Grace Disability Services Australia Pty Ltd as trustee for the Gracemanor Services Trust and Commissioner of the NDIS Quality and Safeguards Commission (Practice and procedure)

[2025] ARTA 1299

Grace Disability Services Australia Pty Ltd as trustee for the Gracemanor Services Trust and Commissioner of the NDIS Quality and Safeguards Commission (Practice and procedure) [2025] ARTA 1299 (11 August 2025)

Applicant:Grace Disability Services Australia Pty Ltd as trustee for the Gracemanor Services Trust

Respondent:  Commissioner of the NDIS Quality and Safeguards Commission

Tribunal Number:                2023/1440, 2023/2591

Tribunal:General Member C Willis   

Place:Melbourne

Date:  11 August 2025

Decision:The Tribunal dismisses the application in each of proceeding 2023/1440 and 2023/2591 under paragraph 101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth).

.........................[SGD]...........................

General Member C Willis 

Catchwords

PRACTICE AND PROCEDURE – review of decision to suspend registration as NDIS provider – review of decision to refuse to register as NDIS provider – concurrent proceedings in VCAT involving related parties and issues – non-compliance by applicant with Tribunal directions – effect of banning order prohibiting applicant from being registered as NDIS provider – whether applications should be dismissed for non-compliance – whether applications should be dismissed on basis of no reasonable prospects of success -  whether applications should be put in abeyance pending resolution of VCAT proceedings – applications dismissed.

Legislation

Administrative Review Tribunal Act 2024 (Cth) – ss 49, 79,100, 101
Administrative Review Tribunal (Common Procedures) Practice Direction 2024 – paragraphs 5.12 to 5.13
National Disability Insurance Scheme Act 2013 (Cth) – ss 73ZN, 73ZO, 100

Cases

Charara v Commissioner of Taxation [2016] FCA 451
Re Filsell and Comcare [2009] AATA 90
KGS v GMS [2024] SASCA 85
Kristoffersen and Secretary, Department of Social Services [2018] AATA 524
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Parata [2021] FCAFC 46
Taylor and National Disability Insurance Agency [2021] AATA 1042
Waller and Chief Executive Officer, National Disability Insurance Agency [2025] ARTA 169

Statement of Reasons

INTRODUCTION

1. Grace Disability Services Australia Pty Ltd as trustee for the Gracemanor Services Trust (the Applicant) has filed applications for review by the Tribunal of two decisions made by the Commissioner of the NDIS Quality and Safeguards Commission (the Respondent).  The first of these applications was made in March 2023 (Tribunal Number 2023/1440) and the second in April 2023 (Tribunal Number 2023/2591).  The Tribunal made an order linking the two applications on the basis that they involve the consideration of a common set of facts, issues and contentions, and therefore the two applications were to be heard simultaneously.

2. There have been significant delays in progressing these applications to a substantive hearing and instances of non-compliance by the Applicant with directions of the Tribunal.  The matter was listed for a two-week substantive hearing in June/July 2025 which did not proceed.  The Respondent is now seeking orders for the applications to be dismissed.  The Applicant opposes dismissal and conversely is seeking an adjournment or abeyance of the applications before the Tribunal pending resolution of other proceedings in another tribunal.

   History of applications to the Tribunal

3. Until around December 2022, the Applicant was a registered service provider under the National Disability Insurance Agency Act 2013 (Cth) (the NDIS Act) and delivered disability-related support services to participants of the National Disability Insurance Scheme (the NDIS).

4. The decisions under review relate to:

   (a)The suspension by the Respondent of the Applicant’s NDIS registration[1] in November 2022 for 30 days, which was the subject of an internal review by the Respondent which affirmed the original suspension on 7 February 2023 (the ‘Suspension Review Decision’), and

   (b)The decision by the Respondent in December 2022 to refuse an application by the Applicant for registration as an NDIS provider which was also the subject of an internal review by the Respondent which affirmed its original decision on 29 March 2023 (the ‘Refusal Review Decision’).

   [1] Under section 73N of the NDIS Act.

5. At a high level the decisions of the Respondent were based on a view that two individuals associated with the Applicant, Mr Divakar and Ms Kaur, were not considered by the Respondent as suitable to be involved in the provision of supports or services for which the Applicant had sought registration.  This view, again at a high level, was related to findings made by the Victorian Human Services Regulator (the HSR), which had made decisions under Victorian legislation to revoke the “supported residential services” (‘SRS’) registration of two other companies (Sydenham and NewDimension) also run by Mr Divakar and Ms Kaur.

6. The decisions made by the HSR in relation to Sydenham and NewDimension are the subject of separate proceedings in the Victorian Civil and Administrative Review Tribunal (VCAT).

7. The applications before this Tribunal have been the subject of several directions hearings, from which a number of procedural directions have been issued with the aim of progressing the matters to some form of appropriate resolution. 

8. At a first directions hearing on 14 April 2023 the Applicant was represented by Mr Mwilambwe who informed the Tribunal about the relationship between the issues in the VCAT proceedings and the present applications.  Mr Mwilambwe had awareness of the VCAT proceedings as he was acting for NewDimension.  He told the Tribunal that the Respondent in the VCAT proceedings was due to lodge further material and that approximately 20 witnesses were likely to be called in those proceedings.  He thought it unlikely that the VCAT proceedings would be heard before the end of 2023.  On the basis that complications might arise if the proceedings in this Tribunal progressed before the resolution of the VCAT matters, the Applicant requested an abeyance of the proceedings before this Tribunal.  The Tribunal agreed to this request, but noted its intention to case manage these applications closely and list a further directions hearing for November 2023.

9. In April and May 2023, the parties filed their Statements of Issues, and the Applicant filed documents by way of supporting evidence.  The Applicant filed a further Statement of Issues in early November 2023 and the Respondent filed submissions.  At this time the Respondent appears to have been in agreement that an abeyance of the Tribunal proceedings was appropriate pending the VCAT matters.

10. At a directions hearing on 15 November 2023 the Tribunal was given a further update on the VCAT proceedings and agreed to hold the applications in abeyance for a further period. Directions were made for a further directions hearing in April 2024, with the Applicant to provide the Tribunal with a ‘full report’ on the progress of the VCAT proceedings no later than 3 business days prior to the directions hearing.

11. Further directions were issued by consent on 4 April 2024 for a directions hearing to be listed later in 2024 and the Applicant to provide the Tribunal with a ‘full report’ on the VCAT proceedings no later than 14 business days prior to the next directions hearing.

    Directions made in September 2024

12. A directions hearing was held on 12 September 2024.  Two weeks before the directions hearing the Tribunal undertook its usual ‘pre-hearing check’ to confirm attendance by the parties and to remind the Applicant of its obligation to provide an update on the VCAT proceedings but was unable to contact Mr Mwilambwe. 

13. The Applicant’s solicitors wrote to the Tribunal advising that there was a ‘potential’ directions hearing in VCAT and that dates for a final hearing in March or April 2025 were being discussed between the parties in the VCAT matters.  They also claimed that the HSR, the respondent in the VCAT proceedings, had withdrawn several of its allegations against Sydenham and NewDimension, although no evidence was provided to support the detail of these matters.  The Applicant’s solicitor attached a copy of orders of VCAT dated 25 July 2024.[2]

    [2] The Applicant had previously provided a copy of earlier orders of VCAT dated 12 March  2024 indicating a resumed confidential conference between the parties on 25 July 2024.

14. A solicitor from the firm which then employed Mr Mwilambwe confirmed his attendance, but on the day of the directions hearing Mr Mwilambwe did not appear[3] and another solicitor from the firm represented the Applicant.  Unfortunately, that solicitor was unable to provide any further information about the status of the VCAT proceedings.  The Respondent told the Tribunal that they also did not have information about the status of the VCAT proceedings.  The Tribunal expressed its concern that there was no apparent progress with the VCAT matters and no indication of a listing of a hearing in VCAT.

    [3] At the interlocutory hearing Mr Mwilambwe apologised for his absence in September 2024 and advised that he had been in a location where weather conditions affected communications.

15. On 23 September 2024 Senior Member Parker issued a series of directions (‘September 2024 Directions’) for timetabling the application to a substantive hearing.  In Notes to her September 2024 Directions SM Parker outlined her concerns that the Tribunal could not have confidence that the VCAT matters would progress to a hearing in the time suggested by the Applicant.  She stated:

    In these circumstances and noting the extended length of time that this matter has been before this Tribunal, the Tribunal considers it appropriate to list this matter for a substantive hearing before this Tribunal and to make procedural directions for the lodgement of submissions and evidence by the Parties. The dates chosen for the substantive hearing (that is in June/July 2025) will provide one last opportunity for the Parties in the VCAT matter to finalise any settlement discussions and if the matter does not settle, to progress matters before VCAT. But, as the Tribunal has previously foreshadowed, it cannot wait for all time for the VCAT matter to be completed. A reasonable period of time has been allowed for this to happen, but now this Tribunal must proceed with its review as per its statutory obligations under s 2A of the Administrative Appeals Tribunal Act 1975 (Cth).

16. Senior Member Parker’s directions and notes make clear that the Tribunal was concerned about the applications’ lack of progress.  The September 2024 Directions included the following:

    (c)The Applicant was to lodge its Statement of Facts, Issues and Contentions (SFIC) and Hearing Tender Bundle including any other witness statements or documents it intended to rely upon (the HTB) on or before 2 May 2025.

    (d)The Respondent was to lodge its SFIC and HTB by 30 May 2025.

    (e)The parties were to provide a joint witness schedule by 6 June 2025.

    (f)A case management directions hearing would be listed for 13 June 2025.

    (g)The applications would be listed for a substantive hearing across 10 days from 30 June to 11 July 2025.

    (h)If a party did not believe they would be able to comply with a timeframe or direction they were to contact the Tribunal for an extension of time or variation of the direction, well before the date by which they were due to comply.

17. Listing notices for the case management directions hearing and the substantive hearing were also sent to the parties on 23 September 2024.  The substantive hearing was to be held in person at the Melbourne Registry of the Tribunal.

    Interlocutory matters

18. The Applicant did not file any materials on or before 2 May 2025 as directed by Senior Member Parker, and did not contact the Tribunal to request an extension of time for or variation of the September 2024 Directions.

19. On 12 May 2025 the Respondent made an application to the Tribunal for the applications for review to be dismissed under section 101 of the ART Act (‘Dismissal Application’).  The Respondent provided an affidavit sworn by Hugh Copley, Commission Counsel at the Respondent (‘Copley Affidavit’).  The Respondent submitted that:

    (a)On 15 December 2023 the Respondent made a banning order decision under section 73ZN of the NDIS Act which permanently prohibited the Applicant from being involved, directly or indirectly, in the provision of supports or services to NDIS participants, with effect from 8 January 2024. The Applicant had not sought a review of, or otherwise challenged the banning order. Under subsection 73E(3) of the NDIS Act the Respondent is not permitted to register an applicant which has a banning order in force. Accordingly, even if the Applicant were successful in having the Suspension Review Decision and/or Refusal Review Decision set aside by the Tribunal, the Applicant would still remain banned from providing NDIS supports or services under the Banning Order Decision. Therefore, the applications should be dismissed under section 101(1)(b) of the ART Act on the basis that they had no reasonable prospects of success. Any favourable outcome to the Applicant on the applications would be rendered futile by the banning order.

    (b)The application for review of the Suspension Review Decision was ‘frivolous’ on the basis that the Suspension Review Decision was only operative from 11 November 2022 to 12 December 2022.  The application for review could therefore serve no purpose for the Applicant and the Tribunal’s resources should not be used in continuing this application.  The application for review of the Suspension Review Decision should be dismissed under paragraph 101(1)(a) of the ART Act on this (further or alternative) basis.

    (c)In relation to the Refusal Review Decision, for the Applicant to be registered as an NDIS provider, it must satisfy the requirements of section 73E of the NDIS Act which include being assessed by an approved quality auditor.  The Applicant’s application to renew its registration, which was the subject of the Refusal Review Decision, was made in September 2019 and any audit assessments conducted for the purposes of that renewal request were now out of date.  Therefore, the application relating to the Refusal Review Decision should also be viewed as ‘misconceived’ and ‘lacking in substance’ for the purposes of paragraph 101(1)(a).

20. On 16 May 2025 the Tribunal wrote to the parties confirming receipt of the Respondent’s Dismissal Application and asking the Applicant to confirm to the Tribunal by 21 May 2025 why it had not complied with the September 2024 Direction for it to lodge materials by 2 May 2025.  The Tribunal referred to the substantive hearing which was still listed for 30 June to 11 July 2025 and advised that on the basis of the material before it would consider listing an interlocutory hearing in relation to the Dismissal Application.

21. On 20 May 2025 the Respondent wrote to the Tribunal seeking a direction that the applications be adjourned to a date after final orders are made in the VCAT proceedings.  At this time the matter was still listed for a 10-day hearing commencing on 30 June 2025.  They noted that Sambi Legal had advised them the day before that it had just been retained by the Applicants, and it appeared that the Applicants had been self-represented for a period up until 14 May.  The Respondent accepted that Mr Divakar and Ms Kaur would be occupied with instructing their lawyers in the VCAT matter.  The Respondent suggested a directions hearing to consider the adjournment question, the Dismissal Application and the Applicant’s non-compliance.

22. On 21 May 2025 the Tribunal received a letter from Sambi Legal which was now acting for the Applicant.  Mr Mwilambwe was now employed by this firm and was the co-author of the letter. Sambi Legal advised that:

    (a)The Applicant’s non-compliance with the September 2024 Directions arose from ‘a lack of understanding of the procedural requirements in this matter.’  Sambi Legal had only been recently retained by the Applicants who had self-represented previously.

    (b)The VCAT proceedings had been set down for a final hearing on 6 October 2025, pursuant to orders dated 3 April 2025 (which were attached[4]).  The Applicant reiterated its previous advice to the Tribunal that the issues arising in the VCAT proceedings were closely related to those arising in the applications before this Tribunal.  The Applicant also claimed that once additional documents were filed with VCAT it was ‘likely that at least half of the allegations’ made against the applicants in those proceedings would be withdrawn by that respondent.   The Applicant was confident that once the VCAT proceedings had been finalised it would be able to proceed with its matters before the Tribunal in a ‘timely and organised manner.’

    (c)The Applicant maintained that it was necessary for the Tribunal to hear its applications, and that its applications were not frivolous and did not lack reasonable prospects.

    (d)The Applicant asked for the adjournment of all matters in the Tribunal until late January 2026 after final orders were made in VCAT.

    [4] These orders set out VCAT timetabling directions spanning multiple dates from April 2025 to 8 December 2025, the last date being set aside for closing submissions from the parties.

23. The correspondence from Sambi Legal did not address the substance of the Dismissal Application, in particular the effect of the banning order decision.

24. The Tribunal held a directions hearing on 13 June 2025 as per the September 2024 Directions and the listing notice issued in September 2024. 

25. On the morning of the directions hearing the Applicant filed an affidavit sworn by Mr Divakar on 12 June 2025. In his affidavit Mr Divakar confirmed that he had received correspondence from the Respondent about the Tribunal proceedings in January 2025 to which he did not respond until April 2025 because he was overseas.  He also said that he had received a copy of the Dismissal Application and Mr Copley’s affidavit around 19 May 2025 which prompted him to instruct Sambi Legal.  He said the reason for his non-compliance with the September 2024 Directions was that he was ‘required to travel overseas due to unforeseen personal circumstances’ which in turn adversely affected the Applicant’s ability to prepare and lodge materials in the Tribunal matter.  He said that he had now instructed Sambi Legal to ensure that this non-compliance would not recur.  He repeated matters about the relationship with the VCAT proceedings and seemed to suggest that this was another reason for the Applicant’s non-compliance.  Attached to Mr Divakar’s affidavit were copies of various emails between Mr Divakar and the Respondent in April and May 2025.[5] 

    [5] One exhibit to Mr Divakar’s affidavit was not filed and was only provided to the Tribunal during the course of the interlocutory hearing.

26. Mr Mwilambwe appeared for the Applicant and advised the Tribunal that he appreciated the seriousness of the issues involving his client, including the Dismissal Application, and had sought to explain these matters to Mr Divakur and Ms Kaur.  He indicated that the Applicant was disputing the banning order but was seeking further instructions from his clients in this regard. 

27. The Respondent submitted that Mr Divakar’s affidavit did not address the issues of non-compliance sufficiently and requested that their Dismissal Application be dealt with by the Tribunal as expeditiously as possible.

28. On the basis that it was apparent to the Tribunal that there was no likelihood of the substantive hearing proceeding from 30 June 2025, this listing was vacated. The Tribunal reminded the Applicant’s representative that a two week in-person hearing represented a significant allocation of the Tribunal’s resources to his client and potentially deprived parties who were ready for hearing in other matters of an earlier opportunity to resolve their matters.  The cancellation of this hearing at such a late time and without good reason was highly unsatisfactory.  There was also the issue of fairness to the Respondent which also had to direct resources to the Applicant’s matters.

1. The Applicant was directed to provide submissions in response to the Dismissal Application by 27 June 2025.  The Respondent was directed to provide any submissions in reply by 18 July 2025. An interlocutory hearing was listed for 31 July 2025 to consider the Dismissal Application and the Adjournment Application, and to provide the Applicant with an opportunity to address the concerns raised by the Tribunal in relation to its non-compliance. 

2. The parties filed materials in accordance with these directions and their submissions are set out in further detail below.

   Interlocutory hearing

3. Mr Mwilambwe and his colleague Ms Gwaunza of Sambi Legal represented the Applicant at the interlocutory hearing.  The Tribunal had been advised that Mr Divakur and Ms Kaur were also to attend the hearing however several attempts by the Tribunal’s officer to call them at the outset of the hearing were unsuccessful.  Mr Mwilambwe advised the Tribunal that Mr Divakar and Ms Kaur were currently in India and that this could create difficulties with communications at times.[6]  However Mr Mwilambwe confirmed that he had instructions from his client and could proceed with the interlocutory hearing.

   [6] Mr Mwilambwe told the Tribunal that he had been communicating with Mr Divakur and Ms Kaur regularly via WhatsApp.

4. The Respondent was represented by Ms Seignior of counsel, together with Mr Forrest and Mr Comerford who are lawyers employed by the Respondent.

   RELEVANT LAW

5. The parties clearly sought different outcomes from this interlocutory hearing.  The ART Act also empowers the Tribunal to dismiss applications and make procedural directions of its own volition in appropriate circumstances.

   Dismissal of application where no reasonable prospects of success or where application is frivolous, misconceived or lacking in substance

6. Subsection 101(1) provides that:

   (1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:

   (a) is frivolous, vexatious, misconceived or lacking in substance; or

   (b) has no reasonable prospects of success; or

   (c) is otherwise an abuse of the process of the Tribunal.

7. The Tribunal has previously said that if a proceeding has ‘no reasonable prospect at all of success’ it would be futile for the proceeding to continue, an inappropriate use of the Tribunal’s time and resources and involve expense to the respondent, such that the proceeding should be dismissed.  An application that serves no purpose for the applicant should not continue to use the Tribunal’s time and resources.[7] 

   [7] Re Filsell and Comcare [2009] AATA 90 at [33(d)] (‘Re Filsell’), Taylor and National Disability Insurance Agency [2021] AATA 1042 at [21]. These decisions were made by the former Administrative Appeals Tribunal in relation to a predecessor provision to section 101(1).

8. The Tribunal has described ‘parameters’ for the exercise of its power to dismiss on this basis. For the Tribunal to be satisfied that an application had ‘no real prospect’ of success, there must be ‘a high degree of certainty about the ultimate outcome of the proceeding’ if it were to proceed to a hearing.  Although a ‘full-scale’ consideration of merits would not be required, if the applicant can demonstrate an arguable view of the law which indicates that they would have some measure of success, it cannot be said that they have ‘no prospect of success’. [8] 

   [8] Kristoffersen and Secretary, Department of Social Services [2018] AATA 524 at [10] to [11] per Senior Member Tavoularis, referring to several previous decisions of the Administrative Appeals Tribunal, again applying the predecessor provision to subsection 101(1).

9. Paragraph 101(1)(b) requires the Tribunal to be satisfied that the application in question has ‘no reasonable prospects of success’ (emphasis added). A case which is ‘more than hopeless’ or that has ‘some’ prospect of success may still fall within the threshold for dismissal under paragraph 101(1)(b). The wording of the provision requires the Tribunal to assess whether there is any ‘reasonable’ prospect of the case succeeding.[9]

   [9] Waller and Chief Executive Officer, National Disability Insurance Agency [2025] ARTA 169 at [30].

10. The use of the word ‘frivolous’ in paragraph 101(1)(a) does not necessarily mean that the applicant has behaved frivolously in bringing a proceeding.  It has been described as a ‘technical legal term’ indicating that there is no legal basis for the proceeding.[10]

    [10] Re Filsell at [33(a)]

    Dismissal of application for failure to comply

11. Section 100 of the ART Act provides that:

    The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:

    (a) proceed with the application;

    (b) comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.

12. In Charara v Commissioner of Taxation  Wigney J observed that the power of the Tribunal to dismiss an application without proceeding to review the reviewable decision may be viewed as being in aid of the objective of the Tribunal. [11]  However, this discretion must be exercised ‘sparingly’ and as a ‘last resort’, and the Tribunal must afford the applicant procedural fairness.  This would include giving the applicant the opportunity to make submissions as to why their matter should not be dismissed or as to the circumstances of their non-compliance.[12] The Tribunal must take into account any explanations or arguments provided by the applicant.[13] The Tribunal should consider whether dismissal is the appropriate approach or whether it should, for example, adjourn the proceeding.  

    [11] Charara v Commissioner of Taxation [2016] FCA 451 at [75] per Wigney J.

    [12] Ibid at [79] to [80].

    [13] Ibid at [82].

    Adjournment of hearing

13. Subsection 49(1) of the ART Act provides that the procedure of the Tribunal is within the discretion of the Tribunal. Section 79 provides that the Tribunal may give directions in relation to the procedure to be followed for a proceeding in the Tribunal.

14. The Administrative Review Tribunal (Common Procedures) Practice Direction 2024 states that the Tribunal will not adjourn a hearing date unless it considers there are good reasons to justify the adjournment:  paragraph 5.12.  An application for an adjournment should be made to the Tribunal in writing at the earliest opportunity and set out the reasons for the adjournment, together with any supporting documentation:  paragraph 5.13.

    SHOULD THE APPLICATONS BE DISMISSED?

15. The Respondent’s Dismissal Application was made primarily in reliance of paragraph 101(1)(b) of the ART Act on the basis that the making of an order under section 73ZN of the NDIA Act permanently banning the Applicant meant that the applications for review before the Tribunal had no reasonable prospects of success. The Respondent further argued that the application relating to Suspension Review Decision was ‘frivolous’ and the application relating to the Registration Review Decision was ‘misconceived’ or ‘lacking in substance’ for the purposes of paragraph 101(1)(a).

16. The Applicant denied that the banning order meant that the applications had no reasonable prospects of success.  The Applicant further submitted that regardless of the temporary or retrospective status of the suspension in 2022, there was still a ‘serious question to be tried’ regarding the validity of the Suspension Review Decision, such that its application was not frivolous.  Similarly, the Applicant contended that there remained a serious question to be tried relating to the Registration Review Decision such that its application was not misconceived or lacking in substance.

    Dismissal Application

17. The Applicant did not challenge the effect of a banning order made under section 73ZN, in the sense that where a valid banning order is in operation in relation to the Applicant, the Respondent will be prevented from registering the Applicant as an NDIS provider. However, the Applicant challenges whether such a banning order is validly in place, or if one is, whether it should be revoked or varied.

18. It is not disputed that the Respondent sent a letter dated 15 December 2023 to the Applicant (addressed to Ms Kavita Chauhan) headed ‘Issue of banning order under section 73ZN of the National Disability Insurance Scheme Act 2013 (Cth)’ (‘Banning Order Letter’) to which was attached a further document dated 15 December 2023 entitled ‘National Disability Insurance Scheme Act 2013 (Cth) Section 73ZN Banning Order’ (‘Banning Order’), and also accompanied by a ‘statement of reasons’ dated 15 December 2023.

19. It is also not disputed that the Applicant received these materials.  They are included with the affidavit material of Mr Divakar dated 12 June 2025 and are acknowledged in the Applicant’s submissions.

20. The Banning Order Letter contains the statement ‘Please note that the banning order takes effect  at 5pm on 8 January 2023’ (emphasis added).  The Banning Order states ‘This order takes effect at 5pm on 8 January 2024’ (emphasis added).

21. The Respondent accepts that the date of 8 January 2023 in the Banning Order Letter was incorrect and should have been a reference to 8 January 2024 as set out in the Banning Order.

22. The Banning Order Letter sets out information about review rights under section 100 of the NDIS Act, and about the option to seek a variation or revocation of the banning order under section 73ZO (a decision in relation to which may also attract review rights under section 100). Any request for a review under section 100 must be made within 3 months from the date on which the notice of decision is served on the recipient.

23. There is no evidence to suggest that the Applicant sought a review of the Banning Order within 3 months of being served with the Banning Order. 

24. The Applicant provided the Tribunal with a document that it said was attached to an email sent by the Applicant to the Respondent around early April 2025, responding to multiple emails from the Respondent to the Applicant.  The document appears to be authored by Mr Divakar.  The document appears to contain text responding to various emails and is difficult to follow, with partial sentences addressing random issues.

25. In the document Mr Divakar says that ‘the permanent banning order … is with the tribunal court pending review.’ A discussion of the VCAT proceedings and HSR findings follows together with assertions rejecting some of HSR’s findings.  Mr Divakar refers to arranging a meeting with the Respondent, which would need to be via Zoom or telephone as Mr Divakar was not in Australia.  Mr Divakar also demanded that the Respondent produce to it further material which the Respondent had indicated it was about to file with the Tribunal.  In relation to the Banning Order Mr Divakar says:

    ‘Due to NDIS imposed permanent banning [which should not have occurred in the first place]  order on the company, Pradeep and Parvinder on 7th Feb 2025, it still has an impact such that,

    The NDIS then a registered NDIS Provider is unable to conduct business to till now as ndis Provider,

    Pradeep and Parvinder unable to work in the health industry

    I request those Banning orders be removed to enable and reinstate license to the company do its business in the NDIS Space . pradeep and parvinder to enable work in the health and NDIS Space.

    D: Not sure if our company can provide services as NDIS operator and pradeep and Parvinder can work in the NDIS industry as the suspension is a permanent BAN.’

26. The Tribunal is not clear whether this was intended to be a request for a variation or revocation of the Banning Order, but it would not meet the requirements of subsection 73ZO(3) in relation to an application for such variation or revocation.

27. For the purposes of this interlocutory hearing the Applicant’s representative argued that the notice given to the Applicant of the banning order under section 73ZN was defective. This was because the Banning Order Letter gave an incorrect date for the commencement date of the banning, being a date that was some months prior to the date on which the Banning Order Letter and Banning Order was provided to the Applicant. The Banning Order Letter specified the time within which the Applicant could seek an internal review under section 100 of the NDIS Act but based on the 8 January 2023 commencement date specified in the Banning Order Letter, it could not have complied retrospectively with the requirements of the banning.

28. The Applicant accepts that the commencement date for the banning as set out in the Banning Order, that is 8 January 2024 was most likely the correct date or date intended by the Respondent but contends that the deficiency of the notice of review rights is critical.  In this regard it referred the Tribunal to the decision of the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Parata[14] (‘Parata’).

    [14] Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Parata [2021] FCAFC 46

29. The Applicant also acknowledges that the Respondent does not have a discretion to extend the period for making an application for review under section 100. The Applicant therefore submitted that based on the ‘defective’ notice of banning contained in the Banning Order Letter, the Respondent should either:

    (a)exercise its discretion under section 73ZO to revoke the existing Banning Order and make a new banning order accompanied by a valid notice of review rights which would allow the Applicant to seek review of the new banning order, or

    (b)amend the existing Banning Order to provide for a new commencement date in the future, again allowing the Applicant to put its case for review.

30. The options suggested by the Applicant would presumably also pave the way for the Applicant to subsequently lodge an additional application with the Tribunal seeking review of the (new or amended) banning order.

31. The Applicant’s representative advised the Tribunal that around 26 June 2025 the Applicant had written to the Respondent requesting a revocation or variation of the Banning Order and the issue of a new notice. The Applicant also made a request for a review of the Banning Order under section 100 of the NDIS Act on the basis that the period for seeking internal review had not commenced due to the defective notice.

32. The Respondent’s position was that the reference to 2023 in the Banning Order Letter was simply a ‘minor slip’ and did not render the Banning Order invalid.

33. In Parata the appellant argued that a notice given to him in relation to review rights arising from a migration decision was defective for two reasons, the first being that it did not specify under which Part of the Migration Act 1958 (Cth) it was reviewable and the second being that it contained an incorrect statement of the time in which an application for review was to be made. The primary judge agreed with the appellant that the notice did not comply with the requirements of the Migration Act for the first reason, but rejected the appellant’s contention that the notice was non-compliant because of the incorrect statement about the time limit. [15]  In the Full Court Charlesworth and Jackson JJ agreed with the primary judge’s finding that the notice given to the appellant did not comply with the Migration Act on the basis of the misstatement of review rights.  This gave rise to a finding that the notice was ‘invalid.’

    [15] Ibid at [22], [25], [29].

34. The notice purported to be given in Parata was found not to comply with a provision of the Migration Act setting out quite specific requirements for a notification of a decision.  The error relating to time was not the reason for the finding of non-compliance.  The Tribunal does not believe that the circumstances in the Parata case align with the present circumstances.  In Parata there was a deficiency about the nature and statutory source of the appellant’s review rights.  In the present case the Tribunal views the single reference to 2023 in the Banning Order Letter as a ‘slip.’

35. The Tribunal asked the Applicant’s representative why the Applicant had not sought clarification of the commencement date of the banning order when it received items of correspondence from the Respondent at the same time with conflicting dates.  This was particularly so when one of the purported commencement dates was so clearly in the past and there would be an obvious question about retrospectivity.  The Applicant’s representative suggested there may have been confusion on the part of the Applicant in the context of it dealing with multiple documents and correspondence from regulators at that time.  Further, it was the responsibility of the Respondent to issue correct information.

36. The Tribunal is not convinced by this explanation or assertion in the context of considering whether the Applicant has been unfairly deprived of rights of review.  It is also inconsistent with the statement in the Applicant’s submissions that the Applicant did not apply for an internal review of the Banning Order at the time it was issued because it considered that the Respondent’s notice was defective.[16]

    [16] Paragraph 16 of the Applicant’s submissions dated 12 May 2025.

37. The Tribunal’s view is that the Applicant only fully appreciated the impact and effect of the Banning Order, particularly in relation to its applications before the Tribunal, some time after the Banning Order commenced, and that time was well after the three months provided under section 100 of the NDIS Act for seeking an internal review. That time may have been when the Respondent engaged by email with the Applicant in early 2025, or when the Respondent lodged its Dismissal Application in May 2025 or potentially when Sambi Legal gave advice to the Applicant about the Dismissal Application. This does not mean that the Applicant was unfairly deprived of or misled as to its review rights.

38. In relation to why the Applicant had only sought review or revocation or variation of the Banning Order on 26 June 2025, the Applicant’s representative said that the Applicant had been confused about whether it would operate in relation to the Applicant or Mr Divakar.  Mr Divakar had been the person engaging with the Respondent.  The Tribunal was provided with a copy of the Banning Order Letter and Banning Order, and observes that these documents are clearly stated to apply to the Applicant.  Further, in the document filed by the Applicant as an attachment to Mr Divakar’s affidavit, which is said to be a copy of the text of various emails sent by Mr Divakar to the Respondent around or prior to April 2025[17],  there are the statements ‘NDIS imposed permanent banning … order on the company…’ and ‘Permanent banning order on the Trustee for Gracemanor services Trust’ which indicates an awareness well before June 2025 that a banning order was in place in relation to the Applicant.

    [17] These emails being in response to correspondence from the Respondent specifically drawing the Applicant’s attention to the Banning Order, see paragraphs 6 and 7 of the affidavit of Hugh Copley dated 12 May 2025.

39. In addition to regarding the reference to 2023 in the Banning Order Letter as a mere slip the Respondent submitted that in any event primacy should be given to the Banning Order. Under section 73ZN the ‘banning order’ itself is the ‘notice.’ Regardless of the form or wording of correspondence sent to the Applicant, subsection 73ZN(5) provides that a banning order takes effect from the date specified ‘in the order.’

40. The Tribunal agrees that the opening words to subsection 73ZN(1) being ‘the Commissioner may, by written notice, make an order…’ strongly suggest that the order itself is the relevant ‘written notice.’  On that basis the Banning Order Letter might therefore be viewed as covering correspondence, without any operative effect.  However, the Tribunal also notes that subsection 100(1A) which sets out the requirements for a ‘written notice’ of a reviewable decision[18] states that ‘the notice’ (being the written notice referred to in subsection 100(1)) must include a statement that the person can request a review under section 100. In the present circumstances the information about review under section 100 was contained in the Banning Order Letter. It is therefore not clear whether the Banning Order Letter and Banning Order, which were provided together along with the statement of reasons, might collectively be regarded as the relevant ‘written notice.’ However, the Tribunal does not accept any suggestion that the Banning Order Letter would be the relevant written notice by itself.

    [18] A decision made under section 73ZN is a ‘reviewable decision’: see Item 15 of the Table in section 99.

1. The Tribunal’s conclusion is that the effect of the Banning Order was that the Applicant was permanently prohibited from being involved, directly or indirectly, in the provision of supports or services to NDIS participants with effect from 8 January 2024. The Applicant did not request a review of the Banning Order within 3 months after receiving the notice of the Banning Order, whether that ‘notice’ is the document entitled ‘Banning Order’ or a combination of the Banning Order Letter and Banning Order. There is no scope for an extension of time under section 100 of the NDIS to request that internal review.

2. The Applicant’s arguments that the Respondent should vary or revoke the Banning Order under section 73ZO were based on the contention that the notice relating to the Banning Order was defective due to the conflicting dates provided. As the Tribunal does not agree with the Applicant’s view on the effect of the incorrect date, it follows that no other basis has been given for the Respondent to exercise its discretion to vary or revoke the Banning Order at this time.[19]

   [19] The Respondent has suggested that if the Applicant were successful in the VCAT proceedings, there might then be a basis for it to apply to the Respondent for a revocation or variation of the Banning Order under section 73ZO.

3. The Applicant also referred to a decision of the Supreme Court of South Australia, Court of Appeal in KGS v GMS[20] in support of a submission that the Respondent should be given the opportunity to remedy their ‘defective’ notice and provide the Applicant with an opportunity to respond. In that case a self-represented applicant was allowed to amend her original (and defective) notice of appeal to the Court from an adverse decision of the South Australian Civil and Administrative Tribunal (SACAT). The applicant’s second and amended notice of appeal also failed to comply with the Rules of Court and the Court struck out her second notice of appeal. 

   [20] KGS v GMS [2024] SASCA 85.

4. It is not clear how this decision assists the Applicant’s case in this proceeding.  In the KGS matter the Court had attempted on more than one occasion to explain to a self-represented applicant seeking guardianship of her grandchild why her notice of appeal needed to identify an error in SACAT’s decision before the Court could consider the appeal. Livesy A/CJ said that while it was necessary to provide unrepresented parties with assistance to keep hearings free from error or misunderstanding, this must not detract from the neutrality of the Court or from the fairness to be accorded to all parties before the Court.[21] This decision does not provide a basis for the Respondent in this matter being offered the opportunity or being required to amend its Banning Order or the Banning Order Letter. The Respondent already has certain powers and discretions under section 73ZO of the NDIA Act. Nor does it suggest a basis for the Applicant being allowed to seek internal review of the Banning Order. The Tribunal has explained above why it does not believe that there was ‘defective’ notice of the Banning Order, and why it is further not satisfied with the reasons given by the Applicant for not challenging the Banning Order at an earlier date. If anything, the KGS decision suggests that the Tribunal must be mindful of ensuring procedural fairness to the Respondent.

   [21] Ibid, at [25] to [26]

5. From the perspective of this interlocutory matter, the Tribunal concludes that even if it were to proceed with a review of the applications relating to the Suspension Review Decision and Refusal Review Decision and determined to set aside those decisions in favour of the Applicant, the Applicant would nevertheless be unable to seek registration or reregistration due to the operation of the Banning Order.  The Tribunal would be unable to make any directions or orders which facilitated the registration of the Applicant.  The Applicant did not articulate any other outcomes or indications of ‘success’ that would arise from the Suspension Review Decision and Refusal Review Decision being set aside.

6. Two recent examples of the Tribunal dismissing an application on the basis of ‘no reasonable prospects of success’ where there would be no useful outcome for the applicant even if they were to have the review decisions set aside are Burns and Comcare[22] and PNCB and the CEO, National Disability Insurance Agency.[23] In the former case the Tribunal found that the applicant had previously entered into a settlement deed which made it difficult for her to argue that she had an ongoing claim for compensation.  Absent any evidence of a separate condition outside the terms of the settlement, the view of the Tribunal was that it would be futile for all concerned for the application to progress.  In the latter case the Tribunal was satisfied that there would be no practical outcome for the applicant because even if she were given access to NDIS funding on the basis she contended for in her application, another provision of the NDIS Act would preclude her receiving the funding. Although the Tribunal is not bound its earlier decisions, consistency of approach in its decisions is aligned with the Tribunal’s objective of providing fairness and promoting trust and confidence in the Tribunal.

   [22] Burns and Comcare [2025] ARTA 361.

   [23] PNCB and the CEO, National Disability Insurance Agency [2025] ARTA 66.

7. The Tribunal believes that proceeding with the applications with this knowledge would be futile and is satisfied that the applications have no reasonable prospects of success.  To continue with the applications would not be an appropriate use of the Tribunal’s time and resources.  It would also require the Respondent to allocate further resources to a process where the outcome was already established.  On this basis the Tribunal has decided to dismiss the applications relating to the Suspension Review Decision and Refusal Review Decision.

8. In relation to the Suspension Review Decision, the Tribunal believes that there is a further (and similar) basis for dismissal on the grounds of no reasonable prospects of success.  The decision to suspend the Applicant’s registration was operative for a matter of a few weeks in November 2022, pending other compliance decisions of the Respondent.  Practically, it was overtaken by the Respondent’s decision in December 2022 to refuse to register the Applicant, which in turn has been overtaken by the Banning Order.  Even if the Tribunal were to set aside the Suspension Review Decision, the suspension ceased to operate some years ago.

9. On the same basis the Tribunal believes the application relating to the Suspension Review Decision would be regarded as ‘frivolous’ in the sense of their being no legal basis upon which the Tribunal could unwind the underlying decision of the Respondent, regardless of the operation of the Banning Order.  The Applicant’s submissions in this regard were to the effect that the Suspension Review Decision was based on the findings made by the HSR, which are the subject of the yet to be determined VCAT proceedings, which raised a question of ‘natural justice.’  This is merely a restatement of the Applicant’s view of their ongoing suitability to provide NDIS supports and services and does not address the issue of whether the Tribunal could provide any practical outcome or benefit to the Applicant in relation to the Suspension Review Decision. 

10. For the reasons given above the Tribunal has determined that it should dismiss the application relating to the Registration Review Decision because of the effect of the Banning Order and does not believe it is necessary to address the alternative submissions relating to the audit assessments under section 73E being out of date. 

    Non-compliance with Tribunal directions

11. Had the Tribunal not determined to dismiss the applications under paragraph 101(1)(b), it believes that there would have been strong grounds for dismissal under section 100 on the basis of the Applicant’s non-compliance with significant directions of the Tribunal which in turn create serious doubt about the Applicant proceeding with its applications within a reasonable time.

12. The Tribunal wishes to make it clear that its views on the Applicant’s non-compliance are not a consequence of the existence and progress of the VCAT proceedings. The issue is the Applicant’s (lack of) compliance with the Tribunal’s directions and its wider attitude towards progressing its applications. That is, the Tribunal’s concern centres on the total lack of responsiveness to the September 2024 Directions, with those directions having in turn outlined earlier concerns of the Tribunal.  Those directions set out clearly, in plain English, the particular tasks required of the parties on particular dates. 

13. The directions also included a clear statement that if a party thought it might be unable to comply with a direction, it should contact the Tribunal.  Senior Member Parker made these directions in September 2024, giving the Applicant ample time to understand and prepare.  Again, if the Applicant found itself facing difficulties in early 2025 due to financial constraints or volume of work associated with the VCAT proceedings, it could have sent an email to the Tribunal asking for assistance.  The Applicant apparently was able to email the Tribunal in March 2025 to advise that it was self-represented.

14. In his affidavit of 12 June 2025 Mr Divakar said that the Applicant’s non-compliance was, at least in part, due to him being overseas for unforeseen personal circumstances.  He provided no indication of the timing or duration of his overseas travel or an explanation of what those circumstances were. The Tribunal would be unable to find an acceptable reason for non-compliance on the basis of this limited information.  Nevertheless, the Tribunal noted its concerns at the directions hearing on 13 June 2025 and provided the Applicant with a further opportunity to explain its circumstances at the interlocutory hearing.  There was no additional explanation provided, other than a suggestion from the Applicant’s representative that there may have been confusion or misunderstanding on the part of the Applicant about its obligations. 

15. Although the Tribunal did not require the personal attendance of Mr Divakar and Ms Kaur at the interlocutory hearing, the Tribunal had been advised that they would be attending and therefore made several attempts to join them to the hearing which were ultimately unsuccessful.   This would have been a further opportunity for the Applicant to provide an explanation to the Tribunal for the non-compliance, or at least provide their representative with clear instructions on this matter which could be relayed to the Tribunal.

16. Mr Mwilambwe told the Tribunal that he had been instructed that his client had misunderstood the extent of what was required of them.  They were also dealing with the VCAT matters which were costly and time consuming.  Their matter with the Tribunal ‘slipped their mind,’ they acknowledged their non-compliance and said that there would be no issues going forward.

17. The Tribunal asked Mr Mwilambwe what the Applicant’s intention had been in relation to the hearing of the applications listed for June/July 2025.  In particular, if the Respondent had not filed its Dismissal Application on 12 May 2025 and the Tribunal had not written to the parties on 16 May 2025, would the Applicant have:

    (a)Retained Sambi Legal to assist it with these proceedings?

    (b)Appeared at the directions hearing on 13 June 2025?

    (c)Participated in the substantive hearing from 30 June to 11 July 2025?

18. The Tribunal also asked the Applicant’s representative to provide an indication of how the Applicant intended to remedy its non-compliance and progress its applications before the Tribunal if the Tribunal were to deny the Dismissal Application and agree to an adjournment.

19. Mr Mwilambwe said that recent changes in positions of the parties in the VCAT proceedings and the filing of further documents with VCAT meant that any materials filed by the Applicant in this Tribunal in May 2025 may have proven less relevant to the outcome.  However, he believed that now that a timetable had been set down by VCAT, the Applicant was better placed to progress its matter with the Tribunal.  Mr Divakar was intending to be back in Australia by October 2025 for the VCAT hearing.  Having now collated materials for filing with VCAT, the Applicant might only now require a matter of weeks to file further materials with the Tribunal. The Tribunal took this as indicating that there had been no attempt to date by the Applicant to comply with the September 2024 Directions or to remedy that non-compliance after contact from the Tribunal. 

20. If the Applicant believed that changes in the course of the VCAT proceedings meant that additional time or further directions were required in relation to the Tribunal proceedings, it should have contacted the Tribunal.  The Tribunal notes that VCAT’s timetabling and filing directions were made on 3 April 2025 following a directions hearing that apparently took place on that date.  This was a month prior to the due date for the Applicant to file in accordance with the September 2024 Directions. 

21. Other than the giving of further instructions to Mr Mwilambwe and the setting down of a hearing date with VCAT, the Tribunal has not been given grounds for optimism about the Applicant’s future compliance.  The basis for assuming that VCAT would provide its final decision in January 2026, in a matter said to involve complex issues and significant volumes of evidence and where closing submissions are not scheduled until December 2025, is not clear.  It is also not clear whether an unsuccessful party in those VCAT proceedings would seek to appeal the outcome, and what the Applicant’s approach would be in that situation.

22. The Tribunal reiterates its view that the September 2024 Directions were clear, that they provided the Applicant with plenty of time to comply and they told the Applicant to contact the Tribunal if it believed it could not comply.  The Tribunal does not accept that there could be any confusion about what was required.  The Applicant was communicating with the Respondent in April 2025, so it was clearly aware that the Tribunal proceedings were still on foot.  Mr Divakar’s general reference to being overseas was not satisfactory.

23. The Tribunal would have dismissed the applications under section 100 of the ART Act if it had decided not to apply paragraph 101(1)(b). The Applicant has not provided a satisfactory explanation for its non-compliance with the September 2024 Directions despite being given multiple opportunities to do so and the Tribunal has not been given sufficient reason to assume future compliance.

    ADJOURNMENT APPLICATION

24. On the basis that the Tribunal has dismissed these applications, it is not necessary to address the issue of adjournment of a substantive hearing or abeyance of other case events.

    CONCLUSION

25. The Tribunal dismisses the applications in each of proceedings 2023/1440 and 2023/2591 under paragraph 101(1)(b) on the basis that it is satisfied that each of those applications has no reasonable prospects of success.

26. The Tribunal notes that had it not dismissed the applications under paragraph 101(1)(b), it would have done so under section 100.