Federal Court of Australia

Sunflower Care Services Pty Ltd v Commissioner of the NDIS Quality and Safeguards Commission [2024] FCA 589

ORDERS

THE COURT ORDERS THAT:

1.    Until 4.30pm (AWST) on 27 June 2024, the respondent whether by himself, his officers, employees or agents or otherwise, be restrained and an injunction be granted restraining him from making a decision to revoke the first applicant’s registration under section 73P or making a banning order against the first applicant under section 73ZN of the National Disability Insurance Scheme Act 2013 (Cth).

2.    Until 4.30pm (AWST) on 27 June 2024, the banning order made on 3 May 2024 against the second applicant under section 73ZN of the NDIS Act be suspended.

3.    The parties may apply on 48 hours’ written notice to vary or discharge the injunction granted in paragraph 1 or the suspension granted in paragraph 2 of these orders.

4.    Costs be reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The first applicant, Sunflower Care Services Pty Ltd, is a registered NDIS provider. The respondent, the Commissioner of the NDIS Quality and Safeguards Commission, registered Sunflower under the provisions of the National Disability Insurance Scheme Act 2013 (Cth). Until recently, the second applicant, Katherine Karunarathna was a director of Sunflower. Also, until recently, Gamini Nihal Joseph Karunarathna, known as Joseph, was a director of Sunflower. For ease of reference I will refer to these former directors, who are married, as Katherine and Joseph.

2    The Commissioner has power to suspend and (or) revoke a person’s registration in certain circumstances under s 73N and s 73P of the Act. The Commissioner also has power to make a banning order prohibiting or restricting a NDIS provider or individual from engaging in specified activities in certain circumstances under s 73ZN of the Act.

3    On 27 March 2024 a delegate of the Commissioner made a banning order against Joseph. On 3 May 2024 a delegate made a banning order against Katherine. By letters dated 22 May 2024 a delegate of the Commissioner sought to notify Sunflower that he was considering making decisions to suspend its registration, to revoke its registration and to make a banning order against it, and invited Sunflower to make submissions to him on those matters.

4    On 28 May 2024 the applicants filed an originating application by which they seek judicial review under s 39B of the Judiciary Act 1903 (Cth) and review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In the case of Sunflower, it seeks review of the conduct of the Commissioner (through the delegate) preparatory to making decisions under ss 73P, 73N and 73ZN of the Act and final relief in the form of permanent injunctions restraining the Commissioner from making decisions to suspend or revoke its registration or to make a banning order against it. In the case of Katherine, she seeks review of the decision to make a banning order against her under s 73ZN of the Act and final relief in the form of a writ of certiorari or like relief under s 16(1)(a) of the ADJR Act or under s 39B of the Judiciary Act quashing the decision to make a banning order against her.

5    The originating application also sought interlocutory relief. Sunflower seeks an order restraining the Commissioner from suspending or revoking its registration or making a banning order against it until further order of the Court under s 16(2) of the ADJR Act or s 23 of the Federal Court of Australia Act 1976 (Cth) and s 39B of the Judiciary Act. Katherine seeks an order suspending the operation of the banning order under s 15(1) of the ADJR Act or s 23 of the Federal Court Act and s 39B of the Judiciary Act. The Commissioner opposes the making of interlocutory orders.

6    I heard the interlocutory application as urgent duty judge on 29 May 2024. At the hearing the applicants moved for orders to amend their originating application in terms of a document filed on 29 May 2024. That application was not opposed and orders were made granting the applicants leave to amend. At that hearing certain undertakings of Katherine and the Commissioner were proffered. These were then formally made by written undertakings to the Court lodged on 30 and 31 May 2024.

7    Upon the parties’ undertakings to the Court, for the reasons which follow, orders will be made restraining the Commissioner from making a decision to revoke Sunflower’s registration or make a banning order against it until 4.30pm (AWST) on 27 June 2024. Orders will also be made suspending the operation of the banning order against Katherine until 4.30pm (AWST) on 27 June 2024.

Applicable principles

8    Section 23 of the Federal Court Act confers power on the Court to grant an interlocutory injunction restraining the respondent from suspending or revoking Sunflower’s registration and (or) from making a banning order against Sunflower until Sunflower’s application for judicial review under s 39B of the Judiciary Act or for review under s 5 of the ADJR Act is heard and determined. The principles upon which the Court will grant such an injunction are well-established. The Full Court set out the ‘correct approach’ in Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]. Applicants must first show that they have a prima facie case in the sense of ‘a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial’: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). This is commonly referred to as a serious question to be tried. What will be sufficient will depend on ‘the nature of the rights [the applicants assert] and the practical consequences likely to flow from the order [they seek]’: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622. These same considerations apply in public law cases: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23; (2000) 171 ALR 341 at [7] (Gleeson CJ).

9    These two questions are not entirely distinct. To the contrary, as the Full Court emphasised in Samsung Electronics, the strength of an applicant’s case is a factor to be considered in determining where the balance of convenience lies. Consequently, as Woodward J observed in Bullock v The Federated Furnishing Trades Society of Australasia [1985] FCA 48; (1985) 5 FCR 464 at 472 (Smithers and Sweeney JJ agreeing at 467 and 469 respectively):

… [A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it. …

10    In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, however, Gleeson CJ observed at [18]:

The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff’s claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule.

11    Subsection 16(1)(d) and subs 16(2)(b) of the ADJR Act confer a discretion on the Court to make an order directing any of the parties to refrain from doing any act or thing the doing, or the refraining from the doing of which the Court considers necessary to do justice between the parties on an application for review of a decision or for review of conduct that has been, is being, or is proposed to be engaged in for the purpose of the making of a decision. The applicants submit that power may be exercised by the Court under s 16 on an interlocutory basis. The respondent made no objection to that submission.

12    Section 15(1) of the ADJR Act confers power on the Court to suspend the operation of a decision by order on such conditions, if any, as it thinks fit. It was essentially common ground that the discretion to suspend the operation of a decision is constrained only by the subject matter, purpose and scope of the ADJR Act and the legislation under which the decision was made, but it is helpful and convenient to take into account in the exercise of that discretion, by way of analogy, the principles upon which interlocutory injunctions are determined. It also appears to be common ground that these principles were applicable to the exercise of the discretion under s 16(1)(d) and 16(2)(b) of the ADJR Act on an interlocutory basis.

Background

13    Joseph and Katherine incorporated Sunflower in 2015. Initially they were both directors of the company. Katherine resigned in October 2016 and Joseph continued thereafter as sole director. Although not entirely clear, it appears that they were also initially both members with equal shareholdings, but from November 2016 Joseph was the sole member of the company. In 2021 Sunflower obtained registration as a registered NDIS provider.

14    On 27 March 2024 a delegate of the Commissioner made a banning order with immediate effect under s 73ZN(2)(a)(iv) of the Act by which Joseph was prohibited from being directly or indirectly involved in the provision of supports or services to people with disability in the NDIS or from being on the same premises as those people for a period of one month. On 26 March 2024, perhaps in anticipation of the banning order, Katherine was re-appointed as a director of Sunflower. On 15 April 2024 Kapil Neupane was also appointed as a director of the company and on 17 April 2024 Joseph resigned as a director. Subsequently, on 2 May 2024, Katherine became the sole member and shareholder of the company.

15    On 3 May 2024 a delegate of the Commissioner made a banning order with effect from 17 May 2024 under s 73ZN(2)(a)(iii) of the Act by which Katherine was permanently prohibited from being ‘directly or indirectly involved in the provision of supports or services to people with disability in the National Disability Insurance Scheme’. On 14 May 2024 Katherine applied for that decision to be internally reviewed in accordance with certain provisions of the Act. At some time between 3 and 17 May 2024 Katherine resigned as a director of Sunflower. Therefore, Mr Neupane is now the sole director and Katherine the sole member and shareholder of the company.

16    A delegate of the Commissioner sent two letters dated 22 May 2024 addressed to Sunflower, marked to the attention of Katherine Karunarathna and directed ‘To the Proper Officer’. The letters were also marked ‘By email: katherine@sunflowercare.com.au’. I infer, for the purposes of this application, that the letters were sent by email to that email address.

17    The first letter provided notice that the delegate was considering making a decision to suspend Sunflower’s registration under s 73N of the Act. The delegate said that he would not make a final decision about whether to suspend Sunflower’s registration until Sunflower has had an opportunity to make submissions to him. The letter said any submissions should be made by email to a nominated address by 5pm AWST on 24 May 2024. Katherine, through her solicitors, requested an extension to 5 June 2024 to provide her submissions. An extension was granted to 29 May 2024.

18    The second letter provided notice that the delegate was considering making decisions to revoke Sunflower’s registration under s 73P(1) of the Act and make a banning order against Sunflower under s 73ZN(1) of the Act. The delegate said that before deciding to revoke the registration the Commissioner (or delegate) must give Sunflower an opportunity to make submissions in accordance with s 73P(4) of the Act, however, a separate submission process was not required in relation to any proposed banning order by operation of s 73ZN(8)(b) of the Act. The letter concluded:

…

Section 73P(4)(b) of the NDIS Act provides that you may make submissions within 28 days after receiving this notice.

Any submissions that you wish to make must be received by the Commission within 28 days of receipt of this notice unless an extension is sought and granted.

Should you wish to make a submission and/or seek an extension of time to respond, please do so in writing and email it to: pqcompliance@ndiscommission.gov.au.

In order to have any written submission considered in my decision-making please ensure that the submission is sent to the email address set out above, by no later than 5pm AWST on 19 June 2024.

…

Legislative framework

19    Part 3A of Ch 4 of the Act deals with NDIS providers. Division 2 of Pt 3A contains provisions relating to registration of registered NDIS providers, conditions, variations, suspension and revocation of registrations, record keeping of registered NDIS providers and for grants of financial assistance in relation to registration.

20    Section 73B makes provision for requirements for the National Disability Insurance Scheme rules to require that specified classes of supports provided under participants’ plans are to be provided only by persons registered under s 73E to provide those classes of supports. Section 73E confers power on the Commissioner to register a person as a registered NDIS provider.

21    Section 73N, relevantly, provides:

73N    Suspension of registration

Suspension on Commissioner’s own initiative

(1)    The Commissioner may, in writing, suspend the registration of a person as a registered NDIS provider for a specified period if:

…

(d)    the Commissioner is satisfied that the person is no longer suitable to provide the supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or

…

(2)    The period specified under subsection (1) must not be longer than 30 days.

…

(4)    In deciding whether to suspend the registration of a person under subsection (1), the Commissioner must have regard to the following matters:

(a)    the nature, significance and persistence of any contravention, or proposed contravention, of this Act;

(b)    action that can be taken to address any contravention, or proposed contravention, of this Act;

(c)    the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme;

(d)    the health, safety or wellbeing of people with disability receiving supports or services from the person;

(e)    any other matter the Commissioner considers relevant.

…

Effect of suspension

(7)    If the registration of a person is suspended under this section, the registration ceases to have effect until the suspension ceases to be in force.

22    Section 73P, relevantly, provides:

73P    Revocation of registration

(1)    The Commissioner may, in writing, revoke the registration of a person as a registered NDIS provider if:

(a)    the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, this Act; or

…

(d)    the Commissioner is satisfied that the person is no longer suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or

…

(2)    In deciding whether to revoke the registration of a person under subsection (1), the Commissioner must have regard to the following matters:

(a)    the nature, significance and persistence of any contravention, or proposed contravention, of this Act;

(b)    action that can be taken to address any contravention, or proposed contravention, of this Act;

(c)    the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme;

(d)    the health, safety or wellbeing of people with disability receiving supports or services from the person;

(e)    any other matter the Commissioner considers relevant.

…

(4)    Before deciding to revoke the registration of a person under subsection (1), the Commissioner must notify the person that revocation is being considered. The notice must be in writing and must:

(a)    include the Commissioner’s reasons for considering the revocation; and

(b)    invite the person to make submissions, in writing, to the Commissioner within the period specified in the notice (which must not be less than 28 days); and

(c)    inform the person that if no submissions are made within the period specified in the notice, any revocation may take effect as early as 7 days after the end of the period specified in the notice.

(Emphasis added.)

(5)    In deciding whether to revoke the registration, the Commissioner must consider any submissions given to the Commissioner within the period specified in the notice.

(6)    The Commissioner must notify the person, in writing, of the decision.

(7)    The notice under subsection (6) must be given within 28 days after the end of the period for making submissions. If the notice is not given within this period, the Commissioner is taken to have decided not to revoke the registration.

23    Division 8 of Part 3A contains provisions relating to compliance and enforcement. Section 73ZN, relevantly, provides:

73ZN    Banning orders

Banning orders—NDIS providers

(1)    The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting specified activities by an NDIS provider, or by a person who was an NDIS provider, if:

(a)    the Commissioner has revoked the registration of the person as a registered NDIS provider; or

(b)    the Commissioner reasonably believes that:

…

(iii)    the person is not suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; or

…

(2)    The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting a person who is or was employed or otherwise engaged by an NDIS provider, or a person who is or was a member of the key personnel of an NDIS provider, from engaging in specified activities if:

(a)    the Commissioner reasonably believes that:

…

(iii)    the person is not suitable to be involved in the provision of supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; or

…

Application of banning orders

(3)    A banning order may:

(a)    apply generally or may be of limited application; and

(b)    be permanent or for a specified period; and

(c)    be made subject to specified conditions.

(4)    However, a banning order cannot prohibit or restrict activities that a registered NDIS provider is registered to provide under 73E.

(5)    A banning order takes effect from the day specified in the order.

…

Process

(7)    The Commissioner may only make a banning order against a person after giving the person an opportunity to make submissions to the Commissioner on the matter.

(8)    However, subsection (7) does not apply if the Commissioner’s grounds for making the banning order are, or include, the following:

(a)    that there is an immediate danger to the health, safety or wellbeing of a person with disability;

(b)    that the Commissioner has revoked the registration of the person as a registered NDIS provider.

…

Civil Penalty

(10)    A person contravenes this subsection if:

(a)    the person engages in conduct; and (b) the conduct breaches a banning order (including a condition of the order) that has been made against the person.

Civil Penalty: 1,000 penalty units.

Sunflower

Prospective suspension decision

24    Sunflower contends that, notwithstanding that there is no express requirement for the Commissioner to afford a person an opportunity to make submissions, it is implicit that the Commissioner must afford a person procedural fairness before exercising the power to suspend the registration of a person under s 73N. Sunflower submits that initial provision of 2 days to respond and the extended period of 7 days to respond involved a failure to afford it a reasonable opportunity to make submissions to the Commissioner having regard to the nature and extent of the matters raised in the letter of 22 May 2024 inviting it to make submissions.

25    During the course of the oral hearing it became apparent that the Commissioner was willing to give an undertaking to the Court to the effect that a decision would not be made under s 73N(1) until after 12 June 2024. The Commissioner lodged a formal conditional undertaking to the Court which is to the following effect:

…

1    The [Commissioner] will allow the [Sunflower] until 5pm AWST on 12 June 2024 to provide submissions in response to the notice of intention to suspend provider registration under section 73ZN of the [NDIS Act] dated 22 May 2024.

2    The [Commissioner] will not make a decision on whether to suspend [Sunflower’s] registration under section 73N of the NDIS Act until after 12 June 2024.

3    This undertaking is made on the condition that [Sunflower]:

(a)    does not take on any new NDIS participants before 12 June 2024; and

(b)    permits the [Commissioner] to conduct one inspection per week until 12 June 2024 of the following premises managed by [Sunflower]:

(i)    22 Dartford Crescent, Marangaroo WA 6064;

(ii)    24 Dartford Crescent, Marangaroo WA 6064;

(iii)    7 Ulcombe Street, Marangaroo WA 6064; and

(iv)    222 Caporn Street, Wanneroo WA 6065.

…

26    Having regard to that undertaking I do not consider that any interlocutory order should be made restraining the Commissioner from making a decision under s 73N to suspend Sunflower’s registration. Sunflower initially requested an extension to 5 June 2024, therefore the undertaking, in effect, provides Sunflower with an additional two weeks to provide its submissions in response to the delegate’s invitation. I also consider the conditions of the undertaking reasonable. In these circumstances, whatever may be the merit of Sunflower’s application for review, the balance of convenience does not favour an interlocutory restraint.

Prospective revocation and banning order decisions

27    Sunflower contends that the delegate’s letter of 22 May 2024 inviting it to make submissions in respect of a prospective revocation of Sunflower’s registration is not a notice that conforms to the requirements of s 73P(4) of the Act. Therefore, it submits, any purported decision made under s 73P(1) would not be authorised by the Act and would be beyond the jurisdiction of the Commissioner.

28    Sunflower submits that the purported notice fails to conform to the requirements of the Act because the period specified in the notice is less than 28 days. In reliance on Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421 at 445 (Gibbs J), Sunflower submits that the expression ‘not less than 28 days’ in s 73P(4) means 28 ‘clear days’ which excludes the day the person is notified and the last day of the period specified in the notice. Here, assuming Sunflower was notified on the date of the letter (22 May 2024) the last day of the period specified (19 June 2024) was only 27 days if 22 May and 19 June 2024 are excluded. Further, and in any event, Sunflower submits that the letter was sent to Katherine. She was not a director of Sunflower at the date of the letter. Therefore, on any view, the Commissioner (or delegate) has not notified Sunflower in writing in accordance with s 73P(4) of the Act.

29    Insofar as the letter of 22 May 2024 invited Sunflower to make submissions in respect of a prospective banning order, Sunflower submits that the Commissioner may only make a banning order against it after giving it an opportunity to make submissions to the Commissioner on the matter in accordance with s 73ZN(7) of the Act. Sunflower submits the opportunity must be a reasonable opportunity in all the circumstances. Having regard to the nature and extent of the matters raised in the letter, Sunflower submits that it must be understood as a notice of a prospective decision based on s 73ZN(1)(b)(iii) (a reasonable belief that Sunflower is not suitable to provide supports or services to people with a disability). Sunflower submits the time specified in the letter for making submissions on that matter was objectively unreasonable and involves a failure to afford Sunflower procedural fairness in accordance with s 73ZN(7). Therefore, it submits, any purported decision made under s 73ZN(1) would not be authorised by the Act and would be beyond jurisdiction of the Commissioner.

30    The Commissioner submits that the grounds Sunflower advances have little or no merit. First, Forster v Jododex Australia does not support Sunflower’s construction of s 73P(4). Second, Katherine was notified and she is recorded in the ASIC register as a director of Sunflower at the time she was sent the letter. Third, it is evident that the company received notice because it brought the proceedings. Fourth, as to submissions on the prospective banning order, if a decision were made to revoke Sunflower’s registration, there would be no requirement to give Sunflower an opportunity to make submissions under s 73ZN(8)(b) of the Act. Put another way, in the circumstances of this case, the period specified for the purposes of s 73P(4) (not less than 28 days) is reasonable and sufficient for all purposes.

31    There is force in the Commissioner’s submission that Forster v Jododex Australia does not support Sunflower’s construction of s 73P(4). While there is a limit to the use that may be made of the interpretation of a different provision of a different statute and in a different context, the reasons of all members of the High Court in Forster v Jododex Australia support the proposition that the expression ‘not less than’ means ‘clear days’. However, the majority’s reasons also support the proposition that when reckoning ‘clear days’ the last day is included in the calculation because the applicable period ends at the end of the last day (i.e., midnight). See, Forster v Jododex Australia at 446, 453. Accordingly, I have doubts about the strength of Sunflower’s primary argument regarding compliance with s 73P(4) because assuming the notice was provided on 22 May 2024, the 28-day period would end at midnight at the end of the day on 19 June 2024. Nonetheless, for the reasons that follow, I consider that the secondary argument concerning s 73P(4) raises a serious question to be tried.

32    As already mentioned, for the purposes of this application, I infer that the letter was sent to Katherine by email. Also, based on the affidavit filed in support of the application, for the purposes of the application, I accept that the evidence raises a serious question as to whether Katherine was not, at the date of the letter, a director of Sunflower. There is also a question as to the manner in which Sunflower is to be notified for the purposes of the Act and whether, assuming that Katherine was a director or secretary of the company at the time the email was sent, notice may be given by electronic mail.

33    There was little or no focus by the parties on the meaning of the expressions ‘the Commissioner must notify the person’ or that the ‘notice must be in writing’. That is, the parties’ submissions were not addressed to the question of how (the manner or mode in which) the Commissioner must notify the person in writing of the things referred to in s 73P(4) to meet the requirements of that subsection.

34    Section 9(1) of the Electronic Transactions Act 1999 (Cth) provides that if under a law of the Commonwealth, a person is required to give information in writing that requirement is taken to have been met if the person gives the information by means of an electronic communication, relevantly, where two criteria are met. First, at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference. Second, if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of such an entity, the person to whom the information is required to be given consents to the information being given by way of electronic communication. While it may be accepted that the first criterion was satisfied, there is no evidence that Sunflower consented to a notice being given under s 73P(4) to it by way of email. Accordingly, there appears to be a serious question to be tried as to whether Sunflower has been given notice as required by s 73P(4) and, in effect, whether it has been given any opportunity to make submissions, for the purposes of s 73ZN(7) of the Act.

Balance of convenience

35    Sunflower’s application is supported by an affidavit of Mr Neupane affirmed 27 May 2024. He deposes that Sunflower operates from four residential premises. Joseph and Katherine are the registered proprietors of those premises and there is no formal lease agreement in place between them and the company.

36    Sunflower is dependent on income it receives from NDIS-funded participants for its financial viability. It’s recent financial statements and tax returns suggest that it is in a precarious financial position and that loss of income from NDIS-funded participants may well tip the company into insolvency. Sunflower has four full-time, seven part-time and more than 20 casual employees. Loss of income from NDIS-funded participants is likely to lead to the loss of employment and a degree of financial hardship for Sunflower’s employees.

37    Sunflower has six NDIS participants. The participants have disabilities with high-level needs and behavioural issues. Most require a ratio of one staff to one participant for 24 hours. Many have high levels of autism, some are non-verbal, some exhibit challenging behaviours requiring specific food or attention needs without which they have a propensity to become violent. Others have a propensity to harm themselves or others and damage property. Many are not able to navigate an ordinary environment without assistance (e.g., no appreciation of road safety) and, if unattended, may leave the premises without a carer or staff member. Due to the nature of the participants’ disabilities a sudden change of environment and carers and supports and services will increase the risk of self-harm and harm to others. There is already evidence of agitation of at least one participant who is aware of the possible relocation or change of accommodation if Sunflower’s registration is suspended or revoked. Sunflower has not been informed of any plan as to how the care of the participants will be managed if its registration is suspended or revoked or a banning order is made against it.

38    Notwithstanding the matters the delegate has raised in his correspondence with Sunflower, the report of an independent auditor conducted recently suggests that the participants and their carers are highly satisfied with Sunflower’s performance. There is also a low-level turnover of staff suggesting that there is a good culture and working environment for employees.

39    It is, of course, self-evident that the exercise of the Commissioner’s power to suspend or revoke Sunflower’s registration or to make a banning order against it is at least, in part, directed to the protection of the interests of the participants to whom Sunflower provides supports and services. Nonetheless, based on the matters raised in the delegate’s letters and the affidavit, there does not appear to be any imminent risk of harm to the participants posed by Sunflower continuing to provide supports and services to them. Indeed, the evidence suggests that at least, in the short-term, the opposite is true.

40    While there is a risk of harm to participants and financial hardship to Sunflower and its employees if the Commissioner (or a delegate) exercises power to suspend or revoke Sunflower’s registration or to make a banning order, as matters stand, the power has not been exercised. Nor has the Commissioner (or a delegate) evinced a positive intention to exercise the power. The Commissioner (or a delegate) may exercise the power in the future. If, at that time, the purported exercise of the power is unauthorised then Sunflower would be in a position to apply for injunctive relief pending the Court setting aside an unauthorised exercise of the power. The difficulty with the terms of the requested interlocutory injunction is that it may operate to permanently deprive the Commissioner of the ability to exercise power under s 73P in the event the notice of 22 May 2024 conforms to the requirements of the Act because, if notice of a decision revoking the registration is not given within 28 days after the period for making submissions, the Commissioner is taken to have decided not to revoke the registration. That, in turn, would deprive the Commissioner of the ability to make a banning order in reliance on s 73ZN(1)(a) of the Act. Put another way, there is a risk of irreparable harm to the Commissioner (harm of an administrative nature) if an interlocutory injunction were granted restraining the Commissioner from making a decision under s 73P(1) for more than 28 days after the period specified in the s 73P(4) notice (19 June 2024).

41    At the conclusion of the hearing on 29 May 2024 I listed the originating application for final hearing on 27 June 2024. That hearing will take place less than 28 days after 19 June 2024. In all the circumstances to which reference has been made, I consider that an interlocutory injunction is warranted restraining the Commissioner from exercising power under s 73P(1) or s 73ZN(1) until 4.30pm on 27 June 2024. Any continuation of that restraint after 27 June 2024 will be considered at the final hearing.

Katherine

42    Katherine’s submissions depart somewhat from the manner in which her grounds of review are framed in the originating application. Nonetheless, in substance, she contends that the terms of the purported banning order made against her are so wide, vague and ambiguous as to render it outside the power conferred on the Commissioner (or delegate) under s 73ZN(2). She submits that mere ownership of shares in Sunflower may fall within the meaning of ‘indirectly involved in the provision of supports or services’ and place her in jeopardy of contravening s 73ZN and exposure to civil penalties. She submits that it could not have been the intention of Parliament to confer power on the Commissioner, in effect, to require a person to divest themselves of holding shares in a corporate registered NDIS provider if that person became the subject of a banning order under s 73ZN(2). The Commissioner appears to accept that the banning order would affect (and perhaps was intended to affect) Katherine’s ability to participate indirectly in the management of Sunflower through the exercise of her powers as a member in a general meeting. For example, her power to remove and appoint directors.

43    In my view, there is merit in Katherine’s submissions. The power conferred on the Commissioner in s 73ZN(2) is to make an order prohibiting or restricting a person who is or was employed or otherwise engaged by an NDIS provider, or a person who is or was a member of the key personnel of an NDIS provider, from engaging in specified activities. On the face of the banning order made against Katherine, it is reasonably arguable that the order does not prohibit any ‘specified activities’. The prohibition describes a general and broad activity; namely, direct or indirect involvement ‘in the provision of supports and services to people with disability’ in the NDIS. Given the potential civil penal consequences of contravention, it is undesirable that banning orders should be made in wide and general terms that leave compliance open to interpretation and (or) that have unintended consequences or restrictions on the conduct or activities in which the person would be otherwise free to engage.

44    On 30 May 2024 Katherine filed a formal written undertaking to the Court in the following terms:

…

I, KATHERINE KARUNARATHNA, the Second Applicant in the above matter acknowledge that a permanent banning order has been made against me prohibiting me from being involved in the provision of supports or services to people with disability in the National Disability Insurance Scheme and from being on the same premises as people with disability in the National Disability Insurance Scheme with effect from 17 May 2024.

I undertake that: -

(a)    I will also not have any contact with any people with disability under the National Disability Insurance Scheme and will not attend at any of the facilities managed by [Sunflower] including the properties located at the following addresses: -

(i)    22 Dartford Crescent, Marangaroo WA 6064;

(ii)    24 Dartford Crescent, Marangaroo WA 6064;

(iii)    7 Ulcombe Street, Marangaroo WA 6064; and

(iv)    222 Caporn Street, Wanneroo WA 6065.

(b)    I will not in any manner participate in the management of [Sunflower] in the above matter.

…

45    Upon that undertaking the Commissioner consents to the Court making an order suspending operation of the banning order until 27 June 2024. Having regard to the merit of the application and the terms of the undertaking, I am satisfied that an order should be made suspending the operation of the banning order until, at least, the conclusion of the hearing on 27 June 2024, if not, until judgment is delivered on her originating application. However, any continuation of the suspension will be considered at the final hearing.

Associate:

Dated:    5 June 2024