Maraczy-Lawley and National Disability Insurance Agency

[2022] AATA 5199

Maraczy-Lawley and National Disability Insurance Agency [2022] AATA 5199 (28 October 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/6319

Re:Colette Maraczy-Lawley

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:28 October 2022

Date of written reasons:      21 April 2023

Place:Adelaide

WRITTEN REASONS FOR DECISION DATED 28 OCTOBER 2022, NAMELY:

The Applicant lodged an application for review of a decision dated 28 July 2022. For the reasons given orally at the conclusion of the interlocutory hearing in this matter, the Tribunal dismissed the application under section 42A(4) of the Administrative Appeals Tribunal Act 1975 because the subject of the application is not a reviewable decision and accordingly the Tribunal does not have jurisdiction to hear the application.

.................[Sgnd]....................................

Member I Thompson

Catchwords

PRACTICE AND PROCEDURE – jurisdiction – National Disability Insurance Scheme Act – Administrative Appeals Tribunal Act – Tribunal has no jurisdiction – section 42A(4)

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

REASONS FOR DECISION

Member I Thompson

21 April 2023

1. At the conclusion of the interlocutory hearing in this matter, the decision that was made and the reasons for that decision were stated orally. After the delivery of the oral reasons, the Applicant, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal provide a statement in writing of the Tribunal’s reasons for its decision.

2. The oral reasons for the decision have been transcribed. Minor amendments have been made to the transcript to correct grammar and punctuation or to render parts legible.

3. The transcript, together with the minor amendments mentioned above, is annexed and provided to the Applicant and to the Respondent as the written reasons for the Tribunal’s decision.

   I certify that the preceding three (3) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

   ..........[Sgnd].....................................

   Associate

Date of written reasons:	21 April 2023
Date of interlocutory hearing:	28 October 2022
Applicant:	Colette Maraczy-Lawley (Self-represented)
Respondent:	Jack Bewsher, National Disability Insurance Agency

ORAL DECISION OF MEMBER I THOMPSON  [2:13 PM]

1. I will proceed now to make a decision in relation to the Agency’s request. I will explain the decision that I am going to make, and to give Ms Maraczy-Lawley the context for it.

2. By way of background, the matter was first listed for a telephone directions hearing on 18 August 2022. Mr Bewsher attended on behalf of the Agency and Ms Maraczy-Lawley did not attend. On that occasion, I directed the Agency to provide submissions on the jurisdiction issue by 1 September 2022, which were subsequently provided, and the directions hearing was rescheduled to 8 September 2022.

3. On that occasion, Ms Maraczy-Lawley attended by telephone. I informed her about the issue with jurisdiction and she told me that her computer had crashed, and she had not seen the email from the Agency about the question of jurisdiction. The matter was adjourned to enable her to get legal advice. She confirmed that the decision that she was wanting reviewed related to a breach of privacy in an email dated 28 July 2022, involving her eldest son and various allied health matters. I discussed with her the difference between complaints as opposed to reviews of substantive applications in the Tribunal.

4. The matter was adjourned and then relisted on 30 September 2022, for a directions hearing by telephone. Ms Maraczy-Lawley advised that she had not received legal advice at that stage. She had a solicitor and she still wanted to get advice from him. She confirmed also that she had made a complaint about the privacy issue to a Commissioner in Victoria. I discussed again with her the problem about jurisdiction; she confirmed that she wanted to get legal advice, and the matter was adjourned to 28 October 2022.

5. Shortly prior to the directions hearing today, 28 October 2022, Ms Maraczy-Lawley lodged a request for a stay order. That is misconceived in relation to the matters that are before the Tribunal. Relevantly in that request, and summarising portions of it, she referred to wanting an adjournment of the telephone directions hearing to expand upon various issues, and I interpolate that they are issues that seem to relate to the breach of privacy questions that she is concerned about. She also requested in that document that her participation in the NDIS plan be “suspended” as per her application until she decides that she needs the services of the Agency or other organisations.

6. She confirmed also in that document that she is in a “good and stable state of mental health”, using medication from her GP’s prescription of antidepressants and low dose antipsychotic medicine, self-administered and controlled. She referred to fluctuations in her mental health state, and she spoke briefly about that situation at the hearing today.

7. Ms Maraczy-Lawley is a participant in the NDIS, with a plan that commenced on 28 March 2022.

8. Ms Maraczy-Lawley’s application to the Tribunal, dated 29 July 2022, referred to a review decision on 28 July 2022, claiming “Total breach of privacy by allied health professional organisation, National OT/National 360”.

9. Mr Bewsher’s submissions, by email on 29 August 2022, pointed out that there was no internal review request regarding a decision by the Agency, whatever the decision might have been, no internal review decision, and hence no jurisdiction for the Tribunal to consider Ms Maraczy-Lawley’s substantive application.

10. In accordance with section 103 of the NDIS Act, the Tribunal has jurisdiction to review certain decisions made by the Agency. The decisions which are reviewable are set out in the table in section 99 of the Act, and the procedure for review of decisions is set out in sections 100 through to 103.

11. In short, there must be an internal reviewable decision made by the Agency, a request for internal review of that decision to be reviewed by a delegate not involved in the original decision, and a decision by the reviewer under section 100(6) of the NDIS Act. The Tribunal does not have discretion to vary these criteria.

12. In relation to Ms Maraczy-Lawley’s application, the Tribunal is satisfied that she is seeking review of a decision that is not reviewable by the Tribunal.

13. Accordingly, the Tribunal dismisses the application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act.

    END OF ORAL DECISION  [2:16 PM]