Federal Court of Australia

Disability and Healthcare Support Pty Ltd v National Disability Insurance Agency [2025] FCA 465

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1.    A writ of mandamus issue directed to the respondent requiring it to determine the underdetermined claims captured in the below by 24 March 2025:

(a)    RTP0575;

(b)    RTP1203;

(c)    RTP1393;

(d)    RTP1739; and

(e)    RTP0805.

2.    A writ of mandamus issue directed to the respondent requiring it to make a decision in relation to RTP1882 by 24 March 2025.

3.    The originating application filed on 12 February 2025 and any remaining claims for relief otherwise be dismissed.

4.    The respondent pay the applicant’s costs fixed in the sum of $10,000.

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

REASONS FOR JUDGMENT

MEAGHER J

Introduction

1    On 11 February 2025 the applicant, Disability and Healthcare Support Pty Ltd (D and H Support) commenced proceedings under s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking review of the respondent’s failure to make a decision on the basis of unreasonable delay. The applicant sought an order directing the respondent, the National Disability Insurance Agency (NDIA), to make a decision under s 16(3)(a) of the Act in accordance with s 45 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The applicant also sought a writ of mandamus under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), directing the NDIA to make a decision under s 45 of the NDIS Act.

background

2    D and H Support provide supports to participants in the National Disability Insurance Scheme (NDIS). The supports are paid for by the NDIA. Up until 4 June 2024, the NDIA processed D and H Support’s claims for NDIA managed funds and D and H Support managed funds within two days. For externally managed funds, D and H Support invoiced the relevant external NDIS provider and obtained payment within four and fourteen days.

3    As a result of information gathered through a fraud investigation, the NDIA, on 4 June 2024, started manually reviewing payment claims made by D and H Support. D and H Support was advised that manual reviews had commenced on that same day. Thereafter the parties entered into correspondence about various of the payment claims. The correspondence included the NDIA seeking further information from D and H Support about their payment claims and in turn D and H Support seeking decisions in respect of the claims it had lodged.

4    Following the emergence of issues during the review process, D and H Support was referred to the National Quality and Safeguards Commission and is now being investigated.

5    As a result of the manual review process, the time taken for D and H Support to be paid increased and it claims to have lost business and to have been suffering financial harm as a result of the delays occasioned by the NDIA in making decisions regarding its payment claims.

6    The matter was set down before me as the duty judge to be heard urgently on 26 February 2025. On that day, the parties approached the Court indicating that they had come to an agreement in terms of the orders that might be made.

Consideration

7    It is clear that since manual review of the payment claims had commenced the time for processing claims had increased from that which had previously prevailed.

8    It is well established that even when orders are reached by consent, where they involve an exercise of judicial power, the Court must be satisfied that the orders are within the Court’s power and are ones which it is appropriate to make: De Souza v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1636 at [8]. See also Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129; [2001] FCA 459.

9    In De Souza, Justice Lee held at [8] that:

It is not necessary that the Court set out the grounds on which an order has been made on the consent of the parties if it is apparent that the Court has jurisdiction in the matter and that the proposed order is within power. It is sufficient that the Court be satisfied as to those matters and that it is appropriate that the order be made as requested by the parties.

(Citations omitted).

10    The conclusion in De Souza was reached on the basis that the parties had agreed upon, and presented, a minute of consent orders to the Court, which sought remittal and the writ of certiorari to quash the Tribunal’s decision: De Souza at [6]. Justice Lee found it was “arguable on the face of the proceeding that error on the part of the Tribunal had been disclosed” and that it was within the Court’s power to make the agreed upon orders: De Souza at [7].

11    It is also well established that there is a public interest in agreeing the outcomes of litigation: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79; [1999] FCA 18 at [1].

12    In their oral submissions, the NDIA submitted that the question in this case, namely whether there had been an unreasonable delay by the respondent in the making of decisions as to the payment of claims, is a fact dependent, contestable question, in respect of which there are multiple factors which might be relevant. To that end, the NDIA submitted, while the relevant factors which determined the reasonable time for making a decision in matters such as these included the governing statute, and the importance of the NDIS, the factors would largely be practical ones, such as the availability of information to the NDIA, including from the person or organisation claiming payments.

13    The NDIA referred the Court to Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892, a case which considered that a decision regarding a payment in the particular circumstances of that case could be made by the respondent in two weeks: at [131]. The NDIA distinguished that case on the basis of its very different facts from those in this case. In the circumstances of the current case, the NDIA submitted, it would be reasonable to have allowed a much greater period of time to make a decision. For completeness, I note that D and H Support rejected the NDIA’s submissions seeking to distinguish Northern Disability Services and contended that a decision ought already to have been made, such that the Court could conclude that there had been unreasonable delay. The NDIA also submitted that reasonable minds might differ in coming to a conclusion as to what might amount to unreasonable delay.

14    The NDIA submitted that it was able to make some of the decisions in relation to D and H Support’s payment claims within two weeks, and some decisions a further two weeks after that. In those circumstances, the NDIA contended, in accordance with the parties’ obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), it has come to a compromise with D and H Support. The NDIA’s further submission was that if the application were to proceed, it would consume the Court’s and parties’ resources for a further half to one day, which would be an inappropriate burden in light of the time in which the NDIA will now make the decisions.

15    Therefore, the NDIA contended, it was appropriate that the Court should make the orders in the terms proposed.

16    Given the submissions of the parties, particularly those of the NDIA, and the nature of the orders proposed, I am satisfied that in this case the orders are appropriate.

Associate:

Dated:    9 May 2025