WCWP and National Disability Insurance Agency
[2022] AATA 4713
•18 November 2022
WCWP and National Disability Insurance Agency [2022] AATA 4713 (18 November 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/7382
Re:WCWP
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member D. Barker
Date:18 November 2022
Place:Sydney
The Tribunal dismisses the Applicant’s application seeking review of the Reviewable Decision:
(a)under s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Applicant failed within a reasonable time to progress with the application; and
(b)in the alternative, under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Applicant failed within a reasonable time to comply with the Tribunal’s Directions of 25 January 2022, 13 March 2022 and 7 October 2022.
..............................[SGD]..................................
Member D. Barker
Catchwords
PRACTICE AND PROCEDURE - dismissal - whether the Applicant failed within a reasonable time to progress with their application - whether the Applicant failed within a reasonable time to comply with Tribunal directions - application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33(1AB), 42A
Cases
Guse v Comcare (1997) 49 ALD 288; 25 AAR 477
Charara v Federal Commissioner of Taxation (2016) 69 AAR 97; 103 ATR 118; [2016] FCA 451
De Los Santos-Aguilar v Migration Agents Registration Authority (2014) 64 AAR 1; [2014] AATA 269
Katterns v Comcare (2002) 36 AAR 277; [2002] FCA 1366
Beard v Telstra Corp Ltd (1999) 57 ALD 376; [1999] FCA 999
Evans and Australian Capital Territory [2019] AATA 799
Re De Simone and Commissioner of Taxation [2017] AATA 1005REASONS FOR DECISION
Member D. Barker
INTRODUCTION
The Applicant, aged 51 years, resides on her own and receives informal support from her elderly mother. The Applicant has a diagnosis of borderline personality disorder and a congenital hearing impairment, a diabetes mellitus (type 2), chronic pain (left foot, right shoulder) and schizoaffective disorder. The Applicant is a participant of the National Disability Insurance Scheme (the NDIS).
On 28 April 2021, a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the Respondent) approved a statement of participant supports (the Plan) pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2015 (Cth) (the NDIS Act). The plan had a review date of 28 April 2023. Amongst other funded supports, this plan provided $10,087.48 for capacity building support from mental health occupational therapy to assist with building capacity including social skills and independent care skills.
On 5 August 2021, the Applicant applied to the Respondent for an internal review of the Respondent’s decision to approve the Applicant’s plan on 28 April 2021. With respect to the internal review application, the Applicant requested that a number of other supports be approved and funded on the basis that they were reasonable and necessary. In particular, the Applicant sought weekly psychology support, and meal preparation and delivery.
On 30 September 2021, the Respondent decided the original decision was correct (the Reviewable Decision). With respect to the request for weekly psychology support, the Respondent determined this support did not meet either the reasonable and necessary criteria under s 34(1)(d) of the NDIS Act, or that it was a support most appropriately provided through the NDIS and therefore did not meet the criteria under s 34(1)(f) of the NDIS Act. In relation to the request for meal preparation and delivery, the Respondent determined Rule 5.1 of the NDIS (Supports for Participants) Rules 2013 prevented the funding of this requested support under the NDIS, because it duplicates other supports delivered under alternative funding through the NDIS.
On 11 October 2021, the Applicant applied to the Tribunal for review of the Reviewable Decision. In providing brief reasons as to why the Reviewable Decision is wrong, the Applicant contended:
Due to complexity of my mental health I require weekly psychology appointments with my Clinical psychologist. This will support me to have fewer hospital admissions. Also due to my physical impairments in both my arms, my strength is minimal and I find it very difficult to prepare food. Both have been declined.
The review application form indicated that the Applicant was represented by an advocate, . However, in response to an enquiry from the Tribunal, the advocate, on 21 October 2021, indicated that they had ceased acting for the Applicant.
The Issue
The issue before the Tribunal is whether the Tribunal’s discretion to dismiss an application pursuant to s 42A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) is enlivened and, if it is so enlivened, whether the Tribunal should dismiss the application for review filed by the Applicant on 11 October 2021.
relevant CHRONOLOGY
The chronology set out below is relevant to whether the application should be dismissed under s 42A of the AAT Act.
As is the case with many applications to review a decision made in relation to the NDIS, the Applicant and Respondent, as an initial step were streamed through the alternate dispute resolution pathway within the Tribunal in the hope that this would provide a less formal and more timely mechanism for the parties to be able to discuss and hopefully resolve or narrow the issues in dispute regarding the supports the Applicant seeks through the NDIS.
The matter was set down for a Telephone Case Conference (TCC) before a Conference Registrar of the Tribunal on 5 November 2021. The Notice of Listing (Notice) sent to the Applicant in relation to this and subsequent TCC events at the Tribunal provided details of the date and time for the listed TCC and the following information:
What happens if you do not attend?
If you cannot attend at the time listed above, you should advise us as soon as possible.
If an applicant or an applicant’s representative fails to attend, the Tribunal may dismiss the application under section 42A(2) of the AAT Act.
The TCC listed for 5 November 2021 was vacated in response to the Applicant indicating that their hearing impairment made participation by telephone impractical and that participation in a Case Conference by video, assisted by an Auslan interpreter, was also unsuitable. They have also, since that time, indicated that travelling to a face to face Case Conference at the Tribunal Registry within the region they reside was impractical due to restrictions on their mobility caused by the physical impairments they suffer from.
A further TCC listed for 25 January 2022 was vacated due to the Applicant indicating, by way of email and phone interactions that she did not intend to participate in the TCC and that the request she do so was causing exacerbation of symptoms associated with her mental health conditions.
Directions issued on 25 January 2022 by the Conference Registrar (CR) allocated to this matter directed the parties to exchange relevant material and documents for the purpose of progressing the matter:
Information provided to the Applicant in association with these and other Directions issued by the Tribunal in this matter included the following:
1If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.
2The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.
3If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.
4Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs.
5If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.
Interaction with the Applicant and her mother during phone calls received on 25 January 2022 and 27 January 2022 indicate the Applicant was unwilling and felt unable to provide the requested documents and that request she do so had made her unwell[1]. In a phone call to the Tribunal, the Applicant’s mother indicated that she considered the Tribunal to be harassing her daughter. On 7 March 2022, the Tribunal received an email from the Respondent which brought to the attention of the Tribunal that the Applicant made threats of suicide or self–harm in interactions with staff at the Respondent’s office and that as a consequence a welfare check by local police was requested by the Respondent.
[1] The Applicant’s interaction is summarised, with the actual language used by the Applicant on this and other interactions with the Tribunal couched in strong language containing high levels of dysregulated, expressed emotion. This included reference to both self-harm and threats made against Tribunal staff and other third parties.
Further Directions were issued by the Tribunal on 13 March 2022, providing an extension of time till 7 April 2022 for the provision of the information detailed in the Directions of 25 January 2022 as well as some additional information to assist in the progression of the matter. Tribunal records of a phone call from the Applicant on 17 March 2022 are consistent with previous interactions in that there was significant expressed emotion displayed by the Applicant in the context of how she would react if funding for psychology support required by her was not maintained in her NDIS plan. The Applicant also indicated she could not provide the information requested in the Direction and that she was frustrated and distressed by the review process within the Tribunal. Notwithstanding these interactions the Tribunal, on 7 April 2022, received the report from the Applicant’s treating psychologist that was requested in the aforementioned Directions.
Two further TCC’s have been vacated, on: 7 April 2022 and 25 July 2022, due to the Applicant contacting the Tribunal and indicating she did not intend to participate. A further TCC set down for 16 May 2022 proceeded with the participation of the Respondent only. In relation to the latter TCC, after receiving the Notice informing her of the listing the applicant contacted the Tribunal, indicating that she was not going to attend the TCC and made repeated references to ‘this needs to stop’. The record of this interaction shows that the Applicant disconnected from the call and that due to their agitated state no effective communication between Registry staff and the Applicant was possible.
On 13 May 2022, the Respondent provided the Tribunal with an updated Statement of Issues, a copy of which was also provided to the Applicant. Following this, also on 13 May 2022, the Tribunal received an email from the Applicant which stated in no uncertain terms that she would not participate in the TCC listed for 16 May 2022 and asked that she not be further contacted by the Tribunal.
On 13 May 2022, the Applicant’s mother also called the Tribunal to confirm that the Applicant would not be attending the TCC listed for 16 May 2022 and did not wish to proceed with her review application. The Applicant’s mother was informed by registry staff that if the Applicant wished to withdraw her review application, it was necessary the withdrawal was put in writing and that she could do this by sending an email stating that she did not wish to proceed with her review and that she wants to withdraw her application. Unfortunately no written notification of the Applicant’s wish to withdraw or discontinue the review was received following this interaction, or at any subsequent point in time.
A further TCC listed for 25 July 2022 for the purpose of clarifying whether the matter could usefully progress at the Tribunal was vacated after emails and phone calls from the Applicant indicated she did not intend to participate and that the notices she was receiving from the Tribunal were causing significant exacerbation of symptoms associated with her mental health conditions.
By way of email to the Tribunal the Respondent, on 6 September 2022, requested the matter be listed for a Directions Hearing, indicating that if the Applicant again failed to appear they may seek dismissal of the proceedings pursuant to s 42A(2) of the AAT Act. In response to this request, a Directions Hearing by Telephone (TDH) was listed before a Member of the Tribunal for 13 September 2022. The purpose of the TDH was to ascertain how, if at all, the review application could progress effectively. As with Notices sent to the Applicant regarding TCC listings, the Notice informed the Applicant that if she failed to attend the scheduled TDH, the Tribunal may dismiss her application under subsection 42A(2) of the AAT Act. As requested by the Respondent, a copy of their email of 6 September 2022 was included with the Notice.
The TDH, on 13 September 2022, proceeded with the participation of the Respondent only. The Applicant indicated beforehand that she did not intend to participate. Attempts made on the day and time of the TDH, to contact the Applicant to ascertain whether they had changed their mind about participating did not meet with success. At this TDH the Respondent conveyed their view that it is important for the Applicant to understand the existing funds available for psychological support in her NDIS plan have not been withdrawn, but nonetheless confirmed their request that the Tribunal dismiss the application under the provisions of s 42A(2) of the AAT Act.
The nature of the interaction with the Applicant around the frustration and distress she was experiencing as a result of getting the listing Notice for the TDH necessitated the Tribunal requesting a Police welfare check to ensure the Applicant’s safety.
Consideration of whether to dismiss the application pursuant to s 42A(2) of the AAT ACT
The Tribunal’s objectives are stated in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
Section 33(1AB) of the AAT Act 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 objective in section 2A.
Section 42A(2) of the AAT Act gives the Tribunal the power to dismiss an application for review if a party (other than the person who made the decision) fails to appear. Section 42A(2) provides:
If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person whomade the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant--dismiss the application without proceeding to review the decision; or
(b)in any other case--direct that the person who failed to appear shall cease to be a party to the proceeding.
The Tribunal is satisfied the Applicant was, in relation to the TDH set down on 13 September 2022 and previous listed TCC’s, given appropriate notice of the time and place of the directions hearing and alternative dispute resolution events, as required by s 42A(7).
However, after carefully considering the particular circumstances of this matter the Tribunal, on 7 October 2022, refused the application made by the Respondent to have the matter dismissed under s 42A(2). This was because the Applicant, in relation to each event listed at the Tribunal, provided advance notice that they were not able to participate and gave reasons for their inability, albeit in a manner which could be construed as volatile and aggressive, if due consideration was not given to their impairments. In the circumstance where the Applicant has impairments, caused by physical and mental health conditions, which affect her capacity to participate in either TCC or TDH events, the Tribunal did not consider there to be a fair and reasonable basis upon which to dismiss the application under the provisions of s 42A(2).
dismissal pursuant to s 42A(5) of the AAT ACT
Section 42A(5) of the AAT Act provides that:
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) 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.
In Guse v Comcare (1997),[2] the Court concluded that subsection 42A(5) of the AAT Act provides a discretionary power that should be regarded as one of last resort. In relation to the exercise of this power, the Court held that:
The very nature of the discretion seems to me to demand that the Tribunal consider, after the default has occurred, whether in the circumstances then obtaining, a "reasonable time" has elapsed and whether the proper remedy is dismissal of the application, or the taking of some other course, such as adjourning the proceeding or making some other order to secure compliance.
Furthermore, s 42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed.
[2] Guse v Comcare (1997) 49 ALD 288; 25 AAR 477 at 480.
In Charara v Federal Commissioner of Taxation (2016), the Federal Court held that s 42A(5) to be in aid of the objective in s 2A(b) of the AAT Act[3] and set out the principles relevant to the exercise of the discretion as follows:[4]
The discretion must only be exercised sparingly and as a matter of “last resort”: Guse v Comcare (1997) 49 ALD 288 at 291. That is because it involves denying an applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
In exercising the discretion, the Tribunal must afford the applicant procedural fairness: Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the applicant a further opportunity to comply or remedy the default.
[3] Charara v Federal Commissioner of Taxation (2016) 69 AAR 97; 103 ATR 118; [2016] FCA 451 at [75].
[4] Charara v Federal Commissioner of Taxation at [79]–[80].
Has the Applicant been provided with procedural fairness?
The Tribunal is mindful of the necessity to, before dismissing an application under s 42A(5) of the AAT Act, it is critical that the Applicant be forewarned of the likelihood of dismissal and be given an opportunity to provide an explanation for its non-compliance.[5] The Tribunal notes that with respect to this issue, the Court in Katterns v Comcare[6] concluded that the Tribunal had erred in dismissing an application pursuant to subsection 42A(5) of the AAT Act without giving notice to the parties of its intention to do so and extending to them an opportunity to be heard in relation to the application.
[5] De Los Santos-Aguilar v Migration Agents Registration Authority (2014) 64 AAR 1; [2014] AATA 269 at [25].
[6] Katterns v Comcare (2002) 36 AAR 277; [2002] FCA 1366.
Directions sent to the Applicant on 25 January 2022 and 15 March 2022 specified that s 42A(5) of the AAT Act provides the Tribunal with the power to dismiss an application where directions are not complied with. Further directions issued by the Tribunal on 7 October 2022 made reference to the Applicant’s lack of engagement in the proceedings and the Respondent’s request that the review application be dismissed under the provisions of s 42A(2), due to the Applicant’s lack of participation in the TDH on 13 September 2022 and previous listed TCC events.
Whilst the Applicant was not specifically informed that the provisions of s 42A(5) also encompass the power to dismiss an application where an Applicant fails within a reasonable time to proceed with the application, the Tribunal is satisfied she was made aware of concerns arising from her not participating in the direction hearing and case conferences, or from not complying with directions issued for the purpose of progressing the application. The Tribunal is satisfied the Applicant was informed that the dismissal of the application was a possible consequence to either of these factors.
The Applicant has provided her responses to information in listing notices and directions about these possible consequences. Whilst aware ‘procedural fairness would ordinarily require the Tribunal to give the applicant the opportunity to make submissions as to why the discretion should not be exercised[7]’ , in the particular circumstances of this case the Tribunal has deemed it to be not in the interests of procedural fairness to send the Applicant further correspondence, putting them on notice that it is considering whether to dismiss the application pursuant to s 42A(5)(a) and extending to them an opportunity to be heard in relation to this issue. This is because the Tribunal is satisfied the Applicant has been provided with information which raises the likelihood of dismissal for failing to proceed with the application. The risk of further triggering or exacerbating symptoms associated with the Applicant’s mental health conditions through her receiving unnecessary further communication from the Tribunal is a further factor which has been considered. The necessity to do so, in the opinion of the Tribunal, differentiates this matter from cases where requirements ‘ordinarily’ associated with affording an Applicant procedural fairness may be applied.
[7] Charara v Federal Commissioner of Taxation at [80].
Relevant to consideration of using the power provided by s 42A(5) of the AAT Act Beard v Telstra Corp Ltd,[8] the Court held that the test under s 42A(5) was ‘whether at the time of the decision made pursuant to that section it had been demonstrated that the applicant had failed within a reasonable time to proceed with the application’. The Court held that mere dilatoriness in pursuing the application was not sufficient to enliven the power under s 42A(5) and the failure to proceed with the application must be established on the evidence, not by inference.
[8] Beard v Telstra Corp Ltd (1999) 57 ALD 376; [1999] FCA 999 at [32].
Did the Applicant fail to proceed within a reasonable time?
The application for review of a reviewable decision made by the NDIA on 30 September 2021, which affirmed a Statement of Participant Supports approved by the NDIA on 28 April 2021, was lodged by the Applicant on 11 October 2021. There is no effective progression in this matter in the 12 months since and it is apparent the Tribunal’s endeavours to engage the Applicant in the review process have been unsuccessful and have caused them distress and frustration. Out of consideration of both these factors, efforts to engage the Applicant in case conferencing at the Tribunal was discontinued and the matter was constituted to a Member to clarify if the matter could progress to hearing, be determined in a different way; or, in the alternative dismissed through the powers available to the Tribunal under s 42(A). It was in light of these factors and the Tribunal’s decision to not dismiss the review application under s 42A of the AAT Act that further Directions were issued on 7 October 2022, with the following introduction:
It is apparent to the Tribunal that this case is not suitable for the alternate dispute pathway within the Tribunal and trying to engage the applicant in this process has caused her some stress. Whilst acknowledging the applicant has communicated her frustration to the Tribunal, it would appear that she may also like a decision be made by the Tribunal in relation to the supports she is requesting through the NDIS. It is important that the Applicant have a full opportunity to have her review application progress at the Tribunal and for this reason the matter will be listed to proceed to a hearing, unless the Applicant indicates in writing that she does not want this to occur.
By way of background, the matter was set down for a Telephone Case Conference (the TCC) before a Conference Registrar of the Tribunal on 5 November 2021. The purpose of the TCC was to progress the application through ascertaining further information which may be of benefit in either resolving or narrowing the issues in dispute in this matter. The TCC was subsequently vacated due to the Applicant indicating that their hearing impairment made participation by telephone impractical and that participation in a Case Conference by video, assisted by an Auslan interpreter, was also not suitable for her. She has also, since that time indicated that travelling to a face to face Case Conference at the Tribunal Melbourne Registry was also impractical due to restrictions on her mobility due to the physical impairments she suffers from.
Three subsequent TCC’s have been vacated, on: 25 January 2022, 7 April 2022, 25 July due to the Applicant contacting the Tribunal and indicating she felt unable to participate and one occurred on 16 May 2022 with the participation of the lawyer representing the NDIA (the Respondent) only.
It is unfortunate the Applicant does not have the assistance of a disability advocate, or legal representative in relation to the Review, as it is apparent from emails and phone calls that the Tribunal has received from the Applicant that she is very concerned that support provided by the clinical psychologist she is linked with will cease as a consequence of decisions made by the NDIA. It would appear that discussion of this concern can cause the Applicant to become agitated and distressed to the extent that symptoms and behaviours, associated with her mental health conditions are activated. At times symptoms associated with the applicant’s mental health condition are triggered she reports feeling at risk of self-harm behaviours and her capacity to communicate and interact with Tribunal Registry officers is impaired and not conducive to her review application progressing in a timely or effective manner.
The Applicant has consistently advised that she is unwilling to participate in TCC’s and that she is upset and frustrated that the Tribunal has not proceeded to make a decision which would ensure she can receive the weekly psychology support that is necessary to ensure her wellbeing and emotional stability. She has also consistently reported that she is unable to provide information she has been asked to provide in Directions issued by the Conference registrar of the Tribunal.
The Respondent, on 6 September 2022, requested the matter be listed for a Directions Hearing. In this email the Respondent requested a copy of their email be provided to the Applicant and also indicated that the Respondent may seek dismissal under s 42A(2) of the AAT Act, if the Applicant fails to appear at the proposed directions hearing.
In response to this request and from the Tribunal’s assessment that the alternate dispute pathway within the Tribunal has not provided a viable way to resolve, or narrow the issues in dispute in this matter, a Directions Hearing by Telephone (TDH) before a Member of the Tribunal was listed for 13 September 2022. The purpose of the TDH was to ascertain how, if at all, the review application could progress effectively. The TDH proceeded with the participation of the Respondent only, with the Applicant having indicated beforehand that she felt unable to participate and with attempts made on the day and time of the TDH, to ascertain whether she had changed her mind, not meeting with success. At this TDH the Respondent conveyed their view that it is important for the Applicant to understand the existing funds available for psychological support in her NDIS plan have not been withdrawn.
With respect to the application made by the Respondent on 13 September 2022 to have the matter dismissed under s 42A(2) of the AAT Act, the Tribunal has carefully considered this application but decided to refuse it. This is because the Applicant has in relation to each event listed at the Tribunal provided advance notice that she is not able to participate and given reasons for her inability. In the circumstance where the applicant has impairments, caused by physical and mental health conditions, which she contends affect her capacity to participate in the TCC and TDH events, the Tribunal does not consider there is a fair and reasonable basis upon which to dismiss the application under the provisions of s 42A(2).
The Tribunal acknowledges the significant distress the Applicant has experienced and the concern expressed by both her and the Respondent that the matter is not progressing in an effective manner, as referred to above, the Tribunal has decided to advance this matter to a substantive hearing without further unnecessary delay.
The Tribunal would also make the Applicant aware that there is a provision in the AAT Act which, if the parties consent, allows the review being determined without a hearing[9]. This is referred to as making the decision ‘on the papers’. If this was to be what the Applicant would prefer, it is open for her to send the Tribunal an email indicating that she consents to the Tribunal making a decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing. The Tribunal would then seek the view of the Respondent as to proceeding in this way and provide both the Applicant and Respondent the opportunity to put before the Tribunal any further evidence and arguments they would like to be considered in the course of the Tribunal’s decision making.
Noting the Applicant’s expressed concerns about her circumstances, including her mental health issues being discussed, the Tribunal invites the Applicant to consider making an application for confidentiality orders to be made under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) which, if granted, would enable her to be de-identified in these proceedings such that her identity and information pertaining to her mental health conditions would remain confidential. The Tribunal refers the Applicant to further information regarding such orders here:
Acknowledging that it is open to the Applicant and Respondent to consent to the Tribunal making a decision on the papers, or indeed for the Applicant to inform the Tribunal by way of an email that she would like to withdraw her review application, the Tribunal makes the following Directions so as to ensure the matter can otherwise advance to a substantive hearing without further unnecessary delay. In doing so, the Tribunal acknowledges the Applicant has previously indicated she feels unable to provide requested information, or otherwise comply with previous Directions. It is however necessary to provide procedural fairness and provide the opportunity to the parties to put ford evidence and arguments that they would wish considered by the Tribunal. The Tribunal would draw the attention of the Applicant to the information sheet provided with these directions which has information about disability advocacy and legal services which may be able to provide her with advice or assistance in relation to the Review.
[9] Section 34J of the Administrative Appeals Tribunal Act 1975
The Directions issued 7 October 2022 directed that:
1.on or before close of business on 15 October 2022, the Applicant is to inform the Tribunal in writing as to whether she wants to withdraw her review application; in the event she does not want to do this,
2.on or before close of business on 15 October 2022, the applicant is to inform the Tribunal is she would consent to the Tribunal making a decision on the basis of the currently available information, without a hearing; in the event she does not want review determined in this way,
3.on or before close of business on 18 October 2022, the Applicant and the Respondent is to give to the Tribunal and the other party a Hearing Certificate for the period December 2022 and January 2023, including the particulars of any witnesses they intend to call;
4.on or before close of business four weeks before the scheduled hearing date, the Applicant must give to the Tribunal and the Respondent:
(a) a witness statement from all lay witnesses proposed to be called at the hearing;
(b) all reports, records and any other documents on which the Applicant intends to rely at the hearing;
(c) only if legally represented, a Statement of Issues, Facts and Contentions;
Or
(d) the Applicant is to advise the Tribunal and the Respondent in writing that she will not be providing further documentary evidence or written statements in support of the review application.
5.on or before close of business two weeks before the scheduled hearing date, the Respondent must give to the Tribunal and the Applicant:
(a) a witness statement from all lay witnesses proposed to be called at the hearing;
(b) all reports, records and any other documents on which the Respondent intends to rely at the hearing;
(c) a Statement of Issues, Facts and Contentions.
6.on or before close of business two weeks before the scheduled hearing date, the Respondent is to provide to the Tribunal a Joint Bundle of relevant documents, a proposed Exhibit List and a Witness Schedule
By way of phone calls, made on 7 October 2022 after receiving the Directions referred to above, the Applicant conveyed to the Tribunal that she wanted nothing more to do with the Tribunal. In one of the phone interactions she was accompanied by her treating psychologist, who has permission from the Applicant to speak with the Tribunal. The psychologist spoke with Registry officers to discuss the Direction after the Applicant had herself hung up from the phone call. The psychologist explained that the Applicant has been able to reorganise the funding she currently has to ensure that her psychology can be paid irrespective of what happens with the review. The psychologist said that on this basis the Applicant is likely to withdraw as she no longer needs to pursue the review and would probably be unable to meaningfully participate even if she did proceed. The psychologist indicated that she would relay the information provided about the Directions to the Applicant and noted that it would be up to the Applicant to decide how she wished to proceed. The Tribunal has received no further communication from the Applicant.
In Evans and Australian Capital Territory [2019] AATA 799, at [76]-[79], Member Webb discussed that when determining what is a “reasonable time” within which to proceed with an application, consideration should be given to the objectives of the Tribunal in s 2A:
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.
In order to carry out its statutory role, the Tribunal needs to provide the parties to a review with an opportunity to present arguments and evidence in support of their claims. In this matter the Applicant, a participant of the NDIS, has requested a review a decision of the Respondent which in their application they contend has direct bearing upon their management of symptoms associated with the impairments which provide the basis of their accessing the NDIS. In an unfortunate and unintended manner, the process of seeking to engage the Applicant with the review process at the Tribunal appears to be a stressor which exacerbates, to a concerning degree, symptoms associated with their mental health conditions.
Review of the chronology relevant to these proceedings indicate they have not, in any practical sense, advanced since the application was lodged with the Tribunal in October 2021. Factors contributing to the lack of progression would appear to the Tribunal to, in no small part, include constraints affecting the Applicant’s capacity to participate which are due to impairments suffered by them and for which they are seeking assistance to manage through the NDIS. The effect this has had on the review process at the Tribunal would appear compounded by the lack of representation and advocacy available to assist the Applicant with the review. The Tribunal posits that this may in itself, at least in part be a further consequence of the manner in which the Applicant’s interactions with service providers are affected when symptoms associated with her mental health conditions are activated. Notwithstanding the reasons why it may be the case, the Tribunal finds the application has not proceeded to any significant extent since the review application was lodged and that the Applicant has contributed significantly to the failure of the application to proceed.
In the particular circumstances of this matter, consideration as what is a ‘reasonable time’ within which to proceed with an application, in the view of the Tribunal requires consideration of what colloquially be referred to as the ‘Catch 22’ outlined above. Taken at face value, the proceedings in this matter have not got off first base, with this being engagement in case conferencing to confirm supports requested, identify evidentiary gaps and clarify if discussion between the parties in the less informal alternate dispute resolution pathway may effectively narrow or resolve issues that are in dispute. Taken at face value the lack of participation by the Applicant in listed TCC events is an indicator they have not proceeded with the application. Their noncompliance with Directions issued in January, March and October 2022 can equally be seen to reflect their not proceeding with the application.
Consideration of whether to as a ‘last resort’ dismiss the application requires more than merely taking circumstances at face value and in the view of the Tribunal the communication and interaction style of the Applicant, in her interactions with the Tribunal, need to be understood as something which in all likelihood is triggered by stress inherent in responding to inherent aspects of review proceedings, such as Notices, Directions and communicating with a variety of Tribunal officers.
The Tribunal does not have the role or capacity to appoint representatives or advocates for applicants who, for whatever reason, find engaging with and traversing Tribunal procedures difficult or confusing. In particular, the Tribunal at the current time lacks the capacity to appoint, or seek appointment of a guardian ad litem, where this may be of assistance to an Applicant in proceeding with their application. It would not have been reasonable or appropriate for the Tribunal, to put aside or ignore an application where, as is the case in this matter, an Applicant’s engagement in the proceedings appears compromised by the impact of their impairments. The repeated listing of TCC events reflects the Tribunal’s endeavour to engage the Applicant in procedures by which the application could proceed.
The Tribunal is aware that a review of interactions between the Applicant and Tribunal may provide the impression that the Applicant has made this known on a repeated basis over the past twelve months and that the Tribunal has had some difficulty taking on and responding to what the Applicant has been communicating to it.
The difficulty for the Tribunal was some ambiguity in aspects of the Applicant’s communication with the Tribunal. For instances, references to ‘it must stop’ was not in all respects clear as to what must stop, with possibilities ranging from: the perceived lack of funding for required psychological supports, listing notices, emails from the Tribunal in general, requests she provide information, or the entire review. Unfortunately phone interactions do not appear to have had sufficient duration, before the Applicant disconnected, to clarify specifically what the Applicant wished to convey or the form in which any such request needed to be couched to meet the relevant legislative requirements, for instance, to request consent to discontinue and withdraw the application.
The indication from the Applicant’s treating psychologist that the problem which prompted the review application is now resolved and the most recent interaction with the Applicant confirming the Applicant does not want anything further to do with the Tribunal or its procedures. The Tribunal finds that the Applicant will not participate in any events listed by the Tribunal, whether these be conferences or hearings. The Tribunal finds that the Applicant has no intention to proceed with the application.
In the context of these findings, the Tribunal is satisfied that it is reasonable to accept the Applicant’s stated wishes. Further to this, the concern arises as to not do so, out of a preoccupation with whether the wording of requests and statements from the Applicant are in a particular format becomes a factor insufficiently responsive to the stress this may place on the Applicant. The necessity for both the Respondent and Tribunal to request Police welfare checks to ensure the Applicant’s safety after interactions about the review have occurred is emblematic of this concern. The Tribunal does not consider it necessary and that there is no good reason to seek further indications of the Applicant’s intentions with respect to the application.
In considering this matter, the Tribunal is satisfied the Applicant has failed to, within a reasonable time, proceed with the application. Tribunal finds that prolonging the review is not in the Applicant’s interests and runs the risk of placing unnecessary stress upon her. The Tribunal is satisfied that as a last resort, dismissal of the application is appropriate and that a failure to do so would not reflect a quick, just or fair response to the particular circumstances of this case. For these cumulative reasons, the requirements of s 42A(5)(a) are met.
Has the Applicant failed to comply with Directions?
In Re De Simone and Commissioner of Taxation [2017] AATA 1005 at [10] the Tribunal observed:
Section 42A(5) plainly complements the Tribunal’s s 33 powers to regulate the conduct of an application to the Tribunal. Section 42A(5) affords a process for dealing with non-compliance with directions designed to cause:
(a) the issues in dispute to be identified; and
(b) gathering or preparation of evidence directed to the facts that bear upon the issues in dispute,
both for the purposes of assisting the parties to prepare their case and assisting the Tribunal in discharging its review responsibilities. An applicant who fails or refuses to participate in the process directed by the Tribunal does so at the peril of the application being dismissed.
The Tribunal notes that the initial direction issued in January 2022 were of the type and for the purpose discussed above. The more recent directions were intended to clarify the Applicant’s intentions with regard to the application and also to enable the review to progress to a hearing. The Tribunal finds the Applicant, by way of information provided in conjunction with the directions, was on notice of the potential consequences if they did not comply with the directions. The Tribunal finds the Applicant did not comply with any of the three sets of directions issued in association with this matter. As a consequence, the Tribunal finds that the requirements of s 42A(5)(b) are met.
The decision to dismiss an application is not an easy one; it should not be an easy decision given its consequences for an applicant. The Tribunal has considered all of the matters before it and weighed the various interests and options available in the circumstances. As the Tribunal said in Evans:[10]
It is never entirely satisfactory or fair to an applicant to dismiss an application in circumstances such as this. But unfairness is a matter of relativity. It is a matter that requires competing interests to be weighed and rights to be considered. These are matters about which sensible people acting reasonably when dealing with identical facts and circumstances might differ. It is no easy task. That said, balancing considerations of fairness and weighing other considerations, the particular circumstances of this case render it appropriate to dismiss Mr Evans’ applications.
[10] Evans at [116] – [117].
The Applicant has been given adequate opportunity to explain or advance reasons why the application should proceed. They have not only not provided reasons to that effect, and have rather given an indication that they wish to discontinue their connection to the application.
For the reasons outlined above the Tribunal dismisses the application under s 42A(5)(a) of the AAT Act because the Applicant has failed within a reasonable time to progress with his application.
In the alternative, the Tribunal dismisses this application under s 42A(5)(b) of the AAT Act because the Applicant has failed within a reasonable time to comply with a direction.
decision
For the reasons outlined above, the Tribunal is satisfied that it is appropriate to dismiss the Applicant’s application seeking review of the Reviewable Decision.
The Tribunal dismisses the Applicant’s application seeking review of the Reviewable Decision:
(a)under s 42A(5)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Applicant failed within a reasonable time to progress with the application; and
(b)in the alternative, under s 42A(5)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Applicant failed within a reasonable time to comply with the Tribunal’s Directions of 25 January 2022, 13 March 2022 and 7 October 2022.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker
...............................[SGD].....................................
Associate
Dated: 18 November 2022
Date of hearing: 13 September 2022 Applicant: No appearance Advocate for the Respondent: Ms Sally Matly, National Disability Insurance Agency
Solicitors for the Respondent: Mr M Daly, Mills Oakley
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