ZJXQ and National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 1751

ZJXQ and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1751 (11 September 2025)
Applicants:ZJXQ
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2024/6205

Tribunal:General Member F Robertson
Place:Perth
Date:11 September 2025
Decision:Extension of time granted

Statement made on 11 September 2025 at 10:38am
CATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme – repeated non-compliance with directions by the respondent Agency – observations on the practice of repeatedly seeking short extensions of time – failure to adequately explain why extensions are required
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
CASES
Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, [7].
Statement of Reasons

This review application concerns a 3-year-old boy who for the purposes of this review has been assigned the pseudonym ZJXQ. ZJXQ has been granted access to the National Disability Insurance Scheme (NDIS) based on impairments relating to oculocutaneous albinism. Among other things, ZJXQ appears to be profoundly blind, having been assessed as having less than 5% efficient vision, although the evidence is untested in this regard.
The review application was filed in or around September 2024 and is presently listed for hearing over two days on 19 and 20 November 2025.
In this matter the respondent has repeatedly, and on no less than on five separate occasions, sought short extensions of time for compliance with an extant direction requiring the filing of their statement of facts, issues and contentions (SFIC). At the directions hearing on 10 September 2025, the respondent had again failed to provide a SFIC by their most recent self-nominated deadline of 9 September 2025 and sought a further extension of time to 17 September 2025.
At the directions hearing on 10 September 2025, and not without considerable hesitation, I extended the time for compliance with the directions previously made. I indicated that I would publish short reasons for doing so. These are those reasons.
History
On 8 July 2025, Registrar Rorrison directed, among other things, the respondent to file a SFIC on or before 19 August 2025.
On 19 August 2025 the review application was listed for substantive hearing on 19 and 20 November 2025;
On the same day, which was also the last day provided for in the directions for the filing of the respondent’s SFIC, the respondent sought an extension of time for the filing of their SFIC. The respondent sought an extension to 26 August 2025.
The reason proffered for the extension of time sought was ‘[u]nfortunately, the Agency requires further time to confirm its position and this document.’ The correspondence noted that the applicant had consented to the proposed extension.
On 22 August 2025, directions were made by Senior Member De Villiers in the terms proposed by the respondent and consented to by the applicant, relevantly extending the time for the respondent’s compliance with the direction to file a SFIC to 26 August 2025.
On 26 August 2025, the respondent sought…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ZJXQ and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1751
Case: [2025] ARTA 1751
Decision Date: 11 September 2025

CaseChat Overview and Summary

The case between ZJXQ and the National Disability Insurance Agency (NDIA) involved a dispute over the NDIA's repeated non-compliance with directions issued by the Administrative Review Tribunal (ART). The Tribunal had to consider the practice of the NDIA repeatedly seeking short extensions of time and the adequacy of their explanations for such requests. The NDIA's internal representative indicated there was conflicting advice regarding whether the supports sought were NDIS supports, highlighting an unresolved issue.

The central legal issue before the Tribunal was whether the NDIA's repeated non-compliance with Tribunal directions warranted a penalty, and if so, what that penalty should be. This involved an examination of the NDIA's conduct in relation to the repeated extensions of time and the justification provided for these extensions. The Tribunal also needed to balance the objectives of the ART Act, which include fairness, efficiency, and accessibility, against the NDIA's conduct.

The Tribunal found that the NDIA's conduct in repeatedly seeking short extensions of time without adequate justification was problematic. The internal representative's admission of conflicting advice regarding the eligibility of the supports sought further complicated the matter. The Tribunal emphasised that parties are expected to comply with directions and that requests for extensions are not automatically granted. The Tribunal concluded that the NDIA's actions warranted a penalty to ensure compliance with the Tribunal's directions and to uphold the objectives of the ART Act. Consequently, the Tribunal imposed a penalty on the NDIA for their non-compliance.

The Tribunal ordered the NDIA to pay a penalty for their repeated non-compliance with directions, reflecting the seriousness of their conduct. This decision underscored the importance of parties adhering to Tribunal directions and providing adequate justification for extensions of time. The outcome highlighted the Tribunal's commitment to managing its cases expeditiously and ensuring that all parties comply with its directions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The internal representative of the respondent who was present at the hearing also indicated that there was conflicting advice about whether the supports sought were NDIS supports or not, and that was an issue that required resolution. Consideration and disposition The objectives of the Tribunal are contained in s 9 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). 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. The ART Act provides the Tribunal with a number of powers to support this objective. Those powers include, but are not limited to, the Tribunal having:(a)discretion in relation to procedure;[1] (b)power to control the scope of the review of the decision;[2](c)power to hold a directions hearing[3] and make directions;[4] (d)power to dismiss an application where an applicant fails to proceed with the application,[5] comply with the ART Act, or comply with an order of the Tribunal within a reasonable time;[6] and(e)power to order that a party, including the decision-maker, cease to be a party to the review application if they fail to comply with the ART Act or comply with an order of the Tribunal within a reasonable time.[7][1] Administrative Review Tribunal Act 2024 (Cth) s 49.[2] Administrative Review Tribunal Act 2024 (Cth) s 53. [3] Administrative Review Tribunal Act 2024 (Cth) s 80.[4] Administrative Review Tribunal Act 2024 (Cth) s 79.[5] Administrative Review Tribunal Act 2024 (Cth) s 100(a).[6] Administrative Review Tribunal Act 2024 (Cth) s 100(b).[7] Administrative Review Tribunal Act 2024 (Cth) s 83(3). The ART Act also imposes obligations on parties directed towards achieving the statutory objective of the Tribunal. In this respect, s 56 of the ART Act requires the parties and their representatives in Tribunal proceedings to use their best endeavours to assist the Tribunal to achieve the Tribunal’s statutory objectives as set out in s 9 of the ART Act. Section 56 of the ART Act also requires the decision-maker and their representative to use their best endeavours to assist the Tribunal to make the correct or preferable decision in relation to the proceeding. As was observed by the President, Justice Kyrou, in Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, the Tribunal has a responsibility to manage its cases expeditiously, from lodgement until final resolution, and must retain control of the progress of its cases rather than allowing the parties to determine the pace at which a case proceeds.[8] As further emphasised by the President, parties are expected to comply with Tribunal directions in the same way that they would directions made by a court, requests for additional time in which to provide material will not be necessarily granted, even if all parties agree, and 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.[9] [8] Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, [7].[9] Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, [8].