LJWV and National Disability Insurance Agency

LJWV and National Disability Insurance Agency [2023] AATA 2992 (15 September 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2023/0382
Re:LJWV
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K Buxton
Date:15 September 2023
Place:Brisbane

Pursuant to section 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application.
............................[SGD]..................................
Senior Member K Buxton
Catchwords
PRACTICE AND PROCEDURE – failure to appear – National Disability Insurance Scheme – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) section 42A
Cases
Mayer and NDIA [2020] AATA 3720
REASONS FOR DECISION
Senior Member K Buxton
15 September 2023

The Applicant is a child who has been assisted in all aspects of this case by her mother, Ms G. The Tribunal is satisfied that Ms G was given appropriate notice of the time and place of a Directions Hearing in his review application, which was listed to be held on 12 September 2023, at 10am. The Applicant, through Ms G, failed to appear at that hearing and Ms G could not be contacted by the Tribunal on the telephone number supplied by her at the time listed for commencement of the hearing.
The Respondent attended at the directions hearing and applied for an order that the application be dismissed (under section 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”)) on the basis of the Applicant’s non-appearance at the Directions Hearing. The Respondent had given notice to the Tribunal, copied to the Applicant by email to Ms G, of its intent to ask for this relief prior to the directions hearing.
I am satisfied that notice was provided to the Applicant, through Ms G, of the Direction Hearing on 30 August 2023 (as I must be under section 42A(7) of the AAT Act). I am further satisfied that the covering email enclosing the listing notice gave adequate notice of the consequences of non-attendance, including dismissal. Consistent with the approach taken in Mayer and NDIA [2020] AATA 3720, I am satisfied that Ms G has been made well aware that the Applicant was required to participate in the Directions Hearing in order that this review continue.
I am satisfied that it is proper to have regard to the objects of the AAT Act, including that the review be conducted in a way that is fair to all parties, and in a way that is proportionate and quick. It is important that parties adhere to procedure to allow a review to proceed in this way, and proper in this case that non-adherence leads to the dismissal of the review application.
Accordingly, pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal dismisses the application for review.
I certify that the preceding 5 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.
………………[SGD]……………………
Associate
Dated: 15 September 2023

The Administrative Appeals Tribunal (AAT) considered an application by LJWV concerning a decision made by the National Disability Insurance Agency (NDIA). LJWV sought to have the NDIA's decision reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether to dismiss LJWV's application due to their failure to attend a scheduled directions hearing. The Tribunal was required to determine if there was a sufficient reason for LJWV's non-attendance and whether it was in the interests of justice to proceed with the review or dismiss the application.

Senior Member Buxton SM applied the principles of procedural fairness and the Tribunal's general powers under the *Administrative Appeals Tribunal Act 1975* (Cth). The Senior Member noted that while the Tribunal has broad discretion, a failure to attend a hearing without a reasonable explanation can lead to dismissal. In this instance, LJWV had failed to provide any explanation for their absence from the directions hearing, despite being notified of its importance. Consequently, the Senior Member found that there was no basis to proceed with the review and that it was appropriate to dismiss the application.

The Tribunal made an order dismissing the application.

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