Federal Court of Australia
Sayed v National Disability Insurance Agency (No 5) [2024] FCA 923
ORDERS
Applicant | ||
AND: | NATIONAL DISABILITY INSURANCE AGENCY First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
2. The Applicant pay the first respondent’s costs of the proceeding.
3. Order 2 be stayed until the later of:
(a) the end of the period in which an appeal against these orders may be filed; and
(b) if an appeal against these orders is filed by the applicant, the date of determination of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’BRYAN J:
Introduction
1 On 8 September 2022, the applicant, Mr Sayed, filed a notice of appeal from a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 August 2022, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). By the same document, Mr Sayed also sought judicial review of the Tribunal’s decision under s 39B(1A) of the Judiciary Act 1903 (Cth) (Judiciary Act).
2 By its decision, the Tribunal dismissed Mr Sayed’s application for review of a decision of the first respondent, the National Disability Insurance Agency (NDIA), on the basis that the Tribunal did not have jurisdiction. The Tribunal concluded that the NDIA had not made a decision under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and, as a consequence, there was no decision that was reviewable by the Tribunal (as per s 103 of the NDIS Act). The Tribunal dismissed the application pursuant to s 42A(4) of the AAT Act.
3 Mr Sayed explained in his written submissions that he included an application for judicial review of the Tribunal’s determination against the possibility that the Tribunal’s determination was not a “decision” within the meaning of s 44(1) of the AAT Act. The word “decision” is defined inclusively in s 3(3) of the AAT Act. In Director-General of Social Services v Chaney (1980) 3 ALD 161, a majority of the Full Federal Court (Deane J at 181 and Fisher J at 183) concluded that an appeal under s 44(1) lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review, which will ordinarily be the final decision formulated in accordance with s 43. Although the determination of the Tribunal in the present matter was not a decision in the form contemplated by s 43, it was the effective determination of the application for review. In Jacob v Secretary Department of Social Services (No 2) [2022] FCA 907, Feutrill J concluded that the Court has jurisdiction under s 44(1) to hear an appeal from a decision to dismiss an application for review in the Tribunal made under s 42A(5) (which empowers the Tribunal to dismiss an application if an applicant fails to proceed or comply with a direction of the Tribunal). Respectfully, I agree with his Honour and it must follow that the Court has jurisdiction under s 44(1) to hear an appeal from a decision to dismiss an application for review made under s 42A(4) (which empowers the Tribunal to dismiss an application on the ground that the decision is not reviewable by the Tribunal). The NDIA did not contend to the contrary.
4 An appeal from a decision of the Tribunal under s 44 of the AAT Act is confined to questions of law. Similarly, an application for judicial review under s 39B of the Judiciary Act is also based on legal or jurisdictional error. However, where the decision-maker’s jurisdiction is conditional upon the existence of particular facts (commonly referred to as jurisdictional facts), and a question is raised concerning the existence of the jurisdictional facts, the Court is required to determine that question as a matter of fact: Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [116].
5 Mr Sayed does not have legal representation and is conducting the proceeding himself. In an earlier hearing, Mr Sayed informed the Court that he had been admitted as a legal practitioner but did not hold a current practising certificate.
6 Mr Sayed filed a further amended notice of appeal on 20 December 2023. Despite the confined scope of the issue determined by the Tribunal, Mr Sayed’s amended notice of appeal alleges that the appeal raises 20 questions of law and 6 grounds of review. The alleged questions of law and grounds of review fall into the three principal categories:
(a) The first category comprises allegations concerning natural justice, variously that the Tribunal’s decision was vitiated by bias (actual and apprehended) or a failure to afford procedural fairness in the conduct of the hearing.
(b) The second category comprises allegations that the Tribunal erred in law, particularly that the Tribunal misdirected itself with respect to s 103 of the NDIS Act, or failed to apply the principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 (Brian Lawlor).
(c) The third category is an allegation that the Tribunal erred in fact by failing to conclude that the review conducted by the NDIA was a review under s 100 of the NDIS Act and therefore amenable to review by the Tribunal.
7 Encompassed by categories two and three are allegations that the Tribunal failed to consider that Mr Sayed had requested the NDIA to undertake a review under s 100 of the NDIS Act, but the NDIA had not undertaken that review. Associated with that allegation are allegations that the NDIA had engaged in “statutory maladministration” or “malfeasance in public office”. Despite making those allegations against the NDIA, Mr Sayed confirmed in oral submissions to the Court that his appeal (and application for review) solely concerned the decision of the Tribunal to dismiss his application for want of jurisdiction. Mr Sayed was not seeking any form of relief against the NDIA.
8 On 12 February 2024, Mr Sayed filed a written outline of submissions in support of his appeal. The written outline confirms that, on this appeal, Mr Sayed raises two principal complaints about the proceeding before the Tribunal. Mr Sayed expressed those complaints as follows (footnotes omitted):
The primary contention on appeal is that the Tribunal erred by:
i. failing to consider the jurisdictional questions of fact and law to decide, for itself — whether it had jurisdiction to review the purported decision[s] made by the First Respondent (“Agency”): (failure to exercise jurisdiction), and
ii. failure to ensure that the applicant is provided a reasonable opportunity to inspect the material to which the Tribunal proposes to have regard in reaching its decision and to make submissions in relation to the material facts in issue: (failure to comply with rules of procedural fairness).
9 In response, the NDIA contends that the Tribunal was correct to conclude that jurisdiction had not been conferred on it by s 103 of the NDIS Act because no decision had been made concerning Mr Sayed pursuant to s 100(6) of the NDIS Act. The NDIA does not concede that the Tribunal denied Mr Sayed procedural fairness, but contends that it is not a question that needs to be answered by the Court. The NDIA contends that if, having conducted a full hearing of the question, the Court concludes that the Tribunal did not have jurisdiction to hear Mr Sayed’s application, any denial of procedural fairness before the Tribunal cannot affect that conclusion. At the hearing of the application, Mr Sayed appeared to accept that contention.
10 For the reasons set out below, I accept the NDIA’s contentions. It follows that Mr Sayed’s application should be dismissed. Also, for the reasons set out below, I consider that Mr Sayed should be ordered to pay the NDIA’s costs of the proceeding.
Procedural history
11 This proceeding has an unfortunate procedural history. It was commenced by Mr Sayed on 8 September 2022, almost two years ago.
12 Following the first case management hearing, Mr Sayed brought an application that I recuse myself on the grounds of actual and apprehended bias. Mr Sayed also challenged a number of procedural decisions made by the Court. The applications and challenges made by Mr Sayed were all determined adversely to him, and Mr Sayed took those matters on appeal, including in the High Court. Each of the appeals was unsuccessful. The effect of the applications, challenges and appeals was to substantially delay the final hearing of this proceeding.
13 The final hearing of this proceeding commenced on 23 February 2024, and was listed for a single day. In my view, having regard to the issues in dispute and the evidence relevant to those issues, a single day was sufficient for the hearing. The parties cooperated to prepare a court book of relevant material for the hearing, and the relevant contents of the court book were tendered at the hearing. Despite that, during the hearing it became apparent that Mr Sayed wished to refer to documents and other material that had not been included in the court book and that had not otherwise been prepared for tender as evidence in the hearing. The Court gave Mr Sayed the option of adjourning the hearing to provide Mr Sayed with the opportunity to file and serve such additional evidence that he wished to rely upon at the hearing. Mr Sayed requested the adjournment and timetabling orders were made for the filing of additional evidentiary material by Mr Sayed and reply material from the NDIA. Mr Sayed requested that the proceeding be relisted for two days in recognition of his health problems. Although I considered that the proceeding required only a single day for hearing, I agreed to list the matter for two days.
14 After the adjournment of the initial hearing on 23 February 2022, Mr Sayed filed and served a witness statement dated 7 March 2024 (although the document was described as an affidavit, it was not sworn or affirmed at the date of filing). The witness statement exhibited numerous documents.
15 The hearing recommenced on 8 July 2024. Mr Sayed deposed to the truth of his witness statement and the statement and exhibits were admitted into evidence without objection by the NDIA. During his address, Mr Sayed insisted on reading large portions of his statement, and the annexures, to the Court. I explained to Mr Sayed on more than one occasion during the hearing that it was unnecessary to read the evidence in open court as I had earlier read the evidence. I also explained to Mr Sayed that it would be more useful to the Court if Mr Sayed addressed the issues arising in the proceeding more directly. Mr Sayed rejected, in a belligerent manner, my guidance to him, asserting that I should not be interfering in the presentation of his case. The end result was that a great deal of the hearing on 8 July 2024 was spent in Mr Sayed reading extensive portions of his statement and tendered documents to the Court.
16 It was unfortunate that Mr Sayed refused to accept any guidance from the Court with respect to the conduct of the hearing. The exercise undertaken by Mr Sayed was an inefficient use of the Court’s time. The guidance given by me to Mr Sayed was consistent with the overarching purpose of civil practice and procedure as prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible, and which also includes the following objectives:
(a) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(b) the efficient disposal of the Court’s overall caseload;
(c) the disposal of all proceedings in a timely manner; and
(d) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
17 At the conclusion of the hearing on 8 July 2024, the NDIA advised the Court that, on the following day, the NDIA would only require about one hour to present its case in the proceeding. With that indication, I informed Mr Sayed that the Court would allow him to continue his submissions on 9 July 2024 until lunchtime on that day, with the NDIA to present its submissions in the afternoon.
18 At the commencement of the hearing on 9 July 2024, Mr Sayed applied for an adjournment of the hearing on the grounds that he suffers from a health condition and that over the previous night he had been unable to eat or sleep. Mr Sayed submitted that he had been unable to prepare for the hearing and was unable to proceed. The application for an adjournment was not opposed by the NDIA. The adjournment was granted.
19 With his request for an adjournment, Mr Sayed also requested that the proceeding be relisted for a further two days, rather than a single day. I refused to do so and relisted the matter for a single day. I gave reasons for that refusal at the time. Those reasons were that I considered two further days were not necessary for the fair hearing of the matter. As stated earlier, having regard to the issues raised in the proceeding and the evidence adduced, the hearing ought to have been concluded in a single day. The Court has a busy workload and must manage hearings so as to promote the efficient use of judicial resources and the efficient disposal of the Court’s overall caseload. Mr Sayed’s presentation of his case on 8 July 2024, by reading his evidence to the Court, was a wasteful exercise. As noted above, Mr Sayed refused to accept the guidance given to him by the Court to present his arguments on the substantive issues. Having regard to the principles stated in s 37M of the FCA Act, I refused to indulge Mr Sayed by allowing additional time for the presentation of his arguments beyond a half-day.
20 The commitments of the Court and counsel for the NDIA prevented the hearing from resuming until 7 August 2024. The hearing was completed on that day. As matters turned out, Mr Sayed addressed the Court for most of that day and the NDIA required about 45 minutes to present its arguments.
21 Mr Sayed’s conduct of this proceeding can only be deprecated. His conduct has increased the cost of the proceeding to the NDIA, which has been forced to participate in many interlocutory hearings, and has resulted in substantial delay in bringing the matter to hearing and resolution.
Evidence before the Court
22 At the initial hearing on 23 February 2024, I received into evidence a range of documents that were included in a court book provided by the parties for the purposes of the hearing. Those documents comprised:
(a) Mr Sayed’s application for review before the Tribunal dated 7 July 2022, attached to which were documents in the nature of communications between Mr Sayed and the NDIA;
(b) Mr Sayed’s submission to the Tribunal dated 9 August 2022, attached to which were further documents in the nature of communications between Mr Sayed and the NDIA;
(c) Mr Sayed’s submission to the Tribunal dated 10 August 2022, attached to which were further documents in the nature of communications between Mr Sayed and the NDIA;
(d) the NDIA’s submission to the Tribunal dated 10 August 2022, attached to which were the NDIA’s interaction records concerning Mr Sayed, Mr Sayed’s participant’s plan dated 8 June 2022, and Mr Sayed’s revised participant’s plan dated 29 July 2022;
(e) the transcript of the Tribunal hearing on 11 August 2022 which was conducted by telephone; and
(f) an audio recording of the Tribunal hearing on 11 August 2022.
23 Mr Sayed objected to the tender of certain of the above documents on the ground of hearsay. Mr Sayed argued that the documents were not within the business records exception to the hearsay rule because the documents were created after he had commenced the Tribunal proceeding and, Mr Sayed submitted, the documents were prepared for the purpose of, or in contemplation of, that proceeding. Mr Sayed also submitted that the tender of the documents would be unfairly prejudicial to him because the authors of the documents were not being called by the NDIA to give evidence in the proceeding.
24 I ruled against the objection at the hearing on 23 February 2024 for the following reasons.
25 First, the documents to which Mr Sayed objected were documents provided by Mr Sayed himself to the Tribunal for the purposes of the Tribunal hearing, and which were included in the court book for that reason. Thus, it was Mr Sayed who sought to rely on the documents before the Tribunal. The NDIA submitted, and I accepted, that the documents were relevant to the review by the Court of the Tribunal proceeding because it was necessary to understand the basis upon which the Tribunal made its decision. At the very least, the documents were therefore admissible under s 60(1) of the Evidence Act 1995 (Cth) (Evidence Act) for that purpose. I do not accept Mr Sayed’s submission that admission of the documents would be unfairly prejudicial to him. The documents largely record email communications between Mr Sayed and the NDIA. Mr Sayed was given an opportunity to adduce further evidence to put the communications in context.
26 Second, and more significantly, the documents satisfy the business records exception in s 69 of the Evidence Act. Having viewed the documents, I am satisfied that:
(a) for the purposes of s 69(1), the documents form part of the records belonging to or kept by the NDIA in the course of, or for the purposes of, its business and contain previous representations made or recorded in the documents in the course of, or for the purposes of, the business. In that regard, I note that the expression “business” is defined in Sch 1 as including “an activity engaged in or carried on by the Crown in any of its capacities”;
(b) for the purposes of s 69(2), the representations made in the documents were made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; and
(c) for the purposes for s 69(3), the documents were not prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, the Tribunal proceeding.
27 As noted above, after the adjournment of the initial hearing on 23 February 2022, Mr Sayed filed and served a witness statement dated 7 March 2024 with numerous documents exhibited. Mr Sayed deposed to the truth of the statement at the hearing and the statement and exhibits were admitted into evidence without objection by the NDIA.
28 It should be noted that, in his witness statement, Mr Sayed deposed to the content of a number of telephone conversations he conducted with NDIA staff. In most instances, the content was transcribed by Mr Sayed from recordings that he had made of the telephone conversations. In one instance (being a telephone meeting conducted on 29 June 2022), a copy of the recording was tendered on a USB stick and the recording was played during the hearing (at Mr Sayed’s request). The recording of telephone communications is generally unlawful under the Telecommunications (Interception and Access) Act 1979 (Cth), unless the party being recorded has given their consent to being recorded. Despite that, no objection was taken by the NDIA to Mr Sayed’s evidence derived from the recording of telephone communications. Counsel for the NDIA stated that the NDIA wished to confine the issues in dispute to the greatest extent possible.
Legislative framework
29 The jurisdiction of the Tribunal to review administrative decisions is conferred by s 25(1) of the AAT Act. Relevantly, s 25(1)(a) provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.
30 At all relevant times, s 103 of the NDIS Act provided that applications may be made to the Tribunal for review of decisions made under s 100(6) of the NDIS Act. That is the only type of decision made under the NDIS Act that is reviewable by the Tribunal. The central question in this proceeding is whether Mr Sayed’s application before the Tribunal sought the review of a decision made under s 100(6) of the NDIS Act. If it did not, the Tribunal did not have jurisdiction to conduct a review.
31 To understand the scope of s 100(6), and the issues raised in this proceeding more broadly, it is necessary to refer to a number of provisions of the NDIS Act. The circumstances that are relevant to this proceeding occurred both before and after the date of 1 July 2022. On that date, certain of the amendments to the NDIS Act made by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) (2022 Amendment Act) came into effect. It is therefore necessary to refer to the legislative framework both before and after that date, as well as the transitional provisions that govern the operation of the amendments.
Preparing participants’ plans (Ch 3, Pt 2, Div 2)
32 Chapter 3, Pt 2, Div 2 of the NDIS Act provides for the preparation of NDIS participants’ plans.
33 Section 32 provides as follows:
32 CEO must facilitate preparation of participant’s plan
(1) If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan.
(2) The CEO must commence facilitating the preparation of the participant’s plan within 21 days of the person becoming a participant.
34 Section 33 specifies the “matters that must be included in a participant’s plan”. Relevantly, ss 33(1), (2) and (4) provide that:
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
…
(4) The CEO must decide whether or not to approve the statement of participant supports:
(a) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph (which may take account of section 36 (information and reports)); or
(b) if there are no such rules—as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).
35 Other relevant provisions concerning the preparation of a participant’s plan are as follows:
37 When plan is in effect
(1) A participant’s plan comes into effect when the CEO has:
(a) received the participant’s statement of goals and aspirations from the participant; and
(b) approved the statement of participant supports.
(2) A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.
Note: Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.
(3) A participant’s plan ceases to be in effect at the earlier of the following times:
(a) when it is replaced by another plan under Division 4;
(b) when the participant ceases to be a participant.
38 Copy of plan to be provided
The CEO must provide a copy of a participant’s plan to the participant within 7 days after the plan comes into effect.
39 Agency must comply with the statement of participant supports
The Agency must comply with the statement of participant supports in a participant’s plan.
36 Section 37 was amended by the 2022 Amendment Act to delete subs (2), as the amendments introduced a new s 47A which empowered the CEO to vary a participant’s plan.
Changing/replacing participants’ plans (Ch 3, Pt 2, Div 4)
37 Prior to 1 July 2022, Ch 3, Pt 2, Div 4 of the NDIS Act was titled “Reviewing and changing participants’ plans”. From 1 July 2022, the title was amended to “Varying and replacing participants’ plans”. The substantive provisions were amended in a number of ways. Relevant changes are noted below.
38 Throughout the period, s 47 permitted a participant to give the CEO a changed version of the participant’s statement of goals and aspirations at any time.
39 Prior to 1 July 2022, s 48 was titled “Review of participant’s plan” and provided as follows:
48 Review of participant’s plan
(1) A participant may request that the CEO conduct a review of the participant’s plan at any time.
(2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.
Note 1: The period may be extended under National Disability Insurance Scheme rules made under section 204.
Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision the CEO is taken to have made will be automatically reviewed because of subsection 100(5).
(3) If the CEO decides to conduct a review under subsection (1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable.
(4) The CEO may, on the CEO’s initiative, conduct a review of a participant’s plan at any time.
(5) The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan.
(6) The CEO must conduct a review of a participant’s plan in the circumstances (if any) prescribed by the National Disability Insurance Scheme rules.
40 It is relevant to note that, prior to 1 July 2022, s 48 provided for a “review” of a participant’s plan, either at the request of the participant (and subject to the agreement of the CEO), or on the CEO’s own initiative.
41 Prior to 1 July 2022, s 49 was titled “Outcome of review” and provided as follows:
49 Outcome of review
If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under subsection 99(1).
42 The second note to s 49 is significant. It confirms that the outcome of a review pursuant to s 48 is the preparation of a new participant’s plan under Div 2. As noted above, s 33 stipulates that a participant’s plan must include the participant’s statement of goals and aspirations and a statement of participant supports prepared by the CEO. The second note to s 49 confirms that the decision to approve the statement of participant supports in the plan is then reviewable under s 100 (discussed below).
43 From 1 July 2022, a new s 47A was introduced which empowered the CEO to vary a participant’s plan on request of the participant or on the CEO’s own initiative. Section 48 was retitled “Reassessment of participant’s plan on request of participant or CEO’s own initiative” and amended to provide as follows:
48 Reassessment of participant’s plan on request of participant or CEO’s own initiative
(1) The CEO may conduct a reassessment of a participant’s plan at any time.
Reassessment on request of participant or CEO’s own initiative
(2) The CEO may do so on request of the participant or on the CEO’s own initiative.
Decision on request
(3) If the participant requests a reassessment of the participant’s plan, the CEO must before the end of the period of 21 days beginning on the day the CEO receives the request:
(a) make a decision that the plan needs to be varied under subsection 47A(1); or
(b) make a decision that the plan needs to be reassessed; or
(c) make a decision not to conduct a reassessment of the plan.
Note: If the CEO decides the plan needs to be reassessed, see subsection (8) for the period for completing the reassessment.
(4) If the CEO does not make a decision under paragraph (3)(a), (b) or (c) within that 21-day period, the CEO is taken to have decided not to conduct a reassessment of the plan.
Matters to which the CEO must have regard
(5) The National Disability Insurance Scheme rules may set out matters to which the CEO must have regard:
(a) in deciding whether to conduct a reassessment of a participant’s plan on the CEO’s own initiative; or
(b) in making a decision under paragraph (3)(a), (b) or (c).
Notification of decision
(6) The CEO must notify the participant of the following:
(a) a decision of the CEO to conduct a reassessment of the participant’s plan on the CEO’s own initiative;
(b) a decision of the CEO under paragraph (3)(a) or (b).
Note: For notification of a decision under paragraph (3)(c), see subsection 100(1).
Outcome of reassessment
(7) If the CEO conducts a reassessment under subsection (1) of a participant’s plan, the CEO must:
(a) complete the reassessment; and
(b) either:
(i) vary, under subsection 47A(1), the participant’s plan as a result of that reassessment; or
(ii) prepare a new plan with the participant in accordance with Division 2 and approve, under subsection 33(2), the statement of participant supports in the new plan.
Time for completing reassessment
(8) The CEO must do the things under paragraphs (7)(a) and (b):
(a) within the period worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this paragraph (which may take account of section 50 (information and reports)); or
(b) if there are no such rules—as soon as reasonably practicable, including what is reasonably practicable having regard to section 50 (information and reports).
44 It can be seen that, from 1 July 2022, s 48 provided for a “reassessment” of a participant’s plan, again at the request of the participant (and subject to the agreement of the CEO), or on the CEO’s own initiative. The section contained more detailed provisions governing the discharge of that function. Relevantly, s 48(6) provided that the CEO is required to notify the participant of a decision of the CEO to conduct a reassessment of the participant’s plan on the CEO’s own initiative and a decision of the CEO, following a participant’s request, to reassess the plan or not to reassess the plan. Section 48(7) governed the outcome of the reassessment and stipulated that the CEO must either vary, under subs 47A(1), the participant’s plan as a result of that reassessment or prepare a new plan with the participant in accordance with Div 2 and approve, under subs 33(2), the statement of participant supports in the new plan.
45 Section 49 was also amended as follows:
49 Reassessment of participant’s plan before plan’s reassessment date
(1) The CEO must do the following before the reassessment date of a participant’s plan:
(a) complete a reassessment of the plan;
(b) either:
(i) vary, under subsection 47A(1), the participant’s plan as a result of that reassessment; or
(ii) prepare a new plan with the participant in accordance with Division 2 and approve, under subsection 33(2), the statement of participant supports in the new plan.
(2) The CEO must start the reassessment under subsection (1) before the period (if any) worked out in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this subsection.
46 With respect to transitional arrangements, items 65(5), (6) and (7) of Schedule 1 to the 2022 Amendment Act provide as follows:
65 Application, saving and transitional provisions—prospective participants or participants
…
(5) Section 48 of the National Disability Insurance Scheme Act 2013, as substituted by this Schedule, applies in relation to a reassessment that begins to be conducted on or after the commencement of this item (whether on the CEO’s own initiative or because of a request made on or after that commencement).
(6) Subsections 48(1) to (3), section 49 and subsections 99(1) and 100(1A) and (5) of the National Disability Insurance Scheme Act 2013, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to a request for a review made under subsection 48(1) of that Act before that commencement.
(7) Subsections 48(4), (5) and (6) and section 49 of the National Disability Insurance Scheme Act 2013, as in force immediately before the commencement of this item, continue to apply on and after that commencement in relation to a review that began to be conducted before that commencement.
Review of decisions (Ch 4, Pt 6)
47 Part 6 of Ch 4 deals with the review of decisions.
48 Section 99 contains a table setting out “reviewable decisions” under the Act and the relevant decision-maker in respect of each of those decisions.
49 Prior to 1 July 2022, the table in s 99 contained the following items:
(a) item 4 referred to a “decision to approve the statement of participant supports in a participant’s plan” pursuant to subs 33(2) made by the CEO; and
(b) item 6 referred to “a decision not to reassess a participant’s plan” pursuant to subs 48(2) made by the CEO.
50 From 1 July 2022, the table in s 99 contained the following items:
(a) item 4 referred to a “decision to approve the statement of participant supports in a participant’s plan” pursuant to subs 33(2) made by the CEO; and
(b) item 6C referred to “a decision not to conduct a reassessment of a participant’s plan” pursuant to subs 48(3)(c) or (4) made by the CEO.
51 Section 100 governs the review of reviewable decisions. Since 8 April 2022, it has relevantly provided as follows:
100 Review of reviewable decisions
(1) The decision-maker of a reviewable decision must give written notice of the reviewable decision, and of the reasons for the reviewable decision, to each person directly affected by the reviewable decision.
…
(2) A person who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.
(3) A request may be made by:
(a) sending or delivering a written request to the decision-maker; or
(b) making an oral request, in person or by telephone or other means, to the decision-maker.
(4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a) make a written record of the details of the request; and
(b) note on the record the day the request is made.
(5) If:
(a) the decision-maker receives a request for review of a reviewable decision; or
(b) the decision-maker is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the decision-maker (the reviewer) must review the reviewable decision.
(5A) The decision-maker cannot review the reviewable decision personally if the decision-maker was involved in making the reviewable decision.
(5B) A delegate of the decision-maker cannot review the reviewable decision if the delegate was involved in making the reviewable decision.
(6) The reviewer must make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.
…
52 Section 103 is titled “Applications to the Administrative Appeals Tribunal”. Prior to 1 July 2022, s 103 provided that applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under s 100(6). From 1 July 2022, s 103 provided as follows:
103 Applications to the Administrative Appeals Tribunal
(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
(2) If:
(a) an application is made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6); and
(b) the decision relates to a statement of participant supports in a participant’s plan; and
(c) before a decision on the review is made and despite subsection 26(1) of the Administrative Appeals Tribunal Act 1975:
(i) the CEO varies the plan under subsection 47A(1) of this Act and the variation is a change to that statement; or
(ii) a new plan for the participant comes into effect under section 37 of this Act;
then:
(d) If subparagraph (c)(i) applies—the application is also taken to be an application for review of the decision to make the variation covered by that subparagraph; or
(e) if subparagraph (c)(ii) applies—the application is also taken to be an application for review of the decision to approve the statement of participant supports in the new plan.
53 With respect to transitional arrangements, item 68(2) of Sch 1 to the 2022 Amendment Act provides as follows:
68 Application provisions—review of decisions
…
(2) Paragraph 103(2)(a) of the National Disability Insurance Scheme Act 2013, as added by this Schedule, applies in relation to an application for review made on or after the commencement of this item.
Delegation by the CEO
54 Section 202(1) of the NDIS Act provides that “[t]he CEO may, in writing, delegate to an Agency officer any or all of his or her powers or functions under this Act, the regulations or the National Disability Insurance Scheme rules”.
Relevant facts
55 On the basis of the evidence adduced at this hearing, I make the following factual findings.
56 Mr Sayed joined the National Disability Insurance Scheme (NDIS) on about 30 March 2022.
57 On 9 June 2022, Cynthia Walker of the NDIA sent an email to Mr Sayed attaching a copy of his first participant’s plan which had a commencement date of 8 June 2022. The email stated that Ms Walker was the CEO’s delegate who had approved the plan. As required by s 33(2), the plan included a statement of participant supports that had been approved by the CEO (by Ms Walker as delegate). The end of the email contained the following statement:
Review of Decision:
If you are unhappy with the decision made, you can ask for a review to that decision, called an internal review of decision.
In an internal review of decision, we will check if we made the right decision under the law by looking at your situation and disability support needs at the time of the original decision. An internal review will not consider any changes to your situation and supports that have happened since we made our decision.
For further information, refer to NDIS Website, Internal review of decision.
58 The plan also stated that Mr Sayed “may request a review of this plan management decision” and that “[d]etails about how to do this are included at the end of this letter”. Later in the document the following statements appeared:
How to request a review of this decision
If you disagree with this decision, you can request an internal review of a decision within three months of receiving this notice.
When asking for an internal review you should explain why you think the decision made is incorrect. The staff member who works on the internal review won’t have been involved in the earlier decision. They may want to talk to you as part of this process.
…
If you request an internal review and are not happy with the decision the Agency makes at that time, you can apply for an external review by the Administrative Appeals Tribunal (AAT).
The NDIS website (ndis.gov.au) provides more information about requesting a review. …
59 I interpolate that the decision by the CEO to approve the statement of participant supports in Mr Sayed’s plan was a reviewable decision for the purposes of s 100 (as per item 4 of s 99) of the NDIS Act, and that Mr Sayed was entitled to request an internal review of the decision to approve the statement of participant supports under s 100(2). I also note that Mr Sayed was also entitled to request that the CEO conduct a review of his plan under s 48(1), and the CEO was entitled, on his or her own initiative, to conduct a review of his plan under s 48(4) (as the NDIS Act stood prior to the commencement of amendments made by the 2022 Amendment Act on 1 July 2022).
60 On 15 June 2022, Mr Sayed sent an email to the Acting CEO of the NDIA, Lisa Studdert, lodging a complaint against the NDIA staff who had prepared his first participant’s plan. The email made numerous allegations that staff had failed to comply with their statutory duties. The email did not contain a request for an internal review under s 100(2) of the NDIS Act. Mr Sayed attached to the email a document dated 14 June 2022 and titled “Breach of statutory duty and misfeasance in public office by the delegated planners at NDIA”. The document set out Mr Sayed’s allegations of misconduct, which are unnecessary to refer to. The document also contained the following statement concerning an internal review of his participant’s plan (uppercase type converted to lower case):
In view of the serious nature of these allegations, I have decided not to exercise my right to a review under sec. 100(2) at this time. Instead I will be focusing on having these allegations fully investigated or otherwise seek appropriate relief from the court.
61 In his witness statement, Mr Sayed stated that he later spoke by telephone with Ms Studdert. There is no written or audio record of that conversation. Mr Sayed’s statement contained an outline of the matters that he says were discussed during that phone call. At the hearing, Mr Sayed confirmed that he prepared the outline from memory because, at the time he made his witness statement, he did not have a written or audio recording of the phone call. I place limited weight on Mr Sayed’s evidence concerning the content of his phone call with Ms Studdert because it is not supported by any contemporaneous note or other record of the call. Nevertheless, I accept that, during the call, Ms Studdert acknowledged his complaint and advised that she had passed the complaint onto the internal review branch. At the hearing, Mr Sayed was adamant that he wanted the NDIA to investigate his complaint and not undertake a review of his plan until the complaint had been properly addressed.
62 On 16 June 2022, Mr Sayed sent an email to Ms Studdert attaching his correspondence with NDIA staff. Again, the email did not contain a request for an internal review under s 100(2) of the NDIS Act.
63 As a result of Mr Sayed’s complaint, the NDIA assigned him a new NDIS planner. On 27 June 2022, the NDIA sent an email to Mr Sayed notifying him that his new NDIS planner would be Lee Withers. The email also referred to Mr Sayed’s complaint against his former NDIS planners and advised him that his complaint was being investigated internally but that, due to privacy reasons, no outcome of the internal investigation would be shared with Mr Sayed. The email also stated that the NDIA would be closing the complaint.
64 On 28 June 2022, the NDIA scheduled a phone meeting for the following day between Mr Sayed, his support advocate Bron Emmerson, and Ms Withers. The phone meeting occurred on 29 June 2022. An audio recording of the phone meeting was made by Mr Sayed, and the recording was tendered in evidence. At Mr Sayed’s request, the recording was played in Court. Ms Emmerson prepared minutes of the meeting. The minutes relevantly stated as follows (Mr Sayed is referred to by his name “Ali”):
Lee advised that she wants to start from beginning to get a clear understanding of what has happened so far.
Ali explained that he documented and provided his needs and goals to the planner prior to the planning meeting.
Ali explained his disappointment that the planner did not provide him with a draft plan (as promised) prior to the current plan approval.
Ali explained that he has only asked for supports/items in his plan that NDIA have provided to other participants, but understands that these supports/items need to be relevant to the participant’s disability.
Lee advised that she wants to go through everything in Ali’s current plan and will probably be building a new plan.
Lee suggested a meeting again next week Monday 4th July @1pm.
Ali requested that the meeting start with statement of goals and then discuss supports needed to achieve the goals.
Bron left meeting at 2.35pm. Ali and Lee continued meeting.
65 In my view, the minutes are a fair summary of the phone meeting. In particular, at the commencement of the phone meeting, Ms Withers stated that she wished to “take a step back and have a look at everything right back, as if we’ve started again … and talk about your plan and what NDIS can do to help you”. A little later, Ms Withers said that “we need a complete look at the plan all over again” and that “we’re going to look at everything again from the beginning and we’re going to see what we can do to help you”. A little later again, Mr Sayed stated that he was “happy to start afresh” and asked: “Are we doing a new plan?”. Ms Withers replied: “I think that we will be, yes”. In his witness statement, Mr Sayed deposed to a later portion of the phone meeting by way of transcription. Mr Sayed placed most emphasis on that portion of the phone meeting. Mr Sayed’s transcription was not entirely accurate (although the errors did not affect the overall meaning of that portion). A corrected version is as follows:
SAYED: So, the only thing is, if I can clarify. So, my issue is with the plan that was done by NDIA. What we’re going to do is we’re going to start fresh with the statement of goals that I provided which included. We will go item by item with my statement so we can work on coming up with what funding to include in a new statement of supports.
LEE: That is what we are going to do exactly.
SAYED: Beautiful.
LEE: And if it’s not something that NDIA funds, then we’ll talk about how you can get those.
SAYED: I’m perfectly happy with that.
66 At the hearing, Mr Sayed informed the Court that his recording of the phone meeting omitted some statements that were made at the conclusion of the meeting. Mr Sayed submitted that, at the conclusion of the meeting, he requested that Ms Withers confirm in writing what was discussed during the phone meeting. At 3.07 pm on 29 June 2022, Ms Withers sent an email to Mr Sayed stating (emphasis added):
Just to confirm from our discussion today. I have set up a new Planning Meeting for next Monday at 2pm. I have looked at your plan and listened to what you have told me and I have decided to conduct an Agency Initiated Plan Review to revisit your NDIS support needs.
On Monday we will go through your Participant Statement and Goals and we will then go through each requested support item to determine what NDIS will be able to help you with and what we can’t provide funding for. For those items I will discuss with you ways that you may be able to get supports – which may simply be your Specialist Support Coordinator doing the research and liaison with other mainstream organisations to find a solution for you.
67 A short time later on 29 June 2022, Mr Sayed replied by email and thanked Ms Withers for the clarification. In his email, Mr Sayed stated that he “looked forward to working together to prepare a new statement of supports replacing the one provided by the NDIA on 9 June 2022”.
68 Mr Sayed contends that, at the meeting on 29 June 2022, he requested an internal review of the participant supports in his plan pursuant to s 100(2) of the NDIS Act. I do not accept that contention. It is not supported by the statements made during the phone meeting on 29 June 2022 and it is inconsistent with Ms Withers’ subsequent email of that date. At the meeting, Ms Withers proposed that the NDIA conduct a review of Mr Sayed’s plan, stating that “we need a complete look at the plan all over again”. Mr Sayed expressed his agreement with Ms Withers’ proposal to “start afresh”. In her email following the meeting, Ms Withers stated that she had decided to conduct an “Agency Initiated Plan Review”. Ms Withers’ email indicated that Ms Withers was not proposing to conduct a review under s 100, but was proposing a review under s 48. A review under s 100 is not initiated by the NDIA and therefore could not be described as an “Agency Initiated Plan Review”; rather, a review under s 100 is initiated by the participant. In contrast, a review under s 48 can be initiated by the NDIA. Further, a review under s 100 is directed to specific decisions as enumerated in s 99, such as the decision to approve the statement of supports in a participant’s plan (s 99, item 4). In contrast, a review under s 48 is of the whole plan. As stipulated by s 49, if the CEO conducts a review of a participant’s plan under s 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Div 2. The discussions at the meeting and the subsequent email indicate that Ms Withers had proposed a review under s 48. In due course, the NDIA provided Mr Sayed with a new participant’s plan, replacing his first plan, and confirmed that the plan had been prepared following a review under s 48. Later correspondence from Mr Sayed (referred to below) also indicates that, in the phone meeting, Mr Sayed acquiesced with Ms Withers’ suggestion that she conduct a review of Mr Sayed’s plan under s 48.
69 I make two further findings of fact with respect to the communications between Mr Sayed and the NDIA on 29 June 2022. First, the review of Mr Sayed’s plan was initiated by the NDIA pursuant to s 48(4). This is made plain by Ms Withers’ email that stated she was conducting an “Agency Initiated Plan Review”, as well as the contents of the phone meeting held on that day. Second, the review of Mr Sayed’s plan pursuant to s 48(4) commenced on that day. The latter fact is relevant to the application of the transitional provisions associated with the 2022 Amendment Act. The significance is that ss 48(4) and 49 as in force immediately before the commencement of the 2022 Amendment Act continued to apply to that review. I note, however, that my decision in this proceeding is not affected by the amendments made by the 2022 Amendment Act.
70 A further phone meeting occurred on Monday 4 July 2022 at 1.30 pm which was attended by Mr Sayed, Ms Emmerson and Ms Withers. Minutes of the meeting were prepared by Ms Emmerson. The minutes indicate that the attendees discussed Mr Sayed’s needs and the supports that might be provided by the NDIS. In his witness statement, Mr Sayed deposes to a large portion of the phone meeting, which Mr Sayed had recorded. Mr Sayed’s evidence confirms that, during the 4 July phone meeting, the participants were engaged in a process of reviewing his participant’s plan.
71 Later on 4 July 2022, Ms Withers sent an email to Mr Sayed, referring to a further meeting planned for Wednesday, 6 July 2022. The email also followed up on certain matters discussed at the phone meeting.
72 On 5 July 2022, Mr Sayed sent an email to Ms Withers, copied to Ms Emmerson, with the subject line “Updated statement of goals”. The email was combative in tone and contained many strong criticisms of the NDIA to which it is unnecessary to refer. Attached to the email was a document prepared by Mr Sayed titled “Participant’s statement of goals and requested support & funding”. The provision of that document by Mr Sayed is consistent with the review of his plan being conducted under s 48 rather than under s 100. As noted above, a review under s 48 is of the whole of a participant’s plan, and requires the preparation of a new plan with the participant in accordance with Div 2. Under s 33 (within Div 2), a participant’s plan must include the participant’s statement of goals and aspirations that has been prepared by the participant. It is apparent that, on 5 July 2022, Mr Sayed understood that his plan was being reviewed under s 48 and he provided an updated statement of goals and aspirations for that purpose.
73 On 6 July 2022, Ms Withers sent an email to Mr Sayed in response. The email was conciliatory in tone. The email referred to certain supports that the NDIA was willing to provide in the short term and referred to further consultation about additional supports. The email also included the following statement:
It is not imperative at this time to review the plan because there is already funding to start doing the above.
74 The foregoing statement is significant because it became the foundation for Mr Sayed’s application for review to the Tribunal. In short, Mr Sayed interpreted the statement as a decision by Ms Withers refusing to complete the review that had been commenced on 29 June 2022.
75 In my view, Mr Sayed’s interpretation of the above statement is incorrect. It is clear from the context in which the statement was made, and from subsequent correspondence, that Ms Withers had not made a decision to refuse to complete the review she was currently undertaking. A fair reading of the email is that Ms Withers sought to convey to Mr Sayed that the review was not urgent because Ms Withers could take immediate steps to provide some supports requested by Mr Sayed as his existing plan contained funding that would enable those steps to be taken. This is confirmed by the opening paragraph of the email that stated:
I take on board what you have written below but as I said in the meeting at present I think we should focus on small quick wins that we can achieve in quick time frames and you already have funding in your plan to start these.
76 In the email, Ms Withers referred to specific supports that can be provided immediately.
77 Later on 6 July 2022, Mr Sayed sent an email to Ms Withers in reply stating that he understood Ms Withers’ email to mean that she was no longer willing to proceed with the review. Mr Sayed requested to speak to a branch manager “or otherwise take your email as sufficient notice of a decision under section 100(1) of the Act”. Mr Sayed’s reference to a decision under s 100(1) is significant. Section 100(1) provides that the decision-maker of a reviewable decision must give written notice of the reviewable decision, and of the reasons for the reviewable decision, to each person directly affected by the reviewable decision. Reviewable decisions are defined in s 99 and include, relevantly, a decision made by the CEO not to reassess a participant’s plan under s 48 (see item 6 in respect of the legislation prior to 1 July 2022 and item 6C in respect of the legislation on and after 1 July 2022). It is apparent from Mr Sayed’s reference to s 100(1) that, at that time, Mr Sayed understood that Ms Withers was not conducting a review under s 100. If Mr Sayed believed at that time that Ms Withers was conducting a review under s 100, his email would have referred to s 100(6) (which empowers the reviewer to make a decision on a review conducted under s 100). Later, as set out below, Mr Sayed changed his position.
78 On 7 July 2022, Mr Sayed filed his application for review in the Tribunal. The application identified the decision to be reviewed as the (alleged) decision of Ms Withers made on 6 July 2022. In a section titled “Reasons for the application”, Mr Sayed wrote (uppercase type converted to lower case and minor typographical errors corrected):
Reviewer failed to undertake proper review of the original decision by the CEO’s delegate to approve statement of support under 33(2) as promised in the course of phone appointment on 29 June 2022. Reviewer later confirmed her decision to review the original support statement by email dated 29 June 2022.
During the above phone appointment and at the planning meeting on 4 July 2022, the reviewer made various false and misleading statements to the participant, including letting participant in to thinking that by agreeing to an agency-initiated review, the process will be much quicker and importantly allow participant the opportunity to be included in the process.
However, by her email dated 6 July 2022, the reviewer advised that the funding provided in the original support statement was adequate to meet reasonable and necessary support needs of the participant.
79 Two matters can be noted. First, the middle paragraph contains a further acknowledgment by Mr Sayed that, at the phone meeting on 4 July 2022, Mr Sayed agreed to Ms Withers conducting an “agency-initiated review” which, as discussed above, is not a review under s 100(6) and can only be a review under s 48. Second, the decision that was the subject of Mr Sayed’s application to the Tribunal was the alleged refusal by Ms Withers to proceed with the proposed review, as purportedly indicated by her email of 6 July 2022.
80 On 11 July 2022, Ms Withers sent an email to Mr Sayed which stated (relevantly) as follows:
It has come to my attention that on Thursday you sent an email to the AAT requesting a review of your original NDIS plan that was approved on 8 Jun 22 [sic].
The first step to review an NDIS plan is to ask the NDIS to conduct an internal review under s100 which is completed by the National Access and Reassessment Branch. If the outcome of the s100 review is not to your liking it is then that you can ask for a review by the AAT. Therefore your request to the AAT may be rejected. I can certainly assist by submitting a s100 review request on your behalf, however I think that you may have misunderstood our discussions.
I have agreed that your plan does require a review of the funded supports and through our discussions I have been gleaning the information that I need to make a new decision around your supports. …
I can continue with reviewing the plan and may be able to have it ready for you on Wednesday when we next chat if it is within my delegation to approve (if not it may take up to a month for approval of the new plan) OR I can submit a s100 review request for you in which case a member of the National Access and Reassessment Branch will review the original plan OR you can wait to hear from the AAT. Once a review request has been accepted by either the National Access and Reassessment Branch or by the AAT I will no longer be able to make any changes to your NDIS plan.
Please let me know how you would like to proceed.
81 The email conveyed clear information to Mr Sayed that first, Ms Withers had not been undertaking a review of his plan under s 100 and, second, Ms Withers had not refused to complete the review she had been undertaking (pursuant to s 48). Ms Withers’ statements in that regard are consistent with and support my earlier findings about those matters. Ms Withers also advised Mr Sayed that, as a s 100 review had not been undertaken by the NDIA, his application to the Tribunal may be rejected. Ms Withers also informed Mr Sayed that, while she was willing to continue with the review (which was a review initiated under s 48), Mr Sayed could submit a s 100 review request in respect of his participant’s plan.
82 Thus, within a few days of Mr Sayed filing his application with the Tribunal, the NDIA advised him that the Tribunal may reject his application because a review under s 100 had not been conducted, but the NDIA was willing to conduct a s 100 review if he requested that. It is unfortunate that Mr Sayed did not accept the guidance given to him by Ms Withers in her email. The email was sent on 11 July 2022, which was about 6 weeks after Mr Sayed received his first NDIA plan. If Mr Sayed had accepted that guidance, he could have requested a s 100 review of the decision to approve the statement of participant supports in his plan, and a review decision would have been made under s 100(6). If that occurred and Mr Sayed remained dissatisfied with the review decision, he could have proceeded to the Tribunal. That course would have enabled him to obtain a Tribunal decision with respect to his plan far more expeditiously. Instead, Mr Sayed refused to accept the guidance provided by the NDIA. As set out below, in a recurring pattern, Mr Sayed has refused to accept guidance provided by the NDIA, the Tribunal or the Court which would have obviated this lengthy and wasteful proceeding.
83 On 12 July 2022, Mr Sayed replied to Ms Withers’ email. In the email, Mr Sayed stated that he had applied to the Tribunal to review Ms Withers’ failure to proceed with an internal review of the participant supports in Mr Sayed’s plan. The email again contained strong criticisms of the NDIA. Reading the email as a whole, Mr Sayed communicated that:
(a) he considered that Ms Withers’ refusal to proceed with a review of the participant supports in his plan entitled Mr Sayed to seek a review in the Tribunal of the participant supports, and Mr Sayed intended to continue with his application; and
(b) if Ms Withers proceeded with a review and the outcome was satisfactory to Mr Sayed, he would discontinue his application in the Tribunal.
84 On 13 July 2022, a phone meeting occurred between Mr Sayed and his support advocate, Ms Emmerson, and Ms Withers and Kate Fox of the NDIA. In his witness statement, Mr Sayed deposed to a large portion of the phone meeting. During the phone call, Mr Sayed was argumentative and spoke for the majority of the time. The NDIA summarised the outcome of the phone meeting in a note which I consider to be a fair summary (having regard to Mr Sayed’s evidence). The notes of that meeting record the following (errors in original):
Kate opened the phone call by explained to Mr Sayed that the purpose of this call was to progress his plan approval.
Mr Sayed spoke about his interactions with the NDIA thus far and his concerns about his plan. Mr Sayed expressed that he felt he needed to apply to be heard at the AAT to get the plan he needs.
Kate discussed with Mr Sayed that at this point in time a plan can be approved for him and he did not need to go through the AAT.
Mr Sayed and Kate discussed what “statement of supports” meant. Kate explained the planning meeting process and how a plan is approved. Mr Sayed requested this be provided in writing following the meeting. Kate agreed.
Kate confirmed at the end of the phone call that his plan would be progressed for approval based on the meeting he undertook with Lee as well as information and evidence he has already provided. Kate confirmed that Mr Sayed would be contacted again by both Lee and Kate once the plan was approved.
85 Ms Emmerson’s notes of the meeting are to similar effect. Relevantly, at the meeting Mr Sayed was asked whether he wanted Ms Withers and Ms Fox to continue with the review of his plan, and Mr Sayed answered in the affirmative.
86 Later that day, Ms Fox sent an email to Mr Sayed which contained the following statements:
Thank you again for your time this morning to discuss your concerns.
Following our phone call, I can confirm that Lee will progress with the approval of your NDIS plan. Lee will build the plan taking into consideration all of the information and evidence you have submitted to date. This is a priority and we aim to have the plan approved within the next 2 weeks. You also requested that I provide the process of participant involvement in including statement of supports.
Through a planning meeting with a NDIS planner, the participant is encouraged to provide information on their disability related needs including supporting evidence, also known as statement of supports. The participant is also asked to develop a participant statement and goals to include in the plan.
Following this meeting, the NDIS planner develops a plan by using the following information:
• Information and evidence provided by the participant;
• Evidence submitted by the participant’s formal supports;
The NDIS planner assesses this information against our legislation to provide funding for disability supports, which is also known as a NDIS plan. Following the plan approval, the NDIS planner contacts the participant to explain what supports have been funded within the NDIS plan.
If the participant disagrees with the funding provided within the plan, they can ask for an internal review, also known as a Section 100 review. This review is undertaken by an internal team. If after this process the participant still disagrees with the NDIS plan, the participant can appeal the plan through the AAT.
87 Again, by this email, the NDIA explained to Mr Sayed that Ms Withers was reviewing the whole of his plan and the aim was to have a new plan approved within 2 weeks. If Mr Sayed disagreed with the funding and supports provided within the new plan, he could request an internal review under s 100.
88 At this point, Mr Sayed could have been in no doubt about two matters. First, the review being undertaken by the NDIA was under s 48. That is clear from the advice given by Ms Fox in her email that, if Mr Sayed was dissatisfied with the new plan prepared by the NDIA, he could seek a review of the plan under s 100. Second, the NDIA had not refused to complete the review of his plan. The review was ongoing and would be completed in a short space of time. Notwithstanding that those points were clearly communicated to Mr Sayed, he persisted with his application in the Tribunal seeking to review an alleged decision by the NDIA to refuse to undertake a review of his plan.
89 On 14 July 2022, the Tribunal Registry sent a letter to Mr Sayed which relevantly stated as follows:
We have received your application for review of a decision made [sic] National Disability Insurance Agency (the respondent).
Can we review this decision?
A NDIA decision needs to be internally reviewed under section 100 by the National Disability Insurance Agency before the Tribunal can look at it. It is not clear to us that this has happened.
If National Disability Insurance Agency has not internally reviewed your decision under section 100, you should ask them to review it. If they have reviewed it, please send us a copy of the s100 internal review decision.
What happens next?
Please email a copy of the s100 internal review decision within 14 days.
If you cannot show that we can review the decision, we can dismiss your application. This means we will not review it.
We might hold a hearing to decide if we can review your decision. If we hold a hearing, we will let you know the date and time and where it will be. You can represent yourself at the hearing or arrange for someone else to represent you.
90 On the same day, the Tribunal Registry sent an email to the NDIA asking it to check its records and advise the Tribunal if a s 100 internal review decision had been finalised for Mr Sayed.
91 Later that day, Mr Sayed replied to the Tribunal Registry stating, relevantly, that he took the view that Ms Withers’ email of 6 July 2022 “amounted to an agency decision in response to my request, on 29 June, for an internal review of my existing NDIS plan”. Although not stated expressly, I understand Mr Sayed’s email to contain a contention that Ms Withers’ email of 6 July 2022 recorded an internal review decision by the NDIA made under s 100(6) which, in effect, was to confirm Mr Sayed’s existing plan (being the reviewable decision).
92 For the reasons given above, I find that Mr Sayed’s contention is a mischaracterisation of Ms Withers’ email and involves a change in position by Mr Sayed. By his email of 6 July 2022, Mr Sayed had stated that he would take Ms Withers’ email as “notice of a decision under section 100(1) of the Act”. In other words, Mr Sayed recognised at that time that, to the extent that Ms Withers’ email involved a decision, it could only have been a decision not to reassess his plan under s 48 (as per item 6 of s 99, or item 6C following the amendment of s 99). Further, as acknowledged in his application for review to the Tribunal, Mr Sayed had acquiesced in the NDIA conducting an “agency initiated review”.
93 On 15 July 2022, the NDIA sent an email to the Tribunal Registry advising that a formal request for an internal review under s 100 had not been submitted by Mr Sayed in response to the original decision (the approval of his plan dated 8 June 2022).
94 On 18 July 2022, the Tribunal Registry sent an email to Mr Sayed informing him of the response received from the NDIA (that Mr Sayed had not requested an internal review under s 100) and asking whether he wished to withdraw his application to the Tribunal. Later that day, Mr Sayed replied to the Tribunal Registry and conveyed that he would not withdraw his application to the Tribunal.
95 On 19 July 2022, the Tribunal Registry sent a further email to Mr Sayed, noting that the NDIA had advised the Tribunal on 15 July 2022 that Mr Sayed had not requested an internal review under s 100, and asking whether Mr Sayed had a made a request for an internal review under s 100 since that date. Later that day, Mr Sayed replied by email. The reply is combative in tone and contains strong criticisms of the Tribunal Registry employee that had been communicating with Mr Sayed. The criticisms made by Mr Sayed were wholly unjustified. Relevantly, Mr Sayed communicated that he would not withdraw his application to the Tribunal.
96 On 27 July 2022, Ms Withers sent an email to Mr Sayed advising that a new participant plan was currently with the CEO’s delegate for approval and a decision was expected in a few days. Ms Withers proposed a further meeting once Mr Sayed had received the new plan. The following day, on 28 July 2024, Mr Sayed replied by email, asking whether the delegate was aware that Mr Sayed had “elected to fully self-manage” his plan. On 29 July 2022, Ms Withers replied by email confirming that Mr Sayed’s request had been put to the delegate.
97 On 29 July 2022, the NDIA sent a letter to Mr Sayed enclosing a second participant’s plan which commenced on that date. The letter confirmed that the second plan had been prepared following the conduct of a review of Mr Sayed’s first plan under s 48 of the NDIS Act. The letter advised Mr Sayed that the NDIA had decided not to approve Mr Sayed’s request to self-manage the plan funding. The conclusion of the letter contained the following information concerning internal review:
How to request a review of this decision
If you disagree with this decision, you can request an internal review of a decision within three months of receiving this notice.
When asking for an internal review you should explain why you think the decision made is incorrect. The staff member who works on the internal review won’t have been involved in the earlier decision. They may want to talk to you as part of this process.
…
If you request an internal review and are not happy with the decision the Agency makes at that time, you can apply for an external review by the Administrative Appeals Tribunal (AAT).
The NDIS website (ndis.gov.au) provides more information about requesting a review. Search for “Operational Guidelines” and click on the link to "Review of Decisions" to read more.
98 On 1 August 2022, Ms Withers sent an email to Mr Sayed explaining the contents of the second participant plan and asking Mr Sayed to contact her if he wanted to discuss the new plan.
99 On 2 August 2022, Mr Sayed replied to Ms Withers indicating that he was unhappy with the new plan and stating that he was submitting a “formal complaint in response to the decision”. It is unclear what Mr Sayed meant by submitting a formal complaint. The complaint does not appear to be a request for an internal review under s 100.
100 On 5 August 2022, Ms Withers replied to Mr Sayed offering to meet with him to answer any questions he may have. The email continued:
If, after we have had that chat, you are still dissatisfied with your NDIS Plan then we can submit a request for a Section 100 Internal Review for you, where a new Delegate will review your plan.
101 On 8 August 2022, Mr Sayed replied to Ms Withers asking whether his complaint had been given to the NDIA branch manager. The email otherwise expressed his dissatisfaction with the NDIA, which is unnecessary to reproduce. Mr Sayed did not make a request for a review of the second participant’s plan under s 100 of the NDIS Act.
Hearing and decision of the Tribunal
102 On 25 July 2022, the Tribunal Registry sent a notification to Mr Sayed that an interlocutory hearing would be conducted by phone on 11 August 2022 to determine whether the Tribunal had jurisdiction to conduct the review.
103 On 9 August 2022, Mr Sayed sent to the Tribunal a bundle of documents he proposed to rely on at the hearing, and stated in an email that he would “rely on oral submissions along with the material provided below”. The documents comprised more than 200 pages, largely traversing Mr Sayed’s correspondence with the NDIA from 17 March 2022 (when Mr Sayed was initially informed that he was not eligible for the NDIS).
104 On 10 August 2022, Mr Sayed sent to the Tribunal a further email in the nature of submissions, together with a further bundle of documents comprising about 80 pages.
105 On 10 August 2022, the NDIA filed a short submission with the Tribunal, contending that the Tribunal did not have jurisdiction to conduct the review because Mr Sayed had not requested a s 100 review of his plan and no such review had been conducted. The NDIA also provided to the Tribunal its “interaction records”, being a record of all interactions between the NDIA and Mr Sayed, as well as his first and second participant’s plans.
106 The Tribunal conducted a hearing by phone on 11 August 2022. In support of his grounds of review relating to procedural fairness, Mr Sayed tendered a copy of the transcript of the hearing as well as an audio recording of the hearing. For reasons explained below, it is unnecessary for the Court to determine Mr Sayed’s procedural fairness grounds of review. However, I record that I have listened to the audio recording of the hearing while reading the transcript. I consider that the Tribunal member conducted the hearing with patience. The Tribunal member provided Mr Sayed with a reasonable opportunity to present evidence that showed that a decision had been made under s 100 which enlivened the Tribunal’s jurisdiction. Mr Sayed was unable to persuade the Tribunal member that such a decision had been made.
107 On 11 August 2022, the Tribunal dismissed Mr Sayed’s application for review pursuant to s 42A(4) of the AAT Act. The Tribunal concluded that the decision which was the subject of Mr Sayed’s application was not a decision that was reviewable by the Tribunal. In its reasons published on 18 August 2022, the Tribunal found (at [10]) that Mr Sayed had not lodged with the Tribunal a reviewable decision made pursuant to s 100(6) of the NDIS Act at the time he purported to make his application, as required by s 103 of the NDIS Act, to ground the Tribunal’s jurisdiction to review such a decision. The Tribunal relevantly also found:
11. The evidence elicited before the Tribunal confirmed that the Applicant requested the Agency to review the SOPS, which resulted in a review being conducted pursuant to section 48 of the NDIS Act. The Applicant and his support co-ordinator participated in that process. This process resulted in the formation of the Applicant’s current SOPS dated 29 July 2022.
12. The review of the SOPS dated 8 June 2022 was not conducted pursuant to section 100(6) of the NDIS Act. Furthermore, there has been no review of the SOPS dated 29 July 2022 pursuant to section 100(6) of the NDIS Act. As such, the Tribunal does not have jurisdiction to review the application pursuant to section 103 of the NDIS Act.
The jurisdictional question
108 Relevantly, the Tribunal’s power to review administrative decisions is conferred by s 25(1) of the AAT Act which provides as follows:
An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
109 Section 103 of the NDIS Act is an enactment that provides that applications may be made to the Tribunal. At all relevant times, it stated as follows:
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
110 The question that must be determined is whether the Tribunal erred in concluding that the decision which was the subject of Mr Sayed’s application for review was not a decision made by a reviewer under subs 100(6), and therefore was not a decision that was reviewable by the Tribunal.
111 As noted earlier, although appeals to this Court under s 44(1) of the AAT Act are confined to questions of law (and applications for judicial review under s 39B of the Judiciary Act must also be based on legal or jurisdictional error), where a question is raised concerning the existence of jurisdictional facts, the Court is required to determine that question as a matter of fact. In the present case it is necessary for the Court to determine whether the Tribunal was correct, both in fact and in law, to conclude that the decision which was the subject of Mr Sayed’s application for review was not a decision made under s 100(6) of the NDIS Act.
112 Having regard to the factual findings made above, it is clear in my view that the alleged decision which was the subject of Mr Sayed’s application for review to the Tribunal was not a decision made under s 100(6) of the NDIS Act. Indeed, it was not a decision under the NDIS Act at all. As found earlier in these reasons, Ms Withers’ email of 6 July 2022 did not convey that Ms Withers had made a decision to refuse to complete the review she was then undertaking. A fair reading of the email is that Ms Withers sought to convey to Mr Sayed that the review was not urgent because Ms Withers could take immediate steps to provide some supports requested by Mr Sayed as his existing plan contained funding that would enable those steps to be taken. That conclusion is confirmed by subsequent correspondence.
113 It follows that Mr Sayed’s challenge to the Tribunal’s decision fails at the first hurdle. The purported decision that was the subject of Mr Sayed’s application for review was not a decision at all. Mr Sayed’s application to the Tribunal was based on a mischaracterisation of Ms Withers’ email.
114 Even if Ms Withers’ email could be characterised as a decision not to proceed with the review she had been undertaking, Mr Sayed’s challenge to the Tribunal’s decision fails for a second reason. Any such decision made by Ms Withers could only have been a decision made in the purported exercise of power under s 48. As such, the Tribunal did not have jurisdiction to review that decision.
115 During the course of the hearing, Mr Sayed appeared to accept that the review that had been conducted by Ms Withers was a review under s 48. Mr Sayed submitted that a decision not to continue with a review of a participant’s plan under s 48 can also be characterised as a decision made under s 100(6)(a) confirming the original decision made under s 33(2) to approve the statement of participant supports in a participant’s plan. So characterised, the decision would enliven the Tribunal’s jurisdiction under s 103 to review the decision. In support of that submission, Mr Sayed relied on the decision of the Full Court in Brian Lawlor, as well as a number of decisions of the Tribunal in which the Tribunal characterised a decision of the NDIA as being a decision under s 100(6)(a). The decisions relied on by Mr Sayed do not provide any support for his submission having regard to the facts and circumstances of this case.
116 As noted earlier, the jurisdiction of the Tribunal to review administrative decisions is conferred by s 25(1) of the AAT Act. Relevantly, that section provides that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. In Brian Lawlor, a majority of the Full Court (Bowen CJ and Smithers J) determined that, where an enactment stipulates that an application may be made to the Tribunal for review of a decision made in the exercise of a power conferred by that enactment, the jurisdiction conferred on the Tribunal by s 25 of the AAT Act extends to the review of a decision purportedly made in the exercise of that power, even if the exercise of power was legally ineffective. As explained by Bowen CJ, the reference to a purported exercise of power is intended to include the notion that the decision maker may be making the decision on the basis that they are exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred (at p 4). His Honour stated his conclusion as follows (at p 7):
… in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.
117 The principle stated in Brian Lawlor has no application to the present case. At all relevant times, s 103 of the NDIS Act provided that applications may be made to the Tribunal for review of decisions made under s 100(6) of the NDIS Act. That is the only type of decision made under the NDIS Act that is reviewable by the Tribunal. As noted already, even if Ms Withers’ email of 6 July 2022 could be characterised as a decision not to proceed with the review she had been undertaking, any such decision made by Ms Withers could only have been a decision made in the purported exercise of power under s 48. At no time was Ms Withers purporting to make a decision or exercise power under s 100(6).
118 Mr Sayed also relied on a number of decisions of the Tribunal in which the Tribunal concluded that it had jurisdiction to review a decision of the NDIA under s 103 of the NDIS Act on the basis that the decision in question could be characterised as an exercise of power under s 100(6)(a) (confirming the reviewable decision). The decisions of the Tribunal do not establish any binding precedent for this Court and, of course, each of the decisions turned on its own facts. Nevertheless, for completeness, some reference should be made to the decisions.
119 The decision of the Tribunal in ZKTN v National Disability Insurance Agency [2017] AATA 744 (ZKTN) is illustrative. The NDIA approved the participant’s plan under s 33(2) on about 31 May 2016. The participant made a request for a review of the plan on 29 August 2016. The CEO’s delegate made a decision on 15 September 2016 expressed as follows (at [5]):
The decision has been made to confirm the original decision. As a result the NDIA will not review of [sic] the plan under section 48 of the NDIS Act and the current approved statement of participant supports has been found reasonable and appropriate and no revision will be made.
120 In ZKTN, the NDIA submitted that it treated the participant’s request for a review as a request under s 48(1), and the CEO made a decision under s 48(2) not to conduct the review (at [14]). On that basis, the NDIA argued that the Tribunal did not have jurisdiction to review the CEO’s decision (with the effect that the participant must first seek an internal review of the CEO’s decision under s 100). Deputy President McDermott concluded that the NDIA had made two decisions: one under s 48(2) and the other under s 100(6)(a). The Deputy President stated:
22 … A fair reading of the decision made by the delegate of the respondent reveals that the decision has a two-fold aspect. The respondent is correct that the decision-maker has decided under section 48 of the Act not to review the participant’s plan. This is apparent from the use of the words “will not review” in the decision. However, as contended by the applicant, the decision-maker has also in my view made a decision to approve the statement of participant supports in the participant’s plan and not to make any changes to it.
23 The language of the decision, in its plain and ordinary meaning, should be construed to be a decision to approve the statement of participant supports in a participant’s plan. In stating that “the current approved statement of participant supports has been found reasonable and appropriate and no revision will be made”, the decision-maker has made a decision to confirm the decision made under section 33(2) of the Act to approve the statement of participant supports in a participant’s plan.
…
25 The wording of the decision in stating that “the current approved statement of participant supports has been found reasonable” can on a fair reading be regarded as a decision to again approve the statement of participant supports in a participant’s plan. The use by the delegate of the words “found reasonable” in the decision can be regarded as synonymous with the word “confirming” as it is used in section 100(6)(a) of the Act. In using the words “found reasonable” the delegate has effectively approved or confirmed the original decision: the word “approve” has been defined to include “confirm”.
121 The following decisions of the Tribunal reached the same conclusion on broadly similar facts: BSLR v National Disability Insurance Agency [2018] AATA 1282; LQTF v National Disability Insurance Agency [2019] AATA 631; QMCT v National Disability Insurance Agency [2019] AATA 6111; Farrall v National Disability Insurance Agency [2020] AATA 5077; and Austin v National Disability Insurance Agency [2022] AATA 16. In each of those decisions, the Tribunal engaged in a process of characterisation of the NDIA’s decision to determine whether the NDIA had in fact made a decision under s 100(6) so as to engage the Tribunal’s jurisdiction. In some of those matters, the NDIA joined with the participant in submitting to the Tribunal that the decision was both a decision under s 48(2) not to undertake a review under s 48 and also a decision under s 100(6)(a) confirming the statement of participant’s supports in the participant’s plan. In others, the NDIA maintained that no decision had been made under s 100(6). It is not necessary for me to consider whether the Tribunal’s decision in each of those cases was justified on the facts and circumstances before the Tribunal. For present purposes, I accept that in some circumstances a decision made by the NDIA may have two aspects and involve the exercise of two statutory powers, being ss 48(2) and 100(6)(a). Whether it does so involves the proper characterisation of the decision, and will depend upon an examination of the decision that was made and all of the surrounding circumstances. To the extent that some of the above decisions suggest that the Tribunal is entitled to characterise a decision of the NDIA as one made under s 100(6) because to do so would be beneficial to a participant and afford them with a right of review in the Tribunal, such reasoning would not involve a proper exercise in characterisation of the decision that was made.
122 In some of the above matters, the Tribunal took into account the fact that the participant had seemingly requested an internal review of the statement of participant’s supports in the participant’s plan pursuant to s 100(2), but the NDIA had treated the request as a request for review under s 48. The fact that the participant had sought internal review of the statement of participant’s supports under s 100(2) was a relevant factor in the above decisions, but was never a determinative factor. Ultimately, the Tribunal was required in each case to characterise the decision made by the NDIA.
123 Mr Sayed submitted that the circumstances in his case are equivalent to the circumstances in ZKTN and the other decisions referred to above. In that regard, Mr Sayed argued that he had requested an internal review of the statement of participant’s supports in his plan pursuant to s 100(2), but the NDIA had treated his request as a request for review under s 48. Mr Sayed argued that he made that request in the phone meeting that occurred on 29 June 2022. In support of that argument, Mr Sayed relied on the fact that, during the Tribunal hearing on 11 August 2022, the Tribunal made statements that appeared to accept Mr Sayed’s submission that he had requested an internal review of the statement of participant’s supports in his plan pursuant to s 100(2). In its reasons for decision, the Tribunal stated (at [11]) that the “evidence elicited before the Tribunal confirmed that the Applicant requested the Agency to review the SOPS [statement of participant supports]”. Mr Sayed’s contention appeared to be that the Court is bound by those statements and the finding of the Tribunal.
124 In the present application, the Court is not bound by any finding of fact made by the Tribunal. The present application involves a challenge to the Tribunal’s conclusion that it did not have jurisdiction to hear Mr Sayed’s application for review. It is necessary for the Court to determine whether the Tribunal was correct to conclude that it did not have jurisdiction. As the Tribunal’s jurisdiction is conditional upon the existence of particular facts (whether the NDIA had made a decision under s 100(6)), the Court is required to determine all relevant questions of fact for itself.
125 For the reasons given earlier, I find that Mr Sayed did not request an internal review of the statement of participant’s supports in his plan pursuant to s 100(2) during the phone meeting on 29 June 2022. During that phone meeting, Ms Withers proposed conducting a review of Mr Sayed’s whole plan. On the same day, Ms Withers confirmed by email that she had decided to conduct an “Agency Initiated Plan Review”, which can only be a reference to a review under s 48. Consistently with the conduct of a s 48 review, on 5 July 2022 Mr Sayed submitted to Ms Withers an updated statement of participant’s goals and aspirations. Further, in his application to the Tribunal, Mr Sayed acknowledged that he had agreed to Ms Withers conducting an “agency-initiated review”.
126 Even if Mr Sayed had requested an internal review of the statement of participant’s supports in his plan pursuant to s 100(2), there are other reasons why the circumstances in his case are entirely different to the circumstances in ZKTN and the other decisions referred to above. First, in Mr Sayed’s case, the NDIA did not make a decision under s 48(2) not to undertake a review. The NDIA conducted a review under s 48(4). Second, the NDIA did not make a decision to confirm Mr Sayed’s first participant plan. The NDIA replaced his first participant’s plan with a new plan. Taking into account the decision that was made and all of the surrounding circumstances, it is not possible to characterise any aspect of the NDIA’s decision as a decision made under s 100(6).
127 For the above reasons, I find that the Tribunal was correct to conclude that it did not have jurisdiction to hear and determine Mr Sayed’s application for review.
128 For completeness, I record that Mr Sayed also placed reliance on NNXF v National Disability Insurance Agency [2019] AATA 5552 (NNXF), in which the Tribunal was constituted by Thomaas J, Deputy President S A Forgie and Deputy President Britten-Jones. Neither the Tribunal’s conclusion nor its reasons in that case have any relevance to the present matter. In that case, the participant had requested an internal review of the CEO’s decision approving the statement of participant supports under s 100, but the NDIA had failed to undertake that review for some 6 months. The issue for determination was stated by the Tribunal as follows (at [1]):
The question that has been posed is whether, in circumstances where the National Disability Insurance Agency (“the respondent”) has failed to make a reviewable decision within a reasonably practicable period of time, a reviewable decision may be deemed to have been made so that the Tribunal’s jurisdiction is enlivened.
129 The question so raised involved the interpretation of s 25(5) of the AAT Act. In broad terms, s 25(5) stipulates that, where a person has failed to do an act or thing within the period prescribed by the enactment, the failure will be deemed to constitute the making of a decision not to do that act or thing. The Tribunal concluded that, in the circumstances of that case, s 25(5) operated such that the NDIA was deemed to have made a decision under s 100(6) to confirm the original decision of the CEO approving the statement of participant supports (at [136]).
130 The circumstances in NNXF bear no relationship to the circumstances in the present case, and the decision does not assist Mr Sayed. Mr Sayed also referred to a number of other decisions of the Tribunal and the Court. None of them are of relevance and they need not be referred to.
Procedural fairness
131 The NDIA submitted that, if the Court determines that the Tribunal was correct to conclude that it did not have jurisdiction to hear and determine Mr Sayed’s application, it is unnecessary for the Court to determine Mr Sayed’s allegation that the Tribunal denied him procedural fairness. In support of that submission, the NDIA referred to the decisions of this Court in Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559 at [29], SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271 at [46], and SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [39].
132 I accept the NDIA’s submission. Even if the Tribunal failed to afford Mr Sayed procedural fairness, that failure cannot alter the conclusion reached by this Court on the question of jurisdiction. There would be no utility in requiring the Tribunal to provide Mr Sayed with a further hearing in circumstances where the Court has conclusively determined that the Tribunal did not have jurisdiction to entertain Mr Sayed’s application for review.
Costs of the application
133 Mr Sayed accepted that if he was unsuccessful on his application to this Court, the usual order as to costs should be made. I have no hesitation in ordering that Mr Sayed pay the costs of the NDIA of this proceeding. As stated earlier, Mr Sayed’s conduct of this proceeding has caused a substantial amount of unnecessary costs. A question might have arisen whether Mr Sayed should be ordered to pay a greater portion of the NDIA’s costs than on a party and party basis. However, the NDIA did not seek any exceptional order for costs. I will therefore make a standard order for costs.
134 Mr Sayed applied at the hearing for a stay of any order for costs made against him pending his consideration of an appeal and, if he filed an appeal, the determination of the appeal. Mr Sayed submitted (in effect) that payment of the NDIA’s costs of the proceeding would occasion him hardship, which hardship would be suffered even if he were successful on an appeal and the payment of costs refunded to him. I consider that this is an appropriate case in which to order a stay of the order for costs until the later of the end of the period in which an appeal against these orders may be filed and, if an appeal against these orders is filed by Mr Sayed, the date of determination of the appeal.
Concluding remark
135 This proceeding has required me to read each of the interactions that occurred between Mr Sayed and various staff of the NDIA between 9 June and 8 August 2022. As stated above, in many of those interactions Mr Sayed adopted an argumentative and combative tone, frequently criticising the NDIA. I consider it appropriate to record that, in all of their interactions with Mr Sayed, the NDIA staff adopted a conciliatory tone and displayed exemplary patience with Mr Sayed’s complaints. In determining this application, it has not been necessary to address the myriad grounds of review raised by Mr Sayed which accuse the NDIA of misleading conduct, maladministration, and malfeasance in public office. It is sufficient to record that the evidence filed on this application provides no basis whatsoever for those accusations. They should never have been made.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. |
Associate:
