Sharp and National Disability Insurance Agency (Practice and procedure)

[2025] ARTA 2007

Sharp and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 2007 (4 September 2025)

Decision and
Reasons for Decision

Applicant/s:  Aaron Sharp

Respondent:  National Disability Insurance Agency

Tribunal Number:                2024/5597

Tribunal:General Member Gooch  

Place:  Adelaide 

Date:4 September 2025   

Decision: The Tribunal dismisses the application undersection 99 of the Administrative Review Tribunal Act 2024(Cth).

Statement made on 04 September 2025 at 5:08pm

Catchwords

NDIS – access - failure to appear – application dismissed unders 99Administrative Review Tribunal Act 2024 (Cth)

Legislation

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013(Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Statement of Reasons

APPLICATION

1. This is an application for a review of a decision made by a delegate of the CEO on 2 August 2024 (the decision under review). The decision under review was made under section 100(6) and affirmed an original decision made on 7 May 2024 to approve a statement of participant supports.

2. On 5 August 2024 the Applicant lodged an application for review with the Administrative Appeals Tribunal (AAT).

3. On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024(Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

PROCEDURAL HISTORY

5. There have been a number of directions hearings in the course of this matter commencing from 19 August 2024. 
6. The applicant had legal representation from Victorian Legal Aid, commencing on 20 November 2024 and ceasing on 6 June 2024.
7. On 26 June 2024 the matter was listed for a conciliation conference.  Listing notices were sent to parties, including to the applicant, at the email and postal addresses previously advised. At that time the applicant’s notices were directed to his support co-ordinator.
8. The applicant did not attend this conciliation conference. Directions were made by the Conference Registrar requiring the applicant to advise of his intention, either to proceed with the dispute or to withdraw his application. 
9. By email dated 7 July 2025 the applicant advised the Agency and the Tribunal that it was his intention to proceed with his application.
10. On 29 July 2025 the Agency provided the Tribunal with the applicant’s own email address and requested that information about the Tribunal proceedings not be sent to the applicant’s support co-ordinator (as had been happening).
11. On 27 August 2025 a listing notice was sent to parties advising of a telephone directions hearing to be held on 4 September 2025.

7. Registry attempted to conduct a pre-hearing check with the applicant, but he did not answer his telephone when they called.

11. On 4 September 2025, the applicant failed to appear at the telephone directions hearing. A Tribunal Officer attempted to call the applicant at least three times on the mobile telephone number previously advised to the Tribunal by the applicant’s support worker and left messages advising of the hearing. No-one answered the calls.
12. The representative for the Agency advised the Tribunal the Agency had received an email from the applicant over the weekend stating the applicant intended to go ‘offline’.  It is unclear what this meant.

RELEVANT LEGISLATION

21. Section 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) states:

If:

(a) the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and

(b) the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event;

the Tribunal may dismiss the application.

Note 1: Tribunal case events include hearings, direction hearings and dispute resolution processes (see the definition of Tribunal case event in section 4)

Note 2: For how to appear at a Tribunal case event, see section 73.

22. Section 4 of the ART Act defines ‘Tribunal case event’, in relation to a proceeding before the Tribunal, to mean, amongst other things: ‘the hearing, or part of the hearing, of the proceeding’ and ‘a directions hearing...in relation to the proceeding’.

CONSIDERATION

23. I am satisfied that the applicant failed to appear at a Tribunal case event that related to a proceeding in relation to an application for the purposes of s 99(a) of the ART Act, because the applicant failed to appear at the hearing on 4 September 2025.

24. I am satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event for the purposes of s 99(b) of the ART Act because:

(a)the Tribunal Registry sent a listing notice to the applicant by email and by regular post.  The email address is the address provided by the applicant, confirmed by the Agency and at which previous notices have been received

(b) Registry made several calls to conduct pre-hearing checks prior to the hearing date.

25. I am satisfied this is the second occasion on which the applicant has failed to attend a case event related to the proceeding as he also did not attend the conciliation listed for 26 June 2025. 
26. In these circumstances, I find it is reasonable to dismiss the application under s 99 of the ART Act.

26. The applicant may apply to the Tribunal for reinstatement of the application within 28 days after receiving notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows): s 102(7) of the ART Act.

27. If the Tribunal considers it appropriate, the Tribunal may reinstate the application and make such order as appear to the Tribunal to be appropriate in the circumstances: s 102(9) of the ART Act.

DECISION

28. The Tribunal dismisses the application for review under s 99 of the ART Act.

Dated: 4 September 2025

Date(s) of hearing: 4 September 2025

Ni

Respondent’s Representative: 

Ms Baggett, Mills Oakley Lawyers