Grace Disability Services Australia Pty Ltd as Trustee for Gracemanor Services Trust and Commissioner of the NDIS Quality and Safeguards Commission
[2023] AATA 1337
•26 May 2023
Grace Disability Services Australia Pty Ltd as Trustee for Gracemanor Services Trust and Commissioner of the NDIS Quality and Safeguards Commission [2023] AATA 1337 (26 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/1440
Re:Grace Disability Services Australia Pty Ltd as Trustee for Gracemanor Services Trust
APPLICANT
AndCommissioner of the NDIS Quality and Safeguards Commission
RESPONDENT
File Number(s): 2023/2591
Re:Grace Disability Services Australia Pty Ltd as Trustee for Gracemanor Service Trust
APPLICANT
AndCommissioner of the NDIS Quality and Safeguards Commission
RESPONDENT
INTERLOCUTORY DECISION
Tribunal:Senior Member K. Parker
Date:26 May 2023
Place:Melbourne
The Applicant has made an application that the Tribunal stay these applications numbered 2023/1440 and 2023/2591, pending the outcome of other proceedings currently on foot before the Victorian Civil and Administrative Tribunal (VCAT). The applications before VCAT seek review of decisions revoking the registration of related parties as supported residential services under the Supported Residential Services (Private Proprietors) Act 2010 (Vic). There is commonality in respect of the facts and issues to be determined in the VCAT applications and the proceedings before this Tribunal which relate to the registration of the Applicant as a NDIS-service provider.
After hearing from the parties at an interlocutory hearing on 25 May 2023 and upon consideration of detailed submissions lodged by both parties ahead of that hearing, for the reasons set out in these Reasons for Interlocutory Decision the Tribunal has decided it is appropriate to stay these proceedings before this Tribunal, until otherwise directed by this Tribunal.
The Tribunal has decided that it will conduct a further interlocutory hearing on 17 November 2023, at which time it will revisit the question of whether these proceedings should continue to be held in abeyance beyond that date.
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Senior Member
Catchwords
PRACTICE AND PROCEDURE – decisions by Commissioner of NDIS Quality and Safeguards Commission to suspend and refuse to register a service provider under the National Disability Insurance Scheme Act 2013 (NDIS Act) - application to stay proceedings in Administrative Appeals Tribunal (AAT) until proceedings in the Victorian Civil and Administrative Tribunal regarding the revocation of the registration of related parties as supported residential services under Supported Residential Services (Private Proprietors) Act 2010 (Vic) are finalised – Tribunal grants the application and will hold the AAT applications in abeyance until otherwise directed – Tribunal will hold a further interlocutory hearing on 17 November 2023 to revisit the question of whether the stay of proceedings should continue
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Supported Residential Services (Private Proprietors) Act 2010 (Vic)Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Cases
12 Years Juice Foods Australia Pty Ltd & Others and Commissioner of Taxation [2017] AATA 1091
Andrews and National Disability Insurance Agency [2022] AATA 1532
Luck v Department of Human Services [2008] AATA 718
McMahon v Gould (1982) 7 ACLR 202
Re the Applicant and Australian Prudential Regulation Authority [2005] AATA 529Re Sogo Duty Free Pty Ltd and Commissioner of Taxation (Cth); Re Trade World Enterprises Pty Ltd and Commissioner of Taxation (Cth) [2005] AATA 1298
REASONS FOR INTERLOCUTORY DECISION
The Applicant has made an application that these proceedings be held in abeyance or stayed, pending the outcome of proceedings currently on foot before the Victorian Civil and Administrative Tribunal (VCAT) in respect of decisions to revoke the registrations of related parties as supported residential services (SRS) under the Supported Residential Services (Private Proprietors) Act 2010 (Vic), in which there is commonality in respect of the facts and issues to be determined in these proceedings before the Administrative Appeals Tribunal (this Tribunal).
After hearing from the parties at an interlocutory hearing on 25 May 2023 (Interlocutory Hearing) and upon consideration of detailed submissions lodged by both parties ahead of that hearing, the Tribunal has decided it is appropriate to stay the proceedings before this Tribunal, until otherwise directed by this Tribunal.
The Tribunal has decided that it will conduct a further interlocutory hearing on 17 November 2023, at which time it will revisit the question of whether the proceedings before this Tribunal should continue to be held in abeyance beyond that date.
BACKGROUND
Directions hearing on 14 April 2023
The Applicant lodged application numbered 2023/1440 with the Tribunal on 7 March 2023. Given the complexity of this matter, it was listed for an “early event” directions hearing before the Tribunal, as presently constituted, on 14 April 2023 (Directions Hearing).
At the Directions Hearing, the Applicant was represented by Mr Tanguy Mwilambwe from GTC Lawyers. Mr Mwilambwe confirmed that the Trustee for the Gracemanor Service Trust is Grace Disability Services Australia Pty Ltd. The Applicant trades as “Grace Disability Services” which has until recently (that is, until 23 December 2022) delivered disability-related support services to participants of the National Disability Insurance Scheme (NDIS) as a NDIS-registered service provider under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
Decision to suspend Applicant’s registration as NDIS-service provider
On 11 November 2022, the Applicant’s NDIS registration was suspended following a decision of a delegate of the Commissioner of the NDIS Quality and Safeguards Commission under s 73N of the NDIS Act. The suspension notice states that the period of suspension was 11 November 2022 to 12 December 2022 (30 days). This shall be referred to as the Suspension Decision.
The reasons given for the Suspension Decision were that the delegate was no longer satisfied that the key personnel of Grace Disability Services are suitable to be involved in the provision of supports or services to people with disability. Those key personnel are Mr Pradeep Divakar and Ms Parvinder Kaur, who are officeholders of Grace Disability Services Australia Pty Ltd.
The Applicant sought an internal review of the Suspension Decision under s 100 of the NDIS Act. On 7 February 2023, a different delegate of the Commissioner (specifically, its Chief Operating Officer), affirmed the Suspension Decision (Suspension IRD).[1]
[1] Refer Tribunal Documents at T3/167.
The decision-makers who made the Suspension Decision and the IRD, in making their decisions, state that they relied upon findings made against Mr Divakar and Ms Kaur by the Victorian Human Services Regulator (HSR), who revoked the SRS registration of two separate companies Newdimension Australia Pty Ltd (Newdimension) and Sydenham Grace Pty Ltd (Sydenham Grace). Those companies are run by Mr Divakar and Ms Kaur, respectively. The decision of the HSR to revoke the SRS registration of Newdimension was made on 27 May 2022.[2] The decision to revoke the SRS registration of Sydenham Grace was made on 21 June 2022.[3] The Tribunal will refer to these decisions collectively as the HSR Decisions.
[2] Ibid, T3/245.
[3] Ibid, T3/315.
Both Newdimension and Sydenham Grace have sought reviews of the HSR Decisions, and they are the subject of separate review proceedings currently before the VCAT.
Decision to refuse registration of Applicant as NDIS-service provider
On 23 December 2022, a delegate of the Commissioner of the NDIS Quality and Safeguards Commission made a decision to refuse an application by the Applicant for (renewed) registration as a registered NDIS provider (Registration Decision).[4] The stated reason for the decision not to grant the Applicant’s application for registration was that Mr Divakar and Ms Kaur, as key personnel for the Applicant, were not considered by the delegate as suitable to be involved in the provision of supports or services for which the Applicant had sought registration. The effect of the Registration Decision was that the Applicant’s registration as a registered NDIS-service provider ceased as of 23 December 2022. Mr Mwilambwe confirmed at the Directions Hearing that the Applicant has not been operating as a NDIS-service provider since 23 December 2022, as a consequence of the Registration Decision.
[4] Ibid, T3/232.
The Tribunal was informed at the Directions Hearing that an internal review decision had been made which affirmed the decision to refuse registration of the Applicant as a NDIS-provider (Registration IRD) and that a further application for review to this Tribunal was imminent.
On 20 April 2023, the Applicant lodged an application for review by this Tribunal in relation to the Registration IRD (application numbered 2023/2591). As foreshadowed at the Directions Hearing, the Tribunal has directed that this application be linked to application numbered 2023/1140. The linking of the two applications was consented to by both parties at the Directions Hearing. The two linked applications will now proceed and be heard simultaneously.
Review applications on foot before VCAT to revoke registration of related entities as SRS providers
Mr Mwilambwe informed the Tribunal at the Directions Hearing that the issues arising in the applications before this Tribunal, are related to the issues currently being considered by VCAT in the applications referred to above regarding the decisions to revoke the registrations of Newdimension and Sydenham Grace (VCAT Applications).[5]
[5] Refer VCAT applications in the Review and Regulation List numbered Z54/2022, Z391/2022 and Z481/2022.
At the Directions Hearing, Mr Mwilambwe said that the Respondent was due to lodge further material in the VCAT Applications and they are unlikely to be determined until the end of 2023. Mr Mwilambwe told the Tribunal that he is acting for Newdimension and a different lawyer is acting for Sydenham Grace.[6] He said that it was anticipated that in the ‘Newdimension’ VCAT application, about 20 witnesses would be called to give evidence. He suggested that it “would complicate things” if the matters before this Tribunal were proceeded with, before the VCAT Applications were determined. He clarified that he was requesting on behalf of this client that the applications before this Tribunal be stayed until the VCAT Applications have been decided. He said that the VCAT Applications have been linked and would be heard and decided simultaneously.
[6] This lawyer was later confirmed by Mr Mwilambwe to be Ms U Jayawardena from ALF Lawyers.
At the Directions Hearing, Mr Phelps referred to a Statement of Issues lodged by the Respondent on 13 April 2023. Mr Phelps proposed that the Applicant lodge a Statement of Issues of its own. In respect of Mr Mwilambwe’s request at the Directions Hearing that the application before this Tribunal be held in abeyance, Mr Phelps indicated that the Respondent was open to considering it, as they saw some sense in this suggestion, but would need to take instructions.
At the Directions Hearing, this Tribunal made directions requiring:
(a)the Respondent to lodge an updated Statement of Issues addressing both applications before this Tribunal;
(b)the Applicant to lodge a Statement of Issues; and
(c)the Respondent to lodge a reply to the Applicant’s Statement of Issues.
Interlocutory hearing on 25 May 2023
The Tribunal has now considered the detailed submissions of the parties and listed these applications for an interlocutory hearing which took place on 25 May 2023 (Interlocutory Hearing).
Immediately before the Interlocutory Hearing, Mr Mwilambwe lodged with the Tribunal a copy of Orders made by VCAT on 22 May 2023 in relation to the VCAT Applications (VCAT Orders). The VCAT Orders list the VCAT Applications for:
(a)a Compulsory Conference on 12 September 2023; and
(b)a directions hearing on 16 November 2023 to determine an application made by the Department of Families, Fairness and Housing (DFFH), for a security for costs order under s 79 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)).
At the Interlocutory Hearing, Mr Mwilambwe referred to the VCAT Orders and said that it was now unlikely that the VCAT Applications would not be decided before the end of the 2023 (calendar) year (as previously expected). However, Mr Mwilambwe said that the Compulsory Conference was likely to provide an opportunity for the parties in the VCAT Applications to confine the issues is dispute. He explained that since the Directions Hearing, his clients had been able to obtain a large amount of documentation from Ernst & Young who were “administering” the related companies’ operations prior to their SRS registrations being revoked by the HSR. He said that it was no longer necessary to request summonses seeking production of such documents. Mr Mwilambwe said that there had also been a “private mediation” and as a result of this, the DFFH had provided to his client a comprehensive table of complaints. The client responded to each of the complaints in this table in writing by lodging a table in response on 22 May 2023, with 2,500 pages of supporting evidence.
RELEVANT LEGISLATIVE PROVISIONS
Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides as follows:
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.
Section 2A of the AAT Act provides as follows:
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.
CONSIDERATION
Applicant’s contentions in support of its application
The Applicant, in its Statement of Issues (SOI) dated 9 May 2023, contends that it is not in dispute that the HSR Decisions were “imperative” to the Suspension Decision and Registration Decision.[7] The Applicant contends that the outcome of the VCAT Applications is: [8]
…important and wholly relevant to the matter in front of the Tribunal due to the information relied upon by HSR in making their decisions being disputed, and said information formed the basis and foundation for the Respondent’s registration and suspension decisions. Should the VCAT proceedings conclude and reveal alternative findings to the original HSR decisions then the matters in front of the Tribunal will greatly be affected.
[7] Refer Applicant’s SOI dated 9 May 2023 at paragraph [16].
[8] Ibid at paragraph [18].
Further, the Applicant contends as follows:[9]
Once decisions have been made with regards to the VCAT proceedings relating to the Newdimension Decision and Sydenham Grace Decision, the parties to these proceedings and the Tribunal will have further clarity regarding the facts of the matter and will have greater ease and efficiency in facilitating the processes and reaching a decision.
[9] Ibid at paragraph [21].
Respondent’s position in relation to the application
The Respondent, in its SOI dated 23 May 2023, noted that the VCAT Applications involved reviews of decisions made by the HSR to revoke the SRS registrations of the two SRS proprietors, on the basis of factual findings also relied upon by the Respondent when both suspending the Applicant’s registration and refusing its application for registration.
The Respondent acknowledged the Tribunal’s power to grant a stay of its own proceedings in a variety of legal and procedural contexts, and factual situations: see, for instance, Andrews and National Disability Insurance Agency [2022] AATA 1532 (Andrews), 12 Years Juice Foods Australia Pty Ltd & Others and Commissioner of Taxation [2017] AATA 1091, and Re the Applicant and Australian Prudential Regulation Authority [2005] AATA 529. The Respondent acknowledged that any stay of proceedings would be a discretionary decision on the Tribunal’s part, relying on s 33(1)(a) of the AAT Act.
The Respondent highlighted the comments of the (now former) Deputy President Forgie in the decision of Luck v Department of Human Services [2008] AATA 718 at [51], that the power to stay a proceeding is “an exceptional power and should only be exercised in exceptional circumstances”.
The Respondent contends as follows:[10]
[10] Refer Respondent’s SOI dated 23 May 2023 at paragraph [9].
9. In Andrews and National Disability Insurance Agency [2022] AATA 1532, in which the NDIA sought a stay of the Tribunal’s proceeding until the applicant, Mr Andrews, voluntarily attended two independent medical assessments, the Tribunal noted the series of matters that the NSW Supreme Court had identified for consideration when determining whether to stay civil proceedings, in McMahon v Gould (1982) 7 ACLR 202. These included:
a. Prima facie a plaintiff was entitled to have his action tried in the ordinary course of the procedure and business of the Court;
b.It was a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
c. The burden was on a defendant in a civil action to show that it is just and convenient that a plaintiff’s ordinary rights should be interfered with;
d. Neither an accused or the Crown are entitled to have a civil proceeding stayed because of a pending or possible criminal proceeding, as a matter of right;
e. The Court’s task is one of balancing the justice between the parties, taking account of all relevant factors; and
f. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define what the relevant factors are in the abstract.
10. The Tribunal in Andrews went on to note at [53] that ‘The circumstances of each case will be different, and each case must be assessed on its own particular merits. The effects on both parties must be carefully considered in weighing up the competing considerations for or against ordering a stay. It is imperative that the review is carried out in pursuit of the Tribunal’s objective in the provision of its mechanism of review in accordance with s 2A of the AAT Act’. Having noted the importance of the possessing additional information generated by Mr Andrew’s assessments for the purpose of reviewing the relevant decision, the Tribunal in Andrews decided to grant the stay sought by the NDIA.
The Respondent further contends as follows:
Further, on the matter of section 2A of the AAT Act the Respondent notes that in Re Sogo Duty Free Pty Ltd and Commissioner of Taxation (Cth); Re Trade World Enterprises Pty Ltd and Commissioner of Taxation (Cth) [2005] AATA 1298, where the applicants sought a stay of proceedings pending the finalisation of criminal proceedings, the Tribunal considered that in the circumstances of the case it was appropriate to stay proceedings, while noting that ‘protracted delays in the determination of an application are arguably inconsistent with the Tribunal’s objective under s2A of the AAT Act to provide a review mechanism which is, inter alia, quick, but at the same time the Tribunal does not consider it would be fair or just to insist that the matter proceed in circumstances which might prejudice the rights of an individual at a forthcoming criminal trial.’ [emphasis added].
Returning to the circumstances of the present matter, the Respondent’s position by the time of the Interlocutory Hearing was that, on balance, it does not oppose a stay of the applications before this Tribunal. The Respondent invited the Tribunal to take into account the following considerations when exercising its discretion in relation to the Applicant’s stay application:[11]
a. The Applicant’s contention that the outcome of the VCAT proceedings could impact on the Tribunal’s consideration of this matter is not without merit (for the reasons given at point (d) below). However, that is not to say that the matters in the Tribunal could not, as a matter of practicality and legality, proceed.
b. Further, this is not a case involving concurrent administrative and criminal proceedings. It is therefore arguable that a lesser degree of prejudice might be involved in having the Tribunal proceedings continue despite the VCAT matters being on foot (that is, there are no questions or issues around self-incrimination or a potentially adverse impact on a related criminal prosecution).
c. Unlike in Andrews, it is the Applicant in this case, not the Respondent, who seeks a stay. The notion of ‘plaintiff entitlement’, or interference with it, in this instance is therefore of limited or no significance (or otherwise an impediment).
d. In terms of balancing interests otherwise, the Applicant has sought a stay on the basis of a perceived advantage it would derive in advancing its substantive arguments. At the same time, there would be no material disadvantage occasioned to the Respondent.
e. In Andrews the Tribunal was able to assess the impact of non-access to certain information on its decision-making in determining that a stay should be granted (in order that the information, which was considered important, could be obtained). While it is not clear from the Applicant’s submissions what material value there would be in having the VCAT proceedings resolved in this matter, the Respondent accepts that the conduct of the VCAT proceeding may enlighten or inform the Tribunal on evidentiary matters relevant to the current proceedings, including the presentation or production of additional evidentiary material that may be informative at the point of hearing. However, whether the outcome of any VCAT proceeding would ‘greatly’ affect the Tribunal’s proceedings is, in the Respondent’s submission, debatable at this point in time.
f. Having regard to advice provided by the Applicant at the initial directions hearing, as well as its written submissions, it appears possible that proceedings before VCAT may be determined before the end of the 2023 calendar year. The Respondent notes that the proceedings before VCAT are more advanced than those currently before the Tribunal, and it is therefore possible that any stay granted with respect to the Tribunal’s proceedings could be relatively short.
g. The Applicant raises a number of practical considerations or concerns around the continuation of the Tribunal’s proceedings at the initial directions hearing. While not reiterated in the Applicant’s Statement of Issues in Reply, the Respondent understands that a significant amount of evidence preparation is being undertaken in relation to the VCAT proceedings, and that the individuals instructing the Applicant’s legal representative are heavily involved in that. If the Respondent understands the Applicant correctly, it is concerned that effort may need to be duplicated, and the advancement of arguments coordinated, in order to run cases before both the Tribunal and VCAT in an effective and fair manner (noting that substantive hearings in the matters will likely be held at different times). While the running of separate, related matters is possible, and will certainly have occurred in other instances where stays have not been granted, the Respondent acknowledges there would likely be some additional burden imposed on the Applicant if the Tribunal proceedings were to continue.
[11] Ibid paragraph [14].
At the Interlocutory Hearing, Mr Phelps on behalf of the Respondent told the Tribunal that it did not have too much to add beyond what was set out in the Respondent’s submissions. Mr Phelps indicated that it was helpful to have heard what Mr Mwilambwe had to say in terms of the timing of the VCAT Applications. However, Mr Phelps said this did not change the position of the Respondent as to whether it should oppose the request for a stay of the proceedings before this Tribunal. Mr Phelps mentioned that there remained a lack of clarity about the degree of commonality of the issues and facts between the two sets of proceedings before VCAT and this Tribunal, but that the provision of additional documentation and any confining of issues which might arise from the forthcoming Compulsory Conference may assist in clarifying this issue of the degree of commonality.
CONCLUSION
At the Interlocutory Hearing, the Tribunal indicated to the parties that it was inclined to grant the Applicant’s request for a stay of proceedings, but that it would do so on the basis that the Tribunal would continue to closely monitor the progress of the VCAT Applications. While the precise degree of commonality between the two sets of proceedings is presently unclear, it is expected that there is likely to be a significant degree of commonality between the two sets of proceedings. The Tribunal also accepts that the pending Compulsory Conference at VCAT, may lead to an outcome that affects these proceedings before this Tribunal.
The Tribunal is mindful of its obligation under s 2A of the AAT Act to proceed with matters before it in a timely manner. However, given the complexity of this matter and the fact that each set of proceedings before VCAT and this Tribunal will involve the consideration of the suitability of the same individuals to provide either supported residential services or disability residential services, tips the Tribunal in favour of granting a medium duration stay (that is, between now and mid-November 2023) to allow matters to further evolve. As a practical matter, the Tribunal also notes that the Applicant is no longer operating and that it is the Applicant, not the Respondent, who is seeking the stay of proceedings.
Accordingly, the Tribunal directs that the proceedings before this Tribunal will be held in abeyance, until further direction by the Tribunal and at a further interlocutory hearing on 17 November 2023, the Tribunal will revisit the question of whether these proceedings should remain on hold.
The Tribunal will refer this matter to Registry to be listed for a further interlocutory hearing on 17 November 2023. By then, further information will have come to light about whether the Compulsory Conference before VCAT results in the narrowing of the issues and if so, what issues remain in dispute in that proceeding. Further, the security for costs application will have run its course at VCAT and more will be known about the likely future progress (and timings) of the VCAT Applications. At that time, the Tribunal will make a further decision about whether to continue to the stay of proceedings in the matters before this Tribunal or to proceed with them.
Further, the Tribunal directs that at least 14 days before the next interlocutory hearing on 17 November 2023 that the Applicant lodge a further Statement of Issues with any relevant supporting documentation, such as the Position Paper referred to by the Applicant which is due to be lodged at VCAT in September 2023 and any further procedural Orders made by VCAT. Finally, the Tribunal directs that at least 7 days before the next interlocutory hearing on 17 November 2023, that the Respondent lodge a further Statement of Issues with any relevant supporting documentation about the issue of whether the Tribunal should continue to hold this matter in abeyance beyond 17 November 2023.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 26 May 2023
Date of hearing: 25 May 2023 Date final submissions received: 23 May 2023 Advocate for the Applicant: Mr Tanguy Mwilambwe Solicitors for the Applicant: GTC Lawyers Advocate for the Respondent: Mr Luke Phelps & Mr Fernando Espinosa
In-house Lawyers,
NDIS Quality and Safeguards Commission
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