National Disability Insurance Agency v Warwick

Case [2025] FCAFC 100

FEDERAL COURT OF AUSTRALIA

National Disability Insurance Agency v Warwick [2025] FCAFC 100

Appeal from: Warwick v National Disability Insurance Agency [2024] FCA 616
File number: NSD 1023 of 2024
Judgment of: COLVIN, JACKSON AND STELLIOS JJ
Date of judgment: 4 August 2025
Catchwords:

ADMINISTRATIVE LAW - proper construction of r 5.1(d) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) - meaning of the phrase 'day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs' - costs of Scheme participant moving home - no error in decision of primary judge

APPEAL AND NEW TRIAL - appellate jurisdiction of the Court - appeal by way of rehearing - contention that orders below did not take account of subsequent legislative amendments - amendments not retrospective - error needed to engage appellate jurisdiction of the Court - error not asserted by the appellant nor established - appeal dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Administrative Review Tribunal Act 2024 (Cth) ss 105, 185

Conciliation and Arbitration Act 1904 (Cth) ss 88F, 142

Federal Court of Australia Act 1976 (Cth) ss 24, 25, 27, 28

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 10, 13, 18, 21, 22, 23, 24, 25, 28, 32, 33, 34, 35, 39, Ch 3, Pt 2, Div 2

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) Sch 1 items 124, 129, 138

Federal Court Rules 2011 (Cth) r 39.05

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) s 5, Sch 2 item 1

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 1.1, 1.2, 1.3, 1.4, 2.3, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 3.2, 3.3, 5.1, 5.2, Pt 5
Cases cited:

ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1

Ah Yick v Lehmert (1905) 2 CLR 593

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Attorney‑General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557

Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180; (2022) 295 FCR 443

Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616

Cai v Zheng [2009] NSWCA 13

Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172

Central Asbestos Co Ltd v Dodd [1973] AC 518

Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd [2004] FCAFC 183; (2004) 139 FCR 147

Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389

Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR…

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National Disability Insurance Agency v Warwick [2025] FCAFC 100
Case
[2025] FCAFC 100
Decision Date

CaseChat Overview and Summary

In the case of National Disability Insurance Agency v Warwick, the central dispute revolved around the interpretation of rule 5.1(d) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth). The primary issue was whether the costs associated with Mr Warwick's relocation from one home to another qualified as 'day-to-day living costs' that could be supported under the Scheme. The case was heard in the Federal Court of Australia, where Mr Warwick appealed the Administrative Appeals Tribunal's (AAT) decision which had approved a plan that excluded supports for his relocation.

The key legal question the court had to address was the proper construction of the phrase 'day-to-day living costs' as it appeared in rule 5.1(d). Mr Warwick argued that the costs of relocating were not 'day-to-day living costs' and thus should not be excluded under rule 5.2. The primary judge allowed this argument, finding that relocation costs were not ordinary everyday expenses incurred for the purpose of living and thus did not fall within the scope of 'day-to-day living costs'. The judge set aside the AAT's decision and remitted the matter back to the AAT for reconsideration in light of his findings.

The Federal Court examined the primary judge's reasoning and upheld it, confirming that relocation costs do not fall under the category of 'day-to-day living costs'. The court also dismissed Mr Warwick's appeal on the grounds that the legislative amendments made after the primary judge's decision did not retrospectively affect the scope of the AAT's remittal order. Consequently, the court found no error warranting its appellate jurisdiction and dismissed the appeal. The orders of the court were that the appeal be dismissed and that the appellant, Mr Warwick, pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant must pay the respondent's costs of the appeal, to be assessed by a Registrar if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The AAT affirmed the decision under review to approve the plan of April 2021 which did not include supports for the relocation. It is common ground that this decision was inconsistent with the AAT's findings, to the extent that it found that the costs of moving out of Thornleigh could be the subject of supports under the Scheme.The decision of the primary judge Mr Warwick appealed to the Federal Court from the AAT's decision, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal could only be, and was, on a question of law. In the appeal, Mr Warwick contended that the costs of relocating from one home to another were not 'day-to-day living costs' on the proper construction of r 5.1(d) of the Support Rules, so that those costs were not relevantly excluded by r 5.1. This was a new point, as Mr Warwick had not raised it in the AAT, and as had been said the AAT appears to have simply assumed that r 5.1(d) would apply unless excluded by r 5.2. The primary judge nevertheless allowed Mr Warwick to raise the argument on appeal. In the course of so ruling, the primary judge gave as one of his reasons that it was 'obvious that relocation costs are not "day-to-day living costs" and there is public interest in having it made clear for the purposes of the NDIS that this is so': primary judgment (PJ) at [13]. His Honour's reasons for that view were:[14]Paragraph 5.1(d) is contained in a legislative instrument. The expression 'day‑to-day living costs' is not defined in that instrument, nor does it bear a technical meaning. Thus, it bears its ordinary meaning. According to the Macquarie Dictionary, the ordinary meaning of 'day-to-day' is 'ordinary; happening every day'. Perhaps the word 'everyday' captures these two concepts. The ordinary meaning of 'living costs' is those expenses which are incurred in the course of living for the purpose of living. Thus 'day-to-day living costs' are those everyday expenses which are incurred in the course of living for the purpose of living. This meaning is confirmed by the examples which appear in brackets in paragraph 5.2(d) - 'rent, groceries and utility fees' - which are canonical examples of day-to-day living costs.[15]The costs of engaging an agent to sell one's home, the costs of moving from one home to another, conveyancing fees and the payment of stamp duty on the conveyance of a new home are not everyday costs which are incurred in the course of living for the purpose of living. To the contrary, they are extraordinary expenses to which not everyone has the good fortune to become liable and which, even amongst those who are that fortunate, can scarcely be described as 'day-to-day' costs.[16]It follows that the relocation costs claimed by Mr Warwick do not fall within paragraph 5.1(d). The AAT's determination that paragraph 5.1(d) applied therefore involved an error of law. The determination should be set aside and the matter remitted to the AAT to determine according to law and in light of these reasons.

Ratio Decidendi

Legal Principle Established

The Agency contends that under the transitional provisions for the amendments, on remittal the ART must consider whether the relocation costs comply with the substituted s 34(1)(f), but the scope of the remittal order prevents that. The transitional provision in question is item 129(1) of the Back on Track Act, which provides that s 33, s 34 and s 35 of the NDIS Act as amended apply to an 'old framework plan' if the statement of participant supports is approved or varied after the commencement of the amendments. Mr Warwick's plan approved in April 2021 is an old framework plan. Certain transitional rules specifying what is and is not an NDIS support may thus apply. We will explain their significance further below.Consideration of ground 1 - proper construction of r 5.1 The following discussion concerns the legislation as it stood at the time of the primary judge's decision. As just mentioned, there have been amendments since then which may impact on the construction of r 5.1 of the Support Rules developed below.Principles It is not necessary to set out the well-established principles of statutory construction. Given the emphasis in the Agency's case on the need to construe 'day-to-day living costs' as a composite phrase, it is convenient to express respectful agreement with the following passage from the judgment of Gordon J (Besanko J agreeing) in Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252 at [34] (some citations omitted):1.The task is to construe the language of the statute, not individual words.2.The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision. Indeed, it is rare that resort to a dictionary will be of assistance in searching for the legal meaning of a provision in a statute.3.As Gleeson CJ said in XYZ v Commonwealth [(2006) 227 CLR 532] at [19]:There are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts.See also General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax [1982] 2 NSWLR 52 referred to by Gleeson CJ where Lord Wilberforce remarked, in the course of argument, that an Australian who looked up the words 'commission' and 'agent' in a dictionary would probably be surprised to be told that, in England, a commission agent is a bookmaker.4.The text of the provision is to be construed according to the context 'by reference to the language of the instrument viewed as a whole': Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (citations omitted) … It is also useful to recall the following observations of the High Court in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 396‑397:The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown [[1996] 2 WLR 203 at 218], a recent House of Lords decision, Lord Hoffmann said:The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.The context of r 5.1(d)