have met their obligations to the Tribunal with the appropriate level of importance, diligence and priority.
Finally, in refusing Ms Frost’s application for adjournment I am not satisfied that there is sufficient prejudice suffered that would displace the Tribunal’s obligations as previously referred to in this decision. In this regard I note the following:

Having refused Ms Frost’s request for an adjournment Ms Frost remains with the opportunity to continue with her merits review at the substantive hearing on 7, 8 and 9 February 2024.
Ms Frost’s attendance at the substantive hearing commencing on 7 February 2024 is for her own consideration. Any decision to proceed with the Bali holiday is at her election.
On the basis of Ms Frost’s failure to appear at the substantive hearing the Tribunal has the power to dismiss her application pursuant to section 42A(2) of the AAT Act. In the event of dismissal it is possible for the following to occur:
ofor Ms Frost to seek re-instatement of her application pursuant to section 42A(8A) of the AAT Act; and
ofor Ms Frost to request a reassessment of her statement of participant supports directly from the Agency at any time pursuant to section 48 of the National Disability Insurance Act 2013. In this regard I note Ms Frost’s submission that her application has recently been confined to only one support.
Accordingly, the dismissal of Ms Frost application pursuant to section 42A(2) does not deprive or act as a bar to Ms Frost seeking funding for supports in the future.

The Applicant’s application for an adjournment of the substantive hearing listed for 7, 8 and 9 February 2024 is refused.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins
……………………[SGD]…………………..
5 February 2024
Associate