Unger and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 783
•12 June 2025
Unger and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 783 (12 June 2025)
Applicant:Rosemarie Unger
Respondent: The CEO, National Disability Insurance Agency
Tribunal Number: 2022/10207
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:12 June 2025
Decision:The Applicant’s request for reinstatement pursuant to section 102 of the Administrative Review Tribunal Act 2024 (Cth) is refused.
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Deputy President K Dordevic
Catchwords
PRACTICE AND PROCEDURE – reinstatement of application for review of decision made by the National Disability Insurance Agency – application previously dismissed for failure to proceed within a reasonable time – application made within 28 day period – consideration of special circumstances – application for reinstatement refused
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Cases
Unger and the CEO, National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 534
JTBJ and Secretary, Department of Social Services (Social security) [2025] ARTA 464
Statement of Reasons
INTRODUCTION AND BACKGROUND
The application for review lodged by Ms Unger was taken to have been dismissed on 28 April 2025 pursuant to 100(a) of the Administrative Review Tribunal Act 2024 (Cth) (the Act) based on Ms Unger’s failure to proceed with the application and comply with orders of this Tribunal.
Written reasons regarding the dismissal were provided to the parties on 7 May 2025. The factual background of this matter is set out in paragraphs [4] – [16] of that decision.[1]
[1] Unger and the CEO, National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 534.
On 21 May 2025 Ms Unger applied under subsection 102 of the Act for reinstatement of the application.
On 6 June 2025 the Respondent provided submissions in response to the reinstatement application.
An interlocutory hearing was held on 10 June 2025 at 2:00 PM AEST. Ms Unger did not make herself available for the hearing, despite receiving written notice of the hearing and the Tribunal delaying the commencement of the hearing. The Respondent relied on its submissions.
For the reasons outlined below, I refuse to reinstate these proceedings as dismissed by the Tribunal on 28 April 2025.
Relevant Law
Section 102 of the Act provides that the Tribunal may reinstate an application for review within 28 days of the application being dismissed, either on the grounds of error or in other specified circumstances.
Relevant to Ms Unger’s application for reinstatement the provision states:
102 Reinstatement of application
When this section applies
(1) This section applies if the Tribunal dismisses an application.
…
Party may apply for reinstatement if application dismissed in error
(5) A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
(6) If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
...
Parties can apply for reinstatement in other specified circumstances
(7) If the application is dismissed under:
…
(c) section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);
a party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).
…
(9) If a party applies under subsection (7) and the Tribunal considers it appropriate to reinstate the application, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
In summary, the Tribunal may reinstate the application if it was dismissed in error or if it is appropriate in the circumstances to reinstate the matter.
10. In the recent matter of JTBJ and Secretary, Department of Social Services[2] Kyrou J summarised the types of errors that fall within subsection 102(6) of the Act. I adopt his Honour’s summary of the case law that has directly considered the scope of the phrase dismissed in ‘error’.[3]
[2] JTBJ and Secretary, Department of Social Services (social security) [2025] ARTA 464 (JTBJ).
[3] JTBJ, [25] to [39].
REASONS FOR APPLICATION
11. Ms Unger sent an email to the Tribunal requesting that her application be reinstated, set out in the Appendix. In short, Ms Unger expressed her anger at the matter being dismissed, she alleged that the dismissal amounted to disability discrimination and the common law and she is being mistreated. Instead, she submits that in considering her substantive application the Tribunal should be able to rely on the medical evidence before it, such as a previous functional capacity assessment.
12. On the same day Ms Unger made verbal submissions regarding her reinstatement request to an officer of the Tribunal. These are summarised as follows. She was not permitted to state her case at the hearing. As she was not legal represented she was unprepared for the hearing. Furthermore, she was affected by her medications at the hearing and extremely tired and therefore could not articulate her case and oppose the dismissal. The hearing should have been adjourned based on the medical evidence she provided. In any event, the Tribunal should have relied on the medical documents she had already provided. The way the matter was dealt with amounted to disability discrimination. She was bulldozed and no-one took into account her circumstances.
13. The Respondent made detailed submissions opposing the application.
Was the application dismissed in error?
14. After carefully reviewing the history of the application and the dismissal decision it is not apparent that there was any error of fact or law to suggest that the application was dismissed in error. It is apparent that Ms Unger did fail to comply with an order of the Tribunal and proceed with her application. I find accordingly.
15. Therefore, the application cannot be reinstated pursuant to subsection 102(6) of the Act.
Is it appropriate to reinstate the application?
16. Ms Unger is a current participant of the National Disability Insurance Scheme. I accept that she suffers from impairments that impact on her functional capacity.
17. Again, I have reviewed the history of the application. In dismissing the application for review I was satisfied that Ms Unger had been given ample opportunity to prepare and prosecute her application over the 28 month period it was before the Tribunal. I also noted that a new statement of supports put in place on 12 March 2025 to which Ms Unger has already lodged a request for an internal review. She continues to receive funded supports under the scheme though she states that these supports are not sufficient to meet her needs.
18. I do not accept that Ms Unger was not permitted to state her case at the hearing that took place on 28 April 2025. There were occasions when she was interrupted; this was when her submissions strayed from relevant information or when she was required to clarify or expand on particular submissions and failed to do so. I am not satisfied that she was not afforded procedural fairness or prevented from stating her case. I do acknowledge that Ms Unger was adamant that she could not participate in the hearing. However, as reflected in my reasons for decision, I did not accept that she had medical appointments that prevented her attendance on the day.
19. On balance, I am not persuaded that in the particular circumstances of this case that it is appropriate to exercise the legislative discretion to reinstate the application.
20. It follows that the application is not reinstated pursuant to subsection 102(7) of the Act.
21. There is no other provision in the Act that permits the application to be reinstated at Ms Unger’s request.
Decision
The Applicant’s request for reinstatement pursuant to section 102 of the Administrative Review Tribunal Act 2024 (Cth) is refused.
APPENDIX
Id like my mattee reinstated i had ms attack i cqn barely type if you havevan hr to hear how angry i am aa i xant fikter it you cab listeb ti ut or kimdly wqit and grabt time as to why eg judges disabilty duscrimation breach if basuc common law im told. No kiddimh thst its xommoj law to have common swnse and not disxriminate
I should send wgat i squd but i cant even spend the time ti listen yo it.
Pls asl md if you want me to add why. I cant type it id like tk voice send it but uts unfiltered ascj xabt proof read it and in a way mqybr the court syouod mjoe hos i feel but iys not profewsional even thoigh im the dusanled one being mistreated.
Thx you
Kimd Refqrda
Rosemaroe
Ps bur i shoukdbt aend it as its too raw and ll upset qkl the poshy peippe who fibd thenselves not dusabled and not abysed tyere kaming choices evenbthoigh thry hace meducal ingo and fca from the pzst that thrg cant male understabding from.
In fqct i will send it soon.... ill jist get it looked st by someone and see if they can weite from it but tgey are mayne not ablem i have to ask
I can not fix this writing
[Applicant’s Mobile Number]
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