WXDD and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 1067
•21 July 2025
WXDD and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1067 (21 July 2025)
Applicant/s: WXDD
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/4543
Tribunal:General Member Robertson
Place:Perth
Date:21 July 2025
Date of written reasons: 22 July 2025
Decision:The Applicant’s request to adjourn the final hearing listed for 18 and 19 August 2025 is refused.
Statement made on 22 July 2025 at 7:24am
CATCHWORDS
PRACTICE AND PROCEDURE – adjournment of final hearing – final hearing previously adjourned – legal representatives unavailable – paucity of evidence about circumstances of representative – recent engagement of unavailable representatives after the hearing dates had been listed – adjournment refused
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 9, 56
CASES
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
SECONDARY MATERIALS
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Statement of Reasons
The applicant is a 13-year-old girl who is a participant in the National Disability Insurance Scheme (‘NDIS’). She qualifies for access to the NDIS as a consequence of her diagnosed Dravet syndrome, severe intellectual disability and Autism Spectrum Disorder Level 3. She is assisted in these proceedings by her mother.
At the hearing held earlier today, on 21 July 2025 I extended the time for compliance by the Respondent with Direction 2 of the Direction made on 30 June 2025 to ‘On or before 28 July 2025’. This direction was made by consent.
I also heard an application to adjourn the final hearing in this matter which is listed to commence on 18 and 19 August 2025. I refused that application as I was not satisfied that it was in the interests of justice to vacate those hearing dates and adjourn the final hearing. I indicated that I would provide written reasons for the decision to refuse to adjourn the hearing. These are those reasons.
RELEVANT PROCEDURAL BACKGROUND
This review application was lodged with the former Administrative Appeals Tribunal on or around 30 June 2023. The review application is now to be continued and finalised by the Administrative Review Tribunal (‘Tribunal’).
On 8 April 2025 the Parties in this matter were notified that the review application had been listed for hearing on 14 and 15 July 2025.
On 12 June 2025, the Respondent wrote to the Tribunal raising a number of issues with the hearing proceeding on 14 and 15 July 2025, including, but not limited to, that an expert witness was not available on the hearing dates and that Legal Aid has ceased to represent the applicant.
On 17 June 2025, I made directions for the filing of Statements of Facts, Issues and Contentions and otherwise re-listed the hearing of the review application to 18 and 19 August 2025.
On 30 June 2025 I made directions for the filing of material and, in particular, made a direction that any request that the hearing be vacated must be made formally and supported by appropriate evidence, regardless of whether the Parties consented to the adjournment.
Intrepidus Law were appointed as the representative of the Applicant on or around 8 July 2025.
On 14 July 2025, the Respondent sought an extension of time to file their Statement of Facts, Issues and Contentions. In that email, the Respondent indicated that the extension sought will not impact the scheduled hearing date.
In response to that email from the Respondent, Intrepidus Law wrote to the Tribunal in the following terms:
We refer to the correspondence below. We confirm the Applicant consents to the proposed extension of time.
Further to this, the applicant kindly requests the Tribunal vacate and relist the current hearing date. The applicant’s legal representatives are a small firm with only 3 solicitors.
We currently have 2 matters listed for hearing on the same day as this matter, therefore we are unable to provide the applicant legal representation at the hearing on the currently listed dates.
We kindly request the current hearing dates be vacated and the matter be relisted for hearing not before the week beginning 15 September 2025.
The review application was listed for directions today in order to consider the correspondence dated 14 July 2025 seeking an extension of time and also the request for an adjournment of the hearing listed for 18 and 19 August 2025.
RELEVANT LAW
The power to grant or refuse an adjournment is discretionary and must be exercised reasonably.[1] The Tribunal has very limited and finite resources. There is a very strong public interest in the proper use of the limited resources available for the administration of justice. However, case management is not an end in itself.[2]
[1] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[2] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
In considering a request to adjourn a hearing, it is necessary to consider the Tribunal’s statutory objectives, contained in s 9 of the Administrative Review Tribunal Act 2024 (Cth). That section is 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.
In Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42 (‘Bunnings Group Limited’), the President of the Tribunal, Justice Kyrou, made the following observations with which I respectfully agree:
Consistent 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.
…
Consistent 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.
As the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 (‘Practice Direction’) makes clear, the Tribunal will not adjourn a hearing date unless it considers that there are good reasons to justify the adjournment.[3] The Practice Direction makes clear that the unavailability of counsel or representation and/or the consent of the other participating party to the review application are not, of themselves, sufficient reasons for an adjournment to be granted.[4]
[3] Administrative Review Tribunal (Common Procedures) Practice Direction 2024, [5.12].
[4] Administrative Review Tribunal (Common Procedures) Practice Direction 2024, [5.12].
Availability of a representative
As I have already noted, the Practice Direction provides that the unavailability of counsel or representation is not, of itself, sufficient reason for an adjournment to be granted.[5] The mere fact that a representative is unavailable on the listed hearing date does not, without more, entitle a party to an adjournment. It is necessary to consider the circumstances in which the unavailability arises and whether the representative’s unavailability could reasonably have been anticipated or avoided.
[5] Administrative Review Tribunal (Common Procedures) Practice Direction 2024, [5.12].
It can be appropriate for additional scrutiny where a legal representative, who is unavailable on the hearing dates, was engaged after the hearing date was set. In such case, the Tribunal is entitled to consider whether the representative, in accepting the retainer, was or should have been aware of the existing listing and the obligations of the applicant to proceed in a timely manner.
Resolution of adjournment application
The Tribunal has a statutory obligation to manage proceedings in a manner that is fair and just, but also efficient, informal, and expeditious. That obligation requires the Tribunal to retain control of its own processes and not permit the parties or their representatives to dictate the timing of proceedings. As the President observed in Bunnings Group Limited, once parties are given fair notice of a case event, they should ordinarily expect that it will proceed as scheduled. Adjournments are not to be granted as a matter of course, and the convenience or preferences of parties or their representatives will not, of themselves, constitute a good reason for vacating a listed hearing date.
Having regard to those principles, I am not satisfied that there is good reason to grant the adjournment sought. Nor am I satisfied that it would be in the interests of justice to vacate the current hearing dates.
The hearing dates of 18 and 19 August 2025 were fixed on 17 June 2025 and notified to the parties at that time. Those dates were allocated following the 14 and 15 July dates being vacated. The matter has now been on foot for more than 12 months. It has already been adjourned once. This is a matter that weighs against the grant of an adjournment.
Directions were made on 30 June 2025 requiring that any application to vacate the hearing be formally made and supported by appropriate evidence, irrespective of party consent. That direction was clear and unequivocal.
Despite that direction, the adjournment request made on 14 July 2025 lacked adequate supporting evidence. The request was made by email and relied solely on assertions as to the unavailability of two of the three solicitors employed at the Applicant’s firm. At the hearing today, Mr Bilboe submitted that the third solicitor lacked sufficient experience to represent the Applicant in the hearing. There was no evidence provided in support of these assertions, despite the importance of proper evidence being provided having clearly been raised when the direction on 30 June 2025 was made. Further, there has been no evidence offered to explain the circumstances in which Legal Aid WA ceased to represent the Applicant.
More importantly, in circumstances where it appears Intrepidus Law accepted instructions after the August hearing dates had already been fixed, the Tribunal was entitled to expect a proper explanation of whether the firm was aware of the listing at the time of engagement, and if not, when they became aware. No such evidence was provided. Mr Bilboe indicated that he was not involved in onboarding clients and therefore could not say whether the firm was aware of the hearing date when it accepted the retainer. Whilst I accept what Mr Bilboe says, the paucity of evidence on an issue of such clear importance weighs heavily against an adjournment being granted in my view.
That response, while appropriately candid, does not persuade me towards adjourning the hearing. The onus lies with the Applicant to establish that there is a good reason to adjourn the hearing dates.
There is no real dispute that the firm was appointed no later than 8 July 2025, nearly four weeks after the current hearing dates were set. Mr Bilboe, who appeared on behalf of the Applicant, confirmed that both he and the principal solicitor of the firm were already committed to other hearings on the relevant dates. He also submitted that the firm’s third solicitor lacked the necessary experience to conduct the hearing. While I am prepared to accept the assertion that Mr Bilboe and his principal are unavailable for the reasons claimed, I am not persuaded that those circumstances justify the granting of an adjournment in the absence of any explanation as to why the firm appears to have accepted instructions knowing it could not appear on the listed hearing dates or why alternative arrangements could not be made, for example the briefing of independent counsel.
I can accept that refusing the adjournment may result in the Applicant (and her mother) not having legal representation at the hearing. However, I do not consider that alone is a sufficient basis to adjourn the hearing. A party’s right to legal representation is important, but it does not override the Tribunal’s obligation to ensure proceedings are conducted efficiently and within a reasonable timeframe. If the position were otherwise, parties could effectively frustrate the Tribunal’s processes by engaging representatives who are unavailable, thereby obliging the Tribunal to accommodate that unavailability regardless of context.
The Practice Direction specifically identifies that the unavailability of counsel or representation is usually not, of itself, sufficient reason for an adjournment. In my view, where the representative is engaged after hearing dates are set, as is the case here, and where unavailability of representation is cited in support of an adjournment, it is appropriate for there to be close consideration of the reason for the unavailability.
In my view, the public and the Tribunal is entitled to expect that legal representatives, when accepting a retainer to act in review proceedings, are in a position to meet existing hearing commitments or advise the client accordingly. If a party, with knowledge of this unavailability, nevertheless proceeds to engage that representative then that is a matter that can be considered in dealing with an adjournment request. The paucity of evidence in this matter is such that I cannot make any findings about what occurred in this instance.
The Tribunal must also have regard to the broader interests of justice, including the interests of the Respondent and the public in the timely resolution of proceedings. The Applicant’s matter concerns access to significant supports under the NDIS. It is in the interests of both Parties that the dispute be resolved promptly. Based on the material on the Tribunal’s file, I am satisfied that both parties are aware of the issues in dispute and have had opportunity to prepare for the hearing.
I further consider that delaying the hearing risks prolonging uncertainty for both the Applicant and Respondent. Delaying the hearing will also have an adverse impact on other applicants before the Tribunal who are awaiting hearing dates.
For those reasons, I am not satisfied that it would be in the interests of justice to grant the adjournment, nor that there is any good reason to vacate the hearing dates. Accordingly, I refuse the request to vacate the hearing listed for 18 and 19 August 2025.
33. I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of General Member Robertson
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Dated: 22 July 2025
Date of hearing: 21 July 2025 Solicitor for the Applicant: Mr Christopher Bilboe, Intrepidus Law Counsel for the Respondent: Ms Jennifer Flinn Solicitors for the Respondent: Ms Tareena Martin, Moray & Agnew
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