Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2)

The Public Trustee of South Australia, acting as the litigation representative for Isherwood, brought an appeal against the National Disability Insurance Agency, seeking judicial review of the Administrative Appeals Tribunal's decision to affirm the Agency's decisions. The primary issue before the court was whether the Tribunal's decision was flawed on various grounds, including a failure to afford natural justice, a failure to consider independent, objective, and current evidence, and an alleged irrelevant consideration regarding the nature of Ms Isherwood's seizures. The court had to determine whether the Tribunal's approach to evidence, particularly the reliance on family members' accounts and the disregard of certain medical reports, constituted a procedural error or misapplication of the statutory requirements.

The court found that the Tribunal's consideration of certain medical reports after the hearing, without allowing the applicant an opportunity to make submissions, was a failure to afford natural justice. This procedural error was significant enough to materially affect the outcome, leading the court to uphold ground one of the appeal. The court also examined the Tribunal's reliance on family members' accounts and its rejection of other medical evidence, concluding that while the Tribunal was correct in its assessment of the evidence's reliability, the lack of procedural fairness was a critical issue. As such, the other grounds of appeal were dismissed, focusing on the procedural error as the primary reason for setting aside the Tribunal's decision.

The court ordered that the Tribunal's decision be set aside and the matter be remitted for reconsideration. The respondent was directed to pay 60% of the applicant's costs, with provisions for potential variation of the costs order within a specified timeframe. This ruling underscores the importance of procedural fairness in administrative law, particularly in the context of the National Disability Insurance Scheme, where the lived experiences of individuals with disabilities play a crucial role in determining their support needs.