Keightley and National Disability Insurance Agency

This matter concerned an interlocutory application before the Administrative Appeals Tribunal (AAT) where the National Disability Insurance Agency (NDIA) sought to issue summonses for the production of documents during the internal review process. The Applicant, Ms Keightley, objected to the issuing of these summonses, arguing that doing so would be oppressive.

The primary legal issue before the Tribunal was whether to grant the NDIA's request to issue summonses for evidence gathering, and consequently, whether the NDIA was entitled to a reasonable opportunity to present its case, including the inspection of documents relevant to the review. The Tribunal also considered the Applicant's stated intention to proceed with the review based only on evidence available to the original decision-maker and reviewer, and the potential implications of this approach.

The Tribunal refused the NDIA's application to issue the summonses. It reasoned that the Applicant had indicated a clear intention to proceed to a determination of her review application without relying on any evidence that was not available to the original decision-maker and reviewer. The Tribunal noted that if the review proceeded without further evidence, it would rely on the documents already before it, meaning the information sought by the summonses would not be available to the Tribunal and thus not attract the operation of section 39(1) of the AAT Act. The Tribunal acknowledged the principle that people with disability are assumed to have the capacity to determine their own best interests and make decisions affecting their lives, and that it was open to the Tribunal to facilitate an applicant's choice in how they conduct their case, even if that involved assuming a forensic risk.

The Tribunal issued directions for the matter to proceed to a timely resolution, and formally refused the NDIA's requests for the issuing of nine summonses for the production of documents.