Gabriela and Chief Executive Officer, National Disability Insurance Agency

Gabriela and the Chief Executive Officer of the National Disability Insurance Agency (NDIA) were before the Administrative Appeals Tribunal (AAT) concerning a review of the NDIA's decision regarding the Applicant's NDIS plan. The Applicant, an NDIS participant with a psychosocial impairment, sought additional supports in a reassessment of her plan. While the NDIA agreed to reassess the plan, the subsequent plan did not include all the requested supports and made no changes to the plan management arrangements. The Applicant was dissatisfied with this outcome and initiated administrative review proceedings in the AAT.

The central issue before the Tribunal was whether it should exercise its discretion under s 40A(2) of the AAT Act to refuse the NDIA's application for a summons to be issued to My Plan Manager.com.au Pty Ltd, a registered plan management provider that had recently ceased to be the Applicant's plan manager. The NDIA sought the summons to obtain documents from My Plan Manager, and the Applicant objected to its issue, arguing it constituted a "fishing expedition" and lacked necessary particularity. The Applicant also sought to have the summons set aside, contending that the Tribunal had the power to rescind or revoke the summons under s 33(3) of the Acts Interpretation Act 1901 (Cth).

The Tribunal considered that a summons issued under s 40A(1)(b) of the AAT Act is an instrument of an administrative character. Therefore, by operation of s 33(3) of the Acts Interpretation Act, the power to issue a summons includes the power to rescind or revoke it after it has been made. The Tribunal was satisfied that the Applicant's objection was pressed and that the summons had been complied with by the plan manager by the date of the hearing.

The Tribunal dismissed the Applicant's application to set aside the summons. It found that the Applicant's objection was made after the summons had been issued and complied with. The Tribunal concluded that the issue of relevance and particularity of the documents sought by the summons would be determined at a later stage, and that the summons itself was a valid administrative instrument.