Hutt and National Disability Insurance Agency (Practice and procedure)

[2025] ARTA 1864

Hutt and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1864 (23 September 2025)

Decision and
Reasons for Decision

Applicant/s:  Serene Hutt

Respondent:  National Disability Insurance Agency

Tribunal Number:                2024/0580

Tribunal:General Member Gooch  

Place:  Adelaide 

Date:23 September 2025   

Decision: 

The Tribunal dismisses the application pursuant to section 99 of the Administrative Review Tribunal Act 2024(Cth).

Statement made on 23 September 2025 at 1:48pm

Catchwords

NDIS – access - failure to appear at substantive hearing of application – appropriate notice of hearing given to applicant – evidence applicant aware of hearing – application dismissed pursuant tos 99Administrative Review Tribunal Act 2024 (Cth)

Legislation

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013(Cth)

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

Statement of Reasons

APPLICATION

1. This is an application for a review of a decision made by a delegate of the CEO on 15 December 2023 (the decision under review) under s100 of the National Disability Insurance Scheme Act 2013(Cth) (NDIS Act). The decision under review affirmed an original decision made on 16 October 2023 to reject Ms Hutt’s access request to become a participant in the National Disability Insurance Scheme.

2. On 27 January 2024 the Applicant lodged an application for review with the Administrative Appeals Tribunal (AAT).

3. 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.

PROCEDURAL HISTORY

5. In her application to the Tribunal Ms Hutt provided an email address for herself but advised she had no daytime phone contact to provide. Instead, she provided the address, email address and phone number of her mother, Ms Cherie Hutt, advising Ms Cherie Hutt as her representative.

6. Over the period this application has been before the Tribunal 11 listings (for case conferences and telephone directions hearings) have been made and advised to the applicant and her mother via email. Tribunal records establish that of these listings, the applicant has failed to attend on at least 5 occasions and on 3 occasions the hearing has been vacated on request.
7. On 23 June 2025, Registry sent a listing notice to all parties advising the matter had been listed for full hearing on 23 and 24 September 2025. Parties were advised the hearing was to proceed by MS Teams video conference and a link was provided to each party. In the event parties could not attend by video link, an alternative telephone contact number was provided. The notice advised that in the event the applicant or their representative did not attend, the matter may be dismissed pursuant to section 99 of the Administrative Review Tribunal Act 2024.
8. Ms Hutt subsequently corresponded with the Tribunal in relation to subpoena’s to be issued, and with respect to witnesses who had agreed to provide evidence on her behalf.  These witnesses included Dr Lazzari, psychiatrist and Mr Heatley, occupational therapist. 
9. On 12 August 2025 Registry communicated by email with Ms Hutt in relation to outstanding matters (subpoenas, witness list and joint tender bundle).  This correspondence included the dates of the substantive hearing.
10. On 17 September 2025 Registry sent out a pre-hearing check to all parties, utilising the email addresses on file. The check reminded parties of the hearing date, requested details of who would be attending and reminded parties to utilise the hearing link provided.  In the event of difficulty, the notice provided telephone details for assistance.
11. I am satisfied that on many occasions Ms Hutt has communicated with the Tribunal utilising the email provided in her original application. I am satisfied and find this is a current and valid email address that Ms Hutt has access to.
12. The most recent email correspondence from Ms Hutt was received by the Tribunal on 19 September 2025 and was sent from the email address on file.  On the basis of the above history, I am satisfied and find that Ms Hutt and her mother have both been given appropriate notice of the hearing date and time.
13. The hearing proceeded today (23 September 2025) at 10:00am CST.  Neither Ms Hutt nor Ms Cherie Hutt attended by video link.  The hearing attendant called Ms Cherie Hutt’s telephone number on three occasions and left messages each time.  An additional telephone number for the applicant was located by the NDIA case manager.  The hearing attendant called this number twice, asking Ms Hutt to contact the Tribunal, and the matter was adjourned for a short period to allow her to make that contact.  No contact was received.
14. Mr Maynard, of Counsel, for the Agency advised the Tribunal that he was instructed to seek the matter be dismissed for non-attendance pursuant to section 99 of the Administrative Review Tribunal Act 2024 (the ART Act).

RELEVANT LEGISLATION

15. Section 99 provides that:

If:

(a)the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and

(b)the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event;

the Tribunal may dismiss the application.

22. Note 1 to this section clarifies that a ‘case event’ includes a hearing.
23. Section 4 of the ART Act defines ‘Tribunal case event’, in relation to a proceeding before the Tribunal, to mean, amongst other things: ‘the hearing, or part of the hearing, of the proceeding’ and ‘a directions hearing...in relation to the proceeding’.
24. An applicant may attend a case event themselves or by their representative.[1]

[1] Section 73(1) of the ART Act.

CONSIDERATION

16. I am satisfied that today’s hearing was a case event for the purposes of section 99 of the ART Act.
17. I am satisfied that the applicant (and her representative, Ms Cherie Hutt) received appropriate notice of the hearing (via the listing notice, other correspondence and the pre-hearing check). 
18. No-one attended at the hearing on behalf of Ms Hutt.  No prior contact advised of any inability to attend.  
19. In the circumstances outlined above, and having regard to the Tribunal’s objectives as outlined in section 9 of the ART Act, the Tribunal dismisses the application pursuant to section 99 of the ART Act.

26. The applicant may apply to the Tribunal for reinstatement of the application within 28 days after receiving notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).[2]

[2] S107(7) of the ART Act

27. If the Tribunal considers it appropriate, the Tribunal may reinstate the application and make such order as appear to the Tribunal to be appropriate in the circumstances: s 102(9) of the ART Act.

DECISION

28. The Tribunal dismisses the application for review under s 99 of the ART Act.

Dated: 23 September 2025

Date(s) of hearing: 23 September 2025

Ni

Respondent’s Counsel:  Mr Maynard

Respondent’s Representative:  Sparke Helmore Lawyers

Applicant’s representative: Nil