Southam and National Disability Insurance Agency (Practice and procedure)
[2024] ARTA 198
•20 September 2024
Southam and National Disability Insurance Agency (Practice and procedure) [2024] ARTA 198 (18 November 2024)
Decision and Reasons for Decision
Applicant/s: Neil Southam
Respondent: National Disability Insurance Agency
Tribunal Number: 2020/4458
Tribunal: Senior Member French
Place: Sydney
Date: 20 September 2024
Date of written reasons: 18 November 2024
Decision:1. The Applicant’s further request for an adjournment of this interlocutory hearing and the substantive hearing set down for 8, 9 and 24 October 2024 is refused.
2.The Tribunal refuses to permit Ms Vanessa Minervini to represent the Applicant in this proceeding.
3.The substantive application (2020/4458) is dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).
Notation:1
The Tribunal notes that the Agency will now conduct a reassessment of the Applicant’s participant plan under s 48 of the National Disability Insurance Scheme Act 2013 (Cth).
..............................[SGD]..........................................
Senior Member French
1 This notation does not form part of the Tribunal’s decision.
CATCHWORDS
National Disability Insurance Scheme – application for review of a decision to approve a statement of participant supports – whether an application for an adjournment of an interlocutory and substantive hearing should be granted – whether a person should be permitted to continue to represent an Applicant in the proceeding – whether the substantive application ought to be dismissed on the basis that the Applicant has failed to proceed with the application within a reasonable time
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 24, 31, 33, 42(2A), 42A(5), 42D Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth), Schedule 16, Part 3, Item 18
National Disability Insurance Scheme Act 2013 (Cth), 33, 103
CASES
Al Saed and National Filardo and National Disability Insurance Agency [2020] AATA 4092 Australian Securities Commission v Bell [1991] FCA 565; (1991) 104 ALR 15
Bobolas v Waverley Council [2016] NSWCA 139; 92 NSWLR 406 Dahner and National Disability Insurance Agency [2021] AATA 332 Filardo and National Disability Insurance Agency [2020] AATA 4092
Re Campbell-Maruca and Registrar of Indigenous Corporations (2012) 131 ALD 162; [2012]
AATA 678
Statement of Reasons
Introduction
These are reasons for three decisions made in this proceeding at an interlocutory hearing held on 20 September 2024 which have been prepared following a request made by a party to the proceeding pursuant to s 42(2A) of the former Administrative Appeals Tribunal Act 1975 (AAT Act) under which Act these issues were determined. Since those decisions were made, with effect from 14 October 2024, the Administrative Appeals Tribunal was abolished, and the Administrative Review Tribunal (ART) established. These reasons are issued by the ART, pursuant to the transitional provision contained in Schedule 16, Part 3, Item 18 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
The three decisions for which these reasons are given are:
i.to refuse the Applicant’s further request for an adjournment of the 20 September 2024 interlocutory hearing and the substantial hearing set down for 8, 9 and 24 October 2024,
ii.to refuse to permit Ms Vanessa Minervini to continue to represent the Applicant in the proceeding, and
iii.to dismiss the Applicant’s substantive review application on the ground that he has failed to proceed with it within a reasonable time.
(together, the decisions)
Background
The decisions arise from an application made by the Applicant on 23 July 2020, pursuant to s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), for administrative review of an internal review decision made on 1 July 2020 under s 100(6) of that Act, by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the delegate). By that decision the delegate varied an original decision made on 1 May 2020 to include two additional supports in the Applicant’s statement of participant
supports but confirmed the original decision maker’s decision not to include seven other requested supports.
While this case has been before the Tribunal, the Applicant’s statement of participant supports has been varied by subsequent decisions made pursuant to s 47A of the NDIS Act, most recently following the remittal of a decision dated 11 August 2023 under s 42D(1) of the AAT Act which resulted in a new approval of a statement of participant supports dated on or about 22 March 2024. By operation of s 103(2)(c)(i) and (d) of the NDIS Act these more recent decisions would also have been reviewable had this matter proceeded to a final review hearing.
From the outset, the Applicant has been represented in these proceedings by Ms Vanessa Minervini. Ms Minervini is a lay representative (that is, she is not a lawyer) and she is not a professional disability advocate. Ms Minervini is described in the Applicant’s participant plan as his friend.2 She is also the registered proprietor of the home in which she and the Applicant live.3 Ms Minervini has also described herself at various times in the proceeding as the Applicant’s ‘legal carer’ (see following). What is meant by that has not, to my knowledge, been interrogated in the proceeding to date. As will become apparent later in these reasons, Ms Minervini claims to provide the Applicant with a high level of (physical) personal care and emotional support in addition to being his accommodation provider.
When the application was filed, it was referred to the alternative dispute resolution process under Division 3 of Part IV of the AAT Act (ADR). Between 9 September 2020 and 8 September 2022, the application was listed for 14 ADR case events, 3 of which were vacated. On 19 September 2022 the application was first constituted for hearing under Division 2, Part III, of the AAT Act. The original constituted Member became unavailable shortly afterward which resulted on 14 October 2022 in the case being reconstituted to a different Member to hear and determine. Between 6 October 2022 and 20 November 2023, the application was listed for 11 pre-hearing directions hearings, 3 of which did not proceed. Additionally, between 8 October 2023 and 8 November 2023 5 additional ADR events were listed, 2 of which did not proceed.
2 T Docs page 15.
3 T Docs page 38
Listing Notices were sent to the parties on 14 November 2023 fixing the application for hearing on 13, 14 and 15 December 2023. However, on 7 December 2023, Ms Minervini wrote to the Tribunal to indicate that she was unable to give to the Agency and the Tribunal all the Applicant’s intended medical evidence in time for the hearing. That resulted in the Tribunal, as then constituted, vacating the hearing, and requiring the parties to file Hearing Certificates for the period January and February 2024.
Ms Minervini filed a Hearing Certificate for the Applicant on 5 January 2024 which stated that he was unavailable for a hearing between 15 January 2024 and 26 February 2024 due to “medical issues”, and further, that an expert he intended to call was unavailable between 15 January 2024 and 26 February 2024 due to “other commitments”. Additionally, in the period December 2023 to January 2024, Ms Minervini wrote to the Tribunal on several occasions to advise that she required more time to file the Applicant’s medical evidence. Consequently, at a Directions Hearing held on 15 January 2024, the Tribunal directed the Applicant to file any further evidence he intended to rely upon in support of his application by 7 February 2024. The parties were also directed to file Hearing Certificates for April and May 2024.
During February 2024, Mr Robert Bruno commenced corresponding with the Tribunal on behalf of the Applicant. In correspondence to the Tribunal filed on 6 September 2024 Mr Bruno explained that he is an Advocacy Support Officer or “Carer Advocate” in the employ of Carers WA. He is principally engaged to provide support to carers, in this instance, Ms Minervini. However, within the scope of that role, he can then be engaged to provide advocacy support for the carer’s care recipient and was in this case in relation to the Applicant.
On 22 February 2024, Mr Bruno wrote to the Tribunal to “request an extension period of at least 2 months” to comply with the Tribunal’s directions for the filing of the Applicant’s further evidence due to “mental strain” that the Applicant and Ms Minervini were experiencing due to the proceeding. Medical certificates for both the Applicant and Mr Southam were provided in support of that request. In response to that request, on 11 March 2024, the Tribunal varied its directions of 7 February 2024 to require the Applicant to file any further evidence before 10 May 2024.
On 7 May 2024, Mr Bruno wrote to the Tribunal again on behalf of the Applicant to request an extension of time to 31 May 2024 to file the Applicant’s additional evidence. On 9 May 2024, in response to that request, the Tribunal further varied its 7 February 2024 directions to require the Applicant to file his additional evidence by 31 May 2024.
On 20 May 2024, Mr Bruno wrote to the Tribunal again on behalf of the Applicant to request a further extension of time to 21 June 2024 to file his additional evidence.
On 24 May 2024, while the constituted Member was on leave, another Member of the Tribunal extended time for the Applicant to comply with the directions made on 7 February 2024 to 21 June 2024 and, further, made directions requiring the Applicant to file a Hearing Certificate for the months of July and August 2024 by that date. The Agency was also directed to file a Hearing Certificate for July and August 2024 by 28 June 2024 and an updated Statement of Facts, Issues and Contentions by 19 July 2024.
On 2 July 2024, this case was reconstituted to me due to the previously constituted Member becoming unavailable.
On 28 June 2024, the Agency requested an extension of time to 19 July 2024 to file its Hearing Certificate. I granted that extension in chambers on 4 July 2024.
After perusing both parties’ Hearing Certificates, it became apparent that the case could not be fixed for hearing based on the information they contained. Accordingly, on my instructions, on 1 August 2024, the Registry fixed a Case Management Directions Hearing (CMDH) by telephone for 16 August 2024. Correspondence issued with the Listing Notice advised the parties the purpose of the CMDH was to fix the case for final hearing and determine whether any further directions for the filing of additional material were required. The parties were also put on notice that, due to the length of time the matter had been before the Tribunal, the listing of the CMDH and any further listings or directions issued by the Tribunal would only be varied or vacated in exceptional circumstances.
Just prior to the CMDH, the Agency made an offer of settlement to the Applicant. Appropriately, the Tribunal does not know the content of that offer.
On 15 August 2024, Mr Bruno wrote to the Tribunal to request that the CMDH be adjourned by 1 week to enable the Applicant to consider that offer of settlement. I refused that request indicating to the parties, via my Associate, that sufficient time for the Applicant to consider that offer could be built into any final pre-hearing directions.
The CMDH proceeded on 16 August 2024. Mr Bruno appeared on behalf of the Applicant. The Applicant did not attend the CMDH and nor did Ms Minervini. After canvassing the availability of the parties for final hearing, I fixed the hearing for 3 days during the week commencing 7 October 2024, subject to counsel for the Agency confirming availability during that week. Mr Bruno advised that the Applicant was available for a hearing that week.
Subsequent communications between my Associate, Mr Bruno and the Agency’s legal representative resulted in the final hearing being fixed for 8, 9 and 24 October 2024. The Tribunal sent confirmation of these dates for hearing to the email addresses for Mr Bruno and Ms Minervini.
On 27 August 2024, Ms Minervini wrote to the Tribunal by way of reply to an email sent to her on 16 August 2024 enclosing the directions made on that date to complain as follows:
Neil Southam hasn’t been receiving all emails from the AAT regarding this matter which is causing a problem moving forward.
The latest directions state a trial for October however Neil has had NO notification of any period being set aside for trial. October is not a suitable month for Neil due to prior appointments. His availability is after 19 October 2023, we are not aware of any hearing certificates being requested or submitted for October.
Can you please provide me with the directions hearing regarding date availability for the trial.
Ms Minervini copied her email to Mr Bruno. In response, on 28 August 2024, Mr Bruno wrote to the Tribunal (copied to Ms Minervini and the Agency’s representative) to advise the following:
To the Registrar
I can confirm that all of the Tribunal’s communications in the proceeding to date have been relayed to the Applicant.
I would further like to advise the Tribunal that I have not been able to make direct contact with Mr Southam since 11am, Friday 23 August 2024. I have subsequently made several contact attempts to request direction from Mr. Southam in relation to the NDIA’s offer but have not received a response.
On Monday 26 August, Ms Minervini contacted me through text communication stating the Applicant is unwell and issued directions on his behalf. I informed Ms Minervini through text reply, that as Mr Southam is the Applicant in this matter, I could only receive direction from him and would await his contact.
…
On 29 August 2024, Ms Minervini responded to Mr Bruno’s email, addressed to the Tribunal, stating as follows:
It appears decisions have been made without our (Neil & myself) knowledge. We were unaware of any dates for October or the recent directions hearings.
Mr Bruno no longer represents Neil Southam. I will be discussing the matter with Carers WA in the morning.
…
In response to Ms Minervini’s email, I instructed my Associate to write to the parties as follows (sent later 29 August 2024):
…
The Tribunal notes that all AAT correspondence in the proceeding to date has been sent to the Applicant’s nominated representative, Mr R Bruno. Mr Bruno has consistently indicated that he is writing ‘on behalf of the Applicant’ and has made numerous requests to the Tribunal in that capacity. In those circumstances, the Tribunal is entitled to assume that any response provided to Mr Bruno by the Tribunal is also being passed along to the Applicant by Mr Bruno. If this is not the case, the Applicant is requested to immediately provide (that is, by 4pm on Monday 2 September 2024) a direct contact email address at which he can personally receive notices and other communications from the AAT, as well as indicate who his nominated representative in these proceedings is.
Further, the Tribunal notes that the final hearing dates for this review have been determined, and were discussed at the directions hearing held on 16 August 2024, at which the Applicant’s nominated representative gave no indication that October was unsuitable for the Applicant. A listing notice for the hearing will be provided to the parties in due course. The listed hearing dates are 8, 9 and 24 October 2024. These dates remain 4 weeks away. The Applicant must plan to be available for the hearing on the listed dates. The hearing will not be adjourned unless there are exceptional grounds to justify this. The Applicant is therefore put on notice that should he fail to appear at the hearing, his application may be dismissed on that basis.
In response to Ms Minervini’s and the Tribunal’s emails of 29 August 2024, Mr Bruno sent the following email to the Tribunal on 30 August 2024:
To the Registrar
I would like to advise that I will no longer be representing Mr. Southam in his matter before the AAT, due to Ms Minervini ceasing our services. Continuing to support Mr
Southam would have been impossible regardless, due to Ms Minervini’s conduct and accusations. I would like to direct the tribunal to emails sent by the Registrar on 16 August, 19 August and from Ms Kelly [the Agency’s legal representative] (see attached), discussing the Direction Hearing and Final Hearing dates, all of which Ms Minervini was cc’d into, contradicting her statements.
At 4:45pm yesterday (29/08), prior to Ms Minervini’s email to the tribunal, I received a phone call from Mr Southam where he directed me to advise Ms Kelly on his wishes regarding the NDIA’s offer. The direction provided to me by Mr Southam can be verified by contacting him directly on [telephone number]
I communicated Mr Southam’s wishes to Ms Kelly earlier today by email; this will be my final action as his representative in this matter.
Should this matter continue to proceed, I advise that all communications regarding the NDIA’s offer are made directly to Mr Southam by telephone on the phone number listed above.
On 1 September 2024, Ms Minervini wrote to the Tribunal by email at some length. In summary, she stated:
i.Mr Bruno had been removed as the Applicant’s representative “due to him making decisions on his own without communication, notification or consent”. Mr Bruno “did not have the power to agree to [the hearing] dates and had never discussed them with [the Applicant and Ms Minervini].”
ii.If the Tribunal and Agency were not sending the Applicant and Ms Minervini “information/email directly [they] were not being notified”.
iii.“Mr Bruno had no intention of taking the matter to trial which explains why he ignored [the Applicant’s and Ms Minervini’s] unavailability for the trial dates that have been set”.
iv.The listing of the application for hearing “has had a significant impact on both [the Applicant’s and Ms Minervini’s mental and physical health’.
v.As [the Applicant’s] legal carer [Ms Minervini is] the contact person for all AAT correspondence. [Ms Minervini] then discuss[es] everything with [the Applicant] before responding. At no stage did [the Applicant and Ms Minervini] request to be removed from receiving any correspondence from any party.
vi.The Applicant’s and Ms Minervini’s mental and physical health needs were not taken into account in fixing a 3-day hearing. In this respect, they cannot sit (nor take part in a hearing) for more than 1 hour before pain takes over: “It’s not a matter of taking 30 minute break”; “there is no way physically possible for either [the Applicant or Ms Minervini] to attend days in a row”.
vii.“[Ms Minervini is] one person who has been doing the jobs of many for 12 years. [She is] the carer, advocate, support worker, maid, doctor, nurse, driver, personal assistant, and more”. [Ms Minervini’s] brain is fried, [her] mental health is in a position of no return and [her] physical health is at its lowest point ever and deteriorating faster than expected”. [Ms Minervini is] the only unpaid person fighting for [the Applicant’s] life and that is at a person[al] expense to [her] in numerous ways especially [her] own health.
On 3 September 2024, the Agency’s representative wrote to the Tribunal and the Applicant to request, considering the developments outlined above, that the matter be listed for an urgent case management directions hearing. By way of response to that email, Ms Minervini supported that request.
On 4 September 2024, my Associate notified the parties that I had listed the matter for an Interlocutory Hearing by telephone on 20 September 2024 at 1:00pm (Perth time) to determine if Ms Minervini ought to be permitted to represent the Applicant in the proceeding. In that regard the following direction was issued:
The Tribunal DIRECTS that:
1.The matter is listed for an interlocutory hearing … to consider if Ms Minervini should be permitted to represent the Applicant in the proceeding having regard to the following issues:
(a) Ms Minervini may have a personal interest in the outcome of the review, which constitutes a conflict of interest;
(b) Ms Minervini appears to have terminated the services of the Applicant’s disability support advocate who was assisting the Applicant to conduct his case in accordance with the Tribunal’s procedural directions;
(c) In correspondence to the Tribunal, Ms Minervini may have attempted to mislead the Tribunal on the issue as to whether the Applicant is informed of the procedural directions for this review and the listed dates for hearing;
(d) Ms Minervini has advised in correspondence to the Tribunal that she is unable or unwilling to assist the Applicant to comply with the procedural
directions for the conduct of the review to hearing and is unable to be available to attend the hearing on the currently listed dates.
I also instructed my Associate to advise the parties that I had directed Registry to issue a summons to Mr Bruno to require him to attend the interlocutory hearing to give evidence in relation to these matters. That summons was set in train shortly afterward. Additionally, I directed that the Applicant and Ms Minervini were to provide separate telephone numbers at which they would be contacted for the hearing.
On 4 September 2024, Ms Minervini emailed the Tribunal in the following terms:
Thankyou for the notification
To enable [the Applicant] to seek legal advice prior to the hearing would you please provide more information regarding removing myself as [the Applicant’s] representative.
Under what sections of the AAT legislation are you referring, who are you considering to nominate as a representative for [the Applicant] if you choose to remove myself.
Mr Bruno’s actions caused the problems not mine.
Ms Minervini also telephoned Registry and my Associate to raise the same questions on 9 and 10 September 2024. In her discussion with my Associate on 10 September 2024, Ms Minervini also requested an adjournment of the interlocutory and substantive hearings.
After considering the contents of Ms Miniervini’s email and telephone calls, I instructed my Associate to provide Ms Minervini with links to 5 decided cases of the Tribunal in which the issue of removing a party representative had been considered. I also instructed my Associate to advise that any application to adjourn the interlocutory and substantive hearings should be made in writing, should set out the grounds on which the adjournments were sought, and should be accompanied by any supporting evidence.
Later, on 10 September 2024, Ms Minervini wrote to the Tribunal to request that the interlocutory and substantive hearings be adjourned until after 11 November 2024. Medical certificates dated 4 September 2024 written in respect of the Applicant and Ms Minervini, by Dr Hettiarachchi of the Berrigan Family Medical Practice, were provided as evidence in support of that request. The email states as follows:
Good morning
Please find attached Medical certificates for both [the Applicant] and Vanessa Minervini to take leave from the AAT matter. This case has had such an impact on our mental and physical health over the years and we are at breaking point. I am a one person support to [the Applicant] as well as dealing with my own declining health.
We are still trying to mentally work through the recent events with the advocate and every day I am discovering more problems.
Our CSN planner will not respond to emails, documentation is being sent to people who do not have authority to receive information concerning [the Applicant] (breech of privacy) [the Applicant] is still without a motorised wheelchair and support workers. I am a CARER, unpaid, doing the tasks of what would normally be done by at least 6 people, I am not a miracle worker. I am a human, just like [the Applicant], we can only deal with so much. I am not physically capable of pushing wheelchairs yet I am being forced to do so. I just have more spinal injections and epidurals to continue to support [the Applicant].
The medical certificates have been issued by our long time treating General Practitioner who we spent an hour talking with. We will go back for monthly reviews.
….
After referring this request to the Agency’s representative for any comment, (the Agency took a “neutral” position), and considering the application, grounds, and supporting evidence, on 12 September 2024 I made an order refusing the adjournments requested. I published that decision and short written reasons later that day.
Ms Minervini took umbrage at my decision and reasons. She telephoned and emailed the Registry on 13 September 2024 to complain about my decision and to express the view that I was bound to accept the medical certificates that had been submitted and grant the Applicant and her “leave’ from the AAT until after 11 November 2024. She stated that she and the Applicant would not attend the interlocutory hearing despite my decision to refuse to adjourn it.
In response to those communications, on 13 September 2024, I directed Registry to amend the listing of the Interlocutory Hearing to put the parties on notice that I would also be considering at that hearing if the substantive application should be dismissed pursuant to s 42A(5) of the AAT Act on the basis that the Applicant had failed to proceed with the application within a reasonable time and/or comply with procedural directions made by the Tribunal in relation to the conduct of the review to hearing. I also instructed Registry to change the modality of the hearing to MS Teams. At my direction, my Associate published the following reasons and further instructions to the Applicant and Ms Minervini in relation to these directions:
The Applicant and Ms Minervini have not provided separate telephone lines at which they can be reached for the Interlocutory Hearing set down for 20 September 2024 despite the Tribunal’s request that they do so.
Ms Minervini has also telephoned the Tribunal Registry to advise that she and the Applicant do not intend to appear at the hearing, despite the Applicant’s adjournment request being refused. In these circumstances, the hearing modality is converted to MS Teams. The Applicant and Ms Minervini therefore bear the onus of connecting to the hearing at the appointed time if they intend to participate.
If the Applicant and Ms Minervini do not have the technical ability to join the hearing by MS Teams, and do intend to participate in the hearing despite Ms Minervini’s advice to Registry of 12 September 2024, they must notify Registry of the SEPARATE telephone numbers at which they may be reached at the time of the hearing by 4pm (AEST) on 17 September 2024. The Applicant is put on notice that the Interlocutory Hearing will proceed in his absence if he does not appear via MS Teams or provide a telephone number at which he can be reached for the hearing
…
In light of recent correspondence to the Tribunal in which Ms Minervini states on behalf of the Applicant that he is not ready to proceed and does not intend to appear at either the Interlocutory or substantive hearings set down for 20 September 2024 and 8, 9 and 24 October 2024, the Applicant is put squarely on notice that the Tribunal will consider at the Interlocutory Hearing whether his review application ought to be dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth). That issue will be considered in addition to the question of whether Ms Minervini should be permitted to represent him in the proceeding.
In response to my directions of 13 September 2024, on 16 September 2024, Ms Minervini emailed the Tribunal as follows:
Good afternoon
As records will show the Applicant does not have access to join any form of video link meetings of any kind.
The records will also show the Applicant does not use a mobile phone and the home phone number is [set out], as the home phone is connected via internet and telecommunications connections in the area are extremely poor there is no guarantee that internet/phone will work.
You can call the Applicant on the above number.
As per the medical certificates which were presented it appears conclusions have been made without actual fact. Ms Minervini has NOT stated she will be representing the Applicant during the hearing. Records will show that.
Ms Minervini will not be bullied into ignoring her medical practitioners advice relating to any AAT matters, nor will she be subjected to any further mental abuse from the Tribunal.
The Applicant has an urgent appointment with his GP on mental health grounds also due to being bullied and subjected to mental health abuse from the Tribunal into attending a hearing purely because someone wants to force the case to be closed and are pursuing the Applicant knowing he is not medically fit to attend to this matter at this time. This is as a result of the previous advocate’s actions.
Several requests have been made for copies of the hearing certificates from the Tribunal due to the reasons previously explained, the Applicant is unaware of any hearing dates being set, no knowledge of witnesses etc.
The Tribunal made allowances for the agency to change hearing dates but the same privilege has not been extended to the Applicant.
The Applicant has not received his evidence from the advocate/Carers WA so at this stage all evidence has been lost. Correspondence was eventually received after several requests stating the evidence was transported to a post office and it can be collected from that location by Ms Minervini. This arrangement was not discussed with Ms Minervini and she is not physically capable of collecting/handling boxes of files therefore the evidence has been dumped by the advocate/Carers WA. The advocate is aware of Ms Minervini’s medical conditions and her inability to handle such heavy boxes.
After considering the contents of that email, on 17 September 2024, I instructed Registry to make available to the Applicant and Ms Minervini a Hearing Room in the Tribunal’s Perth Registry where they could join the Interlocutory Hearing by video link free from any concerns about the connectivity of their telephone lines. I directed my Associate to request the Applicant and Ms Minervini to notify the Tribunal if they would be attending the Perth Registry to participate in the hearing by close of business on 18 September 2024, so that appropriate arrangements for this could be made at the Registry level.
Ms Minervini responded to my Associate’s correspondence to this effect on 18 September 2024 stating as follows:
I’m afraid it is not physically possible to transport Neil to the city for such a hearing. He does not have a mobility wheelchair, I can not push the manual wheelchair and I have other appointments during the day.
The hearing will be as previously held over the last 4.5 years and by telephone.
Neil does not travel well and even if he did have the appropriate wheelchair by the time he got to the city he would be wiped out with pain and throwing up everywhere.
Please refer to Neil’s medical records, reports and recent medical certificates prior to making such impossible arrangements for him to attend.
I support Neil so my involvement with the hearing is not required and as previously mentioned I will not be participating in any AAT events.
You continue to push our mental health further and further into a massive depression spiral.
You have been provided with a phone number and provided the communication network is working the phone will work. We do not have Telstra lines or nbn connections in the area in which we live.
On 19 September 2024, Ms Minervini wrote to the Tribunal again to request an adjournment of the hearing:
Please find attached Medical certificates for Mr Neil Southam and Ms Minervini.
As Ms Minervini coordinates all aspects of Mr Southam’s medical requirements including all NDIS documentation she is currently NOT able to correspond to any further correspondence re the AAT matter until cleared by her medical team. Ms Southam is too unwell to deal with the matter himself and does not have a full understanding of such a complex system.
There is also a letter stating the agencies OT’s recommendations that he be left in a wheelchair all day (even though he does not have any mobility wheelchairs and the agency has refused to replace the one that exploded as they considered the mobility devices to have been used as a form of transport and the agency does not provide transport) and he is to use incontinence products which is NOT what is recommended for Neil by his treating medical practitioners and specialists due to his high infection history, against his human rights and his personal choice.
Neil has recently undergone a hospitalisation procedure by a Urological team of specialists however no reports have been issued at this stage and further investigations may still be required. Public hospitals in WA do not issue reports to patients but do provide a brief summary to the referring GP.
Once again it has been recommended that the matter be put on hold until Mr Southam and Ms Minervini have had an opportunity to overcome the mental health breakdowns which they have both recently endured due to this matter involving the Advocate who was dismissed unexpectedly and the insistence of the AAT to ignore the facts and medical advice.
It has been recommended that scheduled hearings be vacated under mental health grounds. KPIs are not more important than a person’s health.
Attached to Ms Minervini’s email were three medical certificates - two for Mr Southam and one for Ms Minervini - written by Dr Hettiarachchi, General Practitioner, each dated 18 September 2024.
The medical certificates for Mr Southam stated the following:
Mr Southam has been following up in our clinic since 2021. He is suffering from paraplegia, chronic back pain, neurogenic bladder, Fibromyalgia, ADHD, Ankylosing spondilities [sic], GORD, Diabetes Mellitus Type II, and major depression in the background of multiple presentation to doctors and hospital. He is currently being followed up in the Rahb clinic in FSH.
He is mostly unable to attend to his day to day tasks by himself considering all the comorbidities above and needs a carer for 24 hours to help with daily activities.
As the patient describes he has been suggested by NDIS to commence using ongoing catheter and incontinence pads for his urinary incontinence and a care worker coming twice a day ONLY for help while he will be left in the wheelchair whole day. If the above information is correct, I would like to clarify that it would not be supported by myself as his doctor.
First of all continued catheterisation is not preferable not only regarding risk of urinary infections but also considering that it is not his choice considering the social
aspect of it, which will impact on his mental health significantly in the background of major depression.
He is quite depressed currently which is causing him to become more lethargic and forgetful as well on top of other pathologies.
He will need support for going to the toilet for bowel opening anyways despite being on a catheter and is not safe to do that by himself.
I would not recommend him being on the wheelchair for the whole day considering he already has some sores appearing in the buttocks area as well it is not acceptable for his comfort as well.
I strongly recommend that he is to have a carer for 24 hours supporting his daily activities, considering the pain he faces due to his disabilities, and I am happy to be contacted if any concerns.
and
In my opinion Neil is under severe mental stress currently with lack of support and stress from the recommendations of NDIS. He has been told that his current carer would be removed from his care as well as some recommendations for his ongoing daily tasks which is worrying him. This information has made a big impact on his mental health on the background existing physical health conditions. He is currently not suitable to deal with NDIS requests and I strongly recommend his having a break from all above from 18/9/2024 to 31/10/2024 inclusive.
The medical certificate for Ms Minervini stated the following:
In my opinion Vanessa is under severe mental stress currently as she has been dealing with Mr Southam’s NDIS requirements and recommendations and she feels she is put under pressure by the NDIS.
Mr Southam is having a mental breakdown with what he is going through and this is greatly affecting her as well.
In my opinion she needs a mental break from all these to relax her mind and focus on her mental health, thus I recommend having a break from 18/9/2024 to 31/10/2024 inclusive.
After considering the contents of Ms Minervini’s email and the medical certificates I instructed my Associate to notify the parties as follows:
The Tribunal notes the further medical certificates and further request for an adjournment of the interlocutory and substantive hearings which have been submitted on behalf of the Applicant today (19 September 2024). …
The interlocutory hearing set down for 20 September 2024 will proceed as listed.
If the Applicant wishes to pursue an adjournment application, he MUST make Dr Thilini Hetttiarachchi available as a witness at the hearing so that she can be asked questions about the matters set out in her medical certificates. The Applicant is put on notice that a failure to make Dr Hettiarchichi available as a witness may affect
the weight the Tribunal is prepared to give those medical certificates. A link for the hearing, which Dr Hettiarachchi should use to join the hearing, is embedded in the listing notice attached. The Applicant must provide that link to Dr Hettiarachchi.
The Applicant is to remain on notice that, should he fail to appear at the hearing, the Tribunal may make decisions in his absence, including a decision not to permit Ms Minervini to represent him in the proceeding, and a decision to dismiss his substantial application on the ground that he has failed to proceed with it within a reasonable time.
The hearing
The Interlocutory Hearing proceeded via MS Teams as scheduled.
My Associate connected the Applicant to the hearing via the landline Ms Minervini had provided. No difficulties were experienced with that connection during the hearing. The Applicant gave oral evidence under affirmation.
Ms Minervini did not provide a direct line at which she could be contacted that was independent of the Applicant. Nor did she indicate any intention to participate in the hearing. During the hearing a person could be heard whispering to the Applicant. I twice asked the Applicant if that person was Ms Minervini. He denied that it was, stating it was his dog.
The Agency was represented at the hearing by its solicitors. However, the Agency elected to play no active role. It submitted that it took a “neutral” position in relation to the issues the Tribunal had identified for determination.
The Tribunal called as a witness under summons Mr Robert Bruno, who gave oral evidence under affirmation.
Consideration
Should the interlocutory and substantive hearings be adjourned?
At the outset, I asked the Applicant to confirm if he wished to proceed with his 19 September 2024 request for an adjournment of the interlocutory and substantive hearings. He informed me that he did. I asked him to explain the grounds upon which he made that request. He informed me that it was the grounds that were set out in Dr Hettiarachchi’s medical certificates.
I reminded the Applicant of the direction I made the previous day indicating that were he to rely upon the medical certificates provided by Dr Hetteriarchchi, that he needed to make her available to give evidence. When asked if he had arranged for Dr Hetteriarchichi to be available as a witness, the Applicant informed me that he was unable to as she was at work.
I note that I then invited the Agency’s representative at the hearing, Ms Kelly, to ask any questions of the Applicant in relation to the adjournment request. Consistent with paragraph
[48] above, Ms Kelly indicated that the Respondent remained neutral on this issue and had no questions for the Applicant.
First principles
This is an application for review which was filed on 23 July 2020. At the date of the Interlocutory Hearing - 20 September 2024 - it had been before the Tribunal for more than 4 years and 2 months. In that time, there have been 19 alternative dispute resolution events scheduled, 13 of which proceeded. Additionally, there have been 11 pre-hearing directions hearings scheduled, 8 of which proceeded. The application has been fixed for a final review hearing once (in December 2023) which was vacated at the Applicant’s request. Prior to me fixing the substantive hearing for 3 days in October 2024, differently constituted Tribunals had attempted to fix the hearing three times during 2024. Each attempt was unsuccessful due to the Applicant’s stated unreadiness and unavailability.
The Tribunal is constituted under the AAT Act which has, as its objective, the provision of a mechanism of review that is, among other things, ‘quick’, proportionate to the importance and complexity of the matter, and which promotes public trust and confidence in its decision making: s 2A.
The conduct of this case before the Tribunal has not fulfilled that objective. The resolution of the dispute has not been quick; it has been protracted. The issue of what constitutes reasonable and necessary supports for a NDIS participant is an important issue, but it is not, generally, a complex one. Even if there was a degree of complexity beyond the typical case, a delay of more than 4 years in bringing this proceeding to finality, on any objective view, is seriously disproportionate to that complexity. Such a protracted delay is unlikely to promote public trust and confidence in the Tribunal’s decision-making. Having regard to these matters, I was satisfied that there was a compelling public interest in the finalisation of this dispute which ought to be given great weight.
Further to this, it is important to bear in mind the subject matter of the review the Tribunal is required to undertake in this case. The proceeding concerns the review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency made on 1 July 2020 to approve a statement of participant supports that did not include several supports that the Applicant had requested be included (as subsequently varied).
The approval of a statement of participant supports is a time sensitive decision within the NDIS statutory scheme. That is evident from the fact that the CEO must commence facilitating a participant’s plan within 21 days of the person becoming a participant (s 32(2)) and decide whether to approve a statement of participant supports ‘as soon as practicable thereafter’: (s 33(4)). Any participant requested variation to a participant plan must also be completed within 21 days: (s 47A(4)).
While the Tribunal, in its review jurisdiction, is not bound by such timeframes, it is nevertheless appropriate for it to consider that the NDIS legislative scheme contemplates prompt decisions being made in relation to requested supports.
The reason for this is obvious. The NDIS was established to provide a sub-category of persons with disability who experience substantially reduced functional capacity in one or more life activity areas due to impairment with the supports they require to live with reasonable safety and dignity and achieve their goals and aspirations (subject to the limits set by the NDIS statutory scheme). A ‘reasonable and necessary support’ is therefore self- evidently a support that a participant requires for their day-to-day subsistence. If a requested support is reasonable and necessary, any delay in the approval of that support constitutes an administrative injustice which has the potential to compromise the well-being of the participant. There is therefore an existential immediacy associated with the resolution of any dispute concerning what constitutes a reasonable and necessary support for a participant.
This consideration carried force in the present case. While it is not appropriate here for me to indicate any view on the merits of the Applicant’s case, it is relevant to note that it involved requested supports related to independent living and accommodation, a mobility device, continence and other personal care, and support worker assistance with daily living. Supports of this character have undoubted existential immediacy. I was satisfied that this
was also a compelling reason why there should be no further delay in the finalisation of this review.
The medical certificates
I turn now to the medical certificates written by Dr Hettiarchchi which were proffered in support of the Applicant’s adjournment request. I note that Dr Hettiarchchi has written medical certificates for the Applicant and Ms Minervini that have been proffered by the Applicant in support of adjournment and extension of time requests on several occasions during the proceeding.
While a formulaic medical certificate that does not explain the nature of a medical condition or set out in sufficient detail why that medical condition would prevent its subject person from complying with a direction or participating in a Tribunal event, should be given little weight4, Dr Hettiarchchi’s - medical certificates are not of that character. Each has substantive content. A medical certificate, such as these, that attests to a state of medical or mental unwellness for an Applicant or witness would usually carry weight in support of an adjournment or extension of time request. In its NDIS jurisdiction, the Tribunal must also recognise, by way of making procedural adjustments where appropriate, that persons with disability appearing before it may be more susceptible to general medical and mental ill-health than the general population due to the nature of their health conditions.
Nevertheless, a medical certificate does not operate as a veto on the Tribunal’s exercise of its review jurisdiction. I make this point because in her communications with the Tribunal and the Agency in the lead up to the Interlocutory Hearing Ms Minervini was vehement in expressing the view that the Tribunal was bound to accept without question the contents of Dr Hettiarchchi’s medical certificates and grant the Applicant’s adjournment request. That is not the case. While these medical certificates deserved serious consideration, such consideration also required critical scrutiny of them, particularly in the context of the protracted delay in the finalisation of this case. Upon such scrutiny, I was not satisfied that the contents of the certificates could be accepted at face value. Several matters raised in the certificates required further explanation, including:
4 Bobolas v Waverley Council [2016] NSWCA 139 at [221] per McColl JA; 92 NSWLR 406.
i.whether Dr Hettiarachchi understood that the medical certificates were being provided to the AAT to request a further delay in the resolution of the dispute concerning the Applicant’s requested supports, which she appeared to otherwise regard as immediately necessary for the Applicant’s wellbeing,
ii.whether Dr Hettiarachchi understood that it was the Applicant who had instigated this administrative review proceeding (that is, that he was the moving party in the dispute, not the National Disability Insurance Agency (or “NDIS” as she refers to that Agency),
iii.if it was the case that Dr Hettiarachchi thought that the Applicant would be able to proceed with his case after 31 October 2024, and if so why, having regard to the several delays that had occurred in the proceeding to date because of the Applicant’s asserted medical unfitness,
iv.what was the foundation for Dr Hettiarchchi’s statement that the Applicant had been “told that his current carer would be removed from his care”. Specifically, did this comment refer to the possibility that Ms Minervini might not be permitted to represent the Applicant in this proceeding, or did it refer to something else,
v.whether Dr Hettiarchchi understood that Ms Minervini was not a party to the proceeding and was not required by the Tribunal to be present at the hearing as a witness or representative for the Applicant.
In short summary, I was concerned that Dr Hettiarachchi had a misconceived understanding of the context in which she had written the medical certificates, and to an extent, was acting as a mere mouthpiece for Ms Minervini. It was for this reason that I required the Applicant to make Dr Hettiarchchi available as a witness at the Interlocutory Hearing indicating to him that a failure to do so might result in those certificates being given little weight.
The Applicant did not make Dr Hettiarachichi available as a witness, and for the foregoing reasons, I therefore did not consider it appropriate to give the medical certificates she wrote on 18 September 2024 significant weight in determining if the Interlocutory Hearing ought to be adjourned.
As I have already noted, the Applicant did make himself available to participate in the Interlocutory Hearing, despite Ms Minervini’s pre-hearing communications to the Tribunal that he would not do so and lacked the technology to do so. The presence of the Applicant at the hearing was a factor that weighed significantly in favour of the hearing proceeding.
Having regard to the considerations I have set out above I determined to refuse the Applicant’s request to adjourn the Interlocutory Hearing and proceeded to hear and determine the other issues I had listed for determination. I deal with the Applicant’s request for an adjournment of the substantive hearing following.
Should Ms Minervini be permitted to represent the Applicant in this proceeding?
The Applicant in this proceeding is Mr Southam.
Part IV, Division 2 of the AAT Act deals with parties and procedure in the Tribunal’s review of decisions. In relation to the representation of parties to such reviews, s 32(1) applies in respect of the NDIS Division. It provides that a party to the proceeding, such as the Applicant, may appear in person or be represented by another person. In other words, s 32(1) entitles a party, such as the Applicant, to choose whether to conduct their own case, or to appoint another person to do so on their behalf. If the latter, it also entitles the party to choose who that person will be. The section does not require the Applicant to obtain the permission of the Tribunal to be represented by another person, and it does not limit who the representative may be.
That provision contrasts with s 32(2) which provides that in the Social Services and Child Support Divisions of the Tribunal, a party, (other than the Agency) requires the permission of the Tribunal to be represented by another person. Section 32(3) provides that in deciding whether to grant permission for the purposes of subsection (2), the Tribunal must have regard to the Tribunal’s objective in s 2A, the wishes of the parties and the need to protect their privacy.
Nevertheless, s 32(1) does not provide a party with an unlimited right to self-represent or be represented by another person. That is because the section is expressed in permissive, not obligatory, terms as is connoted by the word “may”. In other words, as a matter of general procedure, a party to a review in the NDIS Division may self-represent or be represented by another person, but that is always subject to the discretion of the Tribunal.
The Application for Review Application Form in use at the time the Applicant applied to the Tribunal included a section headed “Representative” under which the following is stated:
You can represent yourself at the AAT or any person you choose can represent you. If you tell us that you have a representative, we will send the letters and other documents about your case to your representative instead of sending them to you.
In the Applicant’s signed and dated Application for Review Application Form, in that section, Ms Minervini’s name and contact information is set out. Consequent upon that, the Tribunal Registry recorded Ms Minervini as the Applicant’s representative in the Tribunal’s case management system. Her contact details (email, telephone, and street address) are recorded as the Applicant’s contact information for the purposes of the proceeding. That has continued to be the case over the whole course of the proceeding with the limited exception of the period 6 June to 10 July 2023 when a disability advocacy organisation, Midland Information Debt and Legal Advocacy Service Inc (Midlas) was recorded as the Applicant’s representative.
As set out above, in February 2024, Mr Robert Bruno, Advocacy Support Officer, with Carers WA commenced correspondence with the Tribunal in relation to the Applicant’s case. In his pre-hearing communications with the Tribunal and in his oral evidence, Mr Bruno explained that his role is a “carer advocate”, which in the context of this case, meant that he was supporting Ms Minervini in her role as the Applicant’s representative. At no stage did the Applicant, or Ms Minervini, or Mr Bruno, notify the Tribunal that Ms Minervini had ceased to be the Applicant’s representative.
In her email to the Tribunal on 16 September 2024, Ms Minervini states that “records will show” that she has “NOT stated” that she will be representing the Applicant “at the hearing”. It was not clear to me if Ms Minervini is referring to the Interlocutory or substantive hearing, or both. In any event, the Tribunal file contains no record of the Applicant or Ms Minervini ever having advised the Tribunal that Ms Minervini had ceased to act as the Applicant’s representative.
Consistent with that, after Mr Bruno became involved in February 2024, the Tribunal has communicated with him directly and copied those communications to Ms Minervini’s email address. This point is made by Mr Bruno in his email to the Tribunal dated 30 August 2024 to which he attaches communications from the Tribunal to the Applicant and the Agency that illustrate this practice. I thus do not accept Ms Minervini’s pre-hearing statements to
the effect that the Applicant has not been advised of Tribunal events and directions. Notice of these events and directions was sent both to Mr Bruno and Ms Minervini.
Further to that, in his pre-hearing communications, and in his oral evidence to the Tribunal at the hearing, Mr Bruno informed the Tribunal that he had discussed each of the relevant Tribunal events and directions with the Applicant and that the Applicant was fully aware of the progress of his case before the Tribunal. I also note Mr Bruno’s evidence that he had discussed the Agency’s settlement offer with the Applicant and had communicated the instructions he received in response to the Agency’s representative before being unable to contact the Applicant after 23 August 2024.
The Applicant was given the opportunity to ask Mr Bruno questions and to otherwise challenge this evidence at the hearing, but he declined to do so. Ms Minervini did not participate in the hearing as a witness and her version of events therefore could not be tested. It is thus the position that Mr Bruno’s evidence is consistent with the objective facts and was not subject to challenge at the hearing. He presented as a person with a genuine concern for the Applicant’s well-being. I accept his evidence as truthful.
It is a direct implication of that finding that, since 27 August 2024, Ms Minervini, to obtain a further delay, has repeatedly attempted to mislead the Tribunal by asserting that the Applicant did not know about the directions I made on 16 August 2024 for the conduct of this review to hearing or that the substantive hearing had been fixed for 8, 9 and 24 October 2024.
Ms Minervini terminated Mr Bruno’s services as a ‘carer advocate’ for her on 27 August 2024. As Mr Bruno was her support, rather than the Applicant’s advocate in a direct sense, it appears that it was open to her to do. However, she did so at a time when Mr Bruno was acting in settlement negotiations between the Applicant and the Agency. Due to Ms Minervini’s intervention, Mr Bruno was unable to obtain further direct instructions from the Applicant in relation to the Agency’s offer. That resulted in the following situation:
- The Agency’s offer was neither accepted nor rejected by the Applicant.
- The Applicant’s primary source of instrumental support for the conduct of his case since February 2024 was removed.
- Ms Minervini claimed to be unaware of the status of the Applicant’s case and claimed to be unable to proceed on this basis.
- Ms Minervini claimed to be too medically and mentally unwell to act as the Applicant’s representative and sought “leave” from the proceeding for a period of two months.
These circumstances crystalised against a background of extensive and repeated delays in Ms Minervini’s conduct of the Applicant’s case before the Tribunal, which I have set out above.
There is a further potential issue of concern in relation to Ms Minervini acting as the Applicant’s representative in this case. As I have set out above at paragraph [5] of these reasons, the Applicant lives in Ms Minervini’s home by virtue of some form of an informal boarder or lodger arrangement. A primary issue in this review has been whether the Applicant is entitled to specialist disability accommodation as a support. It is not possible for me to know what the present status of this dispute concerning this support is. However, I can see from the material filed to date that at one point in time the Applicant’s case was that the Agency ought to fund a substantial extension/modification to Ms Minervini’s home so that the Applicant could live there with greater comfort and amenity. I express no view as to the merits of that requested support. However, the request may mean that Ms Minervini also has a personal interest in the proceedings which has the potential to conflict with the Applicant’s interests. That is, there is a risk that she may be unwilling, as the Applicant’s representative, to consider options for the resolution of that dispute which do not result in the substantial benefit to her that these home extensions and modifications may represent.
The directions I made in the lead up to the Interlocutory Hearing put the parties on notice that I was concerned that Ms Minervini may have a personal interest in the outcome of the review which constitutes a conflict of interest. Because Ms Minervini did not attend the hearing as a witness, I was unable to explore that issue with her. Neither the Applicant nor the Agency made any submission in relation to this issue. I am thus not able to draw any conclusion in relation to this issue and do not consider it further.
However, I am satisfied that Ms Minervini’s representation of the Applicant is attended by the following difficulties:
i.She has wilfully attempted to mislead the Tribunal in relation to the Applicant’s and her own knowledge about Tribunal events and directions for the conduct of the Applicant’s case to hearing.
ii.She claims to be unable to provide the Applicant with effective representation for two months due to her own medical and mental ill-health and claims to have no knowledge of the status of the Applicant’s case such that she could proceed with it to hearing even if she was medically fit to do so.
iii.There have been extensive and repeated delays in Ms Minervini’s conduct of the Applicant’s case over the whole course of this proceeding.
The directions I made in relation to the Interlocutory Hearing put the issue of Ms Minervini’s continued representation of the Applicant in issue. I did so of my own motion, not in response to any application by a party. In her pre-hearing communications with the Tribunal, Ms Minervini appeared to challenge my power to do so. Through my Associate, I attempted to assist her to gain a better understanding of the relevant issues, by providing her with links to decided cases where the issue had been considered.
At the hearing, the Applicant did not appear to challenge my power to remove Ms Minervini as his representative (his position was rather that I should not do so), and Ms Minervini did not appear to argue the issue. However, in the circumstances, it is prudent that I deal first with the Tribunal’s power to remove a representative of a party before turning to the question of whether that power should be exercised in this case.
Section 33 of the AAT Act deals with the procedure of the Tribunal generally. It provides in s 33(1)(a) that in a proceeding before the Tribunal, the procedure of the Tribunal is within the discretion of the Tribunal (subject to the Act, regulations, and any other law). It also provides in s 33(1)(b) that a proceeding is to be conducted, relevantly, with as much expedition as the requirements of the Act, any other relevant law, and a proper consideration of the matters before the Tribunal permit. Section 33(1AB) provides that a
party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the Tribunal’s objective.
It is settled principle that the power conferred s 33(1)(a) of the AAT Act enables the Tribunal to control its own procedure including by making an order that a person not represent a party in the proceedings.5 That power is implied by the broad scope of the discretion conferred by s 33(1)(a) and the imperative imposed by s 33(1)(b), read in conjunction with the discretion contained in s 32(1).
Such a power is necessary for the Tribunal to achieve its statutory objective, particularly in circumstances where a party fails to comply with the obligation imposed by s 33(1AB). As Sheppard J explained in Australian Securities Commission v Bell at [138-9]:6
Unless there [is] a clear legislative intention otherwise, tribunals of all kinds will have the power to regulate and control their own proceedings. That power is implied into the statutory provisions pursuant to which a given tribunal is created. The power is implied because it is necessary that the Tribunal have it in order to be able properly to discharge its functions…
However, the power is exceptional in nature and must be exercised with caution.7 The Tribunal should be reluctant to interfere with a party’s choice of representative. Additionally, particularly in the NDIS Division of the Tribunal, the following must be kept in mind:
- the Applicant may have disability and impairment that limits their capacity to conduct their own case.
- the representative may, because of the nature of their relationship with the Applicant, have special knowledge of the Applicant’s needs.
- the Applicant may lack the financial means to obtain legal representation, and legal aid may not be available to them.
5 Campbell-Maruca and Registrar of Indigenous Corporations [2012] AATA 678at [27]; applied in Danher and National Disability Insurance Agency [2021] AATA 332; Al Saed and National Disability Insurance Agency [2022] AATA 271; Filardo and National Disability Insurance Agency [2020] AATA 4092
6 [1991] FCA 565; (1991) 104 ALR 15
7 Campbell-Maruca and Registrar of Indigenous Corporations [2012] AATA 678 at [17]; citing with approval observations of Brereton J in Kallinicos v Hunt [2005] 65 NSWLR 561 at [76].
- the Applicant may have few other sources of formal support capable of assisting them to conduct their case.
- the potential impact on an Applicant of removing a representative during a review proceeding (as distinct from at its commencement).
The test to be applied, as adapted to a Tribunal context where party representatives may not be lawyers is:
whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice requires that the representative should be prevented from acting in the interests of protection of the integrity of the review process and the due administration of justice, including the appearance of justice.8
Having regard to Ms Minervini’s conduct of the Applicant’s case and the principles I have set out above, I am satisfied that I ought to refuse to permit her to further represent the Applicant in the proceedings for the following reasons:
i.Ms Minervini has attempted to mislead the Tribunal as to the state of the Applicant’s knowledge of the progress of the review to obtain a further delay. I consider that serious misconduct.
ii.Ms Minervini has proved herself incapable, over a period of 4 years and 2 months of conducting the Applicant’s case in a manner which enables the Tribunal to achieve its objective conducting this review with as much expedition as proper consideration of it permits (ss 2A and 33(1)(b) of the Act). In this respect she has failed to fulfil the obligation imposed on her as the Applicant’s representative by s 33(1AB) of the Act).
iii.Ms Minervini has submitted medical evidence which is to the effect that she is medically and mentally too unwell to conduct the Applicant’s case to hearing in accordance with the existing timetable.
8 Ibid; see also Al Saed and National Disability Insurance Agency [2022] AATA 271 at [30 – 31]
I consider these to be exceptional circumstances that justify the exercise of this discretion. I am satisfied that a fair minded and reasonably informed member of the public would consider that Ms Minervini ought to be prevented from further representing the Applicant in the proceeding in these circumstances.
With respect to the consideration of removing Ms Minervini at this advanced stage in the review, this is not a case where a representative has a command of the Applicant’s case that will be lost. In her pre-hearing communication with the Tribunal, Ms Minervini claims not to know where the Applicant’s case is presently up to. This is also not a case where the Applicant had no other source of support. He had Mr Bruno’s support, which was terminated by Ms Minervini.
For the reasons I set out following I have decided to dismiss the Applicant’s review application on the ground that he has failed to proceed with it within a reasonable time. Having regard to that, I have considered whether it was strictly necessary for me to deal with the issue of whether I should refuse to permit Ms Minervini to continue to represent the Applicant. I concluded that I ought to do so for the following reason.
The Applicant will, likely, continue as a participant in the NDIS and his participant plan will be the subject of future decisions that are reviewable by the Tribunal. Should he seek review of any future decision it may be appropriate for the Tribunal to consider if Ms Minervini ought to be permitted to act as his representative in that proceeding. My decision and reasons here may be relevant to that consideration, without being binding on any differently constituted Tribunal.
Should the application be dismissed?
The Applicant pressed his application for an adjournment of the substantive hearing set down for 8, 9 and 24 October 2024. He cited in support of that request his ill-health, lack of preparedness for hearing, and inability to attend full day hearings. He again requested “leave” from the proceeding for a period of 2 months.
The Tribunal does not grant a party “leave” from a proceeding. An adjournment of an event, and extensions of time for compliance with procedural directions are only granted on a limited basis where there are substantial grounds to justify such action. The Tribunal notes that it has previously granted the Applicant adjournments and extensions of time in which
to file evidence on many occasions. It is no longer appropriate to do so given the length of time this application has been before the Tribunal. Having regard to that, I considered that this application must now proceed to hearing or be withdrawn or dismissed.
The Applicant’s asserted ill-health did not result in any different conclusion, having regard to the number of occasions where his and Ms Minervini’s asserted ill-health had resulted in extended delay, and the absence of evidence that this would change in the foreseeable future, such that another hearing could be fixed in the confidence that it would proceed to finality. In this respect, I also attach some significance to the fact that the Applicant had Mr Bruno’s instrumental assistance to conduct his case to hearing, which at least partially addressed his health-related capacity to conduct his case, but he allowed Ms Minervini to terminate Mr Bruno’s services. In this respect, the Applicant was in a situation of his own making.
I should also address the Applicant’s complaint that he is medically incapable of attending a review hearing for three full days. The final hearing was fixed for three days to ensure that there would be sufficient time to allow for breaks and rest periods for the Applicant and Ms Minervini. Procedural adjustments of this kind are common in the NDIS review jurisdiction of the Tribunal. Additionally, as I have said, the Applicant had Mr Bruno’s assistance available to him to present his case which, objectively, would have significantly alleviated the “strain” of the hearing on him, but he permitted Ms Minervini to terminate that assistance.
For these reasons, and for the reasons set out above in relation to my refusal to adjourn the Interlocutory Hearing, I refused to grant the Applicant’s request for an adjournment of the substantive hearing.
It thus became the case that the hearing remained fixed for 8, 9 and 24 October 2024, but the Applicant had not resiled from his pre-hearing expressed intention not to participate in it. Nor did he indicate any wish to withdraw his application for review.
The conduct of administrative reviews in the NDIS Division of the Tribunal involves substantial Agency and Tribunal costs. Those public costs should not be lightly incurred or thrown away.
Section 42A(5) of the Act provides that if an Applicant for a review of a decision fails with a reasonable time to proceed with the application, or to comply with a direction by the Tribunal in relation to the application, the Tribunal may dismiss the application without proceeding to review the decision. I was satisfied that this discretion was engaged in the circumstances of this case.
I have set out above the extensive and repeated delays in the progress of this review application. Those delays include the repeated failure of the Applicant to comply with procedural directions in relation to the filing and exchange of his evidence. Despite these repeated adjournments and extensions of time the Applicant maintains he is still not ready or able to proceed to a final hearing.
The genesis of this review was a decision of the delegate of the CEO of the NDIA made on July 2022 to approve a statement of participant supports for the Applicant. The “plan start date” in respect of that approval was also 1 July 2020. The plan’s stated “review date” was 1 May 2021. In other words, the temporal effect of the decision that was originally the subject of this review was a 10-month period that ended on 1 May 2021, some 3 years and 4 months before the date of the Interlocutory Hearing.
Since the original decision was made, a delegate of the CEO has given further approvals in relation to the Applicant’s supports, most recently following the remittal of a decision dated 11 August 2023 under s 42D(1) of the AAT Act on 8 March 2024 which resulted in a new approval of a statement of participant supports dated on or about 22 March 2024. By operation of s 103(2)(c)(i) and (d) of the NDIS Act, the delegate’s subsequent decisions are also reviewable had this matter proceeded to a final review hearing.
Nevertheless, it remains the case that the Tribunal is now faced with conducting a review of an original decision that is no longer operative, and subsequent decisions which are remote in time and content from the original reviewable decision. While that is legally permissible, in my view it is undesirable, particularly having regard to the Tribunal’s objective and the existential immediacy associated with disputes about what constitutes a reasonable and necessary support.
Although the Agency took a neutral position in relation to the issue of whether the application ought to be dismissed pursuant to s 42A(5), I was informed by its representative that if this
were the outcome, the Agency intended to carry out an immediate reassessment of the Applicant’s participant plan pursuant to s 48 of the NDIS Act. As I understand it, at least one purpose of that reassessment is to incorporate the substance of the Agency’s offer of settlement.
The Agency’s representative offered to explain to me what would be included in the Applicant’s new plan, but upon consideration, I decided that would not be appropriate. The new approval will be a reviewable decision and I did not wish to, or be seen to, indicate any view in relation to the merit of that approval.
However, the fact that there will be such a reassessment and new approval is relevant to my consideration of whether the present application should be dismissed.
It will be open to the Applicant, if he disagrees with this new approval, to seek internal review of the decision, and if he remains dissatisfied, to seek review of this new decision by this Tribunal. In other words, the dismissal of this application would not leave the Applicant without a remedy in relation to any perceived inadequacy in his new statement of participant supports.
While this approach has the disadvantage of potentially requiring the Applicant to go through a further administrative review process, in my view that disadvantage is outweighed by the opportunity it presents to draw a line under the present dispute and refocus on the Applicant’s support needs as they stand post the reassessment.
For the foregoing reasons, I was satisfied that the Applicant’s substantive review application ought to be dismissed pursuant to s 42A(5) of the Act.
Orders
I make the following orders:
1.The Applicant’s further request for an adjournment of this interlocutory hearing and the substantive hearing set down for 8, 9 and 24 October 2024 is refused.
2.The Tribunal refuses to permit Ms Vanessa Minervini to represent the Applicant in this proceeding.
3.The substantive application (2020/4458) is dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).
Date(s)ofhearing: 20 September 2024 Applicant:
In person
SolicitorsfortheRespondent:
Ms M Kelly, Sparke Helmore Lawyers
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