Wilson and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 1452
•20 August 2025
Wilson and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1452 (20 August 2025)
Applicant/s: James Eric Wilson by his grandmother
Respondent: National Disability Insurance Agency
Tribunal Number: 2025/2296
Tribunal:General Member J Papalia
Place:Perth
Date:20 August 2025
Decision:1. The review be programmed to an expedited final hearing.
2. These reasons be provided to the Office of Legal Services Coordination in the Attorney-General’s Department.
Statement made on 20 August 2025 at 3:49pm
CATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – Review of participant supports – Whether the Tribunal should expedite the review – non-compliance with programming directions by the Respondent
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Legal Services Directions 2017 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Albert (a barrister) and McLean (a solicitor) [2021] VSC 297
Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42
Re PRLT and National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 993
Re Southam and National Disability Insurance Agency (Practice and Procedure) [2024] ARTA 198
Statement of Reasons
The Applicant, Mr Wilson, is a participant of the National Disability Insurance Scheme (NDIS). His circumstances are summarised by his consultant psychiatrist in a letter dated 8 May 2025. It suffices to note that Mr Wilson has chronic treatment resistant schizophrenia which is complicated by an intellectual disability and several other disorders. He gained access to the NDIS based on impairments arising from those conditions. He lives in Victoria and is being medically treated pursuant to a Community Treatment Order. The dispute before the Tribunal concerns the funding within Mr Wilson’s Statement of Participant Supports (SoPS) for a support called ‘Supported Independent Living’ (SIL). SIL is a ‘paid personal support’ and ‘includes things like having someone to help with personal care or cooking meals.’[1] The Applicant seeks an increase in funding for SIL because this has reportedly been reduced over time. The Respondent presently submits that the requested increase in funding does not meet the statutory requirements found in ss 34(1)(c), (d) and (f) of the National Disability Insurance Scheme Act 2013 (NDIS Act). These reasons explain why the Tribunal decided to expedite the review process. They have been published because of the Respondent’s repeated non-compliance with orders made by the Tribunal and to explain why the Tribunal decided to further amend the programme by consent.
[1] NDIS Operational Guideline, ‘Supported independent living’ dated 7 April 2025, page 2.
BACKGROUND
The Applicant is represented by his maternal grandmother, Aunty Margaret Knight, who is also his plan nominee. They have been assisted by the Villamanta Disability Rights Legal Service since 19 May 2025.
The Respondent is a body corporate of the Commonwealth established by s 117 of the NDIS Act and is responsible for delivering the NDIS.[2]
[2] See NDIS Act, s 118(1)(a).
The application for review was made in March 2025 and concerned an approved SoPS from October 2024, which had been affirmed on internal review in February 2025 (Reviewable Decision).[3]
[3] See T-documents filed 29 April 2025, T1, T1N, T42-T44.
An order extending the time for seeking review of these decisions by the Tribunal was made by consent on 3 April 2025.
The Reviewable Decision in this matter has now been superseded by a new plan decision made on 11 June 2025.[4] It appears this new plan decision was made by consent and to secure interim support pending the outcome of the review.[5]
[4] See Respondent’s submissions dated 18 August 2025, [17].
[5] See email correspondence between the parties’ representatives (copied to the Tribunal) on 3 June 2025.
By virtue of s 103(2)(e) of the Administrative Review Tribunal Act 2024 (ART Act), the scope of the review is taken to include the merits of the new plan. The new plan decision has yet to be provided to the Tribunal, despite the requirement to do so found in s 25 of the ART Act.
On 8 April 2025, the Tribunal listed this matter for a case conference on 22 May 2025.
Since 21 May 2025, the Respondent has been represented by Ms Emily Baggett. Ms Baggett is a Partner at Mills Oakley Lawyers Pty Ltd in Sydney. The Respondent filed and served a Statement of Issues (for the first case conference) with their updated notice of appearance on 21 May 2025.
On 22 May 2025, and following the first case conference, Registrar Rorrison made orders requiring the parties to confer with respect to interim funding and for the Respondent to file and serve an updated Statement of Issues ‘within 21 days of receipt of any further evidence from the Applicant’.
On 2 June 2025, the Applicant filed and served further evidence in support of the review. The Respondent’s updated Statement of Issues was therefore due to be filed and served on or before 23 June 2025.
On 2 July 2025, the Applicant wrote to the Registry seeking that the matter be listed for case management with a view to being listed for substantive hearing. It was identified in this correspondence that the Respondent had failed to file and serve their updated Statement of Issues in accordance with the orders made by Registrar Rorrison.
On 9 July 2025, the matter was scheduled into the duty list before me on 24 July 2025 at 2.00pm AWST.
Immediately prior to that listing, at 1.19 pm AWST, the Respondent filed and served an updated Statement of Issues by email. This document included a ‘without prejudice’ indication that the Respondent had arranged for a functional capacity assessment to be conducted by an occupational therapist on 3 September 2025. This factor is relevant because it was specifically raised by the Respondent in support of their arguments made during the case management hearing (see below).[6]
[6] Cf ART Act, s 88.
At the first case management directions hearing, the Applicant sought that the matter be expedited to a final hearing under [4.8] of the Tribunal’s Common Procedures Practice Direction 2024 (Practice Direction). The application for expedition was based upon the material filed in June 2025 and evidence given from the bar table by Aunty Margaret regarding the Applicant’s impairments and behaviours of concern. That is, evidence of the Applicant and others around him being at risk of harm absent sufficient supports. This evidence was consistent with the contents of the letter from the Applicant’s treating psychiatrist dated 21 May 2025 (referred to above).
Expedition was not opposed by the Respondent provided the hearing timetable was ‘appropriate’. In this respect, the Tribunal was told about the proposed functional capacity assessment and it was requested that the programme to hearing accommodate that proposed assessment.
The Applicant sought that the matter be programmed without waiting for that proposed functional capacity assessment because:
(a)the evidence suggested ongoing risk to the Applicant;
(b)there was only one support in issue; and
(c)the substantive hearing would be no more than two days’ duration.
Given the evidence of ongoing risk, the Tribunal decided on 24 July 2025 that the appropriate course was to programme the matter to an expedited substantive hearing in Melbourne forthwith. The Tribunal considered that the parties should be required to file and serve a respective Statement of Facts, Issues and Contentions (SFIC) within two weeks of each other, starting with the Respondent on or before 7 August 2025. The Tribunal noted when it made those programming directions that the parties had liberty to update their SFICs after those dates should any further evidence be obtained. Noting the Respondent’s limited role and the several hundred pages of evidential material already before the Tribunal, the Tribunal was satisfied that expedition would not disadvantage any party to the review.
On 7 August 2025, at 5.07 pm AWST, Ms Baggett wrote to the Melbourne Registry of the Tribunal in the following terms (copied to the Applicant’s representative):
Dear Registry and Ms Anderson
James Wilson and National Disability Insurance Agency
2025/2296
I refer to the directions of the Tribunal dated 24 July 2025, as made following a directions hearing on that date.
The directions made do not fully reflect the content and outcomes of the directions hearing and the difference raises concerns about the Agency’s ability to conduct investigations and to use its best endeavours to assist the Tribunal.
The Agency indicated prior to and at the directions hearing that an independent assessment had been arranged to be conducted by Ira Gauvin, occupational therapist, on 3 September 2025 at 10:30am. The Agency anticipates filing the report within 4 weeks of the assessment.
It had been understood that the Applicant’s representatives had consented to an independent assessment, however the status of that is currently unclear. The Agency presses the proposal for the in-person independent assessment on 3 September 2025. If an in-person assessment is not agreed to, then the Agency will obtain a report on the papers instead. It is noted that this is expected to be of less assistance to the Tribunal. The most recent functional capacity assessment by an occupational therapist was completed in 2023. The Agency considers that the Tribunal would be assisted by a report following an updated in-person assessment when deciding the application.
The Agency respectfully proposes the following changes (highlighted using underlining and
strikethrough) to the directions, noting that no changes are proposed to the due date for the hearing certificates or timeframe for hearing.1. The review be listed for an expedited final hearing on a date to be fixed and with a duration of two days. The hearing to be listed in-person in Melbourne.
Note: The Tribunal may be by video link.
2. The Applicant confirm whether he consents to participating in the in-person independent assessment arranged by the Agency for 2 September by 14 August 2025.
3. The Agency to file and serve the report of the independent assessor (whether following an in-person assessment or on the papers) by 30 September 2025.
2. On or before 14 October 2025, the Respondent must file and serve:
a. a statement of facts, issues and contentions; and
b. any further evidence on which it intends to rely, including any independent expert
report.
3. On or before 28 October 2025, the Applicant must file and serve :
a. a statement of facts, issues and contentions; and
b. any further evidence on which he intends to rely.
4. On or before 28 August 2025, the Respondent is to file and serve a written reply.5. On or before 28 August 2025, the parties are to file and serve hearing certificates, with unavailable dates until December 2025.
6. 21 days prior to the hearing, the parties must confer and the Respondent must file and serve, both electronically and in hard-copy, an indexed and paginated Joint Hearing Bundle. The hearing bundle is to comply with paragraph [4.2] of the Tribunal’s Common Procedures Practice Direction 2024. Two hard copies are to be provided to the Tribunal. Any submissions are to be collated at either the front or rear of the bundle and the hard copy is required to be tabbed in accordance with the index.
7. 14 days prior to the hearing, the parties are to confer and to give to the Tribunal a joint proposed witness schedule.
8. There be liberty to apply.
The following day, the Applicant requested that the Tribunal deal with the Respondent’s further non-compliance with the Tribunal’s orders, including by staying the operative decision(s) under s 32 of the ART Act and by making orders to remove the Respondent as a party to the review under s 83(3) of the ART Act.
The matter was subsequently put into my next duty list scheduled for 19 August 2025. The parties were directed to file and serve submissions regarding orders sought by 4pm AWST on 18 August 2025.
In the Respondent’s submissions dated 18 August 2025, the Respondent indicated that:
[12] In light of [the] stay application, the Agency agrees to vary the applicant’s current plan under section 47 of the NDIS Act to remove funding periods for the home and living category of supports. The Agency will complete that change by 1 September 2025. The supports and funding in the plan will otherwise be unchanged.
At the second case management hearing, the Applicant informed the Tribunal that the above indication sufficiently dealt with the urgency sought by the Applicant such that they now consented to the proposed amended programming directions set out [31] of the Respondent’s submissions.
LEGAL FRAMEWORK
In Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, the President observed in the context of an adjournment application that:
5Section 9 of the ART Act sets out the Tribunal’s objective in the following terms:
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 parties to proceedings; and
(d) improves the transparency and quality of government decision-making; and
(e) promotes public trust and confidence in the Tribunal.
6Under s 56 of the ART Act, the parties and their representatives must use their best endeavours to assist the Tribunal to achieve the objective in s 9. Moreover, the decision- maker and their representative have an additional obligation to use their best endeavours to assist the Tribunal to make the correct or preferable decision in relation to the proceeding.
7Consistent with s 9 of the ART Act, the Tribunal has a responsibility to manage its cases, from lodgement until final resolution, expeditiously. It must retain control of the progress of its cases rather than allowing the parties to determine the pace at which a case proceeds. Consequently, requests for an adjournment of any case event, including a directions hearing or a substantive hearing, will not be granted unless there is good reason to do so. The fact that both parties agree to an adjournment on its own does not constitute a good reason. Neither does the convenience of the parties or their representatives. Once the parties are given fair notice of a case event, ordinarily, they should assume that it will go ahead as scheduled and that they will have to participate.
8The assiduous manner in which the Tribunal will manage proceedings before it and retain control over their progress was emphasised in a note that was sent by the Tribunal to legal and other representatives on 24 October 2024. That note emphasised that:
· representatives will be expected to comply with Tribunal directions in the same way that they are expected to comply with court directions;
· requests for additional time in which to provide material will not be necessarily granted, even if all parties agree;
· requests for extensions of time or adjournments will only be granted if there is good reason for doing so, and they will not necessarily be granted even if all parties agree; and
· cases will be scheduled for hearing as soon as possible.
9Consistent with s 56 of the ART Act, parties and their representatives must conduct proceedings before the Tribunal responsibly and in a manner that supports the Tribunal to achieve its objective in s 9. This includes complying with the Tribunal’s practice directions, orders, and directions. It also includes refraining from seeking extensions of time and adjournments for which there is no proper basis.
In National Disability Insurance Agency v Davis [2022] FCA 1002, Mortimer J (as her Honour then was) felt compelled to remind the National Disability Insurance Agency about its role in applications of this kind then before the Administrative Appeals Tribunal,[7] as follows:
44In a merits review the Agency would do well to remember its role. As a model litigant, and another part of the executive, it appears to assist the Tribunal to perform its function, which is to reach the correct or preferable decision on the material before it: Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 at 589, Bowen CJ and Deane J. While the Agency might seek to defend its internal decision-making, the Agency does not appear at the Tribunal as a true adversary in the sense of having private interests to defend and advance. It has a public, statutory function, expending public monies to administer the scheme of the NDIS Act. It has no agenda to exclude people from the NDIS. Nor to admit them. Its role is to ensure that the legislative scheme created by Parliament is administered objectively and carefully, in accordance with Parliament’s intention, as objectively ascertained. In that sense, it has no ‘stake’ in the outcome, other than assisting the Tribunal to reach the correct or preferable decision.
[7] This Tribunal replaced the Administrative Appeals Tribunal when it was abolished in October 2024.
The Tribunal would reiterate that the Respondent, and any person representing the Executive, have a statutory duty to assist the Tribunal.[8] That statutory duty is in addition to the conduct that is properly expected of the Executive at common law.[9] There are also other statutory obligations applicable to the Respondent as a Corporate Commonwealth Entity,[10] and to legal practitioners representing it.[11]
[8] ART Act, s 56(1).
[9] See Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342.
[10] See Judiciary Act 1903 (Cth), Pt VIIC; Legal Services Directions 2017 (Cth), Sch 1, Item 12 and App B.
[11]See Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015, rr 3.1A, 17.
Moreover, it is an offence under the ART Act for any person to engage in conduct that obstructs or hinders the Tribunal in the performance of its functions or for any person to engage in conduct that would, were the Tribunal a court of record, constitute contempt.[12]
[12] ART Act, s 120.
The Tribunal’s Practice Direction provides that:
Compliance with Tribunal orders and directions
4.29 All parties must comply with orders and directions made by the Tribunal.
4.30 Representatives must ensure that the representative’s client(s) comply with any orders or directions made by the Tribunal. For the avoidance of doubt, 4.30 does not affect a party’s obligation to comply with 4.29.
Matters involving more than one participating party
4.31In matters involving more than one participating party, when a party or the party’s representative form the view that they will not be able to comply with an order or direction made by the Tribunal, the party must, within the specified period, write to the Tribunal and:
(a) request further time to comply with the Tribunal’s order or direction;
(b) explain the reasons for requesting further time; and
(c) inform the Tribunal whether each other participating party consents to or opposes the request, unless they are prohibited from contacting the other party.
All matters
4.32Parties should not assume that a requested extension of time for compliance with an order or direction made by the Tribunal will be granted, even if the extension is consented to by all participating parties. The Tribunal will generally take into account the following factors in deciding whether to grant an extension:
(a) the reasons provided for not complying with the order or direction;
(b) the amount of notice provided in requesting the extension;
(c) whether there have been other delays in progressing the application for review;
(d) whether any prior extension of time has been granted;
(e) whether granting the extension of time will result in any Tribunal case event needing to be rescheduled;
(f) the length of additional time requested;
(g) the effect the requested extension of time would have on the resources of the Tribunal and other Tribunal users; and
(h) any other factor the Tribunal considers is relevant.
…
4.34 In the event of non-compliance with an order or direction by a respondent or the respondent’s representative the Tribunal may:
(a) require further information from the respondent or the respondent’s representative as to the non-compliance including, for example, a signed statement setting out the steps taken to comply;
(b) remove the respondent as a party from the application for review in accordance with section 83(3) of the Act;
(c) remove the respondent’s representative in accordance with section 66 of the Act on the basis that they are not acting in the best interests of the respondent or on the basis that the respondent’s representative is otherwise impeding the Tribunal;
(d) if the Tribunal consider that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding—make a decision without a hearing in accordance with section 106(5) of the Act; or
(e) take any other action the Tribunal considers appropriate.
CONSIDERATION
In Re Southam and National Disability Insurance Agency (Practice and Procedure) [2024] ARTA 198 and Re PRLT and National Disability Insurance Agency (Practice and Procedure) [2025] ARTA 993, Senior Member French remarked (at [57]-[59] and [59], respectively) that in its NDIS jurisdiction, the Tribunal is dealing with ‘subsistence supports’ about which there is an ‘existential immediacy’. He noted that this ‘calls for robust case management and timely decisions on review’.
This review is about a particularly vulnerable Aboriginal man. The Tribunal has been provided with evidence demonstrating behaviours of concern related to the Applicant’s impairments,[13] and requests from NDIS providers,[14] medical practitioners,[15] and his grandmother requesting an increase in NDIS funding.[16] This material demonstrates that this matter requires resolution on an expedited timeframe.
[13] See e.g. T4.
[14] See e.g. T41.
[15] See e.g. Letter dated 8 May 2025.
[16] See Carer Impact Statement dated 13 May 2025.
The Respondent, and its representative, have not complied with multiple orders made by the Tribunal in this proceeding. These orders were designed to achieve an expedited resolution of the proceeding. By their conduct, they have hindered the Tribunal listing the matter prior to November 2025. The amendments to the programme proposed by the Respondent on 18 August 2025, and consented to by the Applicant, are only appropriate because of the indication given by the Respondent that there would be interim relief provided to the Applicant in the form of a plan variation made on or before 1 September 2025.
The Tribunal notes that Ms Baggett is an experienced legal practitioner and one of the leaders of Mills Oakley’s government practice. The second and third paragraphs of Ms Baggett’s email dated 7 August 2025 suggest an intention to interfere with the administration of justice because it was directed at the Registry and falsely asserted that the prevailing programming orders inaccurately reflected the outcomes of the directions hearing on 24 July 2025. It sought, without consent or conferral, to amend the programming orders made by the Tribunal after the Respondent had failed to comply with the first direction requiring the preparation and provision of a SFIC on or before that date.
Ms Baggett apologised to the Tribunal on 24 July 2025 regarding the late provision of the updated Statement of Issues. However, no excuse was provided for that delay. Ms Baggett also apologised to the Tribunal on 19 August 2025 when she was confronted regarding the terms of her email. She claimed that no offence was intended by the correspondence. The excuse provided was a vague reference to steps having been taken by the Respondent to progress the matter outside of the review. The Tribunal took this to be a reference to the proposed functional capacity assessment which had been raised, considered, and rejected at the first case management hearing as a basis not to require the provision of a SFIC by the Respondent in early August.
As Justice Dixon observed in Re Albert (a barrister) and McLean (a solicitor) [2021] VSC 297:
64…It is particularly important in the legal profession that more senior practitioners, especially those regarded as role models by less experienced colleagues with whom they work, recognise and accept their responsibility not to engage in inappropriate conduct.
The same can be said for Commonwealth entities, who each have reporting obligations to the Attorney-General under the Legal Services Directions.
It should not be lost on the Respondent that their statutory functions include ‘to support the independence, and social and economic participation of people with disability’ and that they are commanded by Parliament to use their best endeavours to act in a proper, efficient, and effective manner in performing that function.[17]
[17] NDIS Act, ss 118(1)(a)(i), 118(2)(b).
For the above reasons, the Tribunal considers that the Respondent and its legal advisers should reflect on their behaviour in the conduct of this review. Accordingly, it will direct that these reasons also be provided to the Office of Legal Services Coordination in the Attorney-General’s Department (OLSC).
DECISION
The Tribunal orders that:
(a)The review be programmed to an expedited final hearing.
(b)A copy of these reasons be provided to OLSC.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia
...................[SGD].....................................................
Associate
Dated: 20 August 2025
Date(s) of hearing: 24 July 2025, 19 August 2025 Solicitors for the Applicant: Ms N Anderson, Villamanta Disability Rights Legal Service Inc. Solicitors for the Respondent: Ms E Baggett, Mills Oakley Lawyers Pty Ltd
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