Sayed v National Disability Insurance Agency - [2025] FCAFC 40

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…

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

Case: [2025] FCAFC 40
Decision Date: 28 March 2025

CaseChat Overview and Summary

In the matter of Sayed v National Disability Insurance Agency, the appellant sought to appeal against a decision of the Federal Court, which had dismissed his challenge to a decision made by the National Disability Insurance Agency (NDIA). The appellant contested the NDIA's refusal to conduct an internal review of its decision to approve a statement of participant supports. The dispute centred around whether the NDIA had made a reviewable decision under section 100(2) of the National Disability Insurance Scheme Act 2013 (Cth), and whether the Administrative Appeals Tribunal (AAT) had the requisite jurisdiction to review such a decision.

The primary legal issue for the court was whether the NDIA had indeed made a decision that was subject to internal review under the Act. Additionally, the court had to determine whether the AAT had jurisdiction to review such a decision. The appellant argued that the NDIA had made a decision not to complete a review or to confirm the current supports, and that this decision was reviewable. The NDIA, on the other hand, contended that the CEO's review of the appellant's plan was not a decision that could be internally reviewed. The court had to examine the relevant sections of the Act, the AAT Act, and the procedural history of the case to resolve these issues.

The court found that the NDIA had not made a reviewable decision under section 100(2) of the Act because the CEO's review of the appellant's plan was not a decision that could be internally reviewed. The court also determined that the AAT did not have jurisdiction to review the decision. Furthermore, the court rejected the appellant's argument that the primary judge had erred in awarding costs on the standard basis. Given that the appellant was a litigant in person and impecunious, the court found that the award of costs was appropriate. The court also dismissed the appellant's application for leave to amend the notice of appeal.

The appeal was dismissed, and the appellant was ordered to pay the first respondent's costs of the appeal, as agreed or taxed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

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.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

ORDER MADE BY:	RANGIAH, MCELWAINE AND HORAN JJ
DATE OF ORDER:	28 MARCH 2025