PRLT and National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 993

PRLT and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 993 (11 July 2025)
Applicant/s:  PRLT
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2020/0198

Tribunal:Senior Member P French
Place:Sydney
Date:11 July 2025
Decision:(1)The Applicant’s application for a stay of the proceeding is dismissed pursuant to s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) on the ground that it is misconceived.
(2)Insofar as the Applicant applies for an indefinite adjournment of the proceeding, that application is refused.
(3)Substantive application no. 2020/0198 insofar as it remains before the Tribunal is dismissed pursuant to s 100(a) and (b) of the Administrative Review Tribunal Act 2024 (Cth) on the grounds that the Applicant has failed to proceed with it and comply with an order of the Tribunal within a reasonable time.

.............................[SGD]...........................................
Senior Member P French
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reviewable decision of Chief Executive Officer – statement of participant supports – where funding is sought for supports provided within a plan period that has ended
PRACTICE AND PROCEDURE – whether application ought to be dismissed on the basis that the applicant has failed to proceed with it within a reasonable time – whether application ought to be dismissed on the basis that the applicant has failed to comply with procedural directions
PRACTICE AND PROCEDURE – whether Tribunal has power to stay its own proceedings
PRACTICE AND PROCEDURE – whether an indefinite adjournment ought to be granted in the circumstances of the case – where there is an Appeal to the Federal Court from a no jurisdiction decision in relation to the review of other decisions
PRACTICE AND PROCEDURE – whether case should be referred for alternative dispute resolution – where there have been six case conferences for the purposes of alternative dispute resolution
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A 25, 42D, 47(2)A
Administrative Review Tribunal Act 2024 (Cth), ss 9, 32, 53, 79, 88, 100, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth); Schedule 16, item 24
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 32, 33, 37, 39, 47A, 48, 49, 99, 100, 103
Cases
Charara v Commissioner of Taxation [2016] FCA 451
Evans and Australian Capital Territory [2019] AATA 799
PRLT and CEO, National Disability Insurance Agency [2025] ARTA 549
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Southam and National Disability Insurance Agency (Practice and Procedure) 2024 ARTA 198
Statement of Reasons
Introduction and background

The substantive application before the Tribunal is an application made by PRLT (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the Act) for independent review of an internal review decision made under s 100(6) of that Act by a delegate of the Chief Executive Officer of the National Disability Insurance Agency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PRLT and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 993
Case: [2025] ARTA 993
Decision Date: 11 July 2025

CaseChat Overview and Summary

The decision under review concerns a dispute between the Applicant and the National Disability Insurance Agency (NDIA), with the case being heard by the Administrative Review Tribunal (ART). The Applicant, who is seeking funding for certain supports provided within a plan period that has ended, challenges a decision by the NDIA to vary her Statement of Participant Supports (SoPS). The Applicant's appeal against the Tribunal's jurisdictional decision regarding other SoPS decisions has been lodged with the Federal Court, but this does not affect the Tribunal's jurisdiction over the decision to vary the Applicant's SoPS dated 22 February 2021, which remains pending.

The Tribunal was required to address several legal issues, including whether the Applicant's application for a stay of proceedings was misconceived, whether the application for an indefinite adjournment should be granted, and if the substantive application should be dismissed for the Applicant's failure to comply with procedural directions and to proceed within a reasonable time. The Tribunal also had to consider whether the case should be referred for alternative dispute resolution, given the history of case conferences held for this purpose.

The Tribunal found that the application for a stay of proceedings was misconceived and dismissed it. The request for an indefinite adjournment was refused as the issues in the pending appeal were not intertwined with the issues in the review before the Tribunal. The Tribunal concluded that there was no viable alternative to exercising its discretion under section 100(a) and (b) of the ART Act to dismiss the substantive application. This decision was based on the Applicant's failure to proceed with the application within a reasonable time and her non-compliance with the Tribunal's procedural directions.

The Tribunal's final orders included the dismissal of the Applicant's application for a stay of proceedings, the refusal of an indefinite adjournment, and the dismissal of the substantive application on the grounds that the Applicant had failed to proceed within a reasonable time and had not complied with the Tribunal's procedural directions.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal’s decision of 9 May 2025 that it did not have jurisdiction to review various decisions made by the CEO in relation to the SoPS approved in respect of the Applicant is the subject of an Appeal to the Federal Court of Australia.[3] However, logically, that Appeal does not impugn the Tribunal’s decision that it did have jurisdiction to review the decision to vary the Applicant’s SoPS dated 22 February 2021. That review remains before the Tribunal for determination. [3] NSD908/2025 [PRLT] v National Disability Insurance Agency, filed 6 June 2025.Procedural background to the present issue The Senior Member who determined the jurisdiction question became unavailable to continue with the case after 9 May 2025. Consequently, the case was reconstituted to the Tribunal, as presently constituted, to hear and determine. On 16 May 2025, Registry issued the following directions to the parties on my instruction:1. By 4pm 6 June 2025 the Applicant must give to the Respondent and the Tribunal:(a) A statement of Facts, Issues and Contentions, and(b) All evidence on which she intends to rely at the hearing,BOTH LIMITED to the supports she contends were reasonable and necessary, but not included in her Statement of Participant Supports, current for the period 22 January 2021 to 4 May 2021.2. By 4pm 27 June 2025 the Respondent must give to the Applicant and the Tribunal a Statement of Facts, Issues and Contentions.3. By 4pm 11 July 2025 the Applicant may give to the Respondent and the Tribunal any reply to the Respondent’s Statement of Facts, Issues and Contentions.4. By 4pm on 25 July 2025 the parties are to confer and the Respondent is to give to the Applicant and the Tribunal:(a) a Joint Tender Bundle, and(b) a witness schedule5. The case is listed for FINAL HEARING on 11 and 12 August 2025 by video between 10am and 4pm AEST.NOTATIONIf the parties are unable to agree on a Joint Tender Bundle, they may comply with direction 4(a) by filing separate bundles. By letter to the Tribunal dated 5 June 2025 the Applicant sought an extension of time to 30 September 2025 to comply with direction 1, with liberty to apply for additional time, and a direction that the case return to “mediation”. By implication that request also involved the vacation of the final hearing set down for 11 and 12 August 2025. By orders published on 6 June 2025, and for reasons published with that order, I refused to extend time for compliance with direction 1, to vacate the final review hearing, and to direct that the case return to alternative dispute resolution. The Applicant did not comply with direction 1 by 4pm, 6 June 2025, or afterwards. On 11 June 2025 I directed Registry to list the case for an Interlocutory Hearing (dismissal – Applicant failure to proceed) and to issue the following directions to the parties.The Tribunal notes that the Applicant has failed to comply with direction 1 of the directions made on 16 May 2025. The case is listed for an Interlocutory Hearing to consider if it ought to be dismissed on the basis that the Applicant has failed to comply with an order of the Tribunal in relation to the proceeding, and to progress her case, within a reasonable time.The Tribunal DIRECTS:1. By 4pm 20 June 2025 the Applicant must give to the Respondent and the Tribunal any submission as to why the case should not be dismissed on the basis that she has failed to comply with an order of the Tribunal, and to progress her case, within a reasonable time.2. By 4pm 27 June 2025 the Respondent must give to the Applicant and to the Tribunal any submission in reply.3. If either party contends that an oral hearing is required in relation to the dismissal question they are to set out the grounds on which they say that is so in their submissions.(the dismissal question)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I thus reach the conclusion that there is no viable alternative to the exercise of the discretion conferred by s 100(a) and (b) of the ART Act to dismiss the substantive application insofar as it remains before the Tribunal on the basis that the Applicant has failed to proceed with it within a reasonable time and has failed to comply with the Tribunal’s procedural directions made in respect of it.Decision: For the foregoing reasons: (1)The Applicant’s application for a stay of the proceeding is dismissed pursuant to s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) on the ground that it is misconceived.(2)Insofar as the Applicant applies for an indefinite adjournment of the proceeding, that application is refused.(3)Substantive application no. 2020/0198 insofar as it remains before the Tribunal is dismissed pursuant to s 100(a) and (b) of the Administrative Review Tribunal Act 2024 (Cth) on the grounds that the Applicant has failed to proceed with the application and comply with an order of the Tribunal within a reasonable time.

Ratio Decidendi

Legal Principle Established

The general principles of procedure that apply in the management of each review are set out in Part 4, Division 4, Sub-division A of the ART Act. Notable amongst them for present purposes are the following:51 Tribunal to be accessible(1)As far as practicable, the Tribunal must conduct each proceeding in the Tribunal in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties.(2)Subsection (1) is subject to this Act and the rules.…53 Tribunal controls scope of review of decisionIn a proceeding for review of a decision, the Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers.55 Right to present caseGeneral rule(1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:(a) present the party’s case; and(b) access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and(c) make submissions and adduce evidence.…56 Parties and their representatives to assist TribunalDecision‑makers and their representatives(1) In a proceeding for review of a decision, the decision‑maker and any person representing the decision‑maker must use their best endeavours to assist the Tribunal to:(a) make the correct or preferable decision in relation to the proceeding; and(b) achieve the objective in section 9.Other parties and their representatives(2) A party to a proceeding in the Tribunal (other than the decision‑maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9.…ConsiderationShould the proceeding be adjourned pending the outcome of the Appeal I will deal first with the Applicant’s submission that this review ought to be adjourned indefinitely pending the outcome of her Appeal to the Federal Court. As I have already noted that Appeal concerns a decision of the Tribunal, differently constituted, that it did not have jurisdiction to review various other decisions. Logically, the Appeal does not impugn that Tribunal’s decision that it did have jurisdiction to conduct the review of the decision that is before me. In colourful submissions filed on 6 June 2025 in protest of my decision to refuse to extend time for compliance with Direction 1 of the Directions made on 16 May 2025, the Applicant’s representative called upon me to “yield” to the Appeal. In my respectful opinion, for the reason I have stated, there is nothing to yield to. I also note in this respect that no stay of this review has been issued by the Federal Court, and the Tribunal has not been advised of any application to the Court of this nature. It is relevant to consider if the issues in the decisions subject to Appeal are so intertwined with the issues in the review that remains before me that a balance of convenience might be served by indefinitely adjourning this proceeding pending the outcome of the Appeal. However, I am satisfied that there is no such balance of convenience.