Hutt and NATIONAL DISABILITY INSURANCE AGENCY (Practice and procedure)

[2025] ARTA 2275

Hutt and NATIONAL DISABILITY INSURANCE AGENCY (Practice and procedure) [2025] ARTA 2275 (28 October 2025)

Applicant/s:  Serene Hutt

Respondent:  NATIONAL DISABILITY INSURANCE AGENCY

Tribunal Number:                2024/0580

Tribunal:General Member Gooch  

Place:Adelaide 

Date:28 October 2025

Decision:

The applicant’s request for reinstatement pursuant to section 102 of the Administrative Review Tribunal Act 2024 (Cth) is refused.

Statement made on 28 October 2025 at 4:29pm

Catchwords

PRACTICE AND PROCEDURE – reinstatement of application for review of decision made by the NDIA – application previously dismissed for failure to attend full hearing – application made within 28 days – applicant did not attend hearing of application for reinstatement – application for reinstatement refused

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Cases

Hutt and NDIA (Practice and Procedure) [2025] ARTA 1864

JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464

Statement of Reasons

INTRODUCTION AND BACKGROUND

1.On 27 January 2024 Ms Hutt applied to the Administrative Appeals Tribunal (AAT) for review of a decision (dated 19 January 2024) made by a delegate of the CEO of the National Disability Insurance Agency (the Agency) affirming an earlier decision that Ms Hutt did not meet the access criteria in section 21 of the National Disability Insurance Scheme Act 2013 (the Act).

2.On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024(Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

3.A full hearing of the matter was listed on 23 and 24 September 2025. 

4.Listing notices were forwarded to the email address Ms Hutt had advised the Tribunal was her best means of communication. Ms Hutt corresponded with the Tribunal via this email address on numerous occasions.

5.At the time of the full hearing, the hearing attendant called Ms Hutt’s telephone number and the telephone number of her representative, her mother.  No-one answered the calls.

6.Ms Hutt had previously failed to attend various conferences and hearings on five separate occasions.

7.Pursuant to section 99 of the Administrative Review Tribunal Act2024 (the ART Act) the Tribunal dismissed Ms Hutt’s application for failure to attend a case event.[1]  A copy of the Tribunal’s decision was forwarded to Ms Hutt via the email address on record.

[1] Hutt and NDIA (Practice and Procedure) [2025] ARTA 1864

8.By email dated 25 September 2025 Ms Hutt applied to the Tribunal to have her application reinstated.  This was within the required 28-day period.[2] She advised that she thought her application had been dismissed ‘in error’.

[2] Section 102(4) of the Administrative Review Tribunal Act 2024

9.By email dated 26 September 2025 the Agency objected to the request for reinstatement, noting the matter had been dismissed and reinstated on a previous occasion.

10.A telephone directions hearing was listed on 7 October 2025 to set a timetable for hearing of the application for reinstatement.  Ms Hutt did not attend but her mother and brother attended by telephone. 

11.The Tribunal made directions for the parties to attend a hearing of Ms Hutt’s reinstatement application on 28 October 2025.   Ms Hutt was offered the opportunity to attend at the Tribunal’s Brisbane Registry in the event this would assist her to participate.

12.The Tribunal received several emails from Ms Hutt after this hearing, including one on 27 October 2025, in which Ms Hutt provided a telephone number for the Tribunal to contact her on for the next day’s hearing.  The Tribunal confirmed by email that Ms Hutt would be called on that number at the time of the hearing.

13.At the listed time for the hearing today, the hearing attendant called Ms Hutt’s telephone number on two occasions.  The calls rang but were not answered.

14.I am satisfied that Ms Hutt had reasonable notice of the hearing. I am satisfied she was aware of the hearing and had provided a contact telephone number on which she may be contacted.  

15.I am satisfied that the number dialled by the hearing attendant was the correct number that Ms Hutt had provided to the Tribunal.

16.Ms Hutt did not answer the calls.

Relevant Law

17.Section 102 provides that the Tribunal may reinstate an application for review within 28 days of the application being dismissed, either on grounds of an error having been made, or, where the dismissal was pursuant to section 99, if the Tribunal considers it to be appropriate.

18.In JTBI and Secretary, Department of Social Services,[3] Kyrou J summarised the types of errors that might enliven section 102(6). I adopt His Honour’s summary in that decision in relation to what ‘in error’ might cover.

[3] JTBI and Secretary, Department of Social Services (social security) [2025] ARTA 464

Was the application dismissed in error?

19.I have considered the original dismissal decision. It is not apparent there was any error of fact or law to suggest the dismissal was attended with error. 

20.Ms Hutt failed to attend the substantive hearing of her application to the Tribunal, after having failed to attend a number of earlier hearings. She had been provided with sufficient notice of the hearing and advice of the manner in which the Tribunal would contact her.  Her communications with the Tribunal confirmed she was aware of the hearing date and time.

21.The Tribunal acknowledges Ms Hutt has a preference for email communication with the Tribunal, but it is simply not practical for hearings to proceed by email.  Ms Hutt has access to a telephone and has demonstrated her capacity to communicate by this method.[4]

[4] Including a call to the Tribunal an hour after this hearing completed

22.It is also not possible for the hearing to proceed without her attendance and evidence. 

23.To the extent that Ms Hutt asserts she has limited telephone reception where she resides, she has been provided with:

a.    Appropriate notice of the hearing to allow her to make alternative arrangements;

b.    The opportunity to utilise the Tribunal’s resources.

24.I find Ms Hutt’s application was not dismissed in error. As a result, it cannot be reinstated pursuant to section 102(6) of the ART Act.

Is it appropriate to reinstate Ms Hutt’s application?

25.Section 102(7) of the ART Act provides that a party may seek reinstatement of an application which has been dismissed under section 99 of the ART Act (dismissal for non-appearance) within 28 days of the dismissal.

26.I accept that Ms Hutt’s application for reinstatement was made within that time frame.

27.Section 102(9) provides that if a party applies for reinstatement under section 102(7), the application may be reinstated if the Tribunal considers it appropriate.

28.I have considered the following matters:

a.    Ms Hutt has been extended grace by the Tribunal in relation to multiple non-attendances for Tribunal case events;

b.    Ms Hutt’s non-attendances result in a failure to progress her matter;

c.     The consequences of non-attendance have been raised with Ms Hutt on previous occasions, and in fact, her application has previously been dismissed for non-attendance. On that occasion Ms Hutt’s application for reinstatement was successful.

d.    Directions issued in relation to the reinstatement hearing advised that Ms Hutt’s reinstatement application was not likely to be successful if she failed to attend;

e.    A two-day hearing was listed by the Tribunal on 23 and 24 September 2025 at which Ms Hutt failed to attend despite notice.  This constituted a significant waste of the Tribunal’s resources.

f.   Ms Hutt subsequently failed to attend at the directions hearing to discuss her application for reinstatement.

g.    She has failed to attend at the hearing of her reinstatement application.

29.The Tribunal’s objectives require it to be an independent mechanism of review that is fair and just and ensures applications are resolved as quickly and with as little formality as is appropriate.

30.Nevertheless, the Tribunal is entitled to protect its procedures and may do this through the discretion to dismiss applications where appropriate.

31.The Tribunal notes that the respondent has also been put to additional expense by Ms Hutt’s continued non-attendances and the failure of these proceedings to progress.

32.Given Ms Hutt’s multiple non-attendances to date, and the failure of any reasonable explanation for that non-attendance I do not consider it is reasonable in the circumstances for this application to be reinstated for a second time. 

33.I am satisfied that Ms Hutt will not suffer significant disadvantage as she is still able to make another access application to the Agency to retest her eligibility.  Any evidence gathered in pursuit of this application will be able to be used to support that claim.

Decision

34.The Applicant’s request for reinstatement pursuant to section 102 of the Administrative Review Tribunal Act 2024 (Cth) is refused.