Federal Court of Australia

Andrews v National Disability Insurance Agency [2025] FCA 272

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the applicant on 26 November 2024 be dismissed.

2.    The decisions of the second respondent of 9 June 2022 and 20 December 2022 be quashed.

3.    The amended originating application otherwise be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

4.    The applicant pay 50 percent of the first respondent's costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

KENNETT J:

Background

1    The applicant (Mr Andrews) applied to the (then) Administrative Appeals Tribunal (the Tribunal) on 8 October 2020 for review of certain conduct by the first respondent (the NDIA). The Tribunal made orders on 28 September 2021 directing, among other things, that Mr Andrews attend appointments with certain medical specialists for the purpose of independent assessments.

2    It appears from the reasons for a subsequent decision, made on 9 June 2022, that Mr Andrews refused to attend those appointments. The Tribunal made orders on that date granting the NDIA’s application for a stay of the review and directing that the proceedings not be relisted unless Mr Andrews voluntarily attended appointments with the relevant specialists. Mr Andrews applied to the Tribunal to have those orders set aside. On 20 December 2022 the Tribunal declined to do so. (I will refer to these decisions together as the Tribunal decisions.)

3    Mr Andrews filed a Notice of Appeal from a Tribunal in this Court on 25 January 2023. Because of delays in serving documents on the NDIA, the proceeding did not make any progress for some months.

4    On 6 December 2023 Mr Andrews was granted leave to file an amended originating document. On 29 January 2024 he filed an originating application and statement of claim.

5    The respondents named in the originating application are the NDIA and the Tribunal. The originating application seeks an “injunction”, restraining the Tribunal from staying his proceeding before it, and exemplary damages.

6    The statement of claim is in the following terms.

Parties

1.    The Applicant (Andrews) is and was at relevant times;

a)     A person eligible to become a participant in the National Disability Insurance Scheme (NDIS).

b)     A person with severe physical disabilities that requires extensive care and funding by the National Disability Insurance Agency under the NDIS Act.

2.    The First Respondent is and was at relevant times;

a)     A commonwealth government department able to be sued.

b)     The NDIA has repeatedly delayed proceedings, made false representations, misled the tribunal and acted in contradiction to the model litigant policy for government departments and agencies.

3.    The second Respondent is and was at relevant times;

a)     A commonwealth department able to be sued

b)     Member Thompson is employed by the Second Respondent, sworn under oath and is vicariously liable in relation to his conduct as member of the tribunal.

c)     Member Thompson failed to read, interpret and apply the law in respect of the Administrative Appeals Tribunal Act, The NDIS Act.

d)     Member Thompson also failed to apply a precedent decision of a superior court of record on application by the Applicant in relation to a tribunal not having the power to stay proceedings, namely the Supreme Court of South Australia.

e)     Member Thompson acted with malice and an intention to cause harm and detriment to the Applicant by failing to supress the Applicants name from publication due fears of a sibling that was previously found to have committed elder abuse resulting in the death of the Applicants mother and the same threat made towards the Applicant if he ever found where the Applicant lives.

As at the date of the filing of this pleading, proceedings SH2020/6194 in the Administrative Appeals Tribunal remains “stayed” without the power to do so.

Damages

By reason of the Administrative Appeals Tribunal staying proceedings without the power to do so, the Applicant, Andrews has been gravely injured over the past six years in his health, character, reputation, and has suffered substantial hurt, distress, embarrassment and lost opportunity in social advancement, employment opportunities and has and will continue to suffer loss and damage due to declining health caused by the delay in essential care, funding and services the Applicant is rightfully eligible to receive from the NDIA under the NDIS Act.

The Applicant seeks damages whether ordinarily or in the alternative as exemplary damages in restitution to provide care, allied health, assistive technology and disability modifications to a level to bring the Applicant back to a reasonable state of health, social inclusion and advancement and financial standing as of 2017 when the original application to become a participant in the NDIS was made.

7    After a further case management hearing, on 25 July 2024 the solicitors for the NDIA wrote to Mr Andrews seeking particulars of his claims. The request sought to identify the acts and omissions complained of in the statement of claim and the basis upon which an entitlement to damages was alleged. Relevantly, it was as follows.

As to paragraph 1 of the ASOC

1.    On what basis do you say you were "eligible" to become a participant in the NDIS?

2.     What are the severe physical disabilities that require extensive care and funding by the NDIS?

As to paragraph 2(b) of the ASOC

3.     What "proceedings" are you referring to?

4.     What are the periods of delay you refer to?

5.     How did the Agency cause delay?

6.     Please provide full particulars of how you allege the Agency made false representations, including:

a.     When was each representation made?

b.     Who made it?

c.     What was the content of each representation?

d.     To whom was the representation made?

e.     How was the representation false?

f.     Who was misled?

g.     How was the Tribunal misled?

7.     What did the Agency do in breach of the Model Litigant policy?

8.     What loss, if any, was suffered as a result of the alleged delay, false representations and breach of the Model Litigant policy?

9.     What remedies do you seek based on the alleged delay, false representations and breach of the Model Litigant policy?

As to paragraph 3 of the ASOC

10.     On what basis do you allege malice on the part of Member Thompson?

As to the paragraph entitled "Damages" in the ASOC

11.     On what legal basis do you say that the Agency has to pay you damages? In other words, what is the cause of action you rely on to claim damages?

12.     Having identified the cause of action or causes of action you rely on, by reference to the element(s), why is each element of your action made out?

13.     Please provide particulars of any damages which you say the Agency is liable for, including:

a.     Whether you are claiming any personal injury damages and what they are.

b.     What injuries to health, character or reputation have you suffered.

c.     What employment opportunities have you lost.

d.     The basis on which you say an award of exemplary damages should be made against the Agency.

8    An order of the Court required Mr Andrews to respond to this request by 30 August 2024. By a letter of that date (but sent by email to the NDIA’s solicitors two days after) he replied, in relation to all questions, “Nil answers”.

9    On 4 November 2024 the NDIA filed an interlocutory application (the NDIA application) seeking:

(a)    summary judgment against Mr Andrews under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) or r 26.01(1) of the Federal Court Rules 2011 (Cth) (the Rules); and

(b)    additionally or alternatively, that the statement of claim be struck out in whole or in part on the grounds that it is evasive or ambiguous, likely to cause prejudice, embarrassment or delay, and/or fails to disclose a reasonable cause of action.

10    On 5 November 2024 there was a further case management hearing. Mr Andrews, who usually appears via Teams or telephone, was not in attendance. The solicitor for the NDIA handed up proposed orders that included final orders, setting aside the decisions of the Tribunal referred to above (on the basis of an acceptance that the Tribunal lacked power to make those orders), and timetabling orders in relation to the NDIA application. I did not consider it appropriate to make final orders in Mr Andrews’ absence and without knowing whether he was aware of the proposed orders. However, I made the proposed timetabling orders.

11    On 19 November 2024, in attempted compliance with the timetabling orders made on 5 November, the NDIA’s solicitors filed a court book. They attempted to serve it by email on Mr Andrews on 19 and 20 November.

12    On 26 November 2024 Mr Andrews filed an interlocutory application (the Andrews application). He sought the following orders.

1. Respondent 1’s documents filed with the court 19 November 2024 (Application Book and Affidavit) be struck out as these documents have not been served on the Applicant.

2) Summary judgement against the Respondent 1 and Respondent 2.

3) An order giving judgment against the Respondents for the relief claimed in the statement of claim

4) An order giving judgment against the Respondents for damages to be assessed, or any other order of the court.

13    Both applications were listed before me on 21 February 2025.

14    For the purposes of the NDIA application, the NDIA relied on the contents of the court book filed on 19 November 2024. This comprised the pleadings and some correspondence between the NDIA’s solicitors and Mr Andrews, together with the record of proceedings in the Tribunal and some documents from the NDIA’s files in relation to its dealings with Mr Andrews. This material was supplemented by a solicitor’s affidavit affirmed on 19 November 2024 which annexed Mr Andrews’ response to the request for particulars (referred to above) and deposed that no further response had been received.

15    In response to the Andrews application, the NDIA relied on an affidavit of its solicitor (affirmed on 5 December 2024) recounting the attempts to serve material on Mr Andrews on 19 and 20 November.

16    Mr Andrews was ordered to file any evidence in response to the NDIA application on or before 10 December 2024 (later extended to 3 February 2025) and to file any evidence on his own application by 20 December 2024. He did not file any evidence; nor did he tender any evidence at the hearing on 21 February 2025.

17    An issue arose at that hearing concerning the court book. At a case management hearing on 6 December 2024, Mr Andrews had informed the Court that he was not able to open the version of the court book that had been emailed to him. The email in question contained a link to a url where the court book could be viewed and downloaded; however, he said that the link did not work. I made an order directing the NDIA to send the court book to Mr Andrews’ email address as a pdf document.

18    At the hearing on 21 February 2025 Mr Andrews again asserted that he had not seen the court book. After making inquiries, counsel for the NDIA tendered a copy of an email from her instructing solicitors to Mr Andrews, dated 23 December 2024, to which a pdf version of the court book was attached. Mr Andrews nevertheless insisted that he had not seen the document prior to this tender. Although I found it very surprising that, (having earlier complained about non-receipt of the court book) Mr Andrews had apparently proceeded without knowing what was in that court book and without mentioning this problem until his oral submissions at the hearing, I proceeded on the basis that what he was telling me was correct. The hearing was adjourned until 10 March 2025 to allow for any further submissions that might arise from Mr Andrews’ perusal of the court book.

19    No further oral submissions were made on 10 March 2025. At this hearing Mr Andrews sought to rely on an affidavit which he had affirmed on that day. However, the affidavit contained only broad conclusory statements to the same effect as points that he had made in submissions.

The NDIA application

20    It is preferable to deal with the NDIA application first, because it would not be appropriate to grant summary judgment on a claim that was liable to be summarily dismissed or struck out.

21    Mr Andrews’ statement of claim has been set out in full above. It is obvious that it completely fails to perform the basic functions of a pleading identified in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [4]:

the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case that they have to meet.

22    Lengthy discussion of this point would serve no useful purpose. It is clear, at least, that the statement of claim:

(a)    fails to identify the particular acts or omissions that are said to give rise to an entitlement to damages;

(b)    fails to identify any basis for the serious allegation that a member of the Tribunal acted with malice;

(c)    gives no indication of the cause or causes of action upon which the claim for damages relies; and

(d)    does not identify with any particularity the loss or damage said to have been suffered.

23    It is very doubtful that these fundamental failings could have been cured by the provision of particulars. Nevertheless, particulars were sought. None were provided. But for the points to be discussed next, therefore, I would strike out the whole of the statement of claim and grant leave for a further amended statement of claim to be filed.

24    The NDIA, however, presses for summary dismissal of the originating application in so far as it seeks damages. This is put on the basis that the prospects of success of Mr Andrews’ claim for damages, even if it were clearly and fully pleaded, would be remote or non-existent.

25    The following points are significant in this regard.

(a)    The originating application seeks “exemplary damages”, apparently as against both respondents.

(b)    Members of the Tribunal (which, since the commencement of these proceedings, has been reconstituted as the Administrative Review Tribunal) have the same protection and immunity as a Justice of the High Court (Administrative Review Tribunal Act 2024 (Cth), s 293(1)). The same was true of members of the Tribunal at the time of the events about which Mr Andrews complains (under the Administrative Appeals Tribunal Act 1975 (Cth), s 60). A convenient statement of the scope of that immunity appears in Gallo v Dawson (1988) 63 ALJR 121 at 122, where Wilson J adopted the following statement from Sirros v Moore [1975] 1 QB 118 at 132:

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden CJ in Garnett v Ferrand (1827) 6 B & C 611 at 625:

‘This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.’

(c)    In so far as Mr Andrews claims damages against the Tribunal, based on the conduct of or decisions by one of its members in the course of exercising the jurisdiction of the Tribunal, he therefore has no realistic prospect of success.

(d)    It appears from [2(b)] of the statement of claim that the claim against the NDIA is based on the way it has conducted the proceedings in the Tribunal. The claim therefore posits a duty (breach of which sounds in damages), imposed on a party to proceedings before the Tribunal and owed to an opposing party, in relation to the party’s conduct of its case. It seems highly unlikely that a party in a curial or quasi-curial proceeding could ever be found to owe a duty of care to the opposing party in relation to the conduct of the proceeding. No other source of duty has been proposed; indeed Mr Andrews declined to offer any explanation of the basis of his claims in response to the NDIA’s submissions.

(e)    The proceeding in the Tribunal was under its control; it had the capacity to determine whether either party was (for example) unduly delaying the proceeding and to make orders accordingly. Acceptance of a common law duty owed to another party and enforceable by damages in separate proceedings (and applicable, one assumes, to parties in courts and tribunals generally) would undermine the finality of litigation.

(f)    Relatedly, the NDIA was acting through external solicitors and counsel and in a proceeding controlled by the Tribunal. No claim is made against the relevant legal practitioners. But anything done in the proceeding for or on behalf of the NDIA was done by the practitioners; and such actions affected the interests of Mr Andrews only in so far as they caused the Tribunal to act or refrain from acting in particular ways.

26    Decisions on s 31A of the FCA Act have emphasised that, while the discretion that it confers must be exercised cautiously, it is not necessary that the impugned proceeding be hopeless or bound to fail (see, for example, Spencer v Commonwealth [2010] HCA 28; 241 CLR 118). In the present case I am firmly persuaded that the claim for damages against the Tribunal cannot succeed by reason of the statutory immunity from suit referred to above. Because the factual and legal bases for the claim against the NDIA have not been usefully explained, it might perhaps be contended that the prospect of success cannot be entirely ruled out. However, the problems outlined above are so substantial that those prospects must be regarded as remote at best. Meanwhile, Mr Andrews has so far refused even to attempt to explain the bases of the claim. Dismissal under s 31A is warranted.

The other aspect of the proceeding

27    As noted earlier, the NDIA has proposed orders which would deal with the remaining issues in the case by quashing the Tribunal decisions. The NDIA adhered to this position in its submissions on the NDIA application. Mr Andrews, despite resisting this order at earlier hearings, said on 21 February 2025 that he was happy for the Tribunal decisions to be set aside. Such an outcome achieves substantially the same effect as the injunction sought in his originating application.

28    The Tribunal decisions were purported exercises of statutory power, and the consent of the parties is not in itself sufficient to invalidate them (see the cases cited in AWX24 v Australian National University [2024] FCA 1075 at [20]). Before making orders quashing those decisions by consent, therefore, the Court must be satisfied that there is a reasonably arguable basis for those orders.

29    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24; 296 FCR 16, the Full Court held that the Tribunal did not have power to direct the respondent (who was the applicant in a review before it) to attend a psychiatric assessment. While the point did not arise directly, the Court also considered whether the Tribunal could have stayed the review on the basis that his refusal to attend the assessment would lead to injustice, and concluded that the proposition was “open to serious doubt” (at [88]). This indicates that, if the point were contested, Mr Andrews would have at least an arguable case that the decisions were beyond power.

30    There will therefore be an order by consent quashing the Tribunal decisions.

31    An order in the nature of mandamus is also proposed. However, in the absence of any reason to think that the Tribunal might refuse to perform its statutory duty to complete the review once its decision staying that review is quashed, there is not a proper basis for that order. An order in the nature of certiorari is sufficient for present purposes.

The Andrews application

32    My conclusion that Mr Andrews’ claim for damages is one that should be dismissed under s 31A is sufficient to dispose of Mr Andrews’ application for summary judgment in his favour. I would not have acceded to this application in any event.

33    Mr Andrews’ application was based on what he said were failures by the NDIA to comply with provisions of the Rules and orders made by the Court.

34    The first such failure was the NDIA’s failure to file a defence to the statement of claim within the time provided for by the Rules. No defence has yet been filed. As I have observed above, the statement of claim did not explain Mr Andrews’ claims in terms to which a defendant could be expected to plead. In these circumstances, had any point been taken earlier about the failure to file a defence, an extension of time would have been granted pending the filing of proper particulars. While it would clearly have been preferable for the NDIA to seek an extension, its failure to do so is not a matter that would warrant summary judgment.

35    The other matter to which Mr Andrews referred was what he said was the failure of the NDIA to serve on him the court book in relation to the NDIA application. Mr Andrews has not adduced any evidence on this issue, relying instead on his own statements from the bar table that he was not able to open the link sent to him (and did not receive the email sent on 23 December 2024). I would not be prepared to order summary judgment against a party for failure to comply with an order of the Court in the absence of any admissible evidence of that failure. In any event, failure to serve a court book within the time specified in an order (or attempted service in an irregular manner, which I understood Mr Andrews to allege in the alternative) is not sufficient to warrant summary judgment.

Disposition

36    The Andrews application will be dismissed.

37    I will make an order in the nature of certiorari quashing the Tribunal decisions. The amended originating application will otherwise be dismissed pursuant to s 31A.

38    The NDIA sought that the costs of its application be costs in the cause. Mr Andrews has achieved a substantial degree of success in the proceeding. However, this success has been achieved by consent and could have been obtained with considerably less effort than has been expended. The claim for damages had no proper foundation and the NDIA (and ultimately taxpayers) should not be expected to bear the costs of responding to it. I will order that Mr Andrews pay 50 percent of the NDIA’s costs, to be assessed if not agreed.

Associate:

Dated:    1 April 2025