Murphy and National Disability Insurance Agency

Murphy and National Disability Insurance Agency [2022] AATA 4278 (8 December 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/1573
Re:Amber Murphy
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Member D Barker
Date:8 December 2022
Place:Sydney

The application filed on 18 March 2020 is dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth).
........................[SGD]................................................
Member D Barker
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Telephone Directions Hearing – failure to attend TDH – Telephone Case Conference – whether application should be dismissed – National Disability Insurance Scheme – disabilities – Extension of Time – legal representative – advocate – medical condition – reviewable decision – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
REASONS FOR DECISION
Member D Barker
8 December 2022
A: INTRODUCTION

Ms Amber Murphy (the Applicant) aged 50 years applied for access, as a participant, to the National Disability Insurance Scheme (NDIS), for the third time on 31 January 2020. In this application, the Applicant described her primary disability as 'Stroke. Early 2000's. Left Sided Weakness, Poor Balance'; and listed 'Complex Post Traumatic Stress, Severe Depression, Severe Anxiety [sic], Borderline Personality Disorder' as 'other disabilities'.
The Applicant’s previous requests for access to the NDIS were not successful, with the first request lodged with the National Disability Insurance Agency (NDIA) on 10 July 2017, in which she described her primary disability as 'SPINE - see reports' and listed ‘severe depression/Anxiety, Fibromyalgia, CFS, Anaphylaxis and Panic Disorder’ as 'other disabilities’. The Applicant made her second request for access to the NDIS on 21 November 2017, describing her primary disability as 'Psychosocial Problems: P.T.S.D, Anxiety + Depression, Borderline Personality Disorder', and not listing any other disabilities.
In relation to the access request of 31 January 2020, a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent) on 6 February 2020 decided, pursuant to s 20 of the National Disability Insurance Scheme Act 2015 (Cth) (NDIS Act) that the Applicant did not meet the access criteria. The delegate was not satisfied that the Applicant met the requirement in subsection 24(1)(c) of the NDIS Act as she did not have substantially reduced functional capacity, or in subsection 25(3) which requires that early intervention supports be most appropriately funded by the NDIS.
The Applicant on 7 February 2020, applied for an internal review of the Respondent’s decision that she did not meet the required access criteria to become a participant of the NDIS and on 2 March 2020 that decision was affirmed (the Reviewable Decision).
On 18 March 2020, the Applicant applied to the Tribunal for a review of the decision made by the Respondent on 2 March 2020.
B: The Issue
The issue in this matter is whether the Application for review filed by the Applicant on 18 March 2020 should be dismissed pursuant to subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on the basis of the Applicant’s failure to appear at a scheduled Telephone Directions Hearing (TDH) on 4 October 2022, having also failed to appear at previous TDHs listed on 4 August 2022, 2 September 2022 and 12 September 2022.
C: relevant CHRONOLOGY
The chronology set out below is relevant to whether the application should be dismissed under subsection 42A(2) of the AAT Act.
On 26 May 2020, the matter was listed for a Telephone Case Conference (TCC) before a Conference Registrar of the Tribunal. The TCC proceeded with the participation of the Applicant, her Advocates from Spinal Cord Injuries Australia (SCIA) and the Respondent.
TCCs listed for 18 June 2020 and 11 August 2020 were vacated in response to requests from the Applicant’s Advocate, who indicated further time was required in order for the Applicant to attend an appointment with a neurologist and to allow time for further reports to be submitted.
On 9 September 2020, the matter was listed for a TCC. The TCC proceeded without the participation of the Applicant, but with the participation of the Applicant’s Advocate and the Respondent.
A subsequent TCC listed for 5 November 2020 was vacated in response to a request from the Applicant’s Advocate, who indicated that Legal Aid for the Applicant had been approved, but that a solicitor had yet to be appointed.
A TCC listed for 11 January 2021 was vacated in response to a request from the Applicant’s Advocate, who indicated that the Applicant has yet to attend a follow up appointment with her neurologist and as a consequence there was no new evidence to submit.
A subsequent TCC listed for 25 March 2021 was vacated in response to a request from the Applicant’s Legal Aid Representative, who indicated that the Applicant lived in an area which was at that time affected by flooding and had as a consequence been unable to provide instructions to the Representative.
On 22 April 2021 and 14 May 2021, the TCCs listed in this matter proceeded without the participation of the Applicant and her Advocate, but with her Representative and the Respondent. Directions issued following the latter TCC, on 17 May 2021, directed that:
1)the Applicant, to on or before 28 June 2021, ‘give to the Tribunal and the Respondent a copy of any further report from the Applicant's neurologist, together with a copy of the briefing letter to the doctor, on which the Applicant intends to rely’; and,
2)the Respondent, to on or before 16 July 2021, ‘give to the Tribunal and the Applicant an updated Statement of Issues in reply’.
On 5 July 2021, the Tribunal listed a TDH for 15 July 2021, before a Member of the Tribunal to deal with non-compliance in relation to Direction 1 of the Directions datede17 May 2021. The TDH proceeded without the participation of the Applicant, but with her Representative and the Respondent. Notes from the TDH indicate that the Applicant’s Representative had not had success in getting instructions from the Applicant. The Applicant was provided an extension of time (EOT) of three weeks in which to comply with Direction 1 of the Directions dated 17 May 2021.
On 6 August 2021, the Tribunal received an email from the Applicant’s Representative indicating an inability to comply with the Direction, as they had not been able to obtain specific instructions from the Applicant due to difficulty communicating with her. The Representative requested a further EOT in which to comply with the Direction.
On 10 August 2021, the Respondent advised the Tribunal that they were not opposed to the Applicant’s EOT request, but further to this noted:
‘the Applicant's representatives informed the Tribunal on 8 January 2021 that the Applicant was obtaining this report, but the Applicant failed to comply with the Tribunal's 17 May 2021 direction that she file the report by 28 June 2021, and has now failed to comply with the direction that she file the report by 5 August 2021. In these circumstances, if the Applicant fails to provide the further report from her neurologist by 13 August 2021, the Respondent will apply for the proceedings to be dismissed under subsection 42A(5) of the Administrative Appeals Tribunal Act 1975.
On 13 August 2021, the Tribunal received an email from the Applicant’s Representative providing notice that Legal Aid NSW was no longer acting for the Applicant.
On 17 August 2021, the Tribunal received an email from the Respondent, which referred to ongoing non-compliance on the part of the Applicant with respect to the filing of a neurologist report and which requested the Tribunal list a hearing to deal with the Respondent’s request and dismiss the review application.
On 20 August 2021, the Respondent agreed to a TCC as an alternative option to a dismissal hearing. The subsequent TCC listed for 2 September 2021 was vacated in response to a request, on 25 August 2021, from the advocate who had previously assisted the Applicant (the Advocate), who indicated that they had been informed by the Applicant that she could not participate as she had a medical appointment.
On 30 August 2021, the Respondent advised the Tribunal that they agreed to vacate the TCC listed for 2 September 2021, but noted that:
However, the Respondent requests that the Applicant's representative provide details of the Applicant's appointment, including whether it will result in the Applicant obtaining a report to assist the Tribunal, and if so, who will produce the report. The Respondent requests that the case conference be re-listed on the earliest available date, to limit the delay that will result from this adjournment.
On 30 August 2021, the Tribunal wrote to the Advocate requesting, in the circumstance that the Applicant intended to request a further EOT to comply with the Direction regarding the filing of the neurologist report, the Tribunal be advised in writing by 5.00 pm on Monday 30 August 2021 of the additional time that the Applicant requests to comply with the Tribunal’s Direction; and whether the views of the Respondent in relation to the application for extension of time have been sought and, if so, the Respondent’s view.
On 31 August 2021, the Advocate informed the Tribunal that they would continue to try and, seek instructions from the Applicant until the end of the day. This was followed by further emails from the Advocate, on 1 September 2021 and 2 September 2021, indicating that they had been unable to communicate with the Applicant and as a consequence there was no further information to provide.
On 8 September 2021, the Advocate informed the Tribunal that the Applicant had an appointment, on 8 October 2021, with an orthopaedic surgeon and requested an EOT of two to four weeks from 8 October 2021, to comply with Direction 1 from the Directions dated 17 May 2021.
On 17 September 2021, the Advocate informed the Tribunal that the Applicant was unable to provide the requested neurologist report, as the neurologist in question would not provide a written report and that the Applicant lacked the financial resources to seek a second opinion.
On 28 September 2021, the matter was listed for a TCC which proceeded, without the participation of the Applicant, but with the participation of the Applicant’s Advocate and the Respondent. Following this TCC, on 12 October 2021, the Tribunal issued Directions which directed that:
1. On or before 12 November 2021, the Applicant must give to the Tribunal and the Respondent any further evidence on which the Applicant intends to rely.
2. On or before 10 December 2021, the Respondent must give to the Tribunal and the Applicant an updated Statement of Issues in response to the further evidence provided by the Applicant.
The Tribunal received no further evidence from the Applicant by 12 November 2021 and, on 6 December 2021, received the requested updated Statement of Issues from the Respondent.
On 14 December 2021, the matter was listed for a TCC which proceeded, without the participation of the Applicant, but with the participation of the Applicant’s Advocate and the Respondent.
On 15 February 2022, the Advocate informed the Tribunal that the Applicant felt unable to proceed with an independent Occupational Therapy assessment which had been arranged for 4 March 2022, and in lieu of that assessment, was instead open to an assessment from her treating Occupational Therapist. An assessment report from the treating Occupational Therapist was subsequently filed with the Tribunal on 24 March 2022.
On 18 March 2022, the matter was constituted to a Member to, if appropriate, progress the matter to hearing.
On 3 May 2022, the matter was listed for a TCC. The TCC proceeded, without the participation of the Applicant, but with the participation of the Advocate and the Respondent. It was agreed at this TCC that the matter should be timetabled for hearing. Directions dated on 3 May 2022 directed that:
1         On or before 10 June 2022, the Respondent must give to the Tribunal and the Applicant:
(a)a witness statement from all lay witnesses proposed to be called at the hearing;
(b)all reports, records and any other documents on which the Respondent intends to rely at the hearing;
(c)a Statement of Issues, Facts and Contentions.
2         On or before 22 July 2022, the Applicant must give to the Tribunal and the Respondent:
(a)a witness statement from all lay witnesses proposed to be called at the hearing;
(b)all reports, records and any other documents on which the Respondent intends to rely at the hearing;
(c)only if legally represented, a Statement of Issues, Facts and Contentions.
3         On or before 22 July 2022, the Applicant and the Respondent must give to the Tribunal and the other party a Hearing Certificate for the period October – December 2022.
4         On or before 19 August 2022, the Respondent must give to the Tribunal and the Applicant an amended Statement of Issues, Facts and Contentions; or the Respondent must advise the Tribunal and the Applicant in writing that the Respondent will not be providing an amended Statement of Issues, Facts and Contentions.
5         On or before 16 September 2022, the Applicant, if legally represented, must give to the Tribunal and the Respondent an amended Statement of Issues, Facts and Contentions; or the Applicant must advise the Tribunal and the Respondent in writing that the Applicant will not be providing an amended Statement of Issues, Facts and Contentions.
The Respondent complied with Direction 1 of the Directions dated on 3 May 2022, however no documents were received from the Applicant within the timeframe specified in Direction 2 of the 3 May 2022 Directions.
On 21 June 2022, the Tribunal received an email from SCIA stating that they were no longer assisting the Applicant and that any further correspondence should be directed to the Applicant herself.
On 25 July 2022, a Listing Notice (Notice) was sent to the Applicant via her nominated email and postal address. The Notice informed the Applicant that her application had been listed for a TDH before a Member of the Tribunal on 4 August 2022 and indicated that the TDH would take place via telephone. The Notice also informed the Applicant to contact the Tribunal as soon as possible in the event that she was not able to attend the TDH at the date and time scheduled. Moreover, the Notice informed the Applicant that if she failed to attend the scheduled TDH, the Tribunal may dismiss her application under subsection 42A(2) of the AAT Act.
On 4 August 2022, the TDH before a Member of the Tribunal proceeded with the participation of the Respondent. The Applicant did not participate, having not responded to multiple phone calls to her nominated phone number. A further TDH was listed for 23 August 2022, with the Notice sent to the Applicant by email and by registered post. Directions dated on 4 August 2022 directed the Applicant to:
1On or before close of business on 15 August 2022, the Applicant is to contact the Tribunal and provide her current telephone and email contact details and provide clarification of her availability to participate in a telephone direction hearing on 23 August 2022.
2On or before close of business on 18 August 2022, the Applicant is to give to the Tribunal and the Respondent a Hearing Certificate for the period October – December 2022.
3On or before 22 August 2022, the Applicant is to give to the Tribunal and the Respondent:
a)    a witness statement from all lay witnesses proposed to be called at the hearing;
b)    all reports, records and any other documents on which the Applicant intends to rely at the hearing;
c)    if legally represented, a Statement of Issues, Facts and Contentions. If not legally represented, any written statement she may wish taken into account by the Tribunal.
Or
d)    the Applicant is to advise the Tribunal and the Respondent in writing that she will not be providing further documentary evidence or written statements in support of the review application.
4    A further telephone directions hearing is listed to be held at 11.00 am Tuesday 23 August 2022 to discuss this matter progressing to hearing and clarify the applicant’s intentions with respect to the review application.
On 22 August 2022, the Respondent provided the Tribunal with a copy of an email they received on that date from the Applicant which stated:
I am very ill atm and won’t be up for telephone call due to becoming ill.
On 23 August 2022, the TDH listed for that date was vacated in response to an the email the Applicant had sent the Respondent on 22 August 2022 in which the Applicant claimed she was too unwell to participate. In reply to an email explaining to the Applicant that the listed TDH on that date was vacated, the Tribunal received an email from the Applicant which she stated:
I am sick with pneumonia.
I can't be on the telephone as I can barely talk.
And now your telling me you are wiping my case [sic]
Not impressed
On 23 August 2022, a Notice was sent to the Applicant informing her that a further TDH was listed for 2 September 2022. Accompanying the Notice was a letter which contained the following information:
The Tribunal refers to a notification we received on 21 June 2022 from [name supplied] from Spinal Cord Injuries Australia Advocacy which informed the Tribunal that Spinal Cord Injuries Australia Advocacy were no longer assisting you and that any further correspondence should be directed to you directly.

The Tribunal has made numerous attempts to contact you since that date by the telephone, postal and email addresses you have provided to us as your contact details. The Tribunal has not had success with attempts to contact you, but it has been noted that you have called the Tribunal on 22 August 2022 and 23 August 2022 and left messages that you are currently unwell.
The Tribunal notes the representative for the NDIA has forwarded some emails which would indicate you continue to use the email address, [email address identified], by which the Tribunal has sent you emails since 21 June 2022.
The Tribunal's Direction of 3 May 2022 required you to file a number of documents associated with progressing your review to a hearing before the tribunal. This included a hearing certificate, witness statements from any lay witnesses you would propose to be called at the hearing, and any further evidence upon which you would want taken into account, by 22 July 2022. The Tribunal notes that this information has not been received.
Further to this, the Tribunal's Direction of 4 August 2022 which required you to file the documents that were referred to in the previous Tribunal Directions, which are to enable your review to progress to a hearing. You were also asked to provide the Tribunal with updated contact details and clarification, by 15 August 2022, as to whether you would be available to participate in the telephone directions hearing that was listed for 23 August 2022. The Tribunal notes that you failed to comply with these Directions as well.
A further telephone Directions hearing is listed to take place on 2 September 2022 at 10:00AM to discuss the progress of your review application. Would you please advise by return email if you are able to and intend to participate in the forthcoming telephone Directions hearing. It would also be helpful if you could comply with the Directions referred to in this letter, copies of which are included.
It is acknowledged that having a review application at the Tribunal can be a complicated process. This may particularly be the case if an applicant does not have somebody representing them. It would appear to be the case that your review has been with the Tribunal now for a considerable period of time and that it is important to try and progress the review. For this reason it is of some concern that some time has now passed since the making of the aforementioned Directions and the Tribunal refers you to the ‘Notes to Direction’ which are detailed in the Directions issued by the Tribunal on 3 May 2022 and 4 August 2022. This is a reason it would be important to be able to discuss the progress of your review during the next telephone Direction hearing.

In response, on 23 August 2022, the Tribunal received a further email from the Applicant, which stated:
I don't wish for my private health issues to be publicly available for anyone that's not listed [sic] on my case ..
On 30 August 2022, the Tribunal sent an email to the parties seeking confirmation of appearances at the TDH listed for 2 September 2022. By way of response, on 30 August 2022, the Tribunal received an email from the Applicant which stated:
I have no one and I'm still very ill with pneumonia. Someone will have to let me know what's going on. Pls do not list my public health details for the public to hear or read.
On the basis that the email received from the Applicant on 30 August 2022 did not explicitly indicate that she did not intend to participate, the TDH listed for 2 September 2022 before a Member of the Tribunal proceeded, with the participation of the Respondent only as the Applicant did not respond to multiple phone calls seeking to join her to the TDH. A further TDH was subsequently listed for 12 September 2022, with Notices of this listing going out to the parties.
On 2 September 2022, the Tribunal received an email from the Respondent, copied to the Applicant, which in part stated:
We refer to the above proceedings, which are listed for a directions hearing on 12 September 2022. We note that the steps taken in these proceedings since May 2022 have consisted of the following:
On 3 May 2022, the Tribunal made directions for:
the Respondent to file a Statement of Facts, Issues and Contentions (SFIC) and any further evidence upon which it intends to rely by 10 June 2022;
the Applicant to file any further evidence upon which she intends to rely and, if legally represented, a SFIC, by 22 July 2022;
the parties to file hearing certificates by 22 July 2022.
On 6 June 2022, the Respondent filed its SFIC and a bundle of supplementary T-documents.
On 22 July 2022, the Respondent filed its hearing certificate. The Applicant did not file, and still has not filed, a hearing certificate.
On 25 July 2022, the Tribunal notified the parties that the proceedings were listed for a directions hearing by telephone on 4 August 2022.
On 4 August 2022, the Tribunal held a directions hearing, which the Applicant did not attend. At this directions hearing, the Tribunal made directions for:
the Applicant to confirm her contact details with the Tribunal by 15 August 2022;
the Applicant to file and serve a hearing certificate by 18 August 2022;
the Applicant to file any further evidence upon which she intends to rely and, if legally represented, a SFIC, by 22 August 2022; and
the proceedings to be listed for a directions hearing by telephone on 23 August 2022.
The Respondent is not aware whether or not the Applicant confirmed her contact details with the Tribunal in accordance with these directions, and Applicant has not provided a hearing certificate.
On 22 August 2022, the Applicant sent an email to the Respondent stating that she was unwell and unable to participate in a telephone call. The Tribunal vacated the 23 August 2022 directions hearing in light of the Applicant's illness and re-listed it on 2 September 2022.
On 30 August 2022, the Applicant sent an email to the Respondent and the Tribunal stating that she was still unwell and asking that her health details not be listed publicly. The Applicant did not indicate that she would not be able to participate in a phone call or provide a medical certificate confirming her illness.
On 2 September 2022, the Tribunal held a directions hearing, which the Applicant did not attend.
Subsection 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that, if an applicant to a proceeding before the Tribunal fails to appear at a directions hearing or an alternative dispute resolution process held in relation to the application, or at the hearing of the proceeding, the Tribunal may dismiss the application without proceeding to review the decision.
If the Applicant does not attend the directions hearing listed on 12 September 2022, and does not provide a medical certificate or other evidence demonstrating that she is unable to attend, the Respondent will ask the Tribunal to dismiss this proceeding in accordance with subsection 42A(2), as this will be the third directions hearing in a row that the Applicant has failed to attend.
On 2 September 2022, in response to correspondence from the Respondent and Tribunal about the TDH listed for 12 September 2022, the Applicant replied by way of emails, which did not clarify to the Tribunal whether she wanted to proceed with her application.
Email 1
I am extremely unwell.. I am not able to attend or do phone interview due to health atm. I might be in hospital next week after seeing the specialist.
Email 2
I've stated very clearly I do not want my private matter listed publicly. There are reasons why. I am still critically ill atm. Pls don't ring 6 times a day. Please email, 1 person only. I don't need [the Respondent] emailing the same information. I see the specialist next week, I may be admitted to hospital depending on how I go over the weekend. G.P directions state bed rest.. and no stress.
On 6 September 2022, the Tribunal sent an email to the parties seeking confirmation of appearances at the TDH listed for 12 September 2022. By way of response, on 6 September 2022, the Tribunal received an email from the Applicant which stated:
I do not have anyone ?
On 9 September 2022, the Tribunal sent the Applicant an email informing her that she did not need a representative and that she could appear on behalf of herself and that the Tribunal would contact her and seek to join her to the TDH on 12 September 2022. By way of response, the Tribunal received an email from the Applicant which stated:
I refer back to previous email.. I am very ill with pneumonia and not able to take phone call.. There is supposed to be from previous email someone representing me now.. Pls check with Admin Appeals Tribinal [sic]’
On 12 September 2022, the TDH before a Member of the Tribunal was attended by the Respondent only.
A further TDH was listed for 4 October 2022. The Notice sent on 20 September 2022 indicated that the TDH on 4 October 2022 would take place via telephone. The Notice informed the Applicant to contact the Tribunal as soon as possible in the event that she was not able to attend the TDH at the date and time scheduled. The Notice informed the Applicant that if she failed to attend the scheduled TDH, the Tribunal may dismiss her application under subsection 42A(2) of the AAT Act. In conjunction with the Notice, the Associate assisting the constituted Member, sent the parties an email clarifying the purpose of the TDH, which stated:
Ms [Applicant], as you were too unwell to attend to the directions hearing listed for 12 September 2022 (as you indicated in the attached email), Member Barker has determined that the matter should be listed for another directions hearing by teleconference on 4 October 2022 at 11AM to allow you to attend when you are feeling better.
The purpose of this hearing is to have a discussion regarding the progression of this matter, including the request for dismissal and the option of a decision being made by the Tribunal 'on the papers', on the basis of the information in the documents which are currently available to the Tribunal, as was raised by the Respondent in their letter on 2 September 2022. I have attached this for your convenience, Ms [Applicant].

Ms [Applicant], you will note that the Respondent has indicated in their letter that they consent to the Tribunal proceeding to make a decision in relation to your review application, by considering the documents lodged with it, without holding a hearing. If this would also be your preference you could inform us this by emailing the Tribunal indicating that you consent to the Tribunal proceeding on this basis in accordance with section 34J of the AAT Act.
The Tribunal notes that you have indicated on several occasions that you are too unwell to attend these hearings, Ms [Applicant] – in order to ensure that this matter proceeds, the Tribunal notes that it will only adjourn this directions hearing if you are able to provide a medical certificate which details:
·The medical condition(s) affecting your capacity to participate in a directions hearing, by telephone, for a period of 60 minutes or less.
·Treatment required to stabilise or resolve symptoms associated with the medical condition(s).
·Anticipated timeframe until you will be able to participate in a directions hearing, by telephone, for a period of 60 minutes or less.
By way of response, on 20 September 2022, the Applicant sent the Tribunal a medical certificate, dated 19 August 2022 stating that the Applicant has a medical condition and would be unfit for work from 19 August 2022 to 24 August 2022 inclusive; and an email, which stated:
What does it mean by tribinal making the decision..[sic]
On 21 September 2021, the Applicant sent the Tribunal further emails, which stated:
First email
Rang this morning only to speak to operator on the phone only to be put on hold... Not happy.
Second email
Writing to advise I want a new person handling my case…
I have no understanding of everything listed..
So I am at a disadvantage as I do not understand anything in all the communications which is calling me extreme stress..
And it's unfair that [name supplied] – from NDIS lawyer gets to hear everything I have no understanding of…
I wish for my private information not to be held in public due to security reasons which I've mentioned over phone..
I need an advocacy to help and support me and represent me on this
On 28 September 2021, a different Associate wrote to the Applicant, as follows:
I am reaching out to confirm your attendance at the directions hearing by telephone at 11:00AM on 4 October 2022 with Member Barker. The purpose of the directions hearing is to facilitate a discussion between yourself, the member and the Respondent’s representative on how best to progress your matter with the AAT. The Member may be able to help explain the process going forward to you at the hearing.
You have previously expressed that you do not want your private health information made public. Noting these expressed concerns, the Tribunal invites you to consider making an application for confidentiality orders to be made under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) which, if granted, would enable you to be de-identified in these proceedings such that your identity and information pertaining to your health conditions would remain confidential. Please find further information regarding such orders here:
In relation to the Respondent’s representative being copied in to emails or their receiving copies of reports and other documents, if this is what you are concerned about, this needs to occur in the AAT review process as they are the representative for the National Disability Insurance Agency, who are a party to the review process here at the AAT, as are you.
The Tribunal would bring to your attention that it has a request before it from the Respondent to consider dismissing your review application. This was referred to in the email sent to you by the Tribunal on 20 September 2022. This is amongst the things that need to be discussed at the directions hearing by telephone at 11:00AM on 4 October 2022.
Please respond to this email and indicate whether you will be participating in the directions hearing by telephone at 11:00AM on 4 October 2022. As was highlighted in the previous email, in order to ensure that this matter proceeds, in the event you request an adjournment on medical grounds, the Tribunal will only adjourn this directions hearing if you are able to provide a medical certificate which details:
the medical condition(s) affecting your capacity to participate in a directions hearing, by telephone, for a period of 60 minutes or less.
Treatment required to stabilise or resolve symptoms associated with the medical condition(s).
Anticipated timeframe until you will be able to participate in a directions hearing, by telephone, for a period of 60 minutes or less.
By way of response, on 28 September 2022, the Tribunal received a phone call from the Applicant in which she stated that she would not be participating in the TDH on 4 October 2022 because she had other appointments. The Applicant expressed frustration and confusion regarding the review process and requested further communication with her to be by phone call rather than email and indicated she wished to make a formal complaint.
Following this, on 29 September 2022, a Tribunal Officer called the Applicant, acknowledging that she had indicated she would not participate in the TDH on 4 October 2022 and requested that if she were to change her mind, she inform the Tribunal of this so that she could be contacted and joined with the TDH. Also, on 29 September 2022, the Tribunal sent the Applicant information regarding the process for lodging a complaint with the Tribunal.
On 30 September 2022 the Tribunal informed the Respondent that the Applicant had indicated she will not be attending the TDH on 4 October 2022 but that the Member had decided to proceed with the hearing.
On 4 October 2022, the TDH proceeded with the participation of the Respondent who noted that this was the fourth TDH in a row at which the Applicant had failed to appear. The Respondent indicated that their position remained that the proceedings should be dismissed under subsection 42A(2) of the AAT Act on the basis of the Applicant's repeated failure to appear at directions hearings as required. Further to this the Respondent submitted that it would be open to the Tribunal to dismiss the proceedings under subsection 42A(5) due to the Applicant’s non-compliance with Directions issued by the Tribunal.
D: The law
The Tribunal’s objectives are stated in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
Subsection 42A(2) of the AAT Act gives the Tribunal the power to dismiss an application for review if a party (other than the person who made the decision) fails to appear. Subsection (2) provides:
(2)       If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person whomade the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)       if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or
(b)       in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.
Subsection 42A(7) relevantly provides:
(7) Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.
E: DISCUSSION
This matter has been with the Tribunal for a considerable period of time, with the review application lodged in March 2020. Of 15 alternate dispute resolution (‘ADR’) events listed to occur at the Tribunal since that time, the Applicant appeared to have participated in only the first TCC which took place on 26 May 2020. Six TCC’s were vacated at the request of the Applicant’s Advocate or Representative and a further TCC took place, without the participation of the Applicant, but with the participation of an Advocate from SCIA or a Representative, from NSW Legal Aid.
In March 2022, as a consequence of the matter not seemingly progressing through ADR opportunities at the Tribunal and in accordance with the Tribunal’s objectives, as stated in s 2A of the AAT Act, the matter was constituted to a Member to ascertain if it could be progressed to a hearing to be determined. Unfortunately the Applicant has not had assistance from a legal representative or advocate since the first event listed before a Member of the Tribunal on 4 August 2022. The Applicant has expressed her wish to have representation, but it is beyond the scope or appropriate role for the Tribunal to organise either representation or advocacy for an Applicant and the Tribunal has, on a number of occasions, informed the Applicant that it is not required that she be represented. The Applicant’s lack of representation, despite her expressed wish to have such assistance and her apparent difficulty appearing before the Tribunal without such assistance, is unfortunately a problem the Tribunal cannot resolve for the Applicant. It is also not a factor that in the view of the Tribunal should result in the proceedings being in a state, for an indeterminate but apparently ongoing basis, where it cannot progress and where a party is not appearing where required to do so, or complying with Directions duly made by the Tribunal.
The Applicant was asked to appear before the Tribunal on 4 August 2022. The Notice that was sent to her on 25 July 2022 informed her, collectively:
(a)of the date and time of the TDH and indicated that the event would take place via telephone;
(b)that if she could not attend the scheduled TDH, she should advise the Tribunal as soon as possible; and,
(c)that if she failed to attend the scheduled TDH, her application may be dismissed under subsection 42A(2) of the AAT Act.
The Applicant failed to attend the TDH on 4 August 2022, with multiple attempts to contact her on her nominated phone number not meeting with success.
The Applicant was notified, by way of email and registered post sent on 4 August 2022, that a further TDH was listed for 23 August 2022. The Tribunal vacated this TDH, taking an email from her to the Respondent on 22 August 2022, in which she stated that she was very ill and not up for a phone call, as an indication from the Applicant that she would not be available to join the TDH.
The Applicant was then asked to appear before the Tribunal at a TDH on 2 September 2022. The Notice regarding this TDH was sent to the Applicant on 23 August 2022. The Applicant did not participate in the TDH, with multiple phone calls attempting to join her again not meeting with success.
Following a further TDH on 12 September 2022, which the Applicant also did not participate in and at which the Respondent requested that the proceedings be dismissed pursuant to subsection 42A(2) of the AAT Act. Given the significant implications of any such decision, the Tribunal resolved to provide a further opportunity for the Applicant to appear before the Tribunal so that the future conduct of her application could be discussed with her. In conjunction with the Notice for the TDH, which was listed for 4 October 2022, an email was sent to the parties, which brought to the attention of the Applicant the request from the Respondent that her review application be dismissed and the importance of her taking up the opportunity to convey her views as to the future conduct of her review, or to support with evidence of the type requested that there were medical reasons constraining her capacity to participate in a TDH.
The Applicant did not participate in the TDH on 4 October 2022 and in response to the request that if she were to ask for an adjournment of the TDH she provide medical evidence to support such a request, she provided a medical certificate for a period in August 2022, which in any event lacked the detail as to the medical issues constraining her capacity to appear as requested by the Tribunal.

The Tribunal is aware that the Applicant suffers from medical conditions and this is the third occasion on which she has sought access to the NDIS. The Tribunal is aware that both a representative from Legal Aid NSW and an advocate from a disability advocacy service have attempted to assist the Applicant, but subsequently withdrew their assistance. The Tribunal is not privy to why this occurred. For the reasons discussed, the Tribunal cannot resolve the understandable concern the Applicant has regarding not having a third party assist her in relation to the review.
Notwithstanding these factors and for the reasons given, the Tribunal is satisfied that the Applicant was given appropriate notice of the time and place of the TDH on 4 October 2022 as for previous TDH’s listed for 12 September 2022, 2 September 2022 and 4 August 2022, as required under subsection 42A(7) of the AAT Act, at which she also did not appear. Consequently, the Tribunal dismisses the Applicant’s application under subsection 42A(2) of the AAT Act because she failed to appear at the TDH, on 4 October 2022.
The Tribunal acknowledges that in relation to some TDHs at which the Applicant did not appear, she had given notice of her non-appearance. However, there is not a provision in s 42A which inherently results in the action of subsection 42A(2) being mitigated through a party providing advanced notice that they would not appear before the Tribunal when required to do so. In the circumstances of this matter, the Tribunal is not persuaded the Applicant has provided satisfactory reasons for not appearing before the Tribunal, when duly notified of the time and place in which she was to do so.
As noted above, the Tribunal is satisfied that it is appropriate to dismiss the Applicant’s application seeking review of the Reviewable Decision. It is open to the Applicant to apply for reinstatement of the application within 28 days of her receiving notification that the application has been dismissed, or within such further period as the Tribunal, in special circumstances, allows, pursuant to subsection 42A(8A) of the AAT Act.
The Tribunal would further note that dismissing the current review application does not preclude the Applicant from making a new application for access to the NDIS in the future, and if that application is not successful, from seeking review by the Tribunal in the future.
F: DECISION
The application filed on 18 March 2020 is dismissed pursuant to subsection 42A(2) of the AAT Act.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member D Barker

.............................[SGD]...........................................
Associate
Dated: 8 December 2022

Date(s) of hearing: 4 October 2022

Applicant: No appearance

Solicitors for the Respondent: Ms K. Ervin, Clayton Utz

[2022] AATA 4278

8 December 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	4 October 2022
Applicant:	No appearance
Solicitors for the Respondent:	Ms K. Ervin, Clayton Utz