Sayed v National Disability Insurance Agency
[2025] FCAFC 40
•28 March 2025
FEDERAL COURT OF AUSTRALIA
Sayed v National Disability Insurance Agency [2025] FCAFC 40
Appeal from: Sayed v National Disability Insurance Agency (No 5) [2024] FCA 923 File number(s): VID 811 of 2024 Judgment of: RANGIAH, MCELWAINE AND HORAN JJ Date of judgment: 28 March 2025 Catchwords: ADMINISTRATIVE LAW – appeal from decision of primary judge – whether Administrative Appeals Tribunal had jurisdiction to review alleged decision of the National Disability Insurance Agency on internal review of decision to approve statement of participant supports – whether appellant made request for internal review under s 100(2) of the National Disability Insurance Scheme Act 2013 (Cth) – whether Agency made decision not to complete review or to confirm current supports – where Agency was conducting a review of the appellant’s plan on the CEO’s initiative under s 48(4) of the Act – appeal dismissed
COSTS – whether primary judge erred in awarding costs on standard basis – where appellant was a litigant in person and impecunious – leave to amend notice of appeal refused
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 42A(4), 44
Judiciary Act 1903 (Cth) s 39B(1A)
National Disability Insurance Scheme Act 2013 (Cth) ss 33(2), 47(1), 48(1), (2), (4), 49, 100(2), (3), (5), (6)
Cases cited: Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Express Cargo Services Pty Ltd v Mysko (No 2) [2023] SASC 133
House v The King (1936) 55 CLR 499
Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884
Macedon Ranges Shire Council v Thompson [2009] VSCA 209; 170 LGERA 41
Northern Territory v Sangare (2019) 265 CLR 164
Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591
Sayed v National Disability Insurance Agency (No 5) [2024] FCA 923
Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 25 March 2025 Counsel for the Appellant: Mr P Botros Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 811 of 2024 BETWEEN: MUHAMMAD ALI SAYED
Appellant
AND: NATIONAL DISABILITY INSURANCE AGENCY
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
RANGIAH, MCELWAINE AND HORAN JJ
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
This appeal arises from a decision of the Administrative Appeals Tribunal (as it then was) that it did not have jurisdiction to review the appellant’s statement of participant supports under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The appellant had applied to the Tribunal for review of a decision that he alleged was made by a delegate of the Chief Executive Officer (CEO) of the first respondent, the National Disability Support Agency, under s 100(6) of the NDIS Act, in relation to his alleged request for internal review of a decision to approve a statement of participant supports in his plan under the National Disability Insurance Scheme (NDIS). As a consequence of its decision on jurisdiction, the Tribunal dismissed the application for review pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
The primary judge dismissed the appellant’s appeal from the Tribunal’s decision on a question of law pursuant to s 44 of the AAT Act, together with his application for judicial review of the Tribunal’s decision under s 39B(1A) of the Judiciary Act 1903 (Cth): Sayed v National Disability Insurance Agency (No 5) [2024] FCA 923 (J). In summary, the primary judge relevantly found that:
(a)the appellant had not made a request under s 100(2) of the NDIS Act for internal review of the decision to approve the statement of participant supports in his plan (J [68], [125]);
(b)the respondent had not made a decision under s 100(6) of the NDIS Act, whether by way of confirming the statement of participant supports in the appellant’s existing plan or otherwise (J [112]–[113], [126]);
(c)rather, the respondent was conducting a review of the appellant’s plan on the CEO’s initiative under s 48(4) of the NDIS Act (J [69]), which ultimately culminated in the approval of a new plan under s 33(2) in replacement of the appellant’s first plan (J [97]); and
(d)the Tribunal was therefore correct to conclude that it did not have jurisdiction to hear and determine the appellant’s application for review (J [127]).
In his amended notice of appeal, the appellant challenges the primary judge’s findings that there was no decision made by the respondent under s 100(6) and that the respondent initiated a review of the appellant’s plan under s 48 of the NDIS Act. The appellant contends that he made a request for internal review under s 100(2) by expressing dissatisfaction with his plan in a phone conversation with an officer of the Agency on 29 June 2022, and that the respondent effectively made a decision under s 100(6) on 6 July 2022 to confirm the supports in his existing plan. The appellant submits that these were issues of jurisdictional fact which may be determined on the evidence that was before the Court below, notwithstanding that the appeal under s 44 of the AAT Act was confined to questions of law and the application for judicial review was based on legal or jurisdictional error: cf. J [4].
It is unnecessary to reproduce the legislative framework and the relevant facts, which are comprehensively set out in the reasons of the primary judge. We will focus on the critical matters that are dispositive of the present appeal.
Section 100 of the NDIS Act provides for “internal” review of certain decisions made by the CEO or the Commissioner of the NDIS Quality and Safeguards Commission under specified provisions of the Act. One such reviewable decision is a decision under s 33(2) to approve a statement of participant supports in a participant’s plan. Under s 100(2), a person who is directly affected by a reviewable decision may, within three months after receiving written notice of the decision, request the decision-maker to review the decision. Such a request may be made by sending or delivering a written request to the decision-maker, or by making an oral request, in person or by telephone or other means, to the decision-maker: s 100(3). On receipt of a request for review of a reviewable decision, the reviewer must review the decision and make a decision either confirming the decision, varying the decision, or setting aside the decision and substituting a new decision: s 100(5), (6). Section 103 provides that an application may be made to the Tribunal for review of a decision made by a reviewer under s 100(6).
Section 48 provides a different pathway for the review of a participant’s plan under the NDIS Act. As in force at the relevant time, prior to amendments that commenced on 1 July 2022, s 48(1) and (2) of the NDIS Act provided that a participant may request that the CEO conduct a review of the participant’s plan at any time, upon which the CEO was then required to decide whether or not to conduct the review. Section 48(4) provided that the CEO could conduct a review of a participant’s plan at any time on the CEO’s own initiative. The outcome of a review under s 48 was to facilitate the preparation of a new plan with the participant in accordance with Div 2 of Pt 2 of the NDIS Act, which would include the approval by the CEO of a statement of participant supports under s 33(2).
For the purposes of the present appeal, it is unnecessary to explore the relationship between the two pathways for review of a participant’s plan under s 48 and s 100 of the NDIS Act respectively, whether before or after the amendments which commenced on 1 July 2022. In order to succeed on this appeal, the appellant must establish error in the findings made by the primary judge that the appellant did not in fact request the respondent under s 100(2) to review the statement of participant supports in the first plan that was approved on 9 June 2022, and that the respondent did not in fact make any decision on 6 July 2022, and in particular did not make a decision under s 100(6) confirming the statement of participant supports in the appellant’s first plan.
The appellant’s challenge to the first of those factual findings focused on the evidence of his telephone call with a NDIS planner on 29 June 2022: see J [64]–[65]. Counsel for the appellant contended that, in the course of this telephone call, the appellant had indicated his disagreement or dissatisfaction with the statement of participant supports that was approved in his plan, and had communicated his desire for a different outcome. The appellant submits that this was sufficient to constitute a request for review within the meaning of s 100(2) of the NDIS Act.
The appellant accepts that, prior to 29 June 2022, he had not made a request for internal review of his plan. In an email sent to the Acting CEO on 15 June 2022, the appellant made it clear that he had “decided not to exercise my right to a review under sec. 100(2) at this time”, and that he would instead seek to progress his complaints in relation to the conduct of the delegates who had prepared his plan: J [60]–[61]. However, counsel for the appellant contended that there was a material change in the appellant’s position on 29 June 2022, when he was persuaded during his phone call with the NDIS planner that the Agency would “look at everything again from the beginning”, take a “complete look at the plan all over again”, and do a “new plan”, starting fresh with the statement of goals provided by the appellant and “coming up with what funding to include in a new statement of supports”: J [65]. The appellant submits that, in the course of the telephone conversation, he expressed his dissatisfaction with the statement of participant supports (e.g. “unfortunately, that’s not what the plan as it stands currently does”), and that this amounted to a request for review under s 100(2) of the NDIS Act.
As was noted by the primary judge, the NDIS planner sent an email to the appellant following the telephone conversation on 29 June 2022: J [66]. In that email, the NDIS planner stated that she had “decided to conduct an Agency Initiated Plan Review to revisit your NDIS support needs”. For such purposes, a “planning meeting” was scheduled for the start of the following week, at which the NDIS planner and the appellant would proceed to “go through your Participant Statement and Goals and … then go through each requested support item to determine what NDIS will be able to help you with and what we can’t provide funding for”.
The primary judge found at (J [68]) that both the statements made by the NDIS planner during the telephone conversation and the contents of her subsequent email indicated that the respondent had initiated a review of the appellant’s plan under s 48 of the NDIS Act. There was also evidence before the primary judge that the appellant understood that to be the case: J [67], [70], [72], [77], [78], [92]. While the appellant argued that he had been proceeding on the basis that the review would involve only the preparation of a new statement of participant supports based on his statement of goals and aspirations, rather than the preparation of a new plan, that does not provide a basis on which to conclude that he made a request for internal review under s 100(2) of the decision to approve the statement of participant supports in his existing plan under s 33(2) of the Act.
A new plan resulting from a CEO-initiated review under s 48 does not necessarily involve a new statement of goals and aspirations, as is made clear in Note 1 to s 49 of the NDIS Act. Further, the appellant in fact subsequently provided the NDIS planner with an “Updated statement of goals” on 5 July 2022: J [72]. It is of no significance that s 47 of the NDIS Act contemplated that a participant could give the CEO a changed version of his or her statement of goals and aspirations at any time. As the Note to s 47(1) indicates, the provision of a changed statement of goals and aspirations can be connected with or can lead to a review of the participant’s plan under s 48, either at the participant’s request or on the CEO’s initiative.
Having regard to the evidence below and the submissions on the appeal, we cannot see any error in the finding made by the primary judge that the appellant did not make any request under s 100(2) of the NDIS Act for internal review of a reviewable decision.
Nor was there any error in the primary judge’s finding that the respondent did not make a decision under s 100(6) that was capable of being the subject of an application for review by the Tribunal under s 103 of the of the NDIS Act.
The appellant sought to identify a decision that was said to have been made on 6 July 2022, when the NDIS planner sent an email to the appellant in which she relevantly stated that it was “not imperative at this time to review the plan” because there was sufficient funding under the appellant’s current plan to start providing some supports. The appellant contended that this email constituted a refusal by the respondent to complete an internal review of his plan, and was effectively a decision under s 100(6) to confirm the supports under his existing plan (i.e. confirming the reviewable decision). However, we agree with the primary judge that this is a misconstruction or mischaracterisation of the email from the NDIS planner: see J [75].
It is clear from the context of the email dated 6 July 2022 that the review of the appellant’s plan was continuing, but that the planner considered that it would be possible to “get the ball rolling” by focusing on “small quick wins that we can achieve in quick time frames” and which were already covered by the funding under the statement of participant supports in the appellant’s first plan (such as arranging for a forensic clean of the appellant’s accommodation and ongoing assistance with house cleaning). It was implicit from the email that the respondent would go on to “look at all of the other things that you need to live an ordinary life and how we can go about making that happen”. In other words, there was no decision to refuse to continue or to complete the review of the appellant’s plan. Rather, as the primary judge found, the NDIS planner was addressing the specific supports that were able to be provided immediately, as an interim measure pending the review of the appellant’s plan: J [76].
Viewed in that light, the email dated 6 July 2022 did not evidence the making of any decision by the NDIS planner on behalf of the respondent. It was, in the words of the primary judge, “not a decision at all”, such that the appellant’s challenge to the Tribunal’s decision as to its jurisdiction “fail[ed] at the first hurdle”: J [113]. In such circumstances, no question arises as to whether a decision may be made simultaneously on both an internal review under s 100 and a review of a participant’s plan under s 48 of the NDIS Act.
It should be noted that the review of the appellant’s plan under s 48 resulted in the preparation of a new plan under Div 2 of Pt 2, including the approval of a statement of participant supports. The appellant was notified of that second plan by a letter sent on 29 July 2022: J [97]. As acknowledged in that letter, the decision to approve the statement of participant supports in the second plan was itself amenable to a request for internal review under s 100(2) of the NDIS Act. However, no such request was made by the appellant: J [101]. Further, the appellant’s application to the Tribunal did not seek review of the decision to replace the first plan with a new plan (which in any event would not be amenable to review by the Tribunal under s 103 without first being the subject of a decision on internal review under s 100 of the NDIS Act), but rather a decision alleged to have been made on 6 July 2022 to confirm the supports under the first plan.
In circumstances where the appellant did not request an internal review of the approval of the statement of participant supports in his first plan, and the respondent did not make any decision on any such request for review, the Tribunal’s decision that it did not have jurisdiction was inevitable and clearly correct. The appellant has not established any error in the primary judge’s conclusion to that effect, nor in the findings on which that conclusion was based.
Further, in our view, there are serious doubts as to the utility of both the present appeal and the proceedings at first instance. It is common ground that the first plan has since been replaced on at least two occasions, by the second plan approved on 29 July 2022 as the outcome of the CEO-initiated review under s 48(4) of the NDIS Act, and subsequently by a third plan in September 2022 (see Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 at [64]). It was open to the appellant to seek internal review under s 100 of the NDIS Act in relation to the approval of the statement of participant supports in subsequent plans, and to apply to the Tribunal if he was dissatisfied with the respondent’s decision on any such internal review. Further, it was open and remains open to the appellant to request that the CEO conduct a review or a reassessment of his plan under s 48 of the NDIS Act. In so far as the appellant suggests that the matter might now be remitted to the Tribunal to review his plan as currently in force (cf. s 103(2) of the NDIS Act), that is a consequence which seems far removed from the appellant’s complaints about an alleged decision by the respondent to confirm the supports under the first plan, which has long since been superseded.
The appellant also sought leave to amend the notice of appeal in order to challenge the order made by the primary judge that he pay the respondent’s costs of the proceeding below. Leave should be refused on the basis that an appeal against the costs order would have no prospect of success. Before the primary judge, the appellant accepted that costs should be awarded against him in the event that the proceeding was dismissed: J [133]. Particularly in the light of this concession, the exercise of discretion by the primary judge is not affected by any appealable error within the principles in House v The King (1936) 55 CLR 499 at 506 (Dixon, Evatt and McTiernan JJ). It is evident that the primary judge also had regard to the manner in which the proceeding had been conducted by the appellant, which had caused a substantial amount of unnecessary costs to be incurred by the respondent.
The appellant argued that he was self-represented in the Court below and that there is no prospect of him having the means to satisfy any order to pay costs. The fact that a litigant is self-represented, while not usually a basis for displacing the ordinary rule that costs follow the event, can potentially be relevant to the exercise of the discretion to award costs on an indemnity basis: see e.g.Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] (Hodgson CJ in Eq); Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [20] (Kenny J); Macedon Ranges Shire Council v Thompson [2009] VSCA 209; 170 LGERA 41 at [16]–[17] (Redlich JA and Beach AJA); Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 at [11]–[12] (Buchanan J); Express Cargo Services Pty Ltd v Mysko (No 2) [2023] SASC 133 at [15], [23]–[31] (Stein J). Before the primary judge, the respondent did not seek any exceptional order for costs (J [133]), and the fact that the appellant was self-represented does not establish error in the exercise by the primary judge of the discretion to make a standard order for costs. Nor did the appellant’s impecuniosity provide a reason to depart from the usual order that costs should follow the event: see Northern Territory v Sangare (2019) 265 CLR 164 at [30]–[32], [35]–[36] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
For similar reasons, we consider that there is no reason why the appellant should not pay the respondent’s costs of the appeal.
Finally, we record our appreciation for the assistance provided to the Court by counsel for the appellant, acting on a pro bono basis on the appeal, whose written and oral submissions were both carefully prepared and ably presented.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, McElwaine and Horan. Associate:
Dated: 28 March 2025
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