Unger and The CEO, National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 534

Unger and The CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 534 (28 April 2025)
Applicant/s: Rosemarie Unger
Respondent: The CEO, National Disability Insurance Agency
Tribunal Number: 2022/10207

Tribunal: Deputy President K Dordevic
Place:Sydney
Date:28 April 2025
Date of written reasons: 7 May 2025

Decision:The Tribunal dismisses this application pursuant to section 100(a) of the Administrative Review Tribunal Act 2024 (Cth) based on Ms Unger’s failure to proceed with the application and comply with orders of this Tribunal.

.....................[SGD]...................................................
Deputy President K Dordevic
Catchwords
PRACITCE AND PROECURE – delays in filing evidence – failure to proceed within a reasonable time period – Application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Cases
Evans and Australian Capital Territory [2019] AATA 799
Statement of Reasons

The Tribunal is satisfied that Ms Unger failed within a reasonable time to proceed with the application.
Pursuant to section 100(a) of the Administrative Review Tribunal Act 2024 (Cth) the application for review is dismissed.
The reasons for this decision are set out in the following paragraphs.
Relevant background
On 13 December 2022 Ms Unger lodged an application for review with the Administrative Appeals Tribunal (the AAT) for an independent review of the decision made by the Respondent, the National Disability Insurance Agency (the Respondent).
On 11 July 2024 Member Smith directed that the parties do various things, including provide an agreed hearing schedule with the matter to be heard on or after 18 November 2024. Ms Unger did not comply with these directions.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[1]
[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
A further directions hearing was held on 10 January 2025. Ms Unger did not attend.
On 14 January 2025 the Tribunal wrote to Ms Unger and advised, amongst other things, that the Respondent would be contacting her to organise an independent medical assessment (IME). If she did not consent to the IME, the Tribunal would set the matter down for hearing in mid to late March 2025. Alternatively, Ms Unger could withdraw her current application. It was noted that a directions hearing would be tentatively scheduled on 14 February 2025 at 3:00PM.
The Tribunal issued notices to the parties advising that a directions hearing would take place on 14 February 2025. Ms Unger failed to attend this case event. Directions in the following terms were issued on that day:
1. The Respondent proposes that Ms Unger undertake an independent occupational therapy functional assessment on 17 April 2025 and had asked that Ms Unger confirm her participation in the assessment by 10:00 am on 14 February 2025.
2. The Respondent advises that Ms Unger has not confirmed whether she consents to the independent occupational therapy functional assessment.
The Tribunal DIRECTS:
1.The Direction of Member Smith dated 11 July 2024 are vacated.
2.By 4:00 pm on 24 February 2025 Ms Unger is to confirm with the Respondent and the Tribunal whether she consents to participate in an independent medical examination conducted by an occupational therapist on 17 April 2025. Unless confirmation is received, it is taken that Ms Unger elects not to participate in the independent medical examination.
3.On the basis that Ms Unger elects not to participate in the independent medical examination conducted by an occupational therapist on 17 April 2025:
(a)by 4:00 pm on 11 March 2025 the Respondent must give to the Applicant and the Tribunal:
i.a Statement of Facts, Issues and Contentions; and
ii.any further evidence on which it intends to rely at the hearing;
(b)by 4:00 pm on 1 April 2025 the Applicant may give to the Respondent and the Tribunal any reply or submissions in response to the Respondent’s Statement of Facts, Issues and Contentions and further evidence or advise that it does not intend to provide a response;
(c)by 4:00 pm on 8 April 2025 the parties are to confer and the Respondent is to submit:
i.a paginated Joint Tender Bundle; and
ii.a Joint Witness Schedule.
NOTE: If the parties are unable to agree on a Tender Bundle or Witness List, they must comply with this direction by giving to the other party and the Tribunal separate folders of documentary evidence and witness lists. Folders of documentary evidence must be indexed and consecutively page numbered.
(d)The proceeding is listed for hearing from 22 to 24 April 2025 commencing at 12:00pm (AEST) for three half days of hearing by video/telephone.
4.On the basis that Ms Unger elects to participate in the independent medical examination conducted by an occupational therapist on 17 April 2025 but does not make herself available to participate in the independent medical assessment on 17 April 2024:
(a)by 4:00 pm on 8 May 2025 the Respondent must give to the Applicant and the Tribunal:
i.a Statement of Facts, Issues and Contentions; and
ii.any further evidence on which it intends to rely at the hearing.
(b)by 4:00 pm on 5 June 2025 the Applicant may give to the Respondent and the Tribunal any reply or submissions in response to the Respondent’s Statement of Facts, Issues and Contentions and further evidence or advise that she does not intend to provide a response;
(c)by 4:00 pm on 12 June 2025 the parties are to confer and the Respondent is to submit:
i.a paginated Joint Tender Bundle; and
ii.a Joint Witness Schedule.
NOTE: If the parties are unable to agree on a Tender Bundle or Witness List, they must comply with this direction by giving to the other party and the Tribunal separate folders of documentary evidence and witness lists. Folders of documentary evidence must be indexed and consecutively page numbered.
(d)The proceeding is listed for hearing from 25 to 27 June 2025 commencing at 12:00 pm (AEST) for three half days of hearing by video/telephone.
5.On the basis that Ms Unger elects to participate in the independent medical examination conducted by an occupational therapist on 17 April 2025 and does in fact participate:
(a)by 4:00 pm on 19 May 2025 the Respondent must give to the Applicant and the Tribunal a copy of the independent medical examination report;
(b)by 4:00 pm on 10 June 2025 the Respondent must give to the Applicant and the Tribunal:
i.a Statement of Facts, Issues and Contentions; and
ii.any further evidence on which it intends to rely at the hearing.
(c)by 4:00 pm on 1 July 2025 the Applicant may give to the Respondent and the Tribunal any reply or submissions in response to the Respondent’s Statement of Facts, Issues and Contentions and further evidence or advise that she does not intend to provide a response;
(d)by 4:00 pm on 8 July 2025 the parties are to confer and the Respondent is to submit:
i.a paginated Joint Tender Bundle; and
ii.a Joint Witness Schedule.
NOTE: If the parties are unable to agree on a Tender Bundle or Witness List, they must comply with this direction by giving to the other party and the Tribunal separate folders of documentary evidence and witness lists. Folders of documentary evidence must be indexed and consecutively page numbered.
(e)The proceeding is listed for hearing from 21 to 23 July 2025 commencing at 12:00 pm (AEST) for three half days of hearing by video/telephone.
Ms Unger did not provide her consent to participate in the IME by 4:00 pm on 24 February 2025, as required by item 2 of the above directions. It was on this basis that the Respondent requested an extension of time to provide further evidence, including a Statement of Facts, Issues and Contentions.
By order dated 12 March 2025 the Tribunal issued directions in the following terms:
The Tribunal VARIES the Direction dated 14 February 2025, adopting its original numbering:
3.On the basis that Ms Unger elects not to participate in the independent medical examination conducted by an occupational therapist:
a.by 4:00 pm on 17 March 2025 the Respondent must give to the Applicant and the Tribunal:
i.a Statement of Facts, Issues and Contentions; and
ii.any further evidence on which it intends to rely at the hearing;
b.by 4:00 pm on 7 April 2025 the Applicant may give to the Respondent and the Tribunal any reply or submissions in response to the Respondent’s Statement of Facts, Issues and Contentions and further evidence or advise that it does not intend to provide a response;
c.by 4:00 pm on 14 April 2025 the parties are to confer and the Respondent is to submit:
i.a paginated Joint Tender Bundle; and
ii.a Joint Witness Schedule.
NOTE: If the parties are unable to agree on a Tender Bundle or Witness List, they must comply with this direction by giving to the other party and the Tribunal separate folders of documentary evidence and witness lists. Folders of documentary evidence must be indexed and consecutively page numbered.
d.The proceeding is listed for hearing from 28 to 29 April 2025 commencing at 12:00pm (AEST) for two half days of hearing by video/telephone.
Ms Unger made various requests from 10 April 2025 to have the hearing adjourned on the basis that she had an appointment with her general practitioner on 28 April 2025 to renew her prescriptions and would be attending a sleep study on 29 April 2025. Ms Unger was directed to provide evidence of these appointments, but she did not. Instead, she provided two medical certificates. The first was dated 14 April 2025 and stated that she could not attend as she had a pre-hospital admission and admission appointments from 28 to 30 April 2025. The second was a medical certificate from a general practitioner dated 26 April 2025 stating that Ms Unger could not attend the Tribunal from 28 April to 2 May 2025 inclusive due to a medical condition, with attached medical certificates authored in 2014 and 2020. Ms Unger did provide evidence that she was to undergo a sleep study on 29 April 2025 but did not provide evidence of her admission time.
In the absence of evidence confirming that she had medical appointments that conflicted with the hearing dates and times the Tribunal refused Ms Unger’s request to vacate the scheduled hearing dates.
On 24 April 2025 the Respondent provided the Tribunal and Ms Unger written submissions seeking that the matter be dismissed. As Ms Unger did not confirm an address that a hardcopy of the submissions and hearing book could be couriered to, the documents were emailed to her at the email address she provided the Respondent and Tribunal and to which she communicated with the Tribunal. These submissions noted that:
·On 12 March 2025, the Respondent issued a new statement of participant supports which included funding for the purposes of conducting a functional capacity assessment;
·On 10 April 2025 Ms Unger has sought internal review of that decision;
·On 23 April 2025 Ms Unger informed the Respondent that she has engaged a practitioner to conduct a functional capacity assessment;
·Ms Unger did not agree to provide a joint hearing tender bundle, would not provide an address so that a hard copy of the tender bundle could be provided to her and did not indicate whether she intended to call any witnesses; and
·Ms Unger did not indicate whether she would participate in an independent medical examination.
On 24 April 2025 a Tribunal officer spoke to Ms Unger and advised her that she must attend the scheduled hearing and that non-appearance at the scheduled hearing may enliven the Tribunal’s jurisdiction to dismiss the matter.
The scheduled hearing was convened on 28 April 2025. Ms Unger attended by MS Teams audio and the Respondent, represented by Dr Taylor, attended by MS Teams video. The Tribunal heard submissions from both Ms Unger and the Respondent in respect to whether the matter should proceed as scheduled, whether it should be rescheduled and whether it should be dismissed, and if so, the legislative basis of the dismissal.
The relevant legislation and case law
The Tribunal’s objective is found in section 9 of the Administrative Review Tribunal Act 2024 (the Act):
9 Objective
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of the parties to proceedings; and
(d) improves the transparency and quality of government decision-making; and
(e) promotes public trust and confidence in the Tribunal.
Section 55 of the Act imposes an obligation on the Tribunal to ensure that each party to a proceeding is given a reasonable opportunity to present their case:
55 Right to present case
General rule
(1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:
(a) present the party’s case; and
(b) access any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and
(c) make submissions and adduce evidence.
...
Section 56 of the Act imposes a duty on parties and their representatives to assist the Tribunal:
56 Parties and their representatives to assist Tribunal
Decision-makers and their representatives
(1) In a proceeding for review of a decision, the decision-maker and any person representing the decision-maker must use their best endeavours to assist the Tribunal to:
(a) make the correct or preferrable decision in relation to the proceeding; and
(b) achieve the objective in section 9.
Other parties and their representatives
(2) A party to a proceeding in the Tribunal (other than the decision-maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9.
...
Section 100 of the Act provides that the Tribunal may dismiss an application if an applicant fails to proceed with an application and/or comply with an order of the Tribunal within a reasonable time:
100 Tribunal may dismiss application if applicant fails to comply with order etc
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.
In Evans and Australian Capital Territory [2019] AATA 799 (Evans)[2] the discretion to dismiss on the ground of a failure to proceed with reference to subsection 42A(5) of the Administrative Appeals Tribunal Act 1975, which is largely replicated on section 100 of the Act, was considered:
[2] Evans, [72] - [73].
72.As can be seen, the discretion to dismiss an application under this provision is essentially preconditioned by an applicant’s failure to proceed with the application, or failure to comply with a direction of the Tribunal, within a reasonable time. The following questions arise –
(a) has the applicant failed to proceed with the application within a reasonable time?
(b) has the applicant failed to comply with a direction of the Tribunal in relation to the application within a reasonable time? And, if the answer to either question is yes,
(c) is it appropriate to exercise the discretion to dismiss the application?
73 Quite clearly, each case is to be determined on its particular facts.
The Tribunal understands that the guidance provided in Evans requires findings in respect of whether Ms Unger has failed to proceed or comply with directions within a reasonable time and if so, consideration of whether it is appropriate to exercise the discretion.
The Tribunal in Evans went on to address the meaning that is to be attributed to the term ‘reasonable time’:[3]
76.The next question is whether his failure to proceed is within a reasonable time. About this, in this context, there are two things to say immediately.
77.Firstly, the phrase ‘reasonable time’ is not given any special meaning for the purposes of s 42A(5). It is not an abstract concept amenable to a fixed or arbitrary assessment of time; nor is it something that can be properly assessed on the passage of time, alone. The amount of time that may be considered reasonable is to be assessed in each case, having regard to all relevant circumstances.
78.Secondly, 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’. A proper assessment of relevant circumstances may lead to a different conclusion. In this regard, consideration should be given to the Tribunal’s objectives set out in s 2A of the AAT Act ...
79.As 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. I accept that these are considerations relevant to an assessment of ‘reasonable time’ for the purposes of s 42A(5) in any particular case, as well as exercise of the discretion to dismiss the section confers.
[3] Ibid, [76] – [79].
I had regard to these principles when considering whether the exercise the discretion to dismiss Ms Unger’s application.
The relevant submissions
Ms Unger’s submissions can be summarised as follows. She has interrupted her sleep to attend the hearing; this will make it difficult for her to attend an appointment with her general practitioner this afternoon to have her prescription renewed. It is not a fair process. Initially she stated that the matter should not be dismissed and refuted the suggestion that she had not taken steps to proceed with the application, including to attend a functional capacity assessment. She stated that the whole process is disability discriminatory; the Tribunal is asking her to drop everything to attend a hearing when she cannot do so and manage her illness appropriately. She is flooded with medical appointments and often does not have the energy to make and keep appointments. She has only two good hours a day and to it is not fair for her to sacrifice her personal life. At one point she stated that she would consent to the matter being dismissed, but only on the basis that when she lodged an application to the Tribunal in respect of the 12 March 2025 statement of participant supports the matter would be expedited. The Tribunal explained that no such guarantee could be made. It was for this reason that she withdrew her consent for the matter to be dismissed. Ms Unger stated that she did not receive notice that the Respondent or Tribunal.
The Respondent’s oral submissions were consistent with the written submissions dated 24 April 2025.
Consideration
I am satisfied that the directions issued from July 2024 to February 2025 were not onerous for Ms Unger; that is, when taking into account her functional impairments the directions and the timeframes were both reasonable and achievable. Despite this, Ms Unger has not complied with any directions issued since July 2024 nor did she attend two directions hearings scheduled in January and February 2025 despite being given adequate notice of these case events. Ms Unger has not engaged in process as evidenced by her failure to indicate whether she would participate in an independent medical examination. This is all contrary to her obligation set down in subsection 56(2) of the Act to use her best endeavours to assist the Tribunal in meeting its statutory objectives.

Further, I am satisfied that Ms Unger was given adequate notice prior to the hearing dates of 28 and 29 April 2025. The hearing days were scheduled to commence at 12PM each day to enable her to participate effectively, taking into account her functional impairments. She did not provide any medical or other evidence to substantiate her claim that she was unable to attend the scheduled hearing dates. She in fact attended the commencement of the hearing on 28 April 2025, notwithstanding her submissions that this placed her at risk of not being able to attend an appointment later in the afternoon to have a prescription renewed by her general practitioner.
I conclude that Ms Unger failed to proceed or comply with directions within a reasonable time.
I next considered whether it is appropriate to exercise the discretion to dismiss this application.
I am satisfied that Ms Unger was given adequate notice prior to the hearing of 28 April 2025 that Respondent was seeking to have the application dismissed and so was afforded procedural fairness in that she was on notice that this was the outcome sought by the Respondent.
This matter has been before the Tribunal for over two years. There have been 10 directions hearings and four conferences. In addition, a further eight directions hearings and conferences were vacated. Certainly, since July 2024 I am satisfied that the substantial factor in the case not progressing is due to Ms Unger failure to comply with directions and attend case events. On the day of the scheduled hearing, she indicated that she was not able to proceed with the application but could not indicate, either generally or specifically, when she would be able to proceed. I am not satisfied that permitting Ms Unger a further period to proceed with the application would assist in progressing the case to finality in the short or medium-term.
I am satisfied that Ms Unger has been given ample opportunity to prepare and prosecute her application over a 28-month period and she has failed to do so. I am cognisant that by exercising the discretion to dismiss the application Ms Unger will be denied the opportunity for merits review of her application. In reaching my decision I note that a new plan was made on 12 March 2025 to which Ms Unger has lodged a request for review. She is not left without supports, notwithstanding the fact that she asserts that her current supports are insufficient.
I conclude that Ms Unger failure to proceed with her application and comply with orders of the Tribunal within a reasonable time warrants the exercise of the discretion to dismiss the application. In reaching this conclusion I took into account the Tribunal’s statutory objective.
For all these reasons the application for review lodged on 13 December 2022 is dismissed pursuant to section 100(a) of the Administrative Review Tribunal Act 2024 (Cth).