Hamon and CEO, National Disability Insurance Agency (Practice and Procedure)
[2025] ARTA 226
•25 February 2025
Hamon and CEO, National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 226 (25 February 2025)
Applicant/s: Richard Edward Hamon
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2020/5639 & 2023/5186
Tribunal:Senior Member French
Place:Hobart
Date:25 February 2025
Date of written reasons: 19 March 2025
Decision:Application no.s 2020/5639 and 2023/5186 are dismissed pursuant to ss 100 and 101(1)(c) of the Administrative Review Tribunal Act 2024 on the grounds that the Applicant has failed to proceed with these applications within a reasonable time, comply with orders for the conduct of these applications to hearing, and the applications are otherwise an abuse of process as they now stand before the Tribunal.
......................[SGD]..................................................
Senior Member French
Catchwords
PRACTICE AND PROCEDURE – dismissal – failure to proceed within a reasonable time – failure to comply with procedural directions – abuse of process
Legislation
Administrative Appeals Tribunal Act 2013 (Cth); s 25, 34J
Administrative Review Tribunal Act 2024 (Cth); s 9, 12
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth); schedule 16; item 24
National Disability Insurance Scheme Act 2013 (Cth); ss 24, 34, 37, 99, 100, 103
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth); schedule 1; item 49
National Disability Insurance Scheme (Getting the NDIS Back on Track) Act 2024 (Cth)National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); r 5.1
Cases
Characa v Commissioner for Taxation [2016] FCA 451
Evans and Australian Capital Territory [2019] AATA 799
Frugniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Klewer v National Disability Insurance Agency [2023] FCA 63
Klewer and National Disability Insurance Agency [2025] ARTA 155
PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Southam and National Disability Insurance Agency (Practice and Procedure) 2024 ARTA 198Williamson and National Disability Insurance Agency [2019] AATA 2944
Statement of Reasons
Introduction
I dismissed these applications at an Interlocutory Hearing (Dismissal – Applicant failure to proceed within a reasonable time) on 25 February 2025. At the time I announced my decision, I advised the parties I would provide reasons for my decision within 28 days. These are those reasons.
Background
The Applicant is a 65-year-old man. He lives at home with his wife in a regional area of Tasmania. He lives with a vision impairment and was assessed to be eligible to be participant in the National Disability Insurance Scheme (NDIS) on this basis; that is, that he lives with a ‘sensory impairment’ within the meaning of s 24(1)(a) of the NDIS Act.
I note from the voluminous materials before the Tribunal that if these cases had proceeded to hearing there would have been an issue as to whether other impairments, being those attributable to a physical impairment and to a psychosocial disability, ought to be recognised as categories of impairments in relation to which the Applicant was entitled to receive support under the NDIS.[1] However, for the reasons set out following, that issue does not arise for determination at this stage of the proceedings.
[1] This is because of the amendment introduced to the principle Act by the National Disability Insurance Scheme (Getting the NDIS Back on Track Act 2014 (Cth) (inserting s 34(1)(aa) and the Applicant’s apparent requests in relation to psychology and physiotherapy supports.
There are two applications before the Tribunal.[2]
[2] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
By application No. 2020/5639 the Applicant applies for independent review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (the CEO, the NDIA, the Agency) made on 30 April 2020 under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) which varied a decision of an original delegate of the CEO made on 26 February 2020 to approve a Statement of Participant Supports (SoPS) for inclusion in his Participant Plan.[3] This application was made to the Tribunal on 16 September 2020 (the first application).
[3] T Documents: Tab T2.
By application No. 2023/5186 the Applicant applies for independent review of a decision of another delegate of the CEO made on 3 October 2022 which varied a decision of an original delegate of the CEO made on 26 July 2022 to approve a SoPS for inclusion in his Participant Plan as it subsisted at that time.[4] This application was made to the Tribunal on 3 July 2023 (the second application).
[4] T Documents: Tab T1A.
The Applicant’s first application was filed prior to the amendments introduced to the NDIS Act by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) (the 2022 amending Act). Consequently, the Tribunal only has jurisdiction to review the SoPS contained in the Participant Plan that was in operation at that time. It does not have jurisdiction to review the approval of a SoPS in a subsequent Participant Plan which replaced that Plan in accordance with s 37(3)(a) of the NDIS Act,[5] even though there is continuing controversy between the parties as to the adequacy and appropriateness of a subsequent SoPS.[6] This in part explains why the Applicant filed his second application.
[5] Section 37(3)(a) provides that a Participant Plan ceases to be in effect when it is replaced by another Plan.
[6] Williamson and National Disability Insurance Agency [2019] AATA 2944.
By operation of item 49 of Schedule 1 of the 2022 amending Act, s 103(2) was introduced to the principal Act and is expressed to apply to applications for review filed with the Tribunal on and from 1 July 2022. The effect of that section is to place before the Tribunal Participant Plans which are developed after the Participant Plan containing the SoPS that is the subject of the application for independent review and which replace that Plan. In this case there has been another Participant Plan developed with the Applicant since the Plan that contains the SoPS originally under review. It is expressed to be for the period 4 May 2023 to 3 May 2025 (being the review date). By operation of s 103(2) that Plan is also before the Tribunal in this review (the current plan).
The upshot of this is that the Tribunal has jurisdiction to review:
i.the approval of the SoPS contained in the Applicant’s Participant Plan commencing from 26 February 2020 (as varied by the internal review decision of 20 August 2020) but only up to the date that Plan was replaced on 21 August 2021; and
ii.the approval of the SoPS contained in the Applicant’s Participant Plan commencing from 26 July 2022 (as varied by the internal review decision of 9 February 2023) and as replaced by the Applicant’s current plan up to the present.
The Participant Plans that are in issue in this proceeding are ‘old framework plans’ within the meaning of Part 2, Division 2, Sub-division C of the NDIS Act. They have two principal components: a Statement of Participant Goals and Aspirations (SoPGaA) and a SoPS.[7]
[7] ss 31(1) and (2) of the NDIS Act. A Participant Plan may include other matters: s 33(7) of the NDIS Act.
The first application
The Participant Plan that incorporates the SoPS the approval of which is impugned by the first application was expressed to commence on 26 February 2020 and had as it review date 25 February 2021.[8] It contained the following SoPGaA:
[8] T Documents, Tab T8.
My goals
This is what I want to achieve.
Short-term goal
I would like to function within my own environment to perform tasks that progress and value to my relationships. (sic)
How will I achieve this goal
How I will be supported
To be able to receive the correct balance of support to remain independent from relying on my wife’s support to reach our relationship goals
· My LAC[9] will link me to service/allied health professional of my choice to determine my requirements and assist with building independence
[9] Local Area Coordinator.
Short-term goal
I would like to continue to education that will enhance property of meaningful paid employment. (sic)
How will I achieve this goal
How I will be supported
I will continue working with my disability employment service while sourcing new occupation opportunities
· My disability employment provider
Medium or long-term goal
I would like to lead an extraordinary life
How will I achieve this goal
How I will be supported
I will continue to enjoy my bush walking, traveling and to overcome barriers and create strategies to achieve my goal
· My informal support (wife) and remain connected with current supports and be actively involved with new supports if required
Medium or long-term goal
I would like to be able to read functional documentation digital and hardcopy independently
How will I achieve this goal
How I will be supported
I will achieve my goal and continue to identify improvements in technology which best suits my loss of vision. This would include working with allied health professional (Occupational therapist – information and communication technology) for assessments and updates
· My LAC will link me to allied health professional of my choice
Medium of long-term goal
I would like to maintain an equitable relationship within my marriage, social economic and educational construct.
How will I achieve this goal
How I will be supported
My Informal Supports and my LAC will link me to service/allied health professional of my choice to determine my requirements and assist with building and retaining my independence
· I will be supported by making informed choices who best I require in my life to reach this goal
The value of the ‘total funded supports’ originally included in the SoPS incorporated into this Plan was $25,080.12. This comprised:
i.a total of $13,391.36 for ‘Core Supports’ being $11,607.36 for assistive technology and repair and four hours per week for 53 weeks ‘Assistance with Personal Domestic Activities’ which were ‘Self-Managed’ and $1,784.00 for Transport, which was funding to access work, study and the community, which was paid in fortnightly instalments,
ii.A total of $6,688.76 for ‘Capacity Building Supports’ being $3,879.80 for ‘Improved Daily Living (CB Daily Activity)’ (20 hours funding for Occupational Therapy assessments to determine any assistive technology that would support increases in independence and goal attainment, and $2,808.96 for ‘Increased Social and Community Participation (CB Social Community Civic)’ (four hours per month individual skills development and training), both of which were ‘Self-Managed’, and
iii.A total of $5,000.00 for ‘Capital Supports’ for Assistive Technology products related to vision which was Self-Managed.
The Applicant was dissatisfied with this decision and sought internal review of it. Specifically, he requested the approval for the following additional supports for inclusion in his SoPS[10]:
i.Funding for training and support intended to build his capacity with self-management of his NDIS Plan,
ii.Funding for appropriate lighting to support him in relation to the functional impacts of his vision impairment,
iii.Funding of disability specific transport costs, as well as the disability specific costs associated with ongoing medical and therapy appointments in various locations such as Cooee, Ulverstone, Launceston, and Hobart. These costs included transport and accommodation costs and the cost of attendant carers to accompany him to these appointments,
iv.An increase in core supports intended to assist with activities of daily living and social, community and civic participation, and
v.Travel, accommodation, and assessment for assistive technology at a ‘Vision Workshop’ in Melbourne.
[10] As set out in the Internal Review Decision at T Documents, Tab T2.
The internal reviewer considered the Applicant’s requests and on 20 August 2020 decided to vary the Applicant’s Participant Plan to be for the period 20 August 2020 to 20 August 2021 and to incorporate additional support.[11]
[11] T Documents, Tab T9.
The value of the total funded supports in the varied Plan was $79,532.56. This comprised:
i.$36,787.60 in Core Support funding, which included $2,500.00 for the purchase of disability-related assistive technology, $31,633.69 for the purchase of ‘flexible supports’ to enable maximum independence in personal activities of daily living and to explore and participate in community based activities of interest and to develop, build and maintain friendships, both of which were Self-Managed, and $3,456.00 in funding for transport to access work, study and the community, which was to be paid fortnightly by instalments,
ii.$32,244.96 in Capacity Building Supports which included $21,144.00 in funding for an allied health professional to assess and provide support to enable the Applicant to meet his goals of independent living within his home and the community. The following further information is included by way of explanation of this allocation:
The decision on whether to make significant modification to your current lighting requires an assessment by an occupational therapist that has experience in lighting assessments. An occupational therapist will work closely with your treating specialist to determine and recommend what suits you and your eyesight best. Your treating specialist will recommend the colour, temperature and intensity of lighting required and the OT will apply it to your home ensuring Australian Standards for disability requirements are met. Funding has been included for this assessment and report, as well as consultation with a builder/electrician if required.
The Capacity Building Supports in the Plan also included $2,964.48 for ‘Increased Social and Community Participation (CB Social Community Civic)’ to assist the Applicant to achieve his goal of developing skills in the community, which was to be Self-Managed, and $8,136.48 for ‘Support Coordination’, being funding to engage a NDIS registered Support Coordinator, 15 hours for ‘Capacity Building and Training in Plan and Financial Management’ ($926.40) and 72 hours of Level 2 Support Coordination ($7.210.08), both of which are expressed to be Self-Managed ‘Stated’ supports.
iii.$10,500.00 for Capital Supports, which comprised $5,000.00 for standard disability related assistive technology, and $5,500.00 for consultation and advice by a building construction professional regarding the suitability of the Applicant’s home for home modifications to improve its accessibility.
The Applicant was dissatisfied with his varied SoPS and sought independent review of that decision by the Administrative Appeals Tribunal (AAT). In his statement of ‘reasons for the application’ the Applicant states that he was dissatisfied with the following aspects of the internal review decision which are elaborated upon in an attached supporting document:[12]
i.the decision not to approve his request for funding for transport to attend medical appointments greater than 75kms from his home,
ii.the decision not to approve his request to obtain services in Melbourne, because the decision-maker failed to recognise the implications of the ‘thin market’ in his locality as well as the extensive waiting times even if he could secure an appropriately qualified Occupational Therapist.
[12] T Documents, Tab T1 and Tribunal file.
The second application
The Participant Plan that includes the SoPS that is impugned by the second application was expressed to commence from 26 July 2022 and had as its review date 26 July 2023.[13] It contained the following SoPGaA:
[13] T Documents, Tab T39.
My goals
This is what I want to achieve
Short-term goal
It is my right under the UNCRPD[14] to be given the opportunity and appropriate supports to function not just within my own environment but expand externally to unfamiliar areas and challenges, to be included as an equal in society, to perform tasks, activities and commitments that progress, enhance, strengthen, empower and substantively add, enrichment and value to every facet of my broader relationships.
[14] Convention on the Rights of Persons with Disabilities [2008] ATS 12.
How will I achieve this goal
How I will be supported
To be able to receive the most qualified, effective, informed, knowledgeable, educated, skilled, experienced, empathetic, fit for purpose, demonstrated expertise (Q&SC)[15] and professional supports in the correct balance to remain independent from relying upon my wife and other unpaid informal support, to their detriment, to reach my and collective relationship goals
· My non-existent LAC and or Support Coordinator should be able to link me to services, allied health professionals, qualified supports that meet the Q&SC Codes of Conduct section 3 of my choice to determine my requirements and assist with building independence. If the identified LAC and or Support Coordinator is unable to guarantee the positive outcome then they will forgo any remuneration.
[15] National Disability Insurance Agency Quality and Safeguards Commission, NDIS Code of Conduct and Worker Training Modules.
Short-term goal
I would like to continue in all forms of education and skills training that would enhance and promote the prospect of meaningful paid employment.
How will I achieve this goal
How I will be supported
I will continue banging my head and being challenged by the incompetence and deficiencies of a recognised broken DESP[16] system with unimaginative and ill-educated personnel at a litany of such disability employment services whilst being churned, filtered, and parked in the vainly hopeful expectation that they would think outside the box and assist in sourcing new occupation opportunities
· My impotent and flaccid disability employment service provider.
[16] Disability Employment Services Program, funded by the Department of Social Services (Cth).
Medium or long-term goal
I would like to lead an extraordinary life or that which to the opportunities that avail enabled persons (sic)
How will I achieve this goal
How I will be supported
I will continue to enjoy my bush walking, travelling, gardening, woodworking, social engagements, religious observances, geographical and historical pursuits, cooking, educating, advocating, construction, community engagements, and to overcome enforced misconceptions and culturally engrained psychological barriers in order to create tailored strategies to achieve my goals
· My paid, under Section 3 self-managed, choice and control informal supports as well as a range of formal supports where possible that meet the Q&SC and be actively involved with new options if required.
Medium or long-term goal
I would consider it imperative and a right under the DDA[17] and UNCRPD that I be able to read functional documentation, literature of all types, digital and hard copy independently.
[17] Disability Discrimination Act 1992 (Cth).
How will I achieve this goal
How I will be supported
I can achieve my goal and continue to identify improvements in technology which best suits my vision condition if and only if the Agency (NDIA) allocates the appropriate funding and supports to undergo a Capacity Assessment at a provider that that has been recognised to meet all the aspects of the Q&SC requirements. That is, Vision Australia in Kooyong Melbourne. This would include working with allied health professionals such as Occupational therapist with specific VI & B[18] expertise, Orthoptists and Assistive Technology experts that are fit for the purpose for assessments and recommendations in order for the appropriate hard and software to be funding by the NDIS for my specific needs.
· My LAC/Support Coordinator should be able to link me to allied health professional of my choice. Failing that I as a reasonably, and thus far demonstrated person of some cognitive capacity should be able to consider the sustainability of the NDIS and make such recommendations and appointments myself.
[18] Vision Impaired and Blind.
Medium or long-term goal
I consider it imperative, and my right to be able to maintain an equitable relationship within my marriage, informal relationships, professional relationships, social, economic, political, cultural and educational construct
How will I achieve this goal
How I will be supported
My Informal Supports and most unlikely my LAC/Support Coordinator will link me to services/allied health professionals/social and community bodies, cultural organisations and political entities of my choice to determine my requirements and assist with building and retaining my independence. In the absence of such then I should be supported in establishing these constructs myself
· I will be supported, by whom remains a mystery, in making informed choices that best align with my life needs to reach this goal.
The value of the ‘total funded supports’ originally included in this Plan was $157,442.59. This comprised:
i.$144,752.19 for Core Supports which could be used flexibly across line items to help with daily activities and disability related needs, being $1,000 for low cost assistive technology and repairs, $60,416.96 in relation to daily personal care and to assist maintain the Applicant’s home and environment, $79,677.23 (including $8,840.00 for activity based transport costs) to assist the Applicant with community engagement, each of which was Self-Managed, and $3,658.00 in transport funding to support access to work, study and community activities which was paid by fortnightly instalments,
ii.$11,639.40 in Capacity Building Supports, being for allied health professionals and/or therapists to assess and provide support, including in relation to an ‘Orientation and Mobility Assessment’, a ‘Functional Capacity or Daily Living Skills Assessment’, an ‘Orthotic Assessment’, and ‘Assistive Technology and Home Modifications Assessments’. Funding for these Capacity Building Supports was to be Self-Managed,
iii.$1,051.00 for Capital Supports, being for a design consultation with a builder to support any home modification request, which is stated to be Self-Managed.
The Applicant was dissatisfied with this decision and sought internal review of it. Specifically, he requested the approval for the following additional supports for inclusion in his SoPS:[19]
i.Funding for Assistive Technology – Read and Write software and 6 hours technical support;
ii.Funding for Capacity Building Therapy Supports:
-Occupational Therapy (monthly plus assessments)
-Psychology: monthly, and
-Physiotherapy: monthly.
[19] As set out in the Internal Review Decision, T Document, Tabs T2.
The internal reviewer considered the Applicant’s requests and on 9 February 2023 decided to vary the Applicant’s Participant Plan to be for the period 9 February 2023 to 9 February 2024 and to incorporate additional support.[20]
[20] T Documents, Tab T40.
The value of the total funded supports in the SoPS incorporated in the varied plan was $159,003.63. This comprised:
i.$145.149.29 in funding for Core Supports. The additional funding in this category was the approval of $397.10 for the purchase of single licence subscription to ‘Read and Write’ software. This support continued to be Self-managed,
ii.$12,803.34 in funding for Capacity Building Supports. The additional funding in this category was for 6 hours of support in relation to the use of the Read and Write Software. This support continued to be Self-managed,
iii.$1,051.00 in funding for Capital Supports (unchanged from original decision).
The internal reviewer did not approve the Applicant’s requests for Occupational Therapy and Psychology and because she was not satisfied that they constituted ‘value for money’ as required by s 34(1)(c) of the NDIS Act. She did not approve the Applicant’s request for physiotherapy because she was not satisfied that this support related to the Applicant’s disability as required by Rule 5.1(b) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) or that it constituted ‘value for money’ or was the ‘responsibility of the NDIS to fund’ as required by s 34(1)(c) and (f) respectively.
The Applicant was dissatisfied with this decision and sought independent review of it by the AAT.[21] In his supporting documentation the Applicant’s complains about the delegate’s decision not to approve his requests for psychology, occupational therapy, and physiotherapy.
[21] T Documents, Tabs T1A and T1B
In or about April 2023 the Agency undertook a s 48 reassessment of the Applicant’s Participant Plan (an ‘unscheduled review’) in response to the receipt of ‘new information about [the Applicant’s] disability support needs’.[22] The reassessment outcome decision was to replace the Applicant’s subsisting Plan with a new plan which was expressed to commence from 4 May 2023 and which has a review date on 3 May 2025.[23] This Plan carries forward the Applicant’s SoPGaA as it was included in the immediately prior Plan.
[22] T Documents, Tab T19.
[23] T Documents, Tab T42.
The value of the total funded supports in this plan is $349,104.22. This comprises:
i.$281,688.38 in funding for Core Supports which can be used flexibly to purchase supports to help with daily activities and disability related needs. This includes $1,500.00 for the purchase of low cost assistive technology and minor repairs, $120,833.92 to assist with daily personal care and to maintain the Applicant’s home and environment, and $159,354.46 in funding to assist the Applicant with community engagement within groups and/or individually, including $17,680.00 for activity based transport costs, all of which is stated to be Self-Managed, and $7,316.00 in transport funding for support to access work, study and community activities which is paid fortnightly by instalments,
ii.$49,058.84 in Capacity Building Supports, which includes in the category ‘Improved Daily Living (CB Daily Activity)’ $5,635.92 in funding for Psychology and $5,390.00 for Physiotherapy. Additionally, $38,022.04 is incorporated into this category for:
Occupational Therapy and Orientation and Mobility [which] is include[ed] in this plan period to assess and provide support in assisting [the Applicant] to meet [his] goals of including independence, mobility, home modifications and assistive technology. Any further funding to be considered based on recommendation submitted from a relevant practitioner to NDIS (that is a completed assessment and relevant quote).
These supports are stated to be Self-Managed.
iii.$11,051.00 in funding for Capital Supports, comprising $10,000.00 for the Assistive Technology purchase and repairs, including for the purchase of an intuitive Video Magnifier, and $1,051 in funding for design consultation with a builder to support any home modification requests (unchanged from previous Plan). These supports are stated to be Self-Managed.
As I have stated above, this most recent Participant Plan is also before the Tribunal in this review by operation of s 103(2) of the NDIS Act.
Progress of the first and second applications before the Tribunal
Upon its receipt, the Applicant’s second application was linked with his first application such that they proceeded before the Tribunal together from that point.
Since his first application was filed:
i.Not including the present Interlocutory Hearing, the first and second applications have been listed before the Tribunal for a total of 47 case events, 19 of which were vacated for various reasons, most at the request of the Applicant,
ii.18 case events have been held in relation to the first application, prior to the second application being filed, comprising 17 directions hearings (an additional eight were vacated) and one Case Conference for the purposes of alternative dispute resolution. Additionally, one Interlocutory Hearing (Jurisdiction), one Return of Summons hearing, and one three-day final hearing of the substantive application were listed but were vacated,
iii.since the second application was filed, there have been a further 10 case events held in relation to both applications, being two Hearings (neither of which could proceed), seven directions hearings, one Case Conference and one Conciliation Conference for the purpose of alternative dispute resolution. Additionally, one other Directions Hearing, one other Case Conference, and two other Conciliation Conferences were listed but were vacated,
iv.26 sets of directions have been issued to progress these applications for review to hearing,
v.six Deputy Presidents or Senior Members of the Tribunal have been constituted to hear and determine these reviews. Reconstitution of the proceedings has been required on five occasions due to the existing member becoming unavailable to continue for various reasons,
vi.the applicant has been represented by one disability advocacy organisation and by Legal Aid during two periods after which those organisations ceased to act for him. He has been otherwise self-represented in the proceedings,
vii.while his cases have been before the Tribunal the Applicant has made several complaints about Tribunal officers, Associates and Members, both internally to the AAT, and to external persons and bodies, such as Ministers and other Parliamentarians, the Australian Human Rights Commission, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission), and other complaint and administrative oversight bodies. These complaints principally related to the format in which he received documents from the Tribunal, which he has contended were inaccessible to him, but were not limited to that issue. The Applicant has repeatedly expressed grievance about the Tribunal’s assessment of those complaints and its efforts to address his communication needs.
With this as a general context, I now turn to give detailed attention to the last 12 months these applications have been before the Tribunal.
On 21 February 2024 the Tribunal, as then constituted, listed both applications for Hearing on 26 March 2024 for the following purpose (as described in the Listing Notice):
explore and define the scope of applications 2020/5639 and 2023/5186 and canvass the claims being made in each application. The purpose of the hearing is not to consider all the material that both parties intend to rely on. While they are at liberty to do so, there is no obligation on either party to provide further evidence prior to this hearing.
On 25 March 2024, the Applicant telephoned and wrote to the Tribunal and the Agency by email to request an adjournment of that hearing on the ground that a beloved pet had died which had resulted in him experiencing grief and anxiety. The Agency responded to the Applicant’s email indicating that it did not oppose his adjournment application. The Tribunal determined to vacate the listing on 26 March 2024 and relisted the Hearing for 19 June 2024.
On 14 June 2024, the Applicant wrote a querulous email to the Tribunal taking issue with the format of a document he had received from a Tribunal officer on 12 June 2024 which was not in a format he could read. That document had been issued in error and was re-issued shortly afterwards in an accessible format with an accompanying apology. However, the Applicant was bitterly aggrieved by the incident and claimed that the directions hearing would have to be vacated in the circumstances pending some form of action by the Australian Human Rights Commission and/or the Disability Royal Commission in relation to this ‘neglect and abuse’ and ‘deliberate provocation’ and ‘undermining of his rights as a person of disability’. The Applicant wrote again to the Tribunal in a similar vein on 18 June 2024.
The Tribunal, differently constituted, declined to adjourn the Hearing and it proceeded on 19 June 2024. At the conclusion of the Hearing, the Tribunal issued the following directions for the conduct of both cases to hearing:
The Tribunal DIRECTS:
1. On or before 9 September 2024, the Applicant must give to the Tribunal and the Respondent:
a.An indication as to whether he consents to applications 2020/5639 and 2023/5186 being decided without holding a hearing pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth); and
b.All evidence and submissions on which he relies.
2. On or before 4 November 2024, the Respondent must give to the Tribunal and the Applicant:
a.An indication as to whether they consent to applications 2020/5639 and 2023/5186 being decided without holding a hearing pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth); and
b.All evidence and submissions on which they rely.
3. On or before 25 November 2024, the Applicant must give to the Tribunal and the Respondent his submissions in reply, or a letter indicating he does not intend to provide submissions in reply.
On 30 August 2024 the Applicant emailed the Tribunal and stated that he required a further six weeks to comply with direction 1 of the directions made on 19 June 2024. On 10 September the Agency’s legal representative wrote to the Tribunal to advise that it did not object to the extension of time requested by the Applicant. A new timetable was proposed which would have required the Applicant to comply with direction 1 by 21 October 2024.
In response to these requests, the Tribunal listed both matters for a Directions Hearing on 25 September 2024. At the conclusion of that Directions Hearing, the following directions were issued:
The Tribunal DIRECTS that Directions 1 and 2 made on 19 June 2024 are replaced with the following:
1.On or before 11 October 2024, the Applicant must give to the Tribunal and the Respondent:
a.An indication as to whether he consents to applications 2020/5639 and 2023/5186 being decided without holding a hearing pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth); and
b.All evidence and submissions on which he relies.
2.Both applications will be listed for a hearing by telephone on 19 November 2024, at 10AM, directed to the following issues:
a.Whether one or both matters should proceed having regard to ss 100 and 101 of the Administrative Review Tribunal Act 2024 (the ART Act); and
b.If so, whether the Tribunal should make directions limiting the scope of the matter/s pursuant to s 53 of the ART Act.
On 28 September 2024, the Applicant emailed the Tribunal to complain about the directions that had been made on 25 September 2024 claiming that the Tribunal was obliged provide him with a six-week extension of time to comply with direction 1 until 21 October 2024 (which was six weeks from 9 September 2024), not 11 October 2024 (which was six-weeks from the date of his request for the extension of time). This correspondence was querulous and threatened legal action against the Member if she did not immediately accede to his demand for an extension of time to 21 October 2024.
The Tribunal did not extend time for compliance with direction 1. The Applicant did not comply with that direction by 11 or 21 October 2024.
Both cases were listed for a further Directions Hearing on 23 October 2024. At the conclusion of that hearing, the Tribunal issued the following directions:
The Tribunal DIRECTS that Direction 2 made on 25 September 2024 is replaced with the following:
2.Both applications will be listed for a hearing by telephone on 19 November 2024, at 10AM, directed to the following issues:
a.Whether one or both matters should proceed having regard to ss 100 and ss101 of the Administrative Review Tribunal Act 2024 (the ART Act);
b.If so, whether the Tribunal should make directions limiting the scope of the matter/s pursuant to s 53 of the ART Act; and
c.Whether one or both matters should be determined without a hearing pursuant to any relevant subsections/s of ss 106 of the ART Act.
Both applications were then listed for Hearing on 19 November 2024 to determine if they ought to be dismissed, or if one or both were to proceed, to determine what the scope of the review would be. On 18 November 2024 the Applicant wrote to the Tribunal to request the vacation of the Hearing citing as his reasons a serious deterioration in his mental health (anxiety and depression), relationship stress, and an inability to access NDIS funded disability-related support due to a change to the NDIA ‘payment portal’. In this last respect, it was said that the portal had become inaccessible to him due to his vision impairment which meant he could not submit provider invoices for payment, and that his support services would not provide services unless they were paid. He warned of “untold consequences” if the Member did not accede to his request to vacate the hearing.
The Member declined to vacate the Hearing. It opened on 19 November 2024 but did not proceed to due the Applicant’s claims that he was mentally unfit to proceed with it. It was adjourned to 20 January 2025.
The Hearing resumed on 20 January 2025, but did not proceed. It was adjourned to 25 February 2025. On 19 January 2025, the Applicant submitted a letter from a psychologist which, in summary, reported that the Applicant had experienced a significant decline in his mental health due to the proceedings and his dealings with staff of the NDIA, which had recently resulted in him being ‘banned’ from attending NDIS premises due to his alleged aggressive and abusive conduct towards NDIS staff. He recommended that the Applicant be granted a one-month adjournment of the Hearing to enable him to recover sufficiently to proceed. That psychologist also appeared as a witness for the Applicant at the hearing on 20 January 2025 and gave oral evidence to this effect.
I have reviewed the recording of the Hearing conducted by the constituted Member on 20 January 2025. It is fair to say that this was a challenging hearing for any Member to conduct. The Applicant appeared in a seriously dysregulated state and was querulous and abusive towards the Tribunal and the Agency’s representatives. In that context, it appears that the Member took the view that she had no alternative but to adjourn the hearing to allow 1 month for the Applicant’s condition to stabilise in accordance with his psychologist’s recommendation. That is why the resumption of the Hearing was fixed for 25 February 2025, being more than one month after 20 January 2025.
In early February 2025, the Senior Member to whom these cases were constituted at that time became unavailable. On 7 February 2025 both cases were reconstituted to me to hear and determine.
After perusing the file and ascertaining the status of the proceeding, I instructed Registry to list both cases for an Interlocutory Hearing (Dismissal - Applicant failure to proceed) on 25 February 2025. This was, in effect, to relist the Hearing that was to have taken place on 19 November 2024, but which was adjourned until 20 January 2025, and which was adjourned again on 20 January 2025. I also instructed my Associate to issue the following directions to the parties in relation that hearing:
The Tribunal directs:
1.By 4pm 14 February 2025 the Applicant is to give the Tribunal and the Respondent any evidence and submission he wishes to make in relation to whether his applications should be dismissed on the ground that he has failed to proceed with them within a reasonable time.
2.If the Applicant contends that his applications should not be dismissed on this basis, by 4pm 14 February 2025 he must also give to the Tribunal and the Respondent:
(a)Written confirmation of the requested supports that are in issue, indicating the particulars of those supports by their frequency, duration, intensity, or other relevant measure where relevant.
(b)Any further evidence that he intends to rely upon in relation to his requested supports.
3.By 4pm 21 February 2025 the Respondent may give to the Tribunal and the Applicant any submission it wishes to make in relation to whether the applications should be dismissed on the ground that the applicant has failed to proceed with them within a reasonable time.
On 7 February 2025, Registry issued these directions and Listing Notices to the parties for the Hearing. It is not in issue that these documents were sent to the Applicant in the accessible format he had requested.
Later on 7 February 2025, the Applicant wrote a querulous email/submission to me demanding that this listing be vacated. In summary, he contended that the Listing had taken him by surprise and was contrary to the agreed outcomes of the Hearing that had been adjourned on 20 January 2025. He claimed that the directions did not provide him with sufficient time to comply with direction 1 and had triggered a further deterioration in his mental health such that he was entertaining thoughts of suicide. He apprehended that direction 1 required a task that was overwhelmingly difficult for him to achieve within the timeframe due to his vision impairment, poor mental health condition, and difficulties he would experience in obtaining needed evidence from others. In effect, he requested an indefinite adjournment of the proceedings until he considered himself well enough to proceed.
In support of that application, he submitted a medical certificate, dated 18 November 2024, written by a psychiatrist which opined that the Applicant was at that time experiencing “worrying concerns and stress due to his current legal issues within the NDIS” and had “passive suicide ideation”.
Also in support of that application, the Applicant resubmitted the letter dated 19 November 2024 from his psychologist and a further letter from that psychologist dated 11 February 2025. These letters, taken together, contain the opinion that the Applicant is a “rigid thinker” who is unable to tolerate perceived error by others and must obtain public vindication that his complaints about others are justified and a full public apology in relation to those complaints. It is opined that he is a “logical and moral thinker for ever in search of “truth and accuracy”, and that in the author’s experience “he had never been wrong”. It is opined that the Applicant has no “communication/social filter” which results in his behaviour being interpreted by others as threatening and abusive, obstructionist and difficult which properly considered it is not aggressive behaviour, but an effort to vindicate his perceived rights. It is opined that the Applicant has been provided with voluminous materials in these proceeding which he requires extensive time to process because of his vision impairment, document inaccessibility, and his deteriorating mental health condition and relationship stress. It is said that the Applicant has been allowed a “very short time” to process this information, which is exacerbated by the NDIA’s recent introduction of a ‘two factor authentication’ gateway to its ‘provider portal’ which the Applicant cannot access without assistance, which the author contends is a breach of the Applicant’s privacy. It is stated that in view of these matters “caution needs to be taken with regards to applying too much pressure to him in order to expedite his case” and that the Applicant is focused upon achieving the “right outcome, not a quick one” which should also be the Tribunal’s focus.
The author goes on to express various negative opinions about the function of the NDIS NDIA, AAT and ART both in general and in relation to the Applicant personally. He opines that the Applicant is motivated to pursue system failure so that he can obtain public redress, not just for others but himself.
In his 19 November 2024 letter the author states the following by way of conclusion (recommendations) in relation to the proceeding:
Mr Hamon is not currently able, based on his current mental health to continue with this process. To continue with this process in my opinion, puts his safety at risk as he becomes more unwell. Mr Hamon requires a period of rest from this process of at least 4 weeks. After which time, full consideration of his disability and mental health must be taken into consideration moving forward. That means providing him with information in a form he can access without stress. He requires time to process that information with room for breaks.
The author then states the following opinion (which I take to be addressed to the Tribunal and the Agency):
Given the number of issues he has experienced over time, I can only presume that the process chosen to communicate with Mr Hamon is somewhat deliberate and is designed to prevent him from properly stating his case and representing himself
In his letter of 11 February 2025, the author adds to these complaints alleging that the Listing Notice was “pressuring’ for the Applicant and that what is required for a person to proceed within a “reasonable time” was different for the Applicant because of his vision impairment and mental health condition and the scale of the task required by direction 1. It was asserted that by listing the case for hearing and issuing these directions I was not fit to hold my office because I was not “demonstrating an understanding of, and a commitment to a safe and respectful workplace”. He notified me that he had made a complaint to the Commonwealth Attorney-General to this effect.
I declined the Applicant’s request for a further adjournment of the hearing for reasons explained following. The Hearing proceeded as scheduled.
Hearing and material considered
The Hearing was conducted by telephone.
The Applicant attended the Hearing self-represented. I note that although at times his speech was elevated, he was generally able to participate in the Hearing in an emotionally regulated way. He was not overtly abusive or threatening to me or the Agency’s representatives. He was provided with an opportunity to state his case against dismissal of his applications in a presentation that lasted more than 30 minutes. He was then able to tolerate hearing the Agency’s case in favour of dismissal of his applications and provide an oral submission in response which ran to over 15 minutes. I am a lay person to psychiatry and psychology, but acknowledging that limitation, I did not perceive any disorder of thought pattern in the Applicant’s case. It was coherent and logical. This was in stark contrast to the Applicant’s conduct at the Hearing that had to be adjourned on 20 January 2024 and to the warnings given by his psychologist about his inability to effectively participate in any hearing.
The Agency was represented at the Hearing by its solicitor, instructed by a NDIA Case Manager responsible for the Applicant’s case.
The material before me, and to which I have had regard in my disposition of these cases was:
ithe T Documents required to be filed by the Agency pursuant to s 37 of the AAT Act as originally filed on 14 October 2020, and as supplemented as required while these proceedings have been before the Tribunal,
ii.a “Hearing Bundle” filed by the Agency and served on the Applicant on 18 November 2024,
iii.letters dated 18 November 2024 and 7 February 2025 authored by a psychiatrist and a psychologist which I have referred to above,
iv.16 documents filed by the Applicant on 12 February 2025 which refer to support services the Applicant is apparently in receipt of or wants to obtain. As far as I can ascertain these documents had previously been submitted and are of some age. I note that these documents were not served on the Agency as directed by direction 1. The Applicant’s explanation for this at the Hearing was that “he didn’t trust lawyers” and if the Agency wanted this information “they can subpoena it”,
v.a submission filed by the Applicant on 24 February 2025. This submission was submitted in 78 font size and ran to over 3,700 pages. Although I have not attempted to convert it to a font size suitable for use by me as a non-vision impaired reader, I was informed by the Agency’s solicitor that it had done so, and that it ran to over 400 pages in 11/12 point Arial font. That submission was not served on the Agency’s solicitor. The Applicant informed the Tribunal that it had been “sent to the NDIA” instead, but if that is the case, its specific destination was not anywhere that had conduct of these cases. When asked about this by my Associate prior to the Hearing, and at the hearing, the Applicant stated that he believed he was under no obligation to give this submission to the Agency’s solicitor because he had given it to “the NDIA” and he did not trust solicitors. Upon receipt of that information from the Applicant on 24 February 2025, my Associate forwarded the Applicant’s submission to the Agency’s legal representative.
vithe Agency’s submissions filed and served as directed on 21 February 2025. It will be obvious from the above that the Agency’s solicitor had not seen the Applicant’s evidence filed 12 February 2025 or his submissions filed 24 February 2025 before those submissions were drafted.
Applicable law
Consideration of whether these cases should be dismissed and, if so, on what grounds, requires a sketch of the relevant provisions of both the ART Act and the NDIS Act.
The ART Act
The ART’s objective is found in section 9 of the ART Act:
9 Objective
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b)ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c)is accessible and responsive to the diverse needs of the parties to proceedings; and
(d)improves the transparency and quality of government decision-making; and
(e) promotes public trust and confidence in the Tribunal.
Section 12 of the ART Act provides that an administrative decision is a reviewable decision if an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision.
Section 54 of the ART Act provides that for the purposes of reviewing a reviewable decision the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act.
Section 55 of the ART Act imposes an obligation on the Tribunal to ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to present their case:
55 Right to present case
General rule
(1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:
(a)present the party’s case; and
(b)access any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and
(c)make submissions and adduce evidence.
…
Section 56 of the ART Act imposes a duty on parties and their representatives to assist the Tribunal:
56 Parties and their representatives to assist Tribunal
Decision-makers and their representatives
(1)In a proceeding for review of a decision, the decision-maker and any person representing the decision-maker must use their best endeavours to assist the Tribunal to:
(a) make the correct or preferrable decision in relation to the proceeding; and
(b)achieve the objective in section 9.
Other parties and their representatives
(2)A party to a proceeding in the Tribunal (other than the decision-maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9.
…
Section 100 of the ART Act provides that the Tribunal may dismiss an application if an applicant fails to proceed with an application and/or comply with a Tribunal order within a reasonable time:
100 Tribunal may dismiss application if applicant fails to comply with order etc
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.
Section 101 of the ART Act provides, relevantly, that the Tribunal may also dismiss an application if it constitutes and abuse of process:
101 Tribunal may dismiss application if frivolous, vexatious etc
(1)The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:
…
(c)is otherwise an abuse of process of the Tribunal.
…
Section 105 of the ART Act specifies the terms of a decision the Tribunal is empowered to make on the review of a reviewable decision:
105 Tribunal decision on review of reviewable decision
In relation to the reviewable decision, the Tribunal must make a decision:
(a) affirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and:
(i) making a decision in substitution for the reviewable decision; or
(ii)remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
The NDIS Act
Part 2 of the NDIS Act deals with Participant Plans. As already noted, the Participant Plans that are before the Tribunal in this review are each ‘old framework plans’ within the meaning of Part 2, Division 2, Subdivision C, of the NDIS Act.
Division 1 in Part 2, s 31, of the NDIS Act establishes certain principles in relation to Plans. These principles include, relevantly:
31 Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
…
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Division 2, Subdivision A of Part 2 of the NDIS Act deals with the preparation of participant plans. In this respect s 32 provides, relevantly:
32 CEO must facilitate preparation of participant’s plan
(1)If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan
(2)The CEO must commence facilitating the preparation of the participant’s plan under subsection (1) within 21 days of the person becoming a participant.
Subsequent plans
(3)The CEO must also facilitate the preparation of a plan for a participant if:
(a)the CEO decides under subparagraph 48(7)(b)(ii) or 49(1)(b)(ii) to prepare a new plan with the participant; or
…
(4)The CEO must commence facilitating the preparation of the participant’s plan under subsection (3):
(a) … as soon as practicable after the event mentioned in paragraph 3(a) occurs.
Section 33 sets out the matters that must be included in a participant’s plan. As already noted, this includes a SoPGaA (s 33(1)) and a SoPS (s 33(2)). A participant plan may also include additional matters: s 33(7).
Subsection 33(2) sets out the matters that must be included in a SoPS. It provides:
(2)A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and
(d)the management of funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
Subsection 33(5) sets out the matters that the CEO must consider before approving a SoPS under ss 33(2):
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of s 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant; and
(g)have regard to whether s 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
Section 34 sets out those matters about which the CEO must be satisfied before a support can be incorporated into a SoPS. It provides:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Subdivision E, Division 2, of Part 2, s 37 of the NDIS Act specifies when a participant plan is in effect. It provides, relevantly:
37 When a plan is in effect
(1) A participant’s plan comes into effect when the CEO has:
(a)received the participant’s statement of goals and aspirations from the participant; and
(b) approved the statement of participant supports.
(3)a participant’s plan ceases to be in effect at the earliest of the following times:
(a) when the plan is replaced by another plan (see subsection (4));
…[24]
[24] I note that s 37 was amended by the 2024 amending Act to add other subsections, including subsection (4). However, these amendments do not alter the substantive law that is applicable in these cases from the section as it stood prior to 3 October 2024.
Division 4 of Part 2 of the NDIS Act concerns the variation and replacement of participant plans. In this respect ss 48 and 49 provide, relevantly, in relation to what is referred to in the parlance of the NDIS as “unscheduled reviews” and “scheduled reviews” respectively:
48Reassessment of a participant’s plan on request of participant or CEO’s own motion
(1)The CEO may conduct a reassessment of a participant’s plan at any time.
(2)The CEO may do so on request of the participant or on the CEO’s own initiative.
….
Note 1: If the CEO decides the plan needs to be reassessed, see subsection (8) for the period for completing the reassessment.
…
Outcome of reassessment
(7)If the CEO conducts a reassessment under subsection (1) of a participant’s plan the CEO must:
(a)complete the reassessment; and
(b)either:
(i)vary, under subsection 47A(1), the participant’s plan as a result of that reassessment; or
(ii)prepare a new plan with the participant in accordance with Division 2 and approve, under subsection… 33(2) the statement of participant supports in the new plan.
Time for completing the reassessment
…
49 Reassessment of participant’s plan before plan’s reassessment date
(1)The CEO must do the following before the reassessment date of a participant’s plan:
(a)complete a reassessment of the plan;
(b)either:
(i) vary, under subsection 47A(1), the participant’s plan as a result of that reassessment; or
(ii)prepare a new plan with the participant in accordance with Division 2 and approve under subsection … 33(2), the statement of participant supports in the new plan.
…
Part 6 of the NDIS Act deals with the review of certain decisions made under the NDIS Act. Those decisions that are reviewable are set out in the Table to s 99(1). They include, in item 4, a decision of the CEO to approve a SoPS for incorporation into a participant plan.
Section 100 sets out how a person can request a review of a first instance decision. Subsection 100(6) specifies the role of the internal reviewer in reviewing the reviewable decision:
(6) the reviewer must make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c)setting aside the reviewable decision and substituting a new decision
Section 103 of the NDIS Act contains those provisions that confer jurisdiction on this Tribunal to conduct an independent review of a reviewable decision. In this respect s 103(1) and (1A) provide that application may be made to ART for review of a decision made by a reviewer under subsection 100(6) by or, on behalf of, a person directly affected by the decision.
Section 103(2) provides:
(2) If:
(a)an application is made to the Administrative Review Tribunal for review of a decision made by a reviewer under subsection 100(6); and
(b)the decision relates to a statement of participant supports in a participant’s plan; and
(c)before the decision on the review is made and despite subsection 31(1) of the Administrative Review Tribunal Act 2024:
…
(ii)a new plan for the participant comes into effect under section 37 of this Act;
Then:
…
(e)it subparagraph (c)(ii) applies – the application is also taken to be an application for review of the decision to approve the statement of participant supports in the new plan.
The scope of the Tribunal’s jurisdiction in conducting this review was authoritatively stated by the Full Court in QDKH[25] by reference to s 25 of the AAT Act and applying Frugtniet[26] (citations omitted).
7 …
(a)The Tribunal’s jurisdiction is governed by S 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) read together with s 103 of the NDIS Act. That jurisdiction involves the Tribunal reviewing the decision of the reviewer made under s 100 of the NDIS Act, who is in turn reviewing the CEO’s or delegate’s decision to approve a SOPS under s 33(2) of the NDIS Act (NDIS Act s 99(1)(Item 4).
(b)The Tribunal’s role is to stand in the shoes of the internal reviewer and determine for itself the decision which should be made in the exercise of the power under s 100 of the NDIS Act. The scope of the Tribunal’s jurisdiction is, therefore, determined by reference to the scope of the internal reviewer’s powers under s 100 of the NDIS Act , which is in turn informed by the scope of the power under s 33(2) of the NDIS Act.
[25] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [10]
[26] Frugniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] per Bell, Gageler, Gordon and Edelman JJ.
Consideration
This is a Tribunal initiated consideration of whether the first and/or second applications ought to be dismissed because the Applicant has failed to proceed with them within a reasonable time, including by failing to comply with the Tribunal’s procedural directions for the conduct of the cases to hearing (the dismissal question). The Agency has indicated in its submissions that it believes these applications ought to be dismissed on this basis, but it is important to bear in mind that it has not applied for such an order.
The dismissal question was first raised for determination in the procedural directions made by the Tribunal, differently constituted, on 25 September 2024, and again in the procedural directions made on 23 October 2024. The dismissal question was listed for hearing on 19 November 2024 and again on 20 January 2025, but could not proceed on either date for the reasons given above. On my being constituted these cases to hear and determine on 7 February 2025 I listed the dismissal question again for hearing on 25 February 2025, being the date to which the dismissal question had been adjourned on 20 January 2025. I have set out above the procedural directions I issued to the parties in preparation for this hearing.
In this context I will now address the complaints made by the Applicant and his psychologist about this listing.
First, the dismissal question had been alive for almost five months before I listed the resumed hearing for 25 February 2025, being a date that had already been notified to the parties as the date to which the hearing was adjourned on 20 January 2025. The Applicant therefore could not reasonably be taken by surprise by the relisting of the dismissal question for hearing on 25 February 2025.
Second, the Listing Notice squarely identified the issue for determination at the Hearing; that is, whether the applications should be dismissed on the basis that the Applicant had failed to proceed with them within a reasonable time. Whether or not the Applicant felt “pressured” by the form of Notice, the Tribunal is obliged by s 72 of the ART Act to issue Listing Notices that inform the parties to a proceeding of the nature of a case event being conducted and the date, time, and place at which it will be held. It is obliged by s 55 of the ART Act to accord parties procedural fairness in relation to any issue to be determined at such an event. These obligations would not have been fulfilled if the Listing Notice was not expressed in the way it was.
Third, the Applicant and his psychologist appear to apprehend that the Listing on 25 February 2025 would be an opportunity for the Applicant to “start again” in the conduct of his cases before the Tribunal in accordance with the psychologist’s recommendation in his letter of 19 January 2025. That is an untenable belief. On 25 February 2025, the first application had been before the Tribunal for more than 4 years and 5 months, and the second application had been before the Tribunal for more than 1 year and 7 months. There had been 28 case events conducted from 47 listings. Conciliation of the dispute had been attempted but was unsuccessful. Having regard to the Tribunal’s s 9 objective that was a seriously unsatisfactory situation, not only because it was inconsistent with the efficiency and economy values incorporated into that objective, but also with its justice value. In this respect, I repeat what I said in Southam[27]:
57The approval of a statement of participant supports is a time sensitive decision within the NDIS statutory scheme. That is evident from the fact that the CEO must commence facilitating a participant’s plan within 21 days of the person becoming a participant (s 32(2)) and decide whether to approve a statement of participant supports ‘as soon as practicable thereafter’: (s 33(4)). Any participant requested variation to a participant plan must also be completed within 21 days: (s 47A(4)).
58While the Tribunal, in its review jurisdiction, is not bound by such timeframes, it is nevertheless appropriate for it to consider that the NDIS legislative scheme contemplates prompt decisions being made in relation to requested supports.
59The reason for this is obvious. The NDIS was established to provide a sub-category of persons with disability who experience substantially reduced functional capacity in one or more life activity areas due to impairment with the supports they require to live with reasonable safety and dignity and achieve their goals and aspirations (subject to the limits set by the NDIS statutory scheme). A ‘reasonable and necessary support’ is therefore self-evidently a support that a participant requires for their day-to-day subsistence. If a requested support is reasonable and necessary, any delay in the approval of that support constitutes an administrative injustice which has the potential to compromise the well-being of the participant. There is therefore an existential immediacy associated with the resolution of any dispute concerning what constitutes a reasonable and necessary support for a participant.
[27] Southam and National Disability Insurance Agency (Practice and Procedure) 2024 ARTA 198 at [57] to [59].
For the foregoing reasons I do not accept the proposition put to me by the Applicant and his psychologist the Tribunal should be “focused on the correct decision, not a quick decision”. The Tribunal is obliged to pursue both outcomes, especially given the nature of the NDIS statutory scheme. Nor do I accept that my directions sought to “expedite” finalisation of these proceedings as the Applicant’s psychologist complains. The Applicant’s first application is now amongst the oldest and most languid of all NDIS applications before the Tribunal. The Applicant’s second application is also an ‘aged case’; in that it has been before the Tribunal for more than 12 months. Nothing about the trajectory of these cases before the Tribunal reflects any expedition of them.
Fourth, I do not accept that the directions I issued to the parties on 7 February 2025 presented an impossible challenge to the Applicant given his vision impairment and mental state. Direction 2 merely directed the Applicant to provide written confirmation of the additional supports he sought to be included in the SoPS of his 2020 Plan and in his current Plan. Objectively, that is a straightforward and simple task. It is also one that is essential to ensure that the review could progress to hearing in an orderly way with reasonable certainty as to its scope.
With respect to the 2020 Plan, because it is a spent Plan, what was required of the Applicant was to identify the supports that were “provided”[28] to him within that Plan period, which he considers were reasonable and necessary at the time, but which were not funded in that Plan. In other words, it was necessary for the Applicant to identify costs he actually incurred in relation to the provision of those additional supports. At the hearing, it was more than 3 years and 6 months since that Plan had come to an end (20 August 2021). Objectively, the Applicant has had extensive time in which to identify those supports that he received but which were not paid for by the NDIS at the time. Objectively, direction 2 could not reasonably be seen to present any new challenge or difficulty for the Applicant.
[28] See the chapeau of s 34(1) of the NDIS Act.
With respect to his current Plan, Direction 2 merely required the Applicant to identify the additional supports he sought which were not incorporated into this Plan. Again, objectively, that could not reasonably be seen to present any new challenge or difficulty for the Applicant. His current Plan commenced on 4 May 2023, more than 1 year and 7 months ago. Objectively, the Applicant has had extensive time in which to identify any way in which the supports included in that Plan are insufficient.
The second element of direction 2 was to require the Applicant to file and serve “any further evidence that he intends to rely on in relation to his requested supports” (emphasis added). That direction is to be considered in the context of 26 sets of prior directions issued in these proceedings since the first application was filed which have afforded the Applicant multiple opportunities to file evidence in relation to his requested supports. The direction did not oblige the Applicant to file further evidence, it merely permitted him to do so if he had further evidence on hand that had not been filed and served previously. This direction was necessary so that the Applicant’s evidence could be finalised such that the review could move forward in an orderly way with reasonable certainty as to its scope. The direction did not envisage that the Applicant would, at this very late stage in these proceedings, embark on new evidence gathering.
Fifth, the Applicant and his psychologist complain that my directions somehow required the Applicant to read voluminous documents within a short period of time which was unreasonable due to his vision impairment and the inaccessibility of those documents to him. I am unable to grasp the basis of this complaint. Other than the Applicant’s own evidence (if any) and submissions, the only document that was to be generated because of my directions was the Agency’s submission (if any) in relation to the dismissal question. The Agency did file such a submission on 21 February 2025 as directed. It is eight pages (44 paragraphs) in length. The Applicant has made no complaint that this submission was provided to him in a format he could not read, and it is apparent from his correspondence to the Tribunal and the Agency’s legal representative of 24 February 2025 that he had read and digested those submissions.[29]
[29] In that correspondence the Applicant complains that he has had to use his NDIS core funding to read this submission which he contended was ‘abuse, negligence and emotional violence’.
Otherwise, the last tranche of documents filed in the proceeding was the Hearing Bundle filed by the Agency on 18 November 2024. That Bundle was a compilation of documents already before the Tribunal, being select T-Documents, which had been before the Tribunal and in the Applicant’s possession since 14 October 2020 (as later supplemented up to the date of the Participant Plan that commenced on 4 May 2023), and documents filed and served by the Applicant since these proceedings commenced. Objectively, the Applicant could not be taken by surprise by those documents by February 2025, and he had had an extensive period in which to read and digest them.
I now turn to the difficult question of what response was appropriate to the Applicant’s contentions that he was too mentally unwell to prepare for and participate in the hearing. It is appropriate to examine this issue prospectively to explain why I was not prepared to adjourn the hearing, and retrospectively having regard to the events that unfolded after I refused the Applicant’s adjournment request.
Prospectively, when the Applicant made his request for an adjournment on 7 February 2025 the following matters pertained:
i.The Applicant self-reported a serious deterioration in his mental health and active suicide ideation. In effect, he sought an indefinite adjournment of proceedings until he considered himself well enough to proceed,
ii.He relied upon a letter from a psychiatrist dated 18 November 2024 which opined that the proceedings were causing him ‘concern’ and ‘stress’ resulting in ‘passive suicide ideation’. That letter was almost three months old as of 7 February 2025. It did not assist the Tribunal to ascertain the Applicant’s mental state in the lead up to the hearing scheduled for 25 February 2025. The letter did not otherwise provide any information about the Applicant’s prognosis or capacity to participate in the proceedings in future,
iii.He also relied upon two letters from his psychologist, which I have summarised above. These letters did provide detailed commentary in relation to the Applicant’s mental state up to 7 February 2025, and opined that he was not capable of complying with the Tribunal’s directions or participating in the hearing due to his deteriorating mental state, characterised by acute anxiety, depression, and suicide ideation. Upon close consideration of those letters, I found them troubling for several reasons:
(a)First, it was apparent to me that the opinions expressed were founded upon several misconceptions as to the status of these proceedings and what was required of the Applicant as set out above,
(b)Second, it also appeared to me that the author misconceived the nature of the Tribunal’s review jurisdiction. In this respect, contrary to what the author appeared to apprehend, this Tribunal’s jurisdiction is limited in these cases to determining what supports are reasonable and necessary for the Applicant during the Plan periods under review. It does not have jurisdiction at large to investigate the Agency’s broader conduct in relation to the Applicant. It cannot vindicate the Applicant in relation to his various complaints about the Agency and its staff or require the Agency to apologise to him in relation to any matter. Nor can it consider his broader policy concerns about the functioning of the NDIS and NDIA, including in relation to the accessibility of the provider portal,
(c)Third, I was troubled by the author’s apparent lack of insight as to the central issue for determination, that is, whether the Applicant has the reasonable and necessary supports he is entitled to receive under the NDIS, and the potential nexus between that issue and the Applicant’s mental health and well-being. I could not fathom why a treating professional would seek to support further prolonged delay of the determination of that question for the reasons I have given above, citing my decision in Southam,
(d)Fourth, if it was the author’s opinion that the proceedings were having such a deleterious impact on the Applicant’s mental health, I was unable to understand why he supported their further elongation, which appeared to me, from within the premises of the author’s opinion, to be illogical and counter to the Applicant’s mental health and well-being,
(e)Finally, I was concerned about the author’s objectivity. While it may be accepted that the author is in a therapeutic alliance with the Applicant which conditions to an extent his mode of communication about the Applicant to others, such as this Tribunal, the content of his letters exceeds what is reasonable in that regard in my opinion. In this respect, he excuses the Applicant’s objectively abusive and threatening behaviour and attributes the responsibility for that conduct to the recipients of that abuse, he opines as to some form of deliberate scheme by the Agency and the ART which is designed to deprive the Applicant of the opportunity to properly state his case and represent himself, and within days of me listing these cases for hearing on 25 February 2025, he had lodged a complaint with the Commonwealth Attorney General apparently directed at having me removed from office. This is not the conduct of an objective clinician. It is the conduct of an advocate embedded in the Applicant’s belief system acting as his mere mouthpiece.
For each of these reasons I gave little weight to the psychologist’s opinion, and otherwise determined that, all issues considered, the hearing should proceed, and the directions remain in place, despite any potential impact on the Applicant’s mental health. That was not a decision taken lightly. It was a choice between competing considerations.
Retrospectively, it is apparent that any mental health condition that the Applicant was experiencing in February 2025 did not prevent him from finalising his submission filed on 24 February 2025, which was over 3,700 pages in length in 78point font,[30] and nor did it inhibit him from presenting his case in relation to the dismissal question at the hearing. His psychologist’s assessment proved to be incorrect in these respects.
[30] I also infer from the size of this submission that it had been in preparation for some time before February 2025.
In Charara[31] Wigney J distilled the principles that are to be applied in the exercise of discretion to dismiss an application based on an applicant’s failure to proceed with it within a reasonable time, by reference to s 42A(5) of the AAT Act. In my opinion these principles are equally relevant to an exercise of such discretion under s 100 of the ART Act, and I set them out following (references omitted):
[31] Charara v Commissioner of Taxation [2016] FCA 451 at [75] to [82].
75The discretionary power to dismiss an application under s 42A(5) is in aid of the objective in s 2A(b) of the AAT Act:[32] That section provides as follows:
[32] Section 9 of the ART Act is substantially equivalent to s 2A(b) of the AAT Act.
2A(b)In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is:
…
(b) fair, just economical, informal and quick…
76 Section 33(1)(b) of the AAT Act is also relevant.[33] It provides:
[33] A substantially equivalent provision is found in s 50 of the ART Act.
(1) In a proceeding before 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…
77Section 33(2)[34] of the AAT Act provides that the Tribunal may give directions as to the procedure to be followed for the purposes of ensuring that the proceeding is conducted in accordance with s 33(1). Some of the types of directions that the Tribunal may give are set out in s 33(2A) of the AAT Act. It could not be doubted that the Tribunal has the power to direct an applicant who has or wishes to give evidence in support of the review application to answer questions put by the respondent or the Tribunal: to “get in the witness box”, as it were.
78The discretionary power in s 42A(5)(b) of the AAT Act is only in enlivened if the applicant fails “within a reasonable time” to comply with the direction. Thus, before the Tribunal exercises the discretion, it must consider and determine not only whether there has been a failure to comply with the direction; it must also consider and determine whether a reasonable time has elapsed since the relevant failure. An omission to do so would constitute a misapplication of s 42A(5).
79The discretion must only be exercised sparingly and as a matter of “last resort”. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
80In exercising the discretion, the Tribunal must also afford the applicant procedural fairness. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or to remedy the default.
81There may be some circumstances where this is difficult. For example, an applicant who simply absents himself or herself from the hearing room with no indication that he or she intends to return may, depending on the circumstances, be taken to have forfeited any right to make any submissions as to why his or her application should not be dismissed. There may be no denial of procedural fairness in those circumstances. The particular facts and circumstances of each case must be separately considered to determine what procedural fairness required in the circumstances.
82If the applicant does provide an explanation for why a direction has not been complied with, or an argument as to why the discretion to dismiss the application should not be exercised, those explanations or arguments are mandatory relevant considerations. Failure to take any such explanations or arguments into account would constitute an error of law in the exercise of the power. And, in order to take an explanation into account, the Tribunal must “engage in an active intellectual process, in which each relevant matter receive[s] [its] genuine consideration.
[34] A substantially equivalent provision is found in s 79 of the ART Act.
With respect to the meaning that is to be attributed to the term “reasonable time” the Tribunal opined in Evans[35] with respect to s 42A(5) of the AAT Act:
76The next question is whether his failure to proceed is within a reasonable time. About this, in this context, there are two things to say immediately.
77Firstly, the phrase ‘reasonable time’ is not given any special meaning for the purposes of s 42A(5). It is not an abstract concept amenable to a fixed or arbitrary assessment of time; nor is it something that can be properly assessed on the passage of time, alone. The amount of time that may be considered reasonable is to be assessed in each case, having regard to all relevant circumstances.
78Secondly, it should not be assumed that the time in which an applicant is expected to proceed with an application must necessarily be short for it to be ‘reasonable’. A proper assessment of relevant circumstances may lead to a different conclusion. In this regard, consideration should be given to the Tribunal’s objectives set out in s 2A of the AAT Act …
79.As can be seen, quickness is but one objective, coupled with fairness, justice, economy and informality, where considerations of accessibility, proportionality and public trust also arise. I accept that these are considerations relevant to an assessment of ‘reasonable time’ for the purposes of s 42A(5) in any particular case, as well as exercise of the discretion to dismiss the section confers.
[35] Evans and Australian Capital Territory [2019] AATA at [76] to [79].
In Evans[36] the Tribunal also had this to say about how the discretion to dismiss on the ground of a failure to proceed is enlivened, again with reference to s 49A(5) of the AAT Act:
[36] Ibid at [72] – [73].
72As can be seen, the discretion to dismiss an application under this provision is essentially preconditioned by an applicant’s failure to proceed with the application, or failure to comply with a direction of the Tribunal, within a reasonable time. The following questions arise –
(a) has the applicant failed to proceed with the application within a reasonable time?
(b) has the applicant failed to comply with a direction of the Tribunal in relation to the application within a reasonable time? And, if the answer to either question is yes,
(c) is it appropriate to exercise the discretion to dismiss the application?
73 Quite clearly, each case is to be determined on its particular facts.
Having regard to these established principles, the questions the Tribunal must pose and answer in relation to the dismissal question are as follows:
i.has the Applicant failed to comply with an order of the Tribunal within a reasonable time?
ii.has the Applicant failed to proceed, generally, with these applications within a reasonable time?
iii.if the answer to “i” and “ii” is “yes”:
(a)has the Applicant been given a further opportunity to comply with the Tribunal’s orders and proceed with his applications?
(b)is there some alternative course, other than dismissal, which would provide an adequate remedy in relation to the Applicant’s default?
(c)has the Applicant been given a reasonable opportunity to explain his default, and make submissions as to why the discretion should not be exercised?
iv.Having regard to these considerations, how should the discretion be exercised?
I will confine my analysis of the first question posed to the last 12 months these cases have been before the Tribunal.
The Applicant did not comply with direction 1 of the directions made by the Tribunal on 19 June 2024, with the consequence that those directions were frustrated, and the proceeding not progressed. Nor did the Applicant comply with direction 1 of the directions made by the Tribunal on 25 September 2024 with the consequence that those directions were frustrated, and the proceeding not progressed.
The Applicant purportedly complied with direction 2 of the directions made by me on 7 February 2025 to the extent that documentary evidence was filed on 12 February 2024 and a submission was received on 14 February 2024. However, he did not comply with that direction by his failure to serve copies of that submission and evidence on the Agency’s legal representative. He deliberately sent it to some general NDIA address despite him knowing that the Agency had a firm of solicitors acting for it with whom he had been in regular communication over many months. He plainly did so to obstruct the Agency’s solicitor from preparing the Agency’s submission in response to direction 3 of those directions.
I am also not satisfied that the Applicant complied with direction 2(a) by providing written confirmation of the requested supports that are in issue. As set out above, with respect to the first application, that direction called for the straightforward identification of the supports that had been provided to the Applicant, but which were not funded by the NDIS, which the Applicant contends should have been because they were reasonable and necessary supports at that time. With respect to the second application, that direction called for the straightforward identification of the supports that the Applicant contends should be included in his current Plan but which are not. The Applicant does refer to disputed supports both directly and obliquely in his 3,700 page submission. But that submission is polemic. It is a prolix and discursive rendition of various controversies, including complaints about particular staff of the Agency and the Tribunal, sometimes expressed in vitriolic and profane terms, complaints about Agency policies and guidelines, a complaint about the accessibility of the Agency’s provider payment portal, complaints about the quality of disability support staff and the ignorance of members of the community, and many other matters. So far as direction 2(a) is concerned, the submission obscures rather than reveals the supports the Applicant seeks to have included in his SoPS as an outcome of this review.
For the foregoing reasons, I am satisfied that the Applicant has failed to comply with three successive sets of orders of the Tribunal over a five-month period, contrary to the obligation imposed on him by s 56(2) of the ART Act. In my opinion, that five-month period constituted a reasonable time for the Applicant to complete the relative straightforward tasks of identifying the supports he sought to be included in his SoPS in respect of both Applications, and to finalise his evidence.
Turning now to the question of whether the Applicant has failed more generally to proceed with these applications within a reasonable time my analysis ought properly to have regard to the length of time both cases have been before the Tribunal without resolution, which is over 4 years and 6 months for the first application, and 1 year and 9 months for the second application. Sometimes matters do not progress quickly before a Court or Tribunal for reasons unrelated to the parties, for example, delays in listings due to a backlog of cases. I am satisfied that this has not been a substantial factor in these cases. As I have stated, there have been 47 case events listed, 28 conducted, and there have been 26 sets of directions made to progress these cases towards resolution. That does not indicate any substantial want of action by the Tribunal to progress the cases.
Rather, a review of the Tribunal file reveals that the delay in the applications progressing was substantially attributable to the Applicant’s frequent failure to comply with procedural directions over the whole trajectory of the proceedings, and his complaints about Tribunal officers and processes which has diverted attention away from dispute resolution and resulted in a degree of paralysis across case events. This is not to say that the Applicant’s complaints, particularly insofar as they concerned his receipt of documents from the Tribunal on two occasions that were inaccessible to him due to the inadvertence of a Tribunal officer, were not without proper foundation. However, objectively, the Applicant’s reaction to those incidents was extreme. For example, in his recent submission, he refers to these incidents, and to my 7 February 2025 directions, as being equivalent, variously, to ‘the impact of the Gaza war on the Palestinian people’, ‘the impact of the Wagner Group on the Ukrainian people’ and to the atrocities committed on disabled persons by the Nazi regime; that is, that it constituted action directed towards his genocide. These claims are ridiculous and offensive.
I turn now to focus on the last 12 months these applications have been before the Tribunal. In my view there can be no issue that the Applicant failed to proceed with both applications between June 2024 and January 2025. As set out above, he did not respond to the directions made by the Tribunal on 19 June 2024 and 25 September 2024. Directions hearings were set down for 21 February 2024, 19 June 2024, 25 September 2024, and 23 October 2024. The first of those directions hearings was vacated at the request of the Applicant, and the following three directions hearings were repetitive of outcome because of the Applicant’s failure to comply with Tribunal directions. Hearings set down for 19 November 2024 and 20 January 2024 were both vacated because the Applicant claimed to be unable to proceed.
Having regard to what I have set out above and say following I am satisfied that the Applicant has failed to proceed with his applications within a reasonable time. The Applicant’s conduct of both cases has resulted in substantial delays measured in years and many months.
The directions I made on 7 February 2025 provided the Applicant with a further opportunity to progress his cases, being the third such opportunity in the last 12 months. It must be accepted that the Applicant did respond to that opportunity by filing evidence on 12 February 2025 (most or all of which appears to have already been before the Tribunal) and his 3,700 -page submission on 14 February 2025. However, the value of that submission in progressing these cases to hearing is negligible in my opinion. As I have stated above, it is a prolix and discursive polemic. It does not in any straightforward way address the issues that are necessary to be addressed for the orderly conduct of this review to hearing. In my estimation, it would take weeks for the Tribunal and the Agency’s solicitor to sift through that document to ascertain what supports the Applicant contends, directly or by implication, are reasonable and necessary supports that he wants included in his SoPS, and to identify the evidence he relies upon in relation to those requested supports. For this reason, I do not consider this submission to constitute a reasonable attempt to progress these cases to finality. If these cases were permitted to continue before the Tribunal, this submission would result in further protracted delay. It would thus have an effect opposite to that intended by direction 2.
Turning to the question of whether there are alternatives to dismissal of these applications that would enable them to be brought to finality within a reasonable time, I note that the Applicant has been granted what amounts to six adjournments of case events in the Tribunal’s attempt over the last year to clarify the supports in issue and the scope of the review to be conducted. Those adjournments did not result in any progression of these cases towards finality. By those case events and its directions, the Tribunal has attempted to establish a foundation for an order pursuant to s 53 determining the scope of the review to enable it to move forward. It was not assisted by the Applicant to do so. Additionally, by the directions made on 19 June 2024 and 25 September 2024, the Applicant was invited to agree to these cases being determined without a hearing, which he refused to do.[37] I am thus satisfied that reasonable alternatives to dismissing these applications have been considered but have not been successful in progressing these cases to finality.
[37] Section 106(2) of the ART Act provides that the Tribunal may only determine an application without a hearing, relevantly, if the parties consent to this and the Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties.
It remains to be considered if the Applicant has been given a reasonable opportunity to explain his failure to progress his applications, and to consider if that explanation is satisfactory.
As I have set out above, my directions and the Listing Notice issued on 7 February 2025 put the Applicant squarely on notice that I was considering the dismissal of these cases on the ground that he had failed to proceed with them within a reasonable time. That was the third time these cases had been listed for dismissal on that ground. My direction 1 provided the Applicant with the opportunity to make a submission in response to the dismissal question. Prior to the hearing the Applicant complained that he was unable to respond to my directions or attend the hearing because he was mentally unwell, but he did both in fact. I am thus satisfied that he has had a reasonable opportunity to respond to the potential dismissal of these applications.
I understand the Applicant to say that he has been unable to progress these cases to hearing for the following reasons:
i.he has a vision impairment which means that he requires the live assistance of a reader, free-text documents in enlarged fonts, or audio recordings of documents, which have not always been available to him,
ii.he has a Self-Managed NDIS Participant Plan which means he personally submits his support providers’ invoices to the NDIS provider portal for payment. The NDIA’s introduction of a two-factor authentication system has rendered that portal inaccessible to him unless he utilises live assistance which he considers a contravention of his right to privacy. Consequently, he has been unable to submit support provider invoices for payment and his support providers have refused to provide support (or he is unable to engage them) because they cannot be paid,
iii.because of his dealings with the NDIA generally, and these proceedings specifically, he and his wife are experiencing relationship stress, which limits the informal support that is available to him, and this relationship stress has exacerbated his anxiety and depression, and
iv.the proceedings are causing him to experience anxiety and depression which makes it difficult or impossible for him to comply with procedural directions and participate in case events.
I accept that each of these factors may justify additional time being allowed for compliance with directions and the delay of case events in some instances. In this respect the Tribunal has an obligation to make disability-related adjustments to its procedure where this is reasonably required by a Tribunal user. However, with respect to the Applicant’s ability to read and digest documents that are before the Tribunal I rely on what I have stated above. I also rely on the doubts I have expressed above as to the probative value of the Applicant’s psychologist’s opinions about his capacity to progress the proceedings.
Additionally, the following must be kept firmly in mind:
i.it is the Applicant who has invoked the review jurisdiction of the Tribunal and is the moving party in the proceeding. Nothing prevents him from bringing these proceedings to an end by withdrawing them. No costs or other penalty would accrue from that action in this jurisdiction. The Applicant would not be left without a remedy if he did so. He is an ongoing participant in the NDIS. When he considered himself able to do so, he could at any time request a reassessment of his plan under s 48 of the NDIS Act with a view to seeking the inclusion of additional supports in his SoPS. In any event, his Participant Plan is regularly reassessed in accordance with s 49 of the NDIS Act and these requests could also be made in the context of a scheduled review. Internal and independent review rights pertain to the outcome of any such reassessment. If the Applicant does not want to withdraw from the proceedings because of the impact of the matters set out above, he must ultimately proceed with his applications despite those matters,
ii.the delays in this case in the aggregate are exceptional. The dispute has been before the Tribunal for over 4 years and 6 months. Having regard to the Tribunal’s objective, and the NDIS statutory scheme which envisages timely decisions being made about participant supports, this is seriously unsatisfactory. There is therefore a compelling public interest in these cases being brought to finality, despite any challenges the Applicant may face. The Tribunal can and must adjust its procedure to meet the reasonable needs of its users, but it must do so in the performance its statutory function, not the neglect of it. The Applicant has been invited to consent to the Tribunal determining the dispute without a hearing to limit the impact of the proceedings on him, but he has twice refused this. He has been directed to assist the Tribunal to define the issues in dispute such that an order could be made under s 53 of the ART Act determining the scope of the review to enable the proceedings to move forward with reasonable certainty but he has not cooperated in that.
iii.it is apparent from a review of the Tribunal file, and from the submission the Applicant filed on 14 February 2024 that a great deal of the Applicant’s anger and distress arises from matters in relation to which this Tribunal has no review jurisdiction. The conduct of named NDIA staff, his banning from NDIA premises on the ground of his alleged aggression, the Agency’s decision to make a new Participant Plan at the end of the Plan that is the subject of the first application rather than seek a s 42D remittal of the decision pending the outcome of the review,[38] the validity of the Agency’s policies having regard to an asserted “thin market” for disability support services in regional Tasmania, the asserted inaccessibility of the NDIA’s provider payment portal, and various other matters that are agitated, are not matters that are properly before this Tribunal. The Applicant should not be attempting to prosecute these matters in the context of this review and to the extent that he is, any stress and distress relating to those matters in this proceeding is a circumstance of his own making,
iv.what this review concerns is the relatively straightforward issue of what supports are reasonable and necessary for the Applicant to build his functional capacity in those areas of life where his independence and social participation is substantially limited by impairment so that he can pursue his goals and aspirations. This is not a complex question, and it is one that ought to be answered in a timely way. Failure to do so may be life limiting for the Applicant should it be the case that he is currently deprived of supports to which he is entitled under the NDIS,
v.in another case the answer to the dilemma the Tribunal faces would be to proceed to determine these review applications based on the errors in the internal review decisions asserted by the Applicant in his applications to the Tribunal. However, that is impossible in this case.
That is because, with respect to the first application, the Plan that is the subject of it has ended, and the only remedy available to the Applicant is the potential to recover from the Agency the costs of reasonable and necessary support services provided to him during that plan period which were not funded under that Plan. For this application to proceed, the Applicant must identify the additional services that were provided to him and furnish evidence of the costs he incurred in their provision during the plan period. That was not the basis upon which the first application was filed.
With respect to the second application, the Applicant’s Participant Plan originally the subject of that application has been superseded due to an unscheduled review while this proceeding has been on foot, which has resulted in his current new Plan. On its face, the new Plan appears to substantially address at least some of the supports that were in issue when the second application was filed. The value of the supports in the Applicant’s current Plan is almost 14 times the value of the supports incorporated into the Plan that is the subject of the first application and it is substantially more than double the value of the supports incorporated into the Plan that was the subject of the second application. Commonsense would suggest that at least some of the Applicant’s requests for support have been resolved. It is therefore necessary for him to identify in a straightforward way what supports remain in dispute.
In summary, the Tribunal cannot properly move forward with this review without this assistance from the Applicant.
[38] The Applicant apprehends that if his SoPS was varied as a result of a remittal of the internal review decision for reconsideration by the CEO pursuant to s 42D of the AAT Act that his first application would have had continuing utility in relation to subsequently approved SoPS, but see Klewer v National Disability Insurance Agency [2023] FCA 630 and Klewer and National Disability Insurance Agency [2025] ARTA 155 which are contrary to this proposition.
Having regard to each of these considerations I am satisfied that in the circumstances of this case the Applicant’s failure to comply with the procedural directions ordered by the Tribunal, and his failure to proceed with his applications, within a reasonable time, warrant the exercise of discretion to dismiss both applications on those grounds. I also dismiss the proceedings as an abuse of process to the extent that the Applicant seeks to agitate in these proceedings the matters set out at paragraph 120(iii) above. Those matters are not properly before the Tribunal in this review.
This outcome does not leave the Applicant without a remedy. His Participant Plan is currently subject to a scheduled review and will be replaced in May 2025 by a new plan. In oral submissions on behalf the Agency it was stated that the planning process for this review has commenced and that there has already been one meeting between the Applicant and his LAC about his Plan review. It is open to the Applicant to request any further support he believes he requires, but does not yet have, in the context of that review and provide any evidence in support of that request for the delegate’s consideration. As I have explained in PTJR[39] the planning process in Part 2 of the NDIS Act is prospective in nature. The effect of my dismissal of the Applicant’s current applications is to draw a line on the past. There is now an opportunity for both parties to look to their future relationship and move forward in the collaborative way envisaged by s 33(2) of that Act to develop a SoPS comprising the reasonable and necessary supports that will enable the Applicant to pursue his goals and aspirations. I wish both parties success in that endeavour.
[39] PTJR and CEO, National Disability Insurance Agency [2025] ARTA 196 at [49].
Decision
Application no.s 2020/5639 and 2023/5186 are dismissed pursuant to ss 100 and 101(1)(c) of the Administrative Review Tribunal Act 2024 on the grounds that the Applicant has failed to proceed with these applications within a reasonable time, comply with orders for the conduct of these applications to hearing, and the applications are otherwise an abuse of process as they now stand before the Tribunal.
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