HGLS and National Disability Insurance Agency

[2022] AATA 2766

HGLS and National Disability Insurance Agency [2022] AATA 2766 (27 July 2022)

DIVISION:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/3331

Re:HGLS

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member K Buxton

Date:27 July 2022

Place:Brisbane

The Applicant’s request for a direction that the Respondent produce a statement, under section 38 of the Administrative Appeals Tribunal Act 1975 (Cth), is refused.

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

Senior Member K Buxton

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – request for statement of reasons under s 38 AAT Act – whether the basis for the decision is adequate – request refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Senior Member K Buxton

27 July 2022

1. On 11 July 2022, the Applicant wrote to the Tribunal indicating that she sought reasons for the decision made by the Respondent dated 17 March 2022 made under section 100 of the National Disability Insurance Scheme Act 2013 (Cth).

2. Although the Applicant indicates that she sought these reasons under section 28 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), the Applicant has not met the statutory precursor for the proper application of that provision. She has not provided to the Tribunal any evidence that she has provided to the Respondent a written request of the kind required by section 28(1) of the AAT Act. In the absence of that material, it is not open to the Applicant to seek a declaration under section 28(5) of the AAT Act.

3. In order to address the substantive concern raised in the Applicant’s written submissions, the Tribunal considered whether to make an order under section 38 of the AAT Act which allows, in appropriate circumstances, for orders requiring a decision maker to provide further particulars or information without the impediment of any statutory pre-curser not being met. The Tribunal is not minded to make any such orders as the decision under review and the attached reasons, together with the supplementary information since provided by the Respondent on 30 May 2022 sufficiently particularise the findings made in the decision under review. The Applicant has accessed her right to have a full merits review conducted and the Tribunal does not require further particularisation of information in order to conduct the review.

4. The Tribunal has considered, and accepts, the Applicant’s contention that, in this case, it is proper that the Respondent provide a Statement of Facts, Issues and Contentions to the Applicant and the Tribunal before the Applicant is directed to do so. To this end the directions made on 12 July 2022 are amended to reflect this. The Statement of Facts, Issues and Contentions will amplify and clarify the Respondent’s position, and this is likely to be of assistance in understanding the decision under review. The Tribunal notes that, in undertaking a full merits review, the Tribunal’s focus will be on the correct decision in this case, rather than on whether the decision maker made an error. Therefore, in preparing the document that the parties have been directed to provide, focus should be upon the correct and preferable decision that each party contents should now be made.

5. The Applicant has sought orders under section 35 and the Tribunal, having sought the views of the Respondent, has now considered this question and has made the orders sought.

6. This Review Application has been listed for a hearing across two afternoon sessions within the business hours of the Tribunal. To this end, the Tribunal has accommodated the Applicant’s request to the extent possible, having regard to the Tribunal’s own operational requirements and limitations. Should the Respondent agree to a determination on the papers, the Applicant will not be required to attend the hearing. The directions also accommodate this prospect.

7. The Tribunal is satisfied that no further directions or orders are necessary or appropriate in this review application.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Buxton

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

Dated:   27 July 2022

Date of hearing:  On the papers

Applicant:  HGLS

Solicitor for the Respondent:             National Disability Insurance Agency