Starling and NATIONAL DISABILITY INSURANCE AGENCY (Practice and procedure)

[2025] ARTA 2308

Starling and NATIONAL DISABILITY INSURANCE AGENCY (Practice and procedure) [2025] ARTA 2308 (30 October 2025)

Applicant/s:  Rachel Maree Starling

Respondent:  NATIONAL DISABILITY INSURANCE AGENCY

Tribunal Number:                2024/10333

Tribunal:General Member Gooch  

Place:Adelaide 

Date:30 October 2025

Decision:

The respondent’s application for dismissal of this application is refused.

Catchwords

PRACTICE AND PROCEDURE – whether application ought to be dismissed on basis applicant has failed to proceed in a reasonable time – whether application ought to be dismissed on basis applicant has not complied with Tribunal directions

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Cases

Evans and Australian Capital Territory [2019] AATA 799

Guse v Comcare [1997] FCA 961

PRLT and NDIA (Practice and Procedure) [2025] ARTA 993

Statement of Reasons

INTRODUCTION AND BACKGROUND

1.The applicant applied to the Administrative Review Tribunal on 27 November 2024 seeking administrative review of a decision (dated 22 November 2024) made by a delegate of the CEO of the National Disability Insurance Agency (the Agency) to reject her application for access to the National Disability Insurance Scheme (the Scheme). The decision was made on the basis Ms Starling did not meet the access criteria in section 21 of the National Disability Insurance Scheme Act 2013 (the Act).

2.Ms Starling sought access to the Scheme on the basis of impairments arising from:

a.    Complex post-traumatic stress disorder;

b.    Major depressive disorder;

c.     Generalised anxiety disorder;

d.    Separation anxiety disorder; and

e.    Social anxiety disorder.

Procedural background

3.Ms Starling had no legal representation initially, but on 28 April 2025 a notice of acting was filed on her behalf by Legal Aid ACT.

4.Procedurally there have been three case conferences at the Tribunal, including two with Ms Starling’s legal representation. At the last of these, on 21 July 2025, directions were made to take the matter to full hearing (the July 21 directions).  In compliance with direction 1 of these directions both parties provided hearing certificates outlining their availability for hearing in the period from November to December 2025. 

5.A hearing date was listed in line with these certificates with a three-day hearing listed before the Tribunal on 18, 19 and 20 November 2025.

6.Direction 2 of the July 21 directions required that on or before 22 September 2025 the applicant was to provide to the respondent and the Tribunal a Statement of Facts, Issues and Contentions (SFIC) and any further evidence on which she wished to rely at hearing.

7.No SFIC or evidence was received.

8.On 26 September 2025 Legal Aid wrote to the Tribunal seeking that:

a.    The July 21 directions be vacated;

b.    The hearing listed in November be vacated and relisted after March 2026.

9.These requests were said to be necessary to allow medical evidence and two expert reports to be received.

10.The Tribunal refused the requests as there was no explanation provided as to why these matters had not been progressed at an earlier stage, particularly in light of the July 21 directions.  The matter was listed for a non-compliance telephone directions hearing on 17 October 2025.

The directions hearing

11.At the directions hearing the respondent advised the Tribunal that they were instructed to seek an order dismissing the application on the grounds the applicant had failed to proceed with the application within a reasonable time and failed to comply with a direction of the Tribunal.

12.The applicant’s representative opposed this application. She provided an affidavit (affirmed on 17 October 2025) setting out facts relevant to her request for vacation of the directions and hearing dates.

13.As the applicant’s representative had only been put on notice of the respondent’s intention to seek dismissal on the day of the telephone directions hearing, the Tribunal extended to her the opportunity to provide written submissions after the hearing. 

14.The respondent was given the same opportunity.

The respondent’s contentions

15.In their written submissions filed with the Tribunal on 24 October 2025, the respondent notes that the Tribunal’s power to dismiss is discretionary[1] and arises from section 100 of the Administrative Review Act 2024 (Cth) (2024)[2] which is in the following form:

The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:

a.     Proceed with the application;

b.     Comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.

[1] Respondent submissions p6]

[2] Respondent submissions [5]

16.The respondent contends that s42A(5) of the Administrative Appeals Act 1975 (Cth) (AAT Act) is substantially the same as section 100 and therefore the Tribunal may rely on authorities considering the earlier section.

17.The respondent acknowledged that these authorities advised the power to dismiss should be used cautiously and in aid of the Tribunal’s objective of providing a fair, just and economical mechanism of review.[3]

[3] Respondent submissions [8]

18.As the action of dismissing an application will deprive an applicant of the very review they sought and which the Tribunal is established to provide, the power should only be exercised as a matter of last resort.[4]

[4] Respondent submissions [10] relying on SM French in PRLT and NDIA (Practice and Procedure) [2025] ARTA 993

19.The questions to be asked are:

a.    Has the applicant failed to proceed with the application within reasonable time?

b.    Has the applicant failed to comply with a direction of the Tribunal in relation to the application within a reasonable time?

c.     If the answer is yes, is it appropriate to exercise the discretion to dismiss the application?[5]

[5] Respondent submissions [11] relying on Evans and Australian Capital Territory [2019] AATA 799

20.In this matter the respondent contends the applicant has not proceeded with this application within a reasonable time as:[6]

a.    The applicant has been legally represented since April 2025 and has been on notice of the respondent’s position since then;

b.    The applicant was provided with the directions timetabling the matter to hearing on 21 July 2025;

c.     The applicant had 9 weeks to provide their SFIC;

d.    The Tribunal notified the parties of the hearing dates by listing notice dated 25 August 2025;

e.    The July 21 directions required the applicant to provide their SFIC and other evidence by 22 September 2025.  The applicant is yet to comply with this direction.

[6] Respondent submisions [12][a]-[p]

21.The respondent also contends it would be reasonable for the Tribunal to exercise the discretion to dismiss because:[7]

a.    Such an action would be line with the Tribunal’s objectives, including that applications are to be resolved as quickly and with as little formality and expense as a proper consideration of the matters before the Tribunal permits;

b.    The applicant appears to be seeking to add impairments to the list for consideration in her access request at a very late stage of the proceeding;

c.     If this were allowed, the respondent would be at a disadvantage if the matter proceeded to hearing without the opportunity for the respondent to consider and gather more evidence;

d.    The respondent contends the most appropriate course of action would be for the applicant to withdraw their application and submit a new claim to the Agency.

[7] Respondent submissions [12][q]-[t]

22.The respondent seeks dismissal of the application and consequential directions.

The applicant’s contentions

23.In her written submissions the applicant concedes that they have not complied with Direction 2 of the July 21 directions, but that their non-compliance is not ‘unreasonable’ within the meaning of relevant authorities.[8]

[8] Applicant submissions [30]

24.The applicant contends any dismissal must support the objectives of the Tribunal and that the power is only enlivened if an applicant fails ‘within a reasonable time’ to comply or proceed.[9]

[9] Applicant submissions [31]-[32]

25.The Tribunal is to utilise the power sparingly as a last resort as it deprives the applicant of a hearing of the merits of the application; and

26.The applicant should, for procedural fairness purposes, be given the opportunity to explain any failure. [10]

[10] Applicant submissions [33] relying on Guse v Comcare [1997] FCA 961

27.Further, the applicant relied on the reasoning of SM French (adopting the reasoning in Evans and ACT [2019] AATA 799) that:

..it should not be assumed that the time in which an applicant is expected to proceed with an application must necessarily be short for it to be ‘reasonable’…

As it can be seen, quickness is but one objective, coupled with fairness, justice, economy and informality, where considerations of accessibility, proportionality and public trust also arise.[11]

[11] Applicant submissions [34]

28.The applicant also contends that it would be an error for the Tribunal to conflate the failure to comply with one direction with a general ‘failure to take steps to progress the matter.[12]

[12] Applicant submissions [39]

29.The applicant relied on the affidavit of Chloe Michelle Rosenbaum as to the circumstances surrounding the non-compliance.

Consideration  

Is a direction of the Tribunal an order of the Tribunal

30.The applicant does not dispute that she has not complied with direction 2 of the July 21 directions.

31.I have considered section 100 of the ART Act and whether a ‘direction’ of the Tribunal constitutes an ‘order’ of the Tribunal for the purposes of this section.

32.With reference to section 79 of the ART Act I find that it does.  Section 79 reads:

(1)   The Tribunal may, by order, give directions in relation to the procedure to be followed for a proceeding in the Tribunal. 

(2)   The order may do any of the following:

(a)Require a party to the proceeding to give information or documents to the Tribunal or another party to the proceeding for the purposes of the proceeding;

(b)Require a party to the proceeding to give a statement of matters or contentions on which the party intends to rely in the proceeding to the Tribunal or another party to the proceeding;…

33.I am satisfied that a non-compliance with a direction may constitute a non-compliance with an order of the Tribunal.

Has ‘a reasonable time’ for compliance been exceeded

34.The applicant was to file their SFIC and further evidence by 22 September 2025. 

35.To date these documents have not been filed.

36.I have considered the Tribunal’s matter file and note that:

a.    On 11 June 2025 the respondent provided to the applicant a copy of the report of Gary Stretton, occupational therapist, dated 11 June 2025;

b.    On 30 June 2025 the respondent provided to the applicant and the Tribunal an updated statement of issues. At issue was the permanence of the applicant’s psychosocial impairments and the history of previous treatment undertaken.  The applicant was invited to submit further evidence for the respondent’s consideration.

37.I have considered the affidavit of Chloe Michelle Rosenbaum affirmed on 17 October 2025. In this document Ms Rosenbaum attests that:

a.    On or about June 2025 enquiries were made into the availability of a suitably qualified independent psychologist to provide an opinion with respect to the applicant’s impairments.  The first available appointment was 29 July 2025;

b.    On or about August 2025 further enquiries were made into the availability of suitably qualified occupational therapy experts to assess the applicant.  The first available appointment identified was 5 September 2025;

c.     On 12 August 2025 Ms Rosenbaum requested copies of the applicant’s medical records from NSW Health;

d.    On 1 September 2025 the independent psychologist advised she was unable to complete her report without the applicant’s medical records;

e.    After 1 September 2025 Ms Rosenbaum made further enquiries about her request for medical records and was informed her original request had been directed to the incorrect department.  A new request to the correct department was made on the same day.

f.   On 11 September 2025 Ms Rosenbaum was advised her request was likely to take more than 10 weeks to action.

g.    On 19 September 2025 Ms Rosenbaum wrote to the respondent advising of the delay in obtaining independent medical reports and seeking consent to the vacation of the current hearing dates and directions.

h.    On 22 September 2025 the respondent declined to consent and advised the application should be dismissed and the applicant restart her NDIA application;

i.   On 24 September 2025 a different Legal Aid solicitor again sought the respondent’s consent.

j.   On 26 September 2025 Ms Rosenbaum wrote to the Tribunal seeking the current hearing dates be vacated and an amendment be made to the current procedural timetable.  This was declined.

k.     Ms Rosenbaum continued to press for the provision of medical records and independent reports.  Some, but not all, of these have been provided.

38.I have considered Ms Rosenbaum’s affidavit evidence and am satisfied that the evidence establishes that there have been significant efforts on the applicant’s behalf to proceed with her application. 

39.I acknowledge that there appears to have been a delay in actioning a request for occupational therapy assessment and that best practice might have been to advise the respondent and Tribunal of likely delays at that stage.

40.Nevertheless, I find that in light of the respondent’s invitation in their statement of issues dated 30 June 2025 it was not unreasonable for the applicant’s representative to seek further expert evidence from that date. It is unfortunate that Tribunal’s timetable could not take into account the unexpected delays that occurred after that time.

41.I commend Ms Rosenbaum on her candour in identifying the error which has delayed receipt of the applicant’s medical records, and subsequent completion of the applicant’s expert evidence. I accept this was inadvertent and did not constitute a failure to proceed.

42.I acknowledge that the respondent may be put to further inconvenience in having to consider and address the applicant’s further expert evidence (when it arrives) but am of the view this disadvantage is minimal compared to the disadvantage to the applicant should her application be dismissed and her opportunity for review lost.

43.On balance I do not consider that the circumstances surrounding the applicant’s non-compliance with direction 2 of the July 21 directions justify the Tribunal exercising its discretion to dismiss this application.  I also find that the non-compliance does not constitute a failure to proceed with the application so as to enliven that aspect of the discretion.

44.I consider that in order to provide for a fair, just and proper consideration of this application the Tribunal must accommodate the applicant’s request to vacate the current hearing dates and procedural directions. Amended directions will be issued separately.

Decision

45.The respondent’s request for the dismissal of this application pursuant to section 100 of the Administrative Review Act 2024 is refused.

Statement made on 30 October 2025 at 4:32pm