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 a further extension of time within which to file its SFIC. On this occasion, the respondent sought until 29 August 2025. The reason for the extension was said to be that the respondent required further time to finalise its position.
On 29 August 2025, the respondent sought a further extension to 3 September 2025 for the filing of its SFIC. Again, the reason advanced was that the respondent required further time to finalise its position. Nevertheless, the applicant consented to the extension of time sought and on 2 September 2025 a direction was made extending time for compliance for the respondent to file its SFIC to 3 September 2025.
On 3 September 2025 the respondent sought yet a further extension of time to 5 September 2025.
On 3 September 2025, the solicitor acting for the agency sent an email in the following terms:
Dear Registry,
Thank you for issuing these revised directions.
Regrettably, the Agency requires further time to finalise its position for the purpose of filing its statement of facts, issues and contentions, for which the Agency sought a further extension of time to file to today.
The Agency kindly requests a further variation to Direction 3, to file its Statement of Facts, Issues and Contentions on or before Friday 5 September 2025.
The Agency invites the Applicant to provide their disposition on this request by way of responding to this email.
The Agency apologies for any inconvenience this delay causes to the Applicant.
Thank you for your consideration of this matter.
The applicant consented to that request on the basis that the time for compliance with directions that the applicant was to comply with was extended to, relevantly, 3 October 2025.
In response to this request a telephone directions hearing was listed to deal with the respondent’s non-compliance with the Tribunal’s directions. That telephone directions hearing was listed for 10 September 2025.
On 5 September 2025, the solicitor acting for the respondent wrote to the Tribunal in the following terms:
Dear Registry,
The Agency is unable to today file its Statement of Facts, Issues and Contentions and requires further time to finalise its position.
The Agency acknowledges that it has sought multiple extensions to file this document and a noncompliance directions hearing is listed for this reason next Wednesday 10 September 2025.
The Agency kindly requests a further variation to Direction 3, to file its Statement of Facts, Issues and Contentions on or before Tuesday 9 September 2025.
The Agency invites the Applicant to provide their disposition on this request by way of responding to this email.
The Agency again apologies for any inconvenience this delay causes to the Applicant.
Thank you for your consideration of this matter.
In response to this email the Tribunal indicated that the matter would remain listed for the telephone directions hearing.
At the directions hearing on 10 September 2025 the respondent had still not filed its SFIC as foreshadowed and sought that the time to do so be extended to 17 September 2025. The solicitor acting for the respondent made submissions about the respondent needing to obtain internal advice and consult stakeholders before finalising its position.
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].
It is a fundamental principle of case management that the Tribunal, and not the parties, dictate the pace of review proceedings. This is not for administrative convenience; rather it is a primary way in which the Tribunal must fulfil its statutory objective.
The history of this matter shows that since the original deadline of 19 August 2025, the respondent has sought no fewer than five extensions, each for a short period, and has failed to meet each successive deadline. Even the most recent self-nominated date for compliance of 9 September 2025 was not met and, at the directions hearing on 10 September 2025, the respondent sought a further extension of time to 17 September 2025 to comply.
These repeated failures by the Agency are unsatisfactory in the extreme and have the real prospect of undermining public trust and confidence in the Tribunal.
As set out above, s 9 of the ART Act requires the Tribunal to provide a mechanism of review that is resolved as quickly, and with as little expense, as a proper consideration of the matter permits. Allowing parties to determine the timetable for compliance with directions would undermine this core objective and would involve an abdication of the Tribunal's responsibility to manage its own processes and meet its statutory objective.
While proceedings in the Tribunal are intended to be less formal than in a court, the directions issued by the Tribunal are not mere polite invitations to be accepted or ignored at a party's leisure. Directions are the primary mechanism by which the Tribunal manages its workload to ensure that reviews are conducted in a fair and timely way. Repeated non-compliance, even with the consent of the other party, undermines the Tribunal’s ability to discharge its statutory function and is inconsistent with the duty to assist the Tribunal.
In this case, the applicant has consented to the various extensions sought by the respondent. While the position of the parties is a relevant factor, it cannot be determinative. The reality is that an applicant depending on the outcome of the review application, may have an ongoing relationship with the respondent, and may consciously, or subconsciously, feel pressured to consent to procedural requests to avoid being seen as difficult, and who may later feel prejudiced in their dealings with the Agency. That is another important reason why it is the Tribunal, not the parties, who retains control over the progress of its cases.
The Tribunal has finite public resources, and every procedural step, including the processing of multiple extension requests and the issuing of amended directions, consumes the time of the Tribunal's members and staff. That time is a publicly funded resource. Moreover, delay in one matter has a very real potential to indirectly impact on other applicants who are waiting for their matters to be heard and resolved.
The respondent’s approach in the present matter of seeking multiple, successive, short extensions of time is particularly unhelpful. Moreover, this practice can be misleading if the reasons that multiple, successive, short extensions of time are required are withheld or obscured from the Tribunal.
On the one hand, a single request for a short extension of only a few days may appear somewhat trivial and unlikely to cause prejudice. However, when a party seeks an extension of time, they represent that, absent exceptional circumstances or circumstances beyond their control, they will be able to comply with the new deadline. The seeking of a short extension of time reinforces this representation, as it suggests not only that compliance is well-advanced, but that compliance is imminent.
On the other hand, when a party repeatedly seeks such extensions, it may suggest a failure to properly assess the additional time required to complete the task. When a party repeatedly fails to meet these self-nominated deadlines, as the respondent has done here, the Tribunal is entitled to question whether the party has been frank and candid about the true state of its preparedness and expected compliance. Parties should expect future requests for extensions after a deadline has already been extended will be scrutinised far more closely and such extensions will not be granted without a full and frank explanation, likely supported by evidence, detailing why the previous deadline was not met and what has been done to ensure compliance with the new one.
The explanations provided by the respondent in support of the extensions sought, namely that a party ‘requires further time to finalise its position’, without more, are inadequate. I find the respondent’s submission, to the effect that it deliberately withheld a fulsome and detailed explanation for their repeated non-compliance until the directions hearing to be wholly unsatisfactory. In the context of the repeated non-compliance, such a position is unacceptable. It demonstrates a concerning disregard for the respondent’s obligations not only to the Tribunal but as a model litigant more broadly having regard to its specific duties.[10]
[10] As to which see Wilson and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1452, [25]-[26].
The Tribunal is entitled to expect that parties to review proceedings will properly explain why there has been non-compliance and why extensions of time are required. Resort to opaque and formulaic phrases such as a party requires additional time to finalise its position, or similar, are to be deprecated. They do not allow the Tribunal to understand the reason for the delay or to properly assess the merits of the request for what is properly considered an indulgence. In this regard, it is incumbent on a party seeking an extension of time for compliance with a direction, particularly where time has already been extended, to properly explain why the extension is required and should be granted.
The failure to do so creates ongoing uncertainty not only for the Tribunal but also for the other party. It prohibits the Tribunal from frankly considering whether repeated non-compliance requires that hearing dates be vacated (hopefully in sufficient time such that they might be offered to other parties rather than be wasted) or whether further directions are required. Moreover, it further requires the Tribunal to repeatedly engage with the matter administratively on numerous occasions when one single, properly considered request should have sufficed. The failure to do so in this case has been a significant factor in the need to list this matter for a directions hearing.
Despite the unsatisfactory history of this matter, I have determined that the overriding objective of resolving ZJXQ's substantive application requires that the respondent be given one final opportunity to comply. Accordingly, I have made directions extending the time for the filing of its SFIC. As I explained at the hearing, the respondent is on notice, however, that the Tribunal expects strict compliance with this new deadline. Any future failure to comply with the Tribunal's directions will be viewed seriously. If the respondent fails to comply with the directions as extended, the respondent should expect to be directed to file submissions as to why it should not be removed as a participating party in the review application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for the decision herein of General Member Robertson

……[SGD]…………………………..
Associate
Date of hearing:  10 September 2025
Solicitor for the applicant:            Ms R McCallum, Legal Aid WA
Solicitor for the respondent:          Ms J Pentalow, Maddocks Lawyers