FEDERAL COURT OF AUSTRALIA
National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
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- AGLC
- National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
- Case
- [2022] FCAFC 181
- Decision Date
CaseChat Overview and Summary
The court found that the NDIA's decisions were supported by the evidence and that the NDIA had properly considered the submissions made by the appellants. The court held that the NDIA had not erred in law, and the appeals were dismissed. The court found that the NDIA had given proper weight to the evidence of Ms Merran, a registered nurse with extensive experience in the field, and that the Tribunal's findings regarding her evidence were not irrational or illogical. The court held that the NDIA had considered the appropriate factors in determining the level of support required by the appellants and that the decisions were not flawed by a failure to consider relevant submissions or a denial of procedural fairness.
The court dismissed the appeals and ordered that the appellants pay the respondents' costs of and incidental to the appeal. The court also ordered that the parties file any agreed orders as to lump sum costs by 1 December 2022, and if they were unable to agree, the question of an appropriate single lump sum would be referred to a Registrar for determination.
Orders
Orders of the court
1. The appeal be dismissed.
2. The applicant pay the respondent’s costs of and incidental to the appeal, to be fixed by way of a single lump sum referable to the three proceedings before the Court on appeal, being proceedings NSD15/2022, NSD16/2022 and NSD17/2022.
3. On or before 1 December 2022 the parties are to file with the Court any agreed orders as to lump sum costs.
4. In default of agreement pursuant to order 3, the question of an appropriate single lump sum be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The question of law must be answered aversely to the Agency, and the ground of appeal supporting it must be rejected.Irrationality/illogicality in the Tribunal’s findings about Ms Merran (question of law 2, ground 2) This question of law, and the ground supporting it, are put in the alternative to the first question of law, but in substance challenge the same findings and reasoning by the Tribunal about Ms Merran’s evidence. The Agency contends that:the treatment of Ms Merran’s evidence on credit grounds was central to, and dictated, the Tribunal’s consideration of s 33(5), and Ms Merran’s evidence was not truly considered because it was wrongly diminished in weight due to the issue of her credit.…As set out above, the propositions underlying the reasons that the Tribunal gave for subordinating Ms Merran’s evidence to A/Prof Wilson (and Prof Dowse) were not supported by, or rationally open on, the evidence. The Tribunal thus identified wrong issues (‘personal interest’ and ‘real concern’), and in doing so asked itself the wrong question (whether those issues were made out), and answered them based upon findings that were not properly open. That is an error of law: WRMF at [71]-[72]; Tsvetnenko v USA (2019) 269 FCR 225 at [35]. The Agency relied upon the approach to illogicality and irrationality set out by the Full Court in DAO16v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175. At [46] of its written submissions, the Agency contended the Tribunal “wrongly dismissed Ms Merran’s highly probative evidence”. It can be seen from this contention, confirmed by language used in oral submissions on the appeal, that the Agency in truth sought to impugn the merits of the decision made by the Tribunal, and its decision not to place weight on Ms Merran’s evidence. That is one of the challenges in relying on the irrationality and illogicality grounds – they can be easily transformed from the judicial supervision of legal error to an assessment of what was the correct or preferable outcome, or the correct or preferable treatment of certain evidence. See Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [96]; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; 281 FCR 594 at [71(5)] (Murphy J), [144] (O’Callaghan J), [150] (Snaden J); DAO16 at [30(5)]. In oral submissions, the following example of the difficulty the Agency had treading that line between contentions about illogical reasoning that caused the Tribunal’s task to miscarry, and an invitation to the Court to re-visit the merits of the review, is apparent (and in effect properly recognised by counsel: transcript at p 28, ll 1-41):[MR KREMER:] We say, simply, a person hearing Ms Merran’s extensive experience and hearing her say, “You don’t need to have a nurse do this, and you don’t need to have a nurse do that, and it can be done by a support worker overseen by a nurse,” which is the way the model actually works – when one is looking at that evidence, one doesn’t jump to a finding that, well, that evidence about the tasks and the appropriateness for the individuals are somehow tainted by the fact that she has used the model or has been involved in its development or says that the model works. The disconnect again is between the model that Ms Merran has been bound up in and has gone down on with her opinions as to the tasks for the participants, and what wasn’t impugned was her expertise to be able to evaluate and assess these participants. What wasn’t in issue was whether she had the years of experience delivering services to them. What wasn’t in issue was whether her assessment of what they needed in terms of support - - -MORTIMER J: There was a debate, Mr Kremer. There was a debate before the tribunal about whether she had spent enough time with them.MR KREMER: That’s correct. And we have put it in the submissions, where she said she spent about 30 minutes with each participant, she had done thousands of those and she thought that that was all the time she needed over her almost 40 years of experience. I’m not going to get into saying that this is some sort of an error, because that would be getting into merits review, but we say it’s a signal point that that isn’t one of the two reasons that her evidence was disbelieved, or not accepted or given less weight on it. If that had been the true motivating factor and it was something that the respondents did put in submissions, if the real reason for disbelieving her evidence or relegating it to Professor Wilson is she didn’t really appreciate their needs, she hadn’t spent enough time, all of what she did was somehow fatally flawed despite her extensive experience, we say that would have been in paragraph 101 and there wouldn’t have needed to be a paragraph 102.That would have then justified, potentially, the treatment that the tribunal gave her, subject to linking that to each of the particular tasks that she talked about. In other words, was she there long enough to see that you don’t need a nurse to look at someone’s skin for 50 minutes, 48 minutes a day. That would have to be connected to a 30-minute assessment being inadequate. And on the dispositive findings, and it’s for the reasons set out in those two paragraphs that all of the statutory tests are applied with respect to, that is something that could have been done but we say wasn’t. And one can’t inject that back into the tribunal’s actual reasons. I think [Mulligan] makes that clear; one looks at the tribunal’s reasons as recording its reasoning process and its findings.