Southam and National Disability Insurance Agency (Practice and procedure) - [2024] ARTA 198

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…

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

AGLC: Southam and National Disability Insurance Agency (Practice and procedure) [2024] ARTA 198
Case: [2024] ARTA 198
Decision Date: 20 September 2024

CaseChat Overview and Summary

In the case of Southam and National Disability Insurance Agency, the parties involved were Southam, an applicant seeking a review of a decision related to the approval of a statement of participant supports under the National Disability Insurance Scheme (NDIS), and the National Disability Insurance Agency (NDIA), the respondent. The dispute centred around an application for a review of a decision made by the NDIA to approve a statement of participant supports, which was contested by Southam. The case was heard in the Federal Circuit and Family Court of Australia. The court had to determine several legal issues, including whether the application for an adjournment of an interlocutory and substantive hearing should be granted, whether Southam's representative should be permitted to continue representing him in the proceeding, and whether the substantive application should be dismissed due to a failure to proceed within a reasonable time.

The court examined the principles of procedural fairness and the necessity of ensuring that proceedings are conducted in a manner that is just and efficient. It considered the reasons for the requested adjournment, the impact of the adjournment on the respondent, and the rights of the parties involved. Regarding the representation, the court assessed the qualifications and standing of Southam's representative, ensuring that the representative was suitably qualified and authorised to act on behalf of Southam. Additionally, the court evaluated the timeliness of Southam's actions in proceeding with the application, taking into account any relevant factors that might have contributed to the delay.

In its decision, the court granted the application for an adjournment to allow Southam additional time to prepare for the hearing, acknowledging the complexity of the issues involved and the need for thorough preparation. The court also confirmed that Southam's representative was qualified and authorised to continue representing him in the proceeding, as no valid reasons were presented to disqualify the representative. Furthermore, the court found that the substantive application should not be dismissed due to a failure to proceed within a reasonable time, considering the circumstances and any relevant mitigating factors. The court emphasised the importance of ensuring that all parties have a fair opportunity to present their cases and that proceedings are conducted in a manner that is efficient and just.

The final orders of the court included granting the adjournment, permitting Southam's representative to continue acting on his behalf, and allowing the substantive application to proceed without dismissal on the basis of unreasonable delay. The court's decision aimed to balance the rights and interests of both parties while ensuring that the proceedings were conducted in a fair and efficient manner.

Orders