Federal Court of Australia

National Disability Insurance Agency v Warwick [2025] FCAFC 100

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the respondent's costs of the appeal, to be assessed by a Registrar if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The respondent, Carle John Warwick, lives with Parkinson's disease. He is a participant in the National Disability Insurance Scheme. This appeal concerns whether Mr Warwick is entitled to support under the Scheme for costs that he incurred when he moved house.

2    That question turns on the proper construction of r 5.1(d) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules), which excludes from coverage under the Scheme a 'support' that:

relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs.

3    The then Administrative Appeals Tribunal (AAT) found, in effect, that this provision excluded the relevant relocation costs that Mr Warwick claimed. The primary judge determined that this was incorrect, and orders were made setting the AAT's decision aside and remitting the matter to the AAT to consider certain issues as specified in the orders. The National Disability Insurance Agency appeals from those orders.

4    In addition to raising the issue of the proper construction of the above rule, the Agency's appeal seeks variation of the remittal order in any event. The Agency contends that the terms of the order will prevent the Administrative Review Tribunal (ART, the successor body to the AAT) from applying relevant legislation. The provisions of the legislation that are said to be excluded from consideration in this way were only passed and came into effect after the orders for remittal were made. This aspect of the appeal raises a question as to the proper exercise of the Court's appellate jurisdiction, given that the primary judge did not take account of legislation that had not been passed.

5    For the following reasons the appeal will be dismissed.

Statutory provisions

6    It is convenient to set out the relevant statutory framework before turning to the factual background. We describe the legislation as at the time the AAT's decision was made, that is 28 September 2023.

7    Section 18 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) permits a person to make a request to be a participant in the Scheme. Numerous requirements for eligibility are set out in s 21 to s 25. If the CEO of the Scheme decides that the person meets those criteria, the person becomes a 'participant' in the scheme: s 28(1).

8    The CEO must facilitate the preparation of a 'plan' for the participant: s 32(1). The plan must include a 'statement of participant supports' that is 'prepared with the participant and approved by the CEO': s 33(2). That statement must specify, among other things, any 'reasonable and necessary supports' that will be funded under the Scheme: s 33(2)(b). The CEO must decide whether or not to approve the statement of participant supports: s 33(4).

9    In making that decision, the CEO must apply any National Disability Insurance Scheme rules made for the purposes of s 35 of the NDIS Act. Section 35 provides that such rules may make provision for matters including supports that will not be funded or provided under the Scheme. The main provision in issue here is one such rule.

10    A participant's plan comes into effect when the CEO has received a statement of goals and aspirations from the participant and has approved the statement of participant supports: s 32(d). Section 39 of the NDIS Act requires the Agency to comply with the statement of participant supports in a participant's plan. Hence, if the statement specifies that a particular support will be funded, the Agency must see that funding is provided.

11    The rule in issue here is found in the following provisions of the Support Rules:

5.1    A support will not be provided or funded under the NDIS if:

(a)    it is likely to cause harm to the participant or pose a risk to others; or

(b)    it is not related to the participant's disability; or

(c)    it duplicates other supports delivered under alternative funding through the NDIS; or

(d)    it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs.

5.2    The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a)    additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

(b)    costs that are ancillary to another support that is funded or provided under the participant's plan, and which the participant would not otherwise incur.

12    While the focus of this proceeding is on r 5.1(d), it can be seen that it needs to be read with r 5.2.

The proceeding in the AAT

13    Mr Warwick was 69 years old at the time of the AAT's decision. He became a participant in the Scheme in 2018. His first plan was approved in April 2020.

14    Mr Warwick and his wife lived in Thornleigh, New South Wales. Their home there was a split-level house built into the side of a hill. It had steep terrain and four internal levels. This presented increasing difficulties for Mr Warwick, whose condition deteriorated over the course of 2020 and early 2021. He and his family decided to sell the home so that he and Mrs Warwick could relocate to a house in Westleigh. This was closer to their daughter, Melannie Hogan.

15    The Thornleigh home was sold in February 2021. There were negotiations with the Agency to include relocation costs as supports in Mr Warwick's plan. As currently claimed these total about $115,000 and include a real estate agent's commission of $25,245.00, stamp duty of $85,237.40, conveyancing costs and removal costs. But when the previous plan expired in April 2021, a new plan was approved which did not include relocation costs in the statement of participant supports.

16    Mr Warwick sought internal review of that decision from the Agency and, being unsuccessful, sought review in the AAT. Despite it being the subject of some dispute, the AAT determined that it had jurisdiction to review the decision to adopt a new plan that was made on 9 April 2021, which had been affirmed by the internal review.

17    In then embarking on its review, the AAT noted that the requested support was required to satisfy r 5.1 and r 5.2 of the Support Rules. It observed (at para 52):

In this case, the day-to-day nature of the relocation support, which would ordinarily be excluded by R5.1, is the relevant consideration. It should be noted that the Operational Guidelines also stipulate that relocation costs such as those incurred by this applicant are everyday costs because they are incurred by Australians irrespective of their disability. A significant factor in making this determination is whether the costs were incurred solely and directly as a result of their disability support needs, thus meeting the exception requirements of R 5.2.

The Operational Guidelines are a policy document which was not before us.

18    The AAT conducted a detailed review of the evidence as to the cost of necessary modifications to the Thornleigh home, compared to the cost of moving to and modifying the Westleigh home. It concluded that moving house was more likely to represent 'value for money', that being one of the matters of which the CEO was required to be satisfied in order to approve the funding of a support: see s 34(1)(c) of the NDIS Act. It found that other relevant requirements for the approval of a support were also met.

19    The AAT then turned to consider whether r 5.1 and r 5.2 of the Support Rules nevertheless prevented the funding or provision of the relocation costs as a support. It also considered a guideline about home modification which appears to have been issued by the Agency which required the need to move house to be 'related to' the participant's disability. In issue was whether Mr and Mrs Warwick had moved because they wanted to be closer to their daughter, Ms Hogan, or because the Thornleigh house had become unsuitable simply because they were aging.

20    The AAT rejected both of these as reasons for the decision to move out of the Thornleigh home and thus the decision to relocate. It therefore concluded that the requirement in the guideline had been met, and it appeared to find that the exclusionary criterion in r 5.1(b) did not apply to those decisions, so that support for the costs of relocation would be 'related to the participant's disability'. But the AAT drew a distinction between those decisions and the decision to choose the particular house in Westleigh to which Mr and Mrs Warwick ultimately moved (they lived with Ms Hogan for a time after moving from Thornleigh and before finding the new home).

21    The AAT then appeared to assume that the exclusionary criterion in r 5.1(d) of the Support Rules, as to day-to-day living costs, would apply to the decision to purchase the new home, unless it was in turn excluded by the operation of r 5.2(a). The AAT posed the question this way (at para 158):

Relocation, however, also involves the purchase of a new home. While the purchase of this new home might satisfy the Guidelines because it would, with modification, support the Applicant's disability, the requirements of Rules 5.1(d) and 5.2(a), relating to day-to-day living costs, also need to be satisfied. Rule 5.2 (a) stipulates an additional living cost such as relocation expenses may be funded if they are 'solely and directly' incurred as a result of a participant's disability support needs. The stipulations of 'solely and directly' clearly, on the natural meaning of the words, exclude all other needs, such as the need to be near family or to have additional rooms and a more modern house with a modern bathroom.

22    The AAT canvassed several reasons which influenced the decision to buy the Westleigh house, including that it was larger, had more bedrooms and was close to Ms Hogan. The AAT recorded the parties' agreement that Mr Warwick's final choice of home was based on his wish to be near his daughter.

23    The AAT considered that the only remaining factual issue was why Mr Warwick wanted to be close to Ms Hogan, in particular whether it was because of the care she provided to him as a person with disabilities. It resolved that issue unfavourably to Mr Warwick, that is, it concluded that there was insufficient evidence that the relocation to the new house was based solely and directly on Mr Warwick's disability support needs, notably his daughter's care. There were other reasons not solely and directly related to those needs which informed the choice of the Westleigh house. Thus the AAT found that the combined requirements of r 5.1 and r 5.2 were not met. The AAT's focus in that regard was evidently on whether r 5.2(a) reversed the exclusion as a support which, the AAT assumed, was effected by r 5.1(d).

24    The AAT affirmed the decision under review to approve the plan of April 2021 which did not include supports for the relocation. It is common ground that this decision was inconsistent with the AAT's findings, to the extent that it found that the costs of moving out of Thornleigh could be the subject of supports under the Scheme.

The decision of the primary judge

25    Mr Warwick appealed to the Federal Court from the AAT's decision, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The appeal could only be, and was, on a question of law.

26    In the appeal, Mr Warwick contended that the costs of relocating from one home to another were not 'day-to-day living costs' on the proper construction of r 5.1(d) of the Support Rules, so that those costs were not relevantly excluded by r 5.1. This was a new point, as Mr Warwick had not raised it in the AAT, and as had been said the AAT appears to have simply assumed that r 5.1(d) would apply unless excluded by r 5.2. The primary judge nevertheless allowed Mr Warwick to raise the argument on appeal.

27    In the course of so ruling, the primary judge gave as one of his reasons that it was 'obvious that relocation costs are not "day-to-day living costs" and there is public interest in having it made clear for the purposes of the NDIS that this is so': primary judgment (PJ) at [13]. His Honour's reasons for that view were:

[14]    Paragraph 5.1(d) is contained in a legislative instrument. The expression 'day-to-day living costs' is not defined in that instrument, nor does it bear a technical meaning. Thus, it bears its ordinary meaning. According to the Macquarie Dictionary, the ordinary meaning of 'day-to-day' is 'ordinary; happening every day'. Perhaps the word 'everyday' captures these two concepts. The ordinary meaning of 'living costs' is those expenses which are incurred in the course of living for the purpose of living. Thus 'day-to-day living costs' are those everyday expenses which are incurred in the course of living for the purpose of living. This meaning is confirmed by the examples which appear in brackets in paragraph 5.2(d) - 'rent, groceries and utility fees' - which are canonical examples of day-to-day living costs.

[15]    The costs of engaging an agent to sell one's home, the costs of moving from one home to another, conveyancing fees and the payment of stamp duty on the conveyance of a new home are not everyday costs which are incurred in the course of living for the purpose of living. To the contrary, they are extraordinary expenses to which not everyone has the good fortune to become liable and which, even amongst those who are that fortunate, can scarcely be described as 'day-to-day' costs.

[16]    It follows that the relocation costs claimed by Mr Warwick do not fall within paragraph 5.1(d). The AAT's determination that paragraph 5.1(d) applied therefore involved an error of law. The determination should be set aside and the matter remitted to the AAT to determine according to law and in light of these reasons.

28    That conclusion made it unnecessary for the primary judge to deal with various other arguments Mr Warwick made, but his Honour canvassed them for completeness. It is not necessary to describe those parts of the reasons.

29    The primary judge indicated that upon the filing of an amended notice of appeal to raise the new point on which Mr Warwick had been successful, orders should be made setting aside the AAT's decision and directing it to redetermine Mr Warwick's application according to law.

30    However the orders that were ultimately made only remitted two specific issues back to the AAT. They were, first, the issue of whether the support relating to the relocation costs was a support to which r 5.1(d) of the Support Rules applied, and second, whether (if it was not), the CEO would have a residual discretion to refuse to fund the support under s 33(2) of the NDIS Act, and if so whether that discretion should be exercised. This latter issue appears to be a reference to something raised by the primary judge (at PJ [7]) which had been unnecessary for the AAT to decide given its conclusion about the application of the Support Rules, namely that, in light of comments in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [158]-[167], it was unclear whether there was a separate residual discretion under s 33(2)(b) to deny funding even where the s 34 criteria are satisfied.

The Agency's case on appeal to this Court

Ground 1 - the proper construction of r 5.1(d)

31    The notice of appeal as originally filed contained only one ground, which asserted that the primary judge had erred in his construction of the phrase 'relates to day-to-day living costs' in r 5.1(d) of the Support Rules. The particulars to the ground did not specify how that construction was said to be wrong, other than to contend that his Honour constrained the scope of the paragraph by failing to give meaning to the words 'relates to' in the phrase.

32    In its submissions, the Agency emphasises the need to construe the phrase as a composite phrase. When that is done, it submits, the phrase is to be read, not as referring to a 'cost' that is 'day-to-day', in the sense of payable every single day, but as a cost of 'day-to-day living'. Thus a relatively infrequent cost, such as the cost of moving house, can still be a 'day-to-day living' cost.

33    The scope of the exclusion for which r 5.1(d) provides is further broadened, the Agency submits, because a support to which it applies is not just a day-to-day living cost, but a support that 'relates to' a cost of that kind.

34    The Agency submits that the example costs given in r 5.1(d), namely rent, groceries and utility fees, are costs that are of a type that all people incur, regardless of whether they have a disability, so that is the kind of cost which r 5.1(d) excludes. This, it is said, is consistent with the other phrase in r 5.1(d) under which the provision applies only to costs 'that are not attributable to a participant's disability support needs'.

35    The primary judge's error, then, according to the Agency, was to define 'day-to-day' divorced from its context and by reference to a dictionary, to also define 'living costs', and then to put those meanings back together again. His Honour also did not consider the significance of the introductory words 'relates to'.

36    As an apparently alternative argument, the Agency submits that in proceeding on the basis that r 5.1(d) applied, the AAT implicitly found that the claimed relocation costs were day-to-day living costs, which was a factual evaluation that does not reflect a misconstruction of the rule.

37    The Court raised a further question during the hearing of the appeal. It drew attention to the requirement in r 5.1(d) that the day-to-day living costs must be costs that are 'not attributable to a participant's disability support needs'. With the leave of the Court, after the hearing of the appeal the parties filed written submissions on the meaning of that phrase. The Agency's position is that it should be read as part of the exception in r 5.1(d) as a whole, so as to mean that the exception is engaged when the day-to-day living costs have been incurred for a broader reason than the participant's disability support needs, that is 'to meet the same type of day-to-day living needs as other members of the community'. The Agency draws a contrast between this meaning and a narrower reading of the 'not attributable' requirement that would require the cost to have no relationship to disability support needs or any ability to assist the participant with those needs.

Ground 1A - the application of the October 2024 amendments

38    By leave given at the hearing of the appeal, a further ground was added, to the effect that the orders made (by a different judge) consequent on the primary judge's reasons did not take into account amendments to the NDIS Act that came into effect on 3 October 2024, pursuant to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Back on Track Act). That legislation came into force after the orders themselves were made, on 12 July 2024.

39    The problem, according to this new ground, is that the amendments replaced a criterion for approval of supports in s 34(1)(f) (which had broadly related to whether the support was most appropriately funded or provided through the Scheme and not from some other source), with a new s 34(1)(f) which requires the support to be 'an NDIS support for the participant'. Section 10 of the NDIS Act as amended specifies what is and is not an 'NDIS support', including by reference to National Disability Insurance Scheme rules.

40    The Agency contends that under the transitional provisions for the amendments, on remittal the ART must consider whether the relocation costs comply with the substituted s 34(1)(f), but the scope of the remittal order prevents that. The transitional provision in question is item 129(1) of the Back on Track Act, which provides that s 33, s 34 and s 35 of the NDIS Act as amended apply to an 'old framework plan' if the statement of participant supports is approved or varied after the commencement of the amendments. Mr Warwick's plan approved in April 2021 is an old framework plan. Certain transitional rules specifying what is and is not an NDIS support may thus apply. We will explain their significance further below.

Consideration of ground 1 - proper construction of r 5.1

41    The following discussion concerns the legislation as it stood at the time of the primary judge's decision. As just mentioned, there have been amendments since then which may impact on the construction of r 5.1 of the Support Rules developed below.

Principles

42    It is not necessary to set out the well-established principles of statutory construction. Given the emphasis in the Agency's case on the need to construe 'day-to-day living costs' as a composite phrase, it is convenient to express respectful agreement with the following passage from the judgment of Gordon J (Besanko J agreeing) in Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68; (2013) 212 FCR 252 at [34] (some citations omitted):

1.    The task is to construe the language of the statute, not individual words.

2.    The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision. Indeed, it is rare that resort to a dictionary will be of assistance in searching for the legal meaning of a provision in a statute.

3.    As Gleeson CJ said in XYZ v Commonwealth [(2006) 227 CLR 532] at [19]:

There are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts.

See also General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax [1982] 2 NSWLR 52 referred to by Gleeson CJ where Lord Wilberforce remarked, in the course of argument, that an Australian who looked up the words 'commission' and 'agent' in a dictionary would probably be surprised to be told that, in England, a commission agent is a bookmaker.

4.    The text of the provision is to be construed according to the context 'by reference to the language of the instrument viewed as a whole': Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (citations omitted) …

43    It is also useful to recall the following observations of the High Court in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 396-397:

The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown [[1996] 2 WLR 203 at 218], a recent House of Lords decision, Lord Hoffmann said:

The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.

The context of r 5.1(d)

44    It is true that in this case the primary judge commenced his dispositive reasoning by paying particular attention to the meaning of specific words in r 5.1(d), namely 'day-to-day' and 'living costs', including dictionary definitions. However we are not persuaded that this approach led his Honour into error in his construction of the clause as a whole. Nor are we persuaded that the Agency's preferred construction adequately captures the intention behind the rule.

45    The Agency's argument turns on the syntax of r 5.1(d). As has been said, the Agency contends that the phrase 'day-to-day living costs' should be read so that it refers to the costs of day-to-day living, not to living costs that are day-to-day. In other words, 'day-to-day' does not qualify 'costs', it qualifies 'living', the costs of which need not in themselves be 'day-to-day' in the sense that they need to be incurred every day or at least with some measure of frequency or regularity. In this way the Agency arrives at the position that the rule excludes expenditure that supports day-to-day living.

46    It must be recalled, however, that in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ explained (at [69]) that:

[i]n Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

47    Taking that approach, the relevant context of r 5.1 and r 5.2 commences with Ch 3 Pt 2 Div 2 of the NDIS Act, which contains the provisions already briefly described.

48    Section 34 in that Division sets out a number of matters of which the CEO must be satisfied in order for a support to be specified in the statement of participant supports. This includes broad criteria such as the facilitation of 'the participant's social and economic participation' (s 34(1)(b)); 'value for money' (s 34(1)(c)); and that 'the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice' (s 34(1)(d)).

49    The place of the Support Rules in relation to the CEO's decision is to be found in s 34(2) and s 35 of the NDIS Act. Both of these provide for the National Disability Insurance Scheme rules to contain 'methods or criteria to be applied, or matters to which the CEO is to have regard' in deciding whether he or she is satisfied in relation to the matters set out in s 34(1) (s 34(2)), or in deciding the reasonable and necessary supports (or general supports) that will be funded (s 35(1)(a)). Section 35(1)(b) also provides specifically for the National Disability Insurance Scheme rules to prescribe 'reasonable and necessary supports or general supports that will not be funded or provided' under the Scheme. (A general support is defined in s 13(2) to be 'a service provided by' or 'an activity engaged in' by the Agency 'that is in the nature of a coordination, strategic or referral service or activity'.)

50    The relevant function of the Support Rules, then, is to prescribe, in more detail than the broad criteria in s 33 and s 34, matters that may and may not be included in a statement of participant supports, or matters to which regard is to be had in the preparation or approval of the statement.

51    The Support Rules recite that they are made for the purposes of s 33 and s 34 of the NDIS Act. They are stated to be 'about assessment and determination of the reasonable and necessary supports that will be provided for participants under the NDIS': r.1.1 and see also preamble. Rule 1.2 and r 1.3 are:

1.2    The Act sets out a number of objects for the NDIS. The objects that are particularly relevant to these Rules are the following:

(a)    supporting the independence and social and economic participation of people with disability;

(b)    providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;

(c)    enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.

1.3    In giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS.

52    Rule 1.4 then sets out a number of principles for the Scheme that are found in the NDIS Act which are particularly relevant to the Support Rules. It is not necessary to set them out; it is enough to observe that they are all principles that are beneficial to participants, and do not contain any principle that restricts the scope of the supports that are to be provided under the Scheme. The Support Rules do, however, repeat most of the matters in s 34 of which the CEO must be satisfied: r 2.3. And at r 2.5, they say that:

In administering the NDIS and in approving each plan the CEO must have regard to objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans.

53    An outline of the Support Rules is given in r 2.6 to r 2.10. Relevantly, r 2.8 says that Pt 5 of the Support Rules 'sets out general criteria for supports, and supports that will not be funded or provided'.

54    It is notable that none of the matters in the NDIS Act that constrain or guide the CEO's decision as to whether to approve a statement of participant supports specify that the support must have any particular type or degree of connection or relatedness to the participant's disabilities. In particular, the NDIS Act does not specify the respects in which or extent to which the supports will meet needs that might be said to arise from the participant's disabilities. For example, s 34(1)(d) of the NDIS Act, repeated in r 2.3(d) and reflected in matters the CEO must consider and take into account in r 3.2 and r 3.3, requires the CEO to be satisfied that a support 'will be, or is likely to be, effective and beneficial for a participant'. That does not, in itself however, require the support to be caused by, made necessary by or otherwise related to the participant's disabilities.

55    It may be inferred from that, from the place of Pt 5 of the Support Rules in the statutory scheme as just described, and from the content of that Part, that one of the purposes of the Part and therefore of r 5.1 (as found in it) is to specify an appropriate relationship between a support and the participant's disabilities as a matter to which the CEO is to have regard in forming the states of satisfaction required by s 33 and s 34. Rule 5.1 has other purposes too: r 5.1(a) imposes a self-evidently beneficial requirement that the support is not likely to harm the participant or pose a risk to others; and r 5.1(c) is designed to prevent duplication of funding. But r 5.1(b) expressly prohibits the provision of a particular kind of support by adopting language that is concerned with the degree of connection between the support and the participant's disability, namely a support that 'is not related to the participant's disability'.

The phrase 'not attributable to a participant's disability support needs'

56    Logically, considered in the context just described, r 5.1(d) must be taken to impose a further limitation, in so far as it proscribes particular categories of supports (those that 'relate to day-to-day living costs') that are 'not attributable to a participant's disability support needs'. In order to satisfy this further limitation, the connection between the cost and the disabilities must be closer than the relationship for which r 5.1(b) provides, otherwise those words in r 5.1(d) would add nothing. In Central Asbestos Co Ltd v Dodd [1973] AC 518 at 523 Lord Reid pointed out that 'attributable' means 'capable of being attributed' and that 'attribute … has a number of cognate meanings, you can attribute a quality to a person or a thing, you can attribute a product to a source or author, or you can attribute an effect to a cause. The essential element is connection of some kind …'. In the context of r 5.1(d), it must be the third meaning that applies here (see also Lord Pearson at 543).

57    The matters just discussed indicate that the connection required is a direct causal one. That is, to be attributable to the participant's disability support needs, the relevant day-to-day living cost, as a whole, must be caused by those needs.

58    The Agency relied in particular on the construction given to the term 'not attributable' in Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523. However the context of that decision, tax legislation, was very different to the present context, and the decision is of little assistance here.

59    In addressing the meaning of the phrase 'not attributable to a participant's disability support needs', Mr Warwick points to National Disability Insurance Agency v Davis [2022] FCA 1002 at [115]. There, Mortimer J said that a person's:

'disability' (singular, as an overall description) which a person has is attributable to those impairments, but the focus of the NDIS Act (and the focus of supports if a person qualifies) is on supports for the impairments a person has.

(emphasis in original)

60    But while this reference concerns the same statutory scheme as the present appeal, it relates to a different point, namely the relationship between a disability and an impairment for the purposes of s 24 of the NDIS Act. It sheds no light on what the inherently elastic phrase 'attributable to' means in the related but quite different context of r 5.1(d) of the Support Rules.

61    In any event, it is not necessary to elucidate the meaning of a causal connection in the present context; it can be understood on a common sense basis, just as it is in other legal contexts: see e.g. March v E & MH Stramare Pty Limited (1991) 171 CLR 506. In the case of any given cost for a given participant, whether the cost is attributable to the disability support needs will be a specific and fact-intensive inquiry.

62    A relationship of direct common sense causation in r 5.1(d) in turn permits a sensible scope of operation to r 5.2(a). The latter rule provides that the 'day-to-day living costs referred to in paragraph 5.1(d)', that is, day-to-day living costs that are not attributable to disability support needs, do not include 'additional living costs that are incurred by a participant solely and directly as a result of their disability support needs' (emphasis added). The function that r 5.2(a) performs follows from the effect of r 5.1(d) as excluding such additional costs, because they form part of a living cost that, considered as a whole, is not caused by the participant's disability support needs. In order not to work hardship, r 5.2(a) embodies a recognition that, sometimes, a cost of that kind will be higher because of the participant's disabilities and, to that extent, r 5.1(d) does not preclude the funding of the additional cost as a support under the Scheme. For that to operate coherently, though, the causal relationship must be even closer than that imported by the negative of 'not attributable'. The disability support needs must be the sole and direct cause of the additional cost.

63    This understanding of r 5.1(d) as affected by r 5.2(a) is consistent with an example given in the Minister's 2013 Explanatory Statement for the Support Rules (at page 7), which says that the Scheme 'may fund specialised formula for a person who requires percutaneous Endoscopic Gastronomy (PEG) feeding'. The cost of food is, of course, a day-to-day living cost that is not attributable to a person's disability support needs. But the additional cost of needing to take food in a certain way that is incurred solely and directly as a result of those needs can be the subject of a support under the Scheme.

'Day-to-day living costs'

64    In all the above context, the answer to the question of how to construe the contested phrase 'day-to-day living costs' is not to be found in mere assertion about the syntax of the phrase. Considering the phrase as a whole does not resolve the ambiguity: 'day-to-day' could qualify 'costs' or it could qualify 'living'. The answer to the question of construction posed in this case will not be found in an arbitrary choice between the two.

65    What can be said, though, is that in construing the phrase as a whole, each term in it should have work to do. For that reason, we do not accept that it serves as a threshold requirement which excludes any support that relates to a cost of the necessities of living. The construction put by the Agency would have that effect. The problem with it is that to say that r 5.1(d) excludes costs of a type that all people incur, regardless of whether they have a disability, is to make the term 'day-to-day' redundant. The Agency's construction would exclude all costs that are for the purpose of living (that is, not discretionary, or for luxuries), as it follows they are likely to be of a type incurred by all or the majority of persons. That encompasses all living costs; 'day-to-day' would add nothing.

66    However, what the term 'day-to-day' does add, on its ordinary meaning, is an element of regularity or routine. We accept that it would be unduly restrictive (and simply wrong) to equate 'day-to-day' with 'daily' or 'every day' (the latter being different to 'everyday', a term the primary judge did employ). But all the examples given in r 5.1(d) itself - rent, groceries and utility fees - are not only necessary for living, but are paid or incurred frequently or at regular intervals. That conspicuous feature of the examples confirms that one-off, remarkable, unforeseen, infrequent or extraordinary costs will not be excluded by the rule, even if they are costs that all or the majority of persons incur for the purposes of living. The Agency's submissions overemphasise the fact that these example costs are paid 'with differing and potentially no fixed frequency': Agency's submissions at para 27. Even if that is so, there is still an aspect of frequency, regularity and routine to their character.

67    To take an example given by the Agency, since rent is a day-to-day living cost, mortgage repayments are too. The Agency goes further, though, to say that it follows that the costs associated with entering into the loan, and costs such as stamp duty and acquiring the house and relocating to it, are also day-to-day living costs. But the latter does not follow, because the latter costs do not have the frequent or regular quality associated with the term 'day-to-day'. In our view the meaning of the phrase, considered as a whole, points to a construction where 'day-to-day' does qualify 'living costs', the latter as a composite phrase. Contrary to the Agency's submissions, the primary judge did not err when he construed r 5.1(d) as only applying to living costs that have a day-to-day quality.

68    The Agency's alternative submission is that the AAT's implicit finding that Mr Warwick's relocation costs were excluded by r 5.1(d) was not a misconstruction of the statute but an evaluation of fact properly open to it. Despite that submission, the Agency did not object to the competency of the appeal to the primary judge, which could only be on a question of law: Administrative Appeals Tribunal Act s 44(1).

69    In any event, the submission that the AAT did not misconstrue the Support Rules cannot be sustained. The extract from its reasons set out at [17] above shows that it wrongly proceeded on the basis that r 5.1 excluded the support if the support was of a 'day-to-day nature', not the living cost to which the support related. Further, it relied on (or understood) the Operational Guidelines as stipulating 'that relocation costs such as those incurred by this applicant are everyday costs because they are incurred by Australians irrespective of their disability'. The Operational Guidelines are a policy document that cannot control the proper construction of the rule and, as appears from the discussion above, do not give a correct or complete statement of the criterion in r 5.1(d).

70    Further, the AAT appeared to think that the requirement in r 5.2(a) that the costs were incurred solely and directly as a result of the participant's disability support needs was the controlling factor, rather than just a basis to exclude the operation of r 5.1(d), if that rule would otherwise apply. And in approaching the matter that way, the AAT overlooked the fact that it is only 'additional' living costs that are subject to that strict requirement.

71    Consistently with these errors, in the extract from its reasons set out at [21] above, the AAT went straight to the application of r 5.2(a) without considering r 5.1(d). We do not accept that this was the result of any factual evaluation, proceeding on the basis of a correct but unarticulated construction of r 5.1(d). The better inference is that the AAT misconstrued that provision and so committed an error of law.

Some other arguments put by the Agency

72    It only remains to address a few arguments raised by the Agency under ground 1 which are not covered by the discussion above.

73    The Agency draws attention to the fact that r 5.1(d) excludes a support that 'relates to' costs of the kind specified in the rule. It submits that the primary judge did not consider those words, at least expressly. It further submits that the words broaden the scope of supports potentially excluded from funding under the Scheme.

74    That may all be accepted; the term 'relates to' (like 'related to' as found in r 5.1(b)) refers to a connection that can be broad, and nothing in the context dictates otherwise. But it is unclear what is said to follow from this for the purposes of the appeal; the Agency identified no specific consequence for the primary judge's construction from paying attention to that connecting phrase. The Agency suggests that the impact of the words is that 'it is not just "day-to-day living costs" that are potentially not funded, but other costs that relate to these costs': Agency's submissions at para 28 (emphasis in original). But that, with respect, is a misreading of r 5.1(d) - the words 'relates to' do not connect 'day-to-day living costs' with other related costs; they connect a 'support' with 'day-to-day living costs'.

75    The Agency also relied on transitional rules that came into effect on 3 October 2024 as shedding light on the meaning of the Support Rules as in force before that date: National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (Transitional Rules). To be fair, this submission was prompted by a submission filed on behalf of Mr Warwick, in which he relied on the same transitional rules to confirm his preferred meaning of the Support Rules. As will be seen, the Transitional Rules are relevant to ground 1A, but it is not necessary to spend much time on them for the purposes of ground 1.

76    That is because, while it is true that the meaning ascribed to a statute by a subsequent statute may provide some insight in certain circumstances (Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 at [28]), this is not such a case. It is not, for example, a case where, by adding words that increase or decrease the scope of a statutory provision, the legislature may be inferred to be expressing an opinion on what the provision meant in the absence of those clarifying words: see e.g. Grain Elevators Board (Victoria) v President, Councillors and Rate-Payers of the Shire of Dunmunkle (1946) 73 CLR 70 at 86. The relationship here between the Transitional Rules and r 5.1 is by no means so straightforward.

77    First, the Transitional Rules (like the Support Rules themselves) are subordinate legislation made by the Minister and it is doubtful, with respect, that the approach taken to the legislative intention manifested in Acts of Parliament should be applied to a subsequent act of a member of the executive. Second, as the name of the Transitional Rules indicates, the new rule on which Mr Warwick relies is transitional only. Third, r 5.1 of the Support Rules has not been amended in any event. Fourth, the allegedly relevant transitional provisions relate specifically, not to r 5.1 or its application, but to the scope of the new statutory concept of 'NDIS support' which is introduced for the first time in the Back on Track Act. For all those reasons, the Transitional Rules shed no light on the meaning of r 5.1 for the purposes of ground 1.

78    The Agency also relies on certain statements of the objectives of the NDIS Act that are found in s 3. Statements of statutory purpose found there and in the Support Rules themselves are described above. Senior counsel for the Agency referred in particular to s 3(3)(b), which requires that regard be had to the need to ensure the financial sustainability of the Scheme, and to s 3(3)(d), which requires regard to be had (among other things) to 'the need for interaction between the provision of mainstream services and the provision of supports under' the Scheme. Again, to be fair, Mr Warwick also relied on statements of purpose that were beneficial to him. However, as the Agency's own written submissions point out, it is the purpose of the particular provision that must be identified, not the (often competing) purposes of the legislative scheme as a whole: see ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1 at [29]. References to specific purposes that might lend themselves to a restrictive construction of the Scheme, and references to different purposes that lend themselves to a broader, more beneficial construction, are of little assistance in determining what balance a particular provision has struck between competing imperatives: Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5] (Gleeson CJ); see also Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd [2004] FCAFC 183; (2004) 139 FCR 147 at [17].

79    In oral submissions, senior counsel for the Agency raised a possible concern about the interaction of r 5.1(d) and r 5.2(a) as described above. The concern was that an item which a participant acquired solely and directly as a result of their disability support needs - say a tablet device - would not properly be the subject of a support under the Scheme, because it would not be characterised as an 'additional' cost.

80    But if the tablet was acquired solely and directly as a result of disability support needs, it would not fall within r 5.1(d) in the first place, because it would clearly be 'attributable' to disability support needs. The concern only arises if, as the Agency suggests, r 5.2(a) is read, not as a qualification to the broader rule in r 5.1(d), but as a gloss, elucidation or explanation of that broader rule, that is, a support will only be 'attributable' to disability support needs if it is incurred 'solely and directly' as a result of those needs. But that is not the natural way to read r 5.2(a), especially when r 5.2(b) follows the same introductory words as r 5.2(a) and clearly cannot be read that way. The concern the Agency raises is a good illustration of why it should not be so construed. To do so is to ignore the presence of the word 'additional' in r 5.2(a). We do not consider that the concern arises when the Support Rules are properly understood.

81    Further, some of the concerns raised in the Agency's submissions about the scope of r 5.1(d) seemed to be informed by a concern that unless 'day-to-day living costs' is given a broad meaning, the supports to be provided under the Scheme will be unsustainable. The meaning put by the Agency seemed to encompass any cost that a person incurs for the purpose of essentials such as food, shelter, warmth and health care, regardless of how infrequently it was incurred. Examples given included the cost of acquiring furniture items, such as a couch, or acquiring a hot water system (as distinct from the utility cost of running it).

82    To that concern there are three answers. First, as observed above, the wide meaning put by the Agency gives the term 'day-to-day' no work to do. Second, the requirement that the cost be attributable to disability support needs, as modified by r 5.2(a), limits the supports that will be permitted, quite apart from the meaning put on the phrase 'day-to-day living costs'. Third, r 5.1(d) is an exclusionary rule that sits within a legislative scheme that requires the decision maker to be satisfied of a number of things before a support will be funded; it is far from the sole criterion for support.

A subsequent amendment

83    Since the decision by the AAT (and the determination of the appeal by the primary judge), s 34 has been amended to introduce a further matter into the list of matters that the CEO 'must be satisfied of' in relation to the funding or provision of each support, namely:

the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements…

84    Consequently, there is now a statutory provision that must be considered in relation to the connection between the participant's disability and the support provided for all funded supports. However, the primary judge was concerned with whether there was an error of law on the part of the AAT when it made its decision, a matter which turned upon the state of the law at the time of that decision.

Conclusion on ground 1

85    The Agency has not demonstrated any error in the primary judge's construction of r 5.1(d) of the Support Rules. We do not uphold ground 1.

Consideration of ground 1A - the 2024 amendments and the decision on remittal

86    Ground 1A concerns the terms of the orders remitting the matter to the AAT. The remittal will now be to the ART as the successor body to the AAT. As the primary judge pointed out, the AAT found that Mr Warwick's move out of his Thornleigh home was solely related to his disability. So on any view, relocation costs associated with that move were recoverable. The Agency accepts this. The terms of the remittal orders sought to accommodate it. In essence, the Agency now contends, though, that the orders may wrongly inhibit the ART from applying the NDIS Act as amended by the Back on Track Act, and certain rules made under the Back on Track Act.

87    A full explanation of why the Back on Track Act amendments are potentially significant would involve a typically tortuous excursion through Commonwealth transitional provisions. Fortunately that is not necessary, as the parties agree on the potential significance of the amended provisions (but not on whether they will apply to Mr Warwick's case). Suffice to say that, as amended by combined operation of the legislation about to be listed (all as in force from 3 October 2024), one of the matters of which the CEO must be satisfied when specifying supports in a statement of participant supports is that 'the support is an NDIS support for the participant'. 'NDIS support' is a defined term, the meaning of which is affected by certain transitional rules. For example, stamp duty (in the context of housing costs) is a day-to-day living cost that may not be a support under the Scheme. See the NDIS Act s 34(1)(f); the definition of an 'NDIS support' in s 10, especially s 10(4); item 124(2) and item 138 of Sch 1 to the Back on Track Act; s 5 of the Transitional Rules and item 1(a) in the table at cl 1 of Sch 2 to those Rules.

88    The impact on Mr Warwick's case if the ART applies these rules in the course of the remitted decision is therefore clear. By ground 1A, the Agency contends that the orders made below should be set aside because they confine the ART to the consideration of two specified issues, which do not permit consideration of whether these amendments and the Transitional Rules apply.

89    For the reasons that follow, however, we consider that it would not be a correct exercise of this Court's appellate jurisdiction to set aside the orders made below. Essentially that is because the Agency has not demonstrated error below, or for that matter even alleged it.

The need for error

90    The nature of the appellate aspect of this Court's jurisdiction is 'to set … error right': see Ah Yick v Lehmert (1905) 2 CLR 593 at 601 (Griffith CJ). Although Mr Warwick relied on that point in his written submissions, in oral submissions his counsel appeared content for the Court to determine the substantive question of whether the Back on Track Act amendments would apply to the ART's decision on remitter. However, while that may well be the most convenient course for the parties, it is not for them to change the nature of the Court's appellate jurisdiction, even by consent: see Ridley v Whipp (1916) 22 CLR 381 at 386.

91    That jurisdiction is conferred by s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth), which provides that the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single judge exercising the original jurisdiction of the Court. Subject to irrelevant exceptions, that jurisdiction is to be exercised by a Full Court: Federal Court Act s 25(1).

92    An appeal pursuant to s 24 is an appeal by way of rehearing: Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180; (2022) 295 FCR 443 at [120] (Besanko, Charlesworth and O'Bryan JJ). To say this is to place it into a category that may not reflect all the incidents of the particular statutory jurisdiction exercised. In the end, those incidents are a matter of the proper construction of the statute. Nevertheless, placing it in that category allows the ordinary incidents of the jurisdiction to be described with relative precision: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [29] (Gageler J).

93    To that end, three conventional categories of appeal were described by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 at [57] as follows (footnotes removed):

Appeals being creatures of statute, no taxonomy is likely to be exhaustive. Subject to that caveat, relevant classes of appeal for present purposes are:

1.    Appeal in the strict sense - in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.

2.    Appeal de novo - where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.

3.    Appeal by way of rehearing - where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.

94    Returning to SZVFW, Gageler J went on to make the following observations (footnotes removed):

[30]    Like an appeal in the strict sense, of which an appeal to the High Court under s 73 of the Constitution is the prime example, an appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to 'give the judgment which in its opinion ought to have been given in the first instance'. And like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. '[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.'

[31]    For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.

See also Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [21]-[22] (Allsop J, Drummond and Mansfield JJ agreeing).

95    In this case, neither party has suggested that there is anything in the Federal Court Act which requires departure from the ordinary position. There is no statutory provision which indicates that this Court's powers on appeal may be exercised in the absence of error. As a result, some error on the part of the judge at first instance must be demonstrated before the power of this Court to set aside her Honour's orders is enlivened: Lacey at [58], Allesch at [23]. As it was put in Lacey at [57], in an appeal by way of rehearing, the court 'is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error'. In other words, the need for error confines the scope of the Court's jurisdiction, in the sense of its authority to decide.

The Agency has not alleged that the orders below reflect error

96    In light of these principles, the first difficulty with ground 1A is that, in advancing it, the Agency shies away from alleging error in the court below. It is true that the particulars to the ground in the amended notice of appeal contain a contention that transitional rules such as the one described above will apply on remittal. But the complaint that follows is only that the remittal orders do not 'permit the Tribunal to discharge its duty of considering whether the amendments to the Back on Track Act apply'.

97    This suggests that the Agency is not seeking a determination from this Court that the amendments do apply. That suggestion is confirmed by the Agency's written submissions, which say only that it is 'arguable' that they apply. Senior counsel for the Agency confirmed this position at the hearing of the appeal. But the mere existence of an argument that a provision applies does not mean that orders that prevent its application involve error. The Agency must allege, and establish, that the provision does apply.

98    The Agency cited no authority for the construct, inherent in its particulars, that the ART has a duty to consider the application of amendments so that inhibition of such consideration, without more, involves error. Of course, the ART is bound to act in accordance with the laws that apply to its decisions. But if a law does not apply, the ART cannot have breached any 'duty' by omitting consideration of it. It follows that there could be no error if the Court were to remit a matter on a basis that prevents consideration of such a law.

The Agency has not established error

99    The second difficulty with the Agency's position on ground 1A is more fundamental than the manner in which it is advanced. For even if it is assumed that the relevant Back on Track Act amendments will bind the ART when it makes its decision on remitter, there is no suggestion that they applied at the time when the orders below were made. The Agency does not submit that the amendments should be construed to operate retrospectively on the facts as they existed when the orders were made below on 12 July 2024. How then can the necessary precondition to allowing the appeal, namely error at first instance, be found?

100    It is true that the High Court authorities quoted above establish that on an appeal by way of rehearing, this Court must determine the correctness of the orders under appeal 'in retrospect'. Relevantly, it must do so on the law as it stands when it gives judgment on the appeal. That is why it may be necessary to take into account the amendments and transitional provisions that began to apply on 3 October 2024. But that does not answer the question of how taking them into account may lead to the conclusion that the judge who made the orders at first instance erred.

101    Changes in the law between the giving of judgment in the original jurisdiction and judgment on appeal are commonplace. One frequent occurrence is that the understanding of the common law that prevailed at the time of the primary judgment changes between then and the appeal or, sometimes, as a result of the appeal itself. In those cases, the application of a revised view of the common law to the facts as they present themselves to the appellate court can be labelled a 'constructive error': see Robson v Body Corporate for Sanderling at Kings Beach CTS [2021] FCAFC 143; (2021) 286 FCR 494 at [273] (Colvin J) (or a revised judicial interpretation of statute law: see Justice M Leeming, 'Theories and Principles Underlying the Development of the Common Law: The Statutory Elephant in the Room' (2013) 36 University of New South Wales Law Journal 1002 at 1004). That kind of case is readily explicable on the basis of the theory under which an authoritative statement of the common law is taken to declare the law as it is and always has been: see the discussion of Brennan J in Giannarelli v Wraith (1988) 165 CLR 543 at 584-586; and see also Cai v Zheng [2009] NSWCA 13 at [74] (Hoeben J, Basten JA agreeing).

102    As for amendments to statutes, it is the task of an appellate court assessing the impact of such changes to determine whether, on their proper construction, they are intended to have retrospective effect. If they do, then there is no conceptual difficulty in saying that the court below erred, in the sense that its orders concerning the state of affairs before it were inconsistent with the law which, it is now known, applies to that state of affairs as at that time. Examples of this approach include: MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355 at [13] (Kennedy J, Murray J agreeing); Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557; McArthur River Mining Pty Ltd v Lansen [2007] NTCA 5; (2007) 21 NTLR 6. As each of those cases illustrates, the situation often arises in the case of validating legislation, which Parliament passes with a clearly expressed intention that administrative decisions or other acts that have been held by the courts to be invalid or ineffective are to be held to be valid or effective, even if they occurred before the legislation was enacted.

103    But while a court entertaining an appeal by way of rehearing must apply the law as it stands at the time of judgment on the appeal, and must apply it to facts that are found on the basis of all the evidence properly before it, those facts still concern a state of affairs that existed at the relevant time, in this case, the time of the orders made below. The Court cannot apply a law as it now stands if, properly construed, that law does not operate on that prior state of affairs: see Cai v Zheng at [78].

104    Neither party in this case has submitted that the amendments do operate on the state of affairs as at 12 July 2024, on the basis of which the judge below made the orders now challenged. While in oral submissions senior counsel for the Agency suggested that there was an aspect of retrospectivity to the amendments, it was clear that she meant this in the sense that the amended rules would operate on Mr Warwick's plan from the time they came into effect, even though the plan was in place before they came into effect. The Agency's submissions were that it was the ART's future review on remitter that 'may be' required to comply with the amended provisions. Senior counsel described the amendments as prospective in the sense that they arguably applied to the plan as 'varied at a future point in time'. There was no suggestion that the effect of the amendments is to change the status of the plan as it stood on 12 July 2024 from lawful to unlawful.

105    In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [8], Meagher JA (Macfarlan and White JJA agreeing) summarised Gageler J's observations in SZVFW as having made it clear:

that while it remains necessary to identify an error in the decision appealed from, in an appeal by way of rehearing that requirement may be satisfied by reason of further evidence adduced in the appeal or a change in the law which has the result that looked at in retrospect the decision appealed from was in one or more respects incorrect …

106    With respect, we agree. The point to make here, though, is that, even looked at 'in retrospect', the orders made by the judge below were not in any respect incorrect. When her Honour made the orders she did, on the basis of the state of affairs that existed as at 12 July 2024, the Back on Track Act amendments had not been passed by the Parliament, let alone assented to or come into force. And even now, there is no suggestion that, having come into force, they apply retrospectively to the state of affairs that was before the court below. So there is no sense in which it can be said that the judge erred.

107    In our view, it would be wrong to characterise the orders, nevertheless, as involving error because they remit the matter to the ART to decide on a basis that is inconsistent with legislative constraints on the ART's decision that now apply. For even assuming that inconsistency exists, it is not the product of the court below acting inconsistently with any law that applied to the state of affairs before it, whether at the time or because of a subsequently introduced law with retrospective operation. It is the product of the entirely contingent circumstance that the AAT did not determine the matter on remitter before the Back on Track Act amendments came into effect. The timing of any decision on remitter has depended and will depend on the Agency's decision to appeal and, no doubt, the workload and resources of the AAT/ART and the parties. The orders below cannot be taken to have changed their character from correct to incorrect because of the outcome of such contingencies.

108    It is necessary to refer to certain High Court authorities which, on first blush, might be taken to contradict the approach outlined above. Properly understood, we do not consider that they do.

109    Two of those authorities may be taken together, namely: The Victorian Stevedoring & General Contracting Company Proprietary Limited v Dignan (1931) 46 CLR 73; and Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616. In Victorian Stevedoring, persons had been convicted of an offence against a regulation that was subsequently disallowed by Parliament. Dixon J held (at 106) that the disallowance meant that no one would be liable to conviction for an offence committed while the regulation was in force. What was to be done in relation to the position of the defendants who had been convicted before the regulation was disallowed? As Dixon J went onto say, if the informations preferred against them had come to be heard for the first time at the time at which his Honour was speaking, the charge would inevitably fail. The High Court nevertheless dismissed the appeals. This was based on the view taken of the particular nature of an appeal to that Court under s 73 of the Constitution as essentially an appeal in the strict sense, so the outcome is not directly relevant to this case. But in the course of coming to that view, Dixon J (at 107) described the usual incidents of an appeal by way of rehearing as requiring the court to 'decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties'.

110    In Sperway the question was whether a company which had declined to adduce evidence before a professional disciplinary tribunal could nevertheless insist that a court hearing an appeal from that tribunal determine it on the basis of evidence adduced before the court. Mason J (Barwick CJ and Stephen J agreeing) held that it could, because the appeal was effectively a hearing de novo. The views of each of Jacobs J and Murphy J were similar. Again, that conclusion depended on the particular context and statutory provisions, however in the course of discussing it, Mason J observed (at 620), applying Victorian Stevedoring, that on an appeal by way of rehearing:

the rights of the parties must be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time came before the court of first instance.

111    It could be said, then, that in conducting this appeal by way of rehearing, this Court should make the orders that should be made if the appeal from the decision of the AAT under s 44 of the Administrative Appeals Tribunal Act were to come before the Court now (we pass over the anachronism involved in that legislative basis for appeal), so that it must make orders that take into account the Back on Track Act amendments.

112    But it would be wrong to take these statements of Dixon J and Mason J too far. Their Honours were describing the usual incidents of an appeal by way of rehearing, and were neither making legislative pronouncements nor laying down the ratios of the cases before them. Nor were they casting any doubt on the need for error as a precondition to disturbing the orders made below. They were not equating an appeal by way of rehearing with a hearing de novo. To apply their dicta that way would be to 'have the practical effect of obliterating the distinction between original and appellate jurisdiction', something that it is highly unlikely the Parliament has intended to do: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [111] (McHugh, Gummow and Callinan JJ); see also Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 293 (Gleeson CJ); Branir at [36].

113    Thus the submission of the Agency here that in the nature of an appeal by rehearing, this Court must substitute its own decision based on the law as it now stands is too broad. So too is its submission, relying on World Best, that the absence of error on the part of the primary judge is immaterial to whether orders must be made to ensure that the ART has the opportunity to apply the law as currently in force. As already explained, World Best is distinguishable on the basis that it concerned validating legislation which retrospectively made legally effective something the court below had held to be ineffective.

114    The other High Court case which needs to be mentioned is Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267. It has been cited as an example of a case where there is a statutory indication that the appellate court's powers may be exercised whether or not there was error in the first instance: see Allesch at [23]; Lacey at [57]. It concerned a right of appeal to the Australian Industrial Relations Commission from a decision of the Registrar of the Commission. It is potentially relevant because two aspects of the legislation creating that right to appeal resemble provisions in the Federal Court Act that confer powers on this Court. They were the power of the Commission to take further evidence for the purposes of the appeal and its power on the determination of the appeal to 'make such order as it thinks fit': Conciliation and Arbitration Act 1904 (Cth) s 88F; cf. Federal Court Act s 27, s 28(1)(b).

115    The issue in Re Coldham was whether the Commission, in hearing an appeal from a decision of the Registrar to register an organisation of employees, could take into account the fact that since the Registrar's decision, other organisations had become registered to which the employees could conveniently belong, that being a ground to refuse registration under s 142 of the Conciliation and Arbitration Act. The High Court (Deane, Gaudron and McHugh JJ) held that the Commission was required to take into account the registrations that occurred after the decision appealed from. However, that conclusion was heavily influenced by the nature of the industrial legislation and of the issues which, under it, commonly came before the Registrar: see in particular the discussion at 274. It may also have reflected the non-judicial character of the Commission. Re Coldham does not mean that the mere presence of a power in an appellate court to receive further evidence and to make such orders as the court thinks fit dispenses with the need to find error.

116    In this case, the power of this Court under s 27 of the Federal Court Act to receive further evidence is subject to the well-recognised constraints on that power that apply generally to appeals by way of rehearing: see e.g. Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (Griffiths and White JJ). And the introductory words to s 28 mean that the Court's power in s 28(1)(b) to 'give such judgment, or make such order, as in all the circumstances, it thinks fit, or refuse to make an order' is confined to 'the exercise of its appellate jurisdiction'. As the majority said in Lacey at [50] (in the context of different legislation), the 'word "appeal" must be given content'. As explained above, fundamental to that content is the need for error.

The orders below were as the Agency submitted they should be

117    For the reasons given above, in our view the Agency here has not established error in the orders below, which is a precondition of the exercise of the appellate jurisdiction. There is a further reason why the Court should not find any error. The Agency's submission is that the scope of the remittal orders does not take into account the legislative amendments which 'may apply' to Mr Warwick's application on remittal to the ART. But the scope of the orders were framed in the way in which, the Agency submitted below, they ought to have been framed. The orders were made administratively on 12 July 2024 after the Agency filed a written submission on 5 July 2024, pursuant to leave granted at a case management hearing on 25 June 2024. The written submission had attached to it a document styled 'consent orders' which was not signed. While the drafting was different to the drafting of the orders made on 12 July 2024, the substance was the same. The orders as made were:

THE COURT NOTES THAT:

A.    The issue of whether s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) provides a residual discretion remains unresolved and is a matter to be determined by the Administrative Appeals Tribunal (Tribunal) on the basis of the parties' arguments before it.

THE COURT ORDERS THAT:

1.    The decision of the Tribunal dated 28 September 2023 in respect of matter 2023/1209 be set aside in so far as it relates to the following issues (Contested Issues):

(a)    whether the support, relating to relocation costs, for which funding is sought by the applicant (Requested Support) is a support to which paragraph 5.1(d) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) applies (Day-to-Day Living Cost Issue); and

(b)    whether s 33(2) of the NDIS Act provides a residual discretion to refuse to fund the Requested Support despite it having been found to satisfy the requirements of s 34 of the NDIS Act, and, if so, whether that discretion should be exercised (Residual Discretion Issue).

2.    The part of the matter relating to the Contested Issues be remitted to the Tribunal for determination of the Contested Issues according to law.

3.    If any appeal is filed by either party by 31 July 2024, orders 1 and 2 be stayed pursuant to rule 36.08 of the Federal Court Rules 2011 (Cth) until the appeal is finally determined or until further order.

118    In its written submission in support of the orders sought below, the Agency said that:

… it is appropriate that the Decision be set aside, and the matter remitted to the Tribunal for determination in accordance with the law in respect of the following issues:

1.    whether relocation costs incurred by the applicant are 'day-to-day living costs' within the meaning of paragraph 5.1(d) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); and

2.    the exercise of any residual discretion pursuant to s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth).

119    After some introductory remarks about the power to remit, the argument advanced in favour of this was:

5.    The respondent accepts a partial remitter order is appropriate in this case. The issue on which Perram J found error by the Tribunal is distinct from other issues, in respect of which the Tribunal found favourably to the applicant. It is appropriate that the orders this Court makes relate to the error of law that has been found to be demonstrated.

6.    The matters that warrant redetermination by the Tribunal are, first, the 'day-to-day living costs issue' and, second, the 'residual discretion issue'. It is appropriate that the residual discretion issue be remitted to the Tribunal for determination in circumstances where it was relied on by the respondent before the Tribunal, but not determined by the Tribunal consequent on its finding on the separate issue that was dispositive of its decision (see AB A.25[50], 29[65], 64[179]).

7.    It is not appropriate for the Court to make orders dictating the manner in which any rehearing is to be conducted by the Tribunal. It is sufficiently clear from the judgment of Perram J that the Tribunal's decision was in error only in one material respect (see J[21]). As Hill J stated in Federal Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523 (in dissent on whether there should be a partial remitter) at [79], the Tribunal's decision needs to be given having regard to the facts before it at the time of decision but '[t]his not to say that if the matter were to be returned to the same member that member would necessarily need to embark on a reconsideration of matters already decided. Indeed, the questions of efficiency and cost would likely be taken into account. Nor does this mean that a member of a Tribunal differently constituted would necessarily need to rehear the whole of the evidence. The Tribunal's procedure is sufficiently flexible to avoid that course.' The manner in which the redetermination ought to be conducted is appropriately left to the Tribunal's discretion, assisted by the parties.

120    The Agency thus agreed to confine the issues that were to go before the (then) AAT. It should not now be permitted to resile from that position because a combination of circumstances, including its own appeal, may prevent it from raising in the ART the effect of legislative amendments which 'may apply'. It may be accepted and inferred from the contingent stay that formed part of the orders on 12 July 2024 that the Agency did not accept the correctness of the primary judge's decision on what it called 'the day-to-day living costs issue', and had foreshadowed this appeal. But it is nevertheless clear from the submission that the Agency intended to preserve to Mr Warwick the benefit of the findings that had been made in his favour by the AAT.

Conclusion on ground 1A

121    Ground 1A fails because the Agency does not assert error on the part of the court below, and in any event no error has been demonstrated, including because the orders now complained of were consistent with a written submission and minute of orders filed by the Agency before they were made.

122    These views have been reached on the assumptions, favourable to the Agency's case, that the Back on Track Act amendments will apply to the decision to be made by the ART on remitter, and that the terms of the remittal orders will prevent the ART from applying those amendments. Even on those assumptions, we would not uphold ground 1A. It follows that it is not appropriate to consider whether, in truth, the amendments will apply: see Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593 at [7].

123    It is not necessarily the case that this decision about the limits of the Court's appellate jurisdiction leaves the ART in a position where it is bound to make a decision that is either futile or unlawful. For the second assumption just mentioned may not be correct. It is to be noted that the orders for remittal still require the ART to determine the Contested Issues 'according to law'. Further, it may be that on their proper construction the orders do not derogate from the ART's fundamental statutory function under s 105 of the Administrative Review Tribunal Act 2024 (Cth). That function is to affirm or vary the decision of the Agency that is under review, or to set it aside and make a decision in its place or to remit it to the Agency. Putting it another way, it may be that the remittal orders cannot be taken to require that the only thing the ART will do is to determine the two specified issues, because the whole premise of the review and the appeal from that review is that the ART will make a legally effective decision on the review as a whole.

124    These matters may provide room for the application of the transitional provisions, if it is determined that they would otherwise apply. But since these points were not argued before us, it would not be appropriate to say more. The outcome will be a matter for the ART to decide in the course of the remitter. If that raises any difficult question of law, it will be open to the ART to seek the direction of the Federal Court under s 185 of the Administrative Review Tribunal Act.

125    Finally, another possible avenue to address the Agency's concern should be mentioned. It is the power of the Court (in the original jurisdiction) to vary the remittal orders under r 39.05 of the Federal Court Rules 2011 (Cth). That power can be exercised if the order does not reflect the intention of the Court (r 39.05(e)) or in the event of an error arising from an accidental slip or omission (r 39.05(f)). Comparable inherent powers of the Court may also be invoked. Again, though, such questions should only be determined after full argument in the proper forum.

Conclusion

126    The appeal will be dismissed, with costs.

Associate:

Dated:    4 August 2025