Federal Court of Australia

Horizon Solsolutions Australia Pty Ltd v National Disability Insurance Agency [2025] FCA 511

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application be dismissed with costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application be dismissed with costs.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The applicant is a registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). In the ordinary course, NDIS providers submit claims for payment through an online portal, and the National Disability Insurance Agency processes valid claims within two or three business days. In this case, the Agency determined from early March 2025 to subject the applicant’s claims for payment to a process of scrutiny involving manual review. The process of manual review has taken weeks, and is ongoing. Substantial payments have been made, but substantial sums that have been claimed by the applicant have not been paid. The applicant quantified the claims under manual review as being more than 9,300 in number with a value of about $6.4 million. The applicant claims that there has been unreasonable delay by the Agency in determining its claims for payment. The applicant seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) directing the Agency forthwith to make a decision in respect of the claims for payment which are outstanding.

2    To advance its claims, the applicant has commenced two proceedings that were tried together, with evidence in one being evidence in the other. The first proceeding, QUD 171 of 2025, was commenced on 27 March 2025 and came before me as General Duty Judge on an application for an expedited final hearing that was granted. The second proceeding, QUD 231 of 2025, was commenced on 28 April 2025 in the week prior to the date fixed for the final hearing of the first proceeding. The second proceeding raised further allegations of unreasonable delay by the Agency in making decisions in relation to further claims for payment that had been made by the applicant in the period after the first proceeding was commenced.

3    The grounds of the applications were set out in the originating applications as follows –

(1)    The Respondent’s usual processing time for claims for payment within 2 to 3 days of their lodgement.

(2)    The Respondent has delayed, and intends further to delay, the payment of certain claims made by the Applicant to many weeks (by reason of manually processing each claim).

(3)    The scheme of the NDIS Act does not envisage that the process of assessing a claim for payment under s 45 of the NDIS Act should be a matter of great complexity that requires procedures or processes which are inherently time consuming.

(4)    The NDIS Act does not provide for any formal hearing or inquiry into such claims, nor does it confer any investigative powers on the Agency in support of the process.

(5)    Any manual payment integrity review that is initiated by the Agency in respect of a particular claim should be determined quickly, and in the vicinity of two weeks after the provision of documents in response to a request for information to substantiate the payment.

(6)    There do not exist reasonable grounds to withhold payment in the circumstances of this matter.

(7)    The Respondent has not given a time by which the Applicant’s claims for payment will be accepted or rejected.

(Errors original).

4    As formulated in submissions at the hearing, the orders sought by the applicant were –

(1)    Declarations pursuant to s 16(3) of the ADJR Act that there has been unreasonable delay by the Agency in making a decision under s 45 of the NDIS Act in respect of each of the payment claims identified by the Agency in batches that carried a specified “RTP” number. The batches the subject of the proposed declaration totalled approximately 30 in number and comprised thousands of individual claims.

(2)    An order under s 16(3) of the ADJR Act that the Agency forthwith make a decision under s 45 of the NDIS Act in respect of each of the payment claims made by the applicant within the identified batches, with an additional requirement that within seven days of the Court’s judgment the Agency file an affidavit as to its compliance with the Court’s order.

5    In final submissions, senior counsel for the applicant qualified the relief sought by the applicant by stating that it should exclude those claims where the Agency had sought further information from the applicant, or where the applicant had been asked to comment on particular claims but had yet to do so. However, subject to these exclusions, senior counsel for the applicant confirmed that the relief sought by the applicant was that the Agency make decisions about all the outstanding claims “forthwith”.

The statutory framework

6    There are three Acts to consider –

(a)    the NDIS Act;

(b)    the Public Governance, Performance and Accountability Act 2013 (Cth) (the PGPA Act); and

(c)    the ADJR Act.

The National Disability Insurance Scheme Act 2013 (Cth)

7    The Agency is established as a body corporate by s 117 of the NDIS Act. The objects of the NDIS Act are set out in s 3(1). They include the provision of the National Disability Insurance Scheme in Australia, and the provision of reasonable and necessary supports for participants in the Scheme. However, as with most legislation the objects of the NDIS Act are not pursued at all costs: see Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]–[6] (Gleeson CJ). The object of providing the Scheme sits with other provisions, including s 3(3)(b) which requires that in giving effect to the objects of the Act, regard is to be had to “the need to ensure the financial sustainability of the National Disability Insurance Scheme”.

8    The objects of the NDIS Act also sit with the functions of the Agency that are set out in s 118, which include –

(a)    to manage, and to advise and report on, the financial sustainability of the Scheme, including by identifying and managing risks and issues relevant to the financial sustainability of the Scheme (s 118(1)(b)(ii));

(b)    to prevent, detect, investigate and respond to misuse or abuse of, or criminal activity involving, the Scheme (whether systemic or otherwise) where this relates to (relevantly) claims for payment under the Scheme (s 118(1)(ba)(i)); and

(c)    to do anything incidental or conducive to the performance of the above functions (s 118(1)(h)).

9    Section 118(1)(ba) was inserted by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth). The relevant explanatory memorandum to the amending Bill, the Revised Supplementary Explanatory Memorandum SK118, states under the heading “Claims and Payment Framework”–

...

The Agency processes approximately 400,000 claims per day. Many of these claims do not contain sufficient information to identify whether the claim is appropriate to be paid under the Scheme. This can cause delays and additional burdens on participants in responding to requests for information. New section 45A outlines the mechanical requirements for a claim. For a claim to be payable, it must be made by an authorised person, be made in the approved form, and contain all required information. This is in addition to the other substantive requirements in the Act, such as section 45. It will also become a requirement for a claim to be made within two years of the support being provided.

This measure will enable the NDIA CEO to adhere to obligations under the Public Governance, Performance and Accountability Act 2013 including by enabling claims to be processed quickly while balancing fraud and data quality risks. The NDIA CEO retains some discretion to allow claims which do not meet these requirements where it is appropriate to do so.

...

10    Section 45 of the NDIS Act provides for the payment of amounts that are payable under the Scheme in respect of a participant’s plan. Payments are to be made to the person determined by the Chief Executive Officer of the Agency (the CEO), and either in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of s 45(1)(b)(i), or if there are no rules, in the manner determined by the CEO. There are other provisions within the subsections of s 45 that regulate the Agency’s power to pay amounts under the Scheme.

11    On the hearing of these applications, the parties did not demur to the proposition that any amount payable as a result of a determination under s 45 of the NDIS Act did not give rise to a civil debt enforceable by action, but that payment was enforceable by a public law remedy such as mandamus: see Health Insurance Commission v Peverill (1994) 179 CLR 226 at 242–243 (Brennan J); Federal Commissioner of Taxation v Official Receiver (1956) 95 CLR 300 at 310–312 (Williams J), 324 (Fullagar J, Dixon CJ agreeing at 305).

12    In Affinity Care Services Pty Ltd v National Disability Insurance Agency [2024] FCA 1314 at [58] Neskovcin J held that s 45 does not confer a right to payment of claims, but provides for the making of a determination by the CEO as to the payment of amounts payable under the Scheme in respect of a participant’s plan, including but not limited to the determination of whether, when, and how such payments are to be paid. In Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 (Northern Disability) at [105], Horan J held that a determination by the CEO under s 45 has an effect in creating, altering or affecting legal rights and obligations, and is therefore a “decision” within the meaning of s 3(2) of the ADJR Act.

13    Section 45A of the NDIS Act, which took effect from 3 October 2024, provides that an amount is not payable under the Scheme in respect of the acquisition or provision of a support unless the CEO is satisfied that, amongst other things, it is in the approved form and includes any information and is accompanied by any documents required by the CEO: s 45A(3). Section 45A applies by reference to the date of payment (or non-payment), rather than the date on which the services were provided or a claim submitted: Australian Epic Health Services Pty Ltd v National Disability Insurance Agency [2025] FCA 449 at [38] (Hill J).

The Public Governance, Performance and Accountability Act 2013 (Cth)

14    Because the Agency is a body corporate established by Commonwealth legislation, it is a Commonwealth entity for the purposes of the PGPA Act: see s 10(1)(d). The Agency and its officials, which include its officers and employees, are therefore subject to various statutory obligations arising under the PGPA Act. Those obligations include –

(a)    the board of the Agency, as its accountable authority, must govern in a way that promotes the proper use and management of public resources of the Scheme and its financial sustainability, and must promote the achievement of the purposes of the entity (s 15);

(b)    the board of the Agency must establish and maintain appropriate risk and control systems (s 16);

(c)    the board of the Agency must also take “all reasonable measures to prevent, detect and respond to fraud and corruption relating to the entity” (s 102, s 10 of the Public Governance, Performance and Accountability Rule 2014 (Cth));

(d)    the officials of the Agency, which include its employees, are subject to general duties of reasonable care and diligence in the exercise of powers, the performance of functions, and the discharge of duties (s 25); and

(e)    the officials of the Agency, which include its employees, are subject to a duty to act honestly, in good faith, and for a proper purpose in the performance of functions and the discharge of duties (s 26).

The Administrative Decisions (Judicial Review) Act 1977 (Cth)

15    The ADJR Act provides for statutory remedies in relation to administrative decisions where one of the grounds of review specified in the Act is established. The ground on which the applicant in the present case relies is s 7(1), by reference to which a person aggrieved by the failure of a person under a duty to make a decision to which the Act applies may apply to the Court for an order of review in respect of the failure on the ground that there has been unreasonable delay in making the decision. In Patrick v Australian Information Commissioner [2024] FCAFC 93; 304 FCR 1 (Patrick), the Full Court (Bromwich, Abraham and McEvoy JJ) held at [37]–[46] that whether delay is unreasonable for the purposes of s 7(1) of the ADJR Act is to be assessed having regard to all the circumstances, citing Thornton v Repatriation Commission (1981) 52 FLR 285 (Thornton) (Fisher J) and BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [25]–[26] (Bromberg J). Those circumstances will include the relevant statutory scheme for decision-making, and may include the resources available to the decision-maker. An enquiry as to whether delay has been unreasonable must address “[t]he usually high threshold” of showing unreasonableness: Patrick at [40]–[41], [44], [73]. Delay may be for a specific, considered reason, as it was in Thornton. On the other hand, delay may be a consequence of capriciousness, neglect, oversight, or perversity.

16    The legal onus of showing that delay has been unreasonable falls on an applicant for review. However, in determining whether that onus has been discharged, any relevant absence of evidence adduced by the decision-maker, where the decision-maker is in a position to explain the reasons for delay, may be material to the weight to be given to other evidence in determining whether the applicant’s onus of proof has been discharged: see Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 at [165]–[167] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; 268 FCR 424 (Besanko and Thawley JJ).

Background

17    The applicant relied on four affidavits of its director, Muhammad Chaudry Latif, affirmed respectively on 26 March 2025, 17 April 2025, 24 April 2025 and 2 May 2025. Mr Latif was not required for cross-examination.

18    The applicant operates a business known as Cocoon SDA Care. Since October 2016 it has provided support and services across Australia to people with disabilities. At the time of the hearing it supported more than 190 people with disabilities, and employed some 1,200 people who worked across about 185 specialist disability homes. Since July 2024, the applicant has been incurring in excess of $5 million per month on employee expenses including salaries, wages, WorkCover levies, payroll tax, and superannuation.

19    Until early March 2025, the applicant had submitted tens of thousands of claims for payment which were processed by the Agency within days in the usual way through its online portal. There were some isolated instances where a claim for payment was reviewed and more information was sought. Typically, the Agency would make a decision on these claims within four weeks after the further information was submitted. The delay in processing particular claims did not significantly affect the applicant’s cashflow situation.

The notices from the NDIS Quality and Safeguards Commission

20    The NDIS Quality and Safeguards Commission is established by s 181A of the NDIS Act, and consists of the Commissioner, and the staff of the Commission. The Commissioner’s functions include monitoring compliance by NDIS providers. The powers of the Commissioner include the registration of a person as a NDIS provider under s 73E, and the making of a banning order pursuant to s 73ZN.

21    On 10 March 2025, a delegate of the Commissioner sent a notice to the applicant advising it of a proposal to refuse the applicant’s application for registration on the basis that the delegate was not satisfied that the applicant was complying with the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (NDIS Code of Conduct). The applicant’s registration had notionally expired on 8 June 2024, but was extended by operation of s 73K of the NDIS Act pending the making of a decision by the Commissioner on the applicant’s application for fresh registration. The main points set out in the delegate’s letter in support of the claim that the applicant had contravened the NDIS Code of Conduct were –

(1)    The applicant had submitted claims for services provided to three people while they were incarcerated, which services the applicant did not provide. The letter stated that the claims that were referrable to the three people who were incarcerated totalled $26,062.63, and characterised the claims as fraudulent.

(2)    The applicant had submitted claims in relation to supports claimed to have been provided to three people after their dates of death. These claims were said to total $77,554.16, and were also characterised as fraudulent.

(3)    An employee of the applicant had uploaded a video to YouTube which disclosed the personal details of 30 NDIS participants contrary to privacy obligations. At the time of the letter, the video had been taken down.

22    The delegate expressed a preliminary view based upon this information that the applicant was not suitable to provide supports or services to people with disability and that its application for renewal of registration should be refused. The delegate stated that the applicant had until 28 March 2025 to make submissions about the proposed refusal of registration before a final decision was made.

23    In addition to the notice to the applicant of the proposal to refuse the applicant’s application for registration as a NDIS provider, by a separate letter also dated 10 March 2025 the delegate of the Commissioner gave notices of proposed permanent banning orders under s 73ZN of the NDIS Act relating to the applicant and its director, Mr Latif. The factual grounds for the proposed permanent banning orders were essentially the same as those underpinning the delegate’s proposal to refuse the applicant’s application for registration. The applicant and Mr Latif were given until 28 March 2025 to make submissions about the proposed banning orders.

24    The applicant and Mr Latif dispute the facts that were alleged by the Commissioner in the three notices. The grounds of dispute were set out in a detailed response dated 15 April 2025 to the Commissioner’s notices, with the applicant and Mr Latif having obtained an extension of time to provide the responses. In summary, the responses were that –

(a)    there had been administrative failures and honest mistakes in relation to a small subset of claims which were isolated and not systemic and not of a nature that would compromise the applicant’s business;

(b)    fraud was a very serious allegation to make, and was not supported by the evidence;

(c)    the applicant did in fact provide services to participants while they were incarcerated, and with the full knowledge of the Agency;

(d)    in instances where participants had been unexpectedly incarcerated, claims had been made for short notice cancellations in accordance with the NDIS Pricing Arrangements and Price Limits policy, but that some staff had omitted to select the “cancellation” option in the portal when submitting the payment; and

(e)    in instances where claims had been made following the death of a participant, it appeared that they may have been made under the NDIS Bereavement Addendum, which authorised weekly payments for a period of up to 4 weeks.

25    Mr Latif deposed to the fact that the applicant had identified some instances of incorrect claims for payment which he stated would be refunded to the Agency. Those claims comprised one claim of $932.55 where a staff member had not provided supports or services that he was rostered to provide, and claims in the sum of $20,385.22 where the applicant’s accounts team had not been notified promptly of the death of some participants. The applicant’s case is that these instances were isolated and, in the scheme of things, did not indicate any systemic issues that would warrant the action proposed by the Commissioner.

The Agency’s decision to conduct a manual review of the applicant’s claims

26    The Agency adduced evidence from Ms Karen McDonald, who is the Director of the Serious and Complex Non-Compliance Section of the Agency. Ms McDonald stated that her section of the Agency was responsible for investigating allegations of non-compliance and fraud perpetrated by providers, participants, and nominees under the NDIS Act. The Section sits within the Fraud Investigations Branch, which itself is within the Fraud Fusion Taskforce and Integrity Capability Division. Ms McDonald gave evidence that fraud against the National Disability Insurance Scheme is a significant issue, and that the Fraud Fusion Taskforce is undertaking more work to review claims submitted to the Agency before they are paid and to reduce reliance on other compliance activities such as debt raising which presented a risk to the recovery of taxpayer money.

27    Ms McDonald gave evidence that between 29 November 2020 and 11 February 2025, the Agency received 32 “tip offs” in relation to the applicant, with 13 of these received in 2024 and six received in 2025. Some of the “tip offs” were anonymous. The subject of the “tip offs” were allegations that the applicant –

(a)    was managed by someone other than the company director, who had previously declared bankruptcy;

(b)    enticed potential Specialist Disability Accommodation (SDA) investors with promises of unrealistic investment returns;

(c)    traded while insolvent, relying on new investment cash from SDA investors;

(d)    utilised funds received from investors for SDA investment purposes by the company for its own operation and private use;

(e)    misused NDIS funding by:

(i)    only providing one support when a participant was meant to be supported with 2:1 supports, leading to the funding for the relevant plan being exhausted;

(ii)    charging for Supported Independent Living (SIL) supports at a 1:3 rate, even though there were 4 participants residing in the SIL;

(iii)    overutilizing and prematurely exhausting funding in participants’ plans;

(iv)    evicting participants from SDAs on the basis the participant did not agree to utilise the applicant for their services;

(v)    charging for services which were not provided (multiple complaints); and

(vi)    charging for community access when no such services were provided;

(f)    continued to charge a support service fee after a participant’s death;

(g)    treated participants carelessly, thereby putting them at risk; and

(h)    hired unqualified staff and underpaid them.

28    The applicant and its director Mr Latif dispute the above allegations. However, the parties accepted that it was not for the Court to make any findings about the truth of the allegations, their only relevance being that they formed part of the information that contributed to the decision to subject the applicant to a process of manual review of its claims for payment.

29    Ms McDonald gave evidence that on 3 December 2024 the Agency became aware that the National Quality and Safeguards Commission to which I referred earlier had issued three infringement notices to the applicant on 9 November 2023. The infringement notices issued to the applicant provided for financial penalties. They related to breaches of the NDIS Act and the NDIS Code of Conduct. It was alleged that the applicant failed to pay rent to owners of special disability accommodation and supported independent living homes, resulting in participants being locked out of their residences and requiring alternative emergency accommodation, which did not meet the participants’ needs. For his part, Mr Latif stated that the applicant paid the penalties without admission, and disputed the underlying allegations. Ms McDonald stated that based on the information that penalty notices had been issued, she formed the opinion that there may have been integrity issues with the claiming behaviour of the applicant.

30    On 3 January 2024, the applicant was referred by the Intelligence and Analytics Branch of the Agency to the Serious and Complex Non-Compliance Team for an assessment. On 8 October 2024, the referral was allocated to a case officer within Ms McDonald’s team who evidently undertook initial investigations.

31    On 4 March 2025, Ms McDonald sought endorsement from the Branch Manager, Fraud Investigations, to recommend that a system of manual payment reviews be implemented in relation to claims made by the applicant. Ms McDonald formed the view that a referral for manual payment review should be made based upon the information set out in her affidavit, which comprised the “tip-offs”, information that the applicant had made claims for services provided to participants while they were incarcerated, that three infringement notices had been issued to the applicant in November 2023 relating to alleged breaches of the NDIS Act and the NDIS Code of Conduct, and the contents of the auditor’s reports for the applicant lodged with the Australian Securities and Investments Commission for the 2022, 2023, and 2024 financial years.

32    In relation to the auditor’s reports, Ms McDonald stated that they raised a number of concerns in relation to the applicant’s financial records. The auditor’s reports were in evidence and the most recent report dated 6 December 2024 raised a number of key issues that were prefaced by the following statement –

Basis for Qualified Opinion

During our audit, we encountered significant limitations in obtaining sufficient, appropriate audit evidence. Inadequate documentation, incomplete disclosures, unsupported entries, and weak internal controls affected our ability to verify the accuracy and completeness of recorded amounts and disclosures. These conditions, coupled with inconsistent and sometimes unclear records, can create an environment that heightens the risk of errors or intentional misstatements going undetected. Key issues included:…

33    The auditor expressed a qualified opinion in relation to the accuracy of the applicant’s financial statements, referring to the Australian Accounting Standards and NDIS reporting requirements –

Qualified Opinion

In our opinion, except for the possible effects of the matters described in the Basis for Qualified Opinion section, the financial statements of Horizon Sol Solutions Australia Pty Ltd as at 30 June 2024, and for the year then ended, may not accurately present the Company's financial position, financial performance, and cash flows in accordance with Australian Accounting Standards and NDIS reporting requirements.

34    The auditor also expressed the following opinion as to whether the applicant was a going concern –

Going Concern:

We draw attention to Note 1 in the financial statements, which describes the significant uncertainty related to the Company's financial position as of 30 June 2024. The Company owed $9,546,902 to the Australian Taxation Office (ATO) and was issued with a bankruptcy notice. However, management successfully negotiated a payment plan approved by the ATO in November 2024, and the default judgment was set aside in October 2024. This indicates an existence of a material uncertainty prior to November 2024 that would have cast significant doubt on the Company's ability to continue as a going concern. Our opinion is not modified in respect of this matter.

35    There were other issues raised by the auditor’s reports. Ms McDonald stated that the auditor’s reports and the information in them added to the assessment of risk or concern about the applicant, because they raised a concern that the applicant’s record control and administrative practices may not have been sufficient.

36    In cross-examination, Ms McDonald gave evidence that based on the information she had at the time of her recommendation of manual review there was a potential for fraud, and that investigations remained open. Ms McDonald accepted that while the investigations were ongoing, no claim of fraud against the applicant had yet been made, and no decision had been made that the applicant had been fraudulent. In relation to the contested allegation that the applicant had incorrectly claimed for services provided to participants while they were incarcerated, Ms McDonald gave evidence that her view about that issue had not changed, but that it might change after considering the applicant’s response and clarifying the issue with the Agency’s legal team. Ms McDonald accepted that it was possible to provide services under the Scheme to a person while incarcerated, but maintained that this question remained the subject of investigation. She denied that she had been under the incorrect impression when making her recommendation of manual review that services under the Scheme could not be provided to participants who were incarcerated.

37    Mr Nicholas Todd Winton affirmed two affidavits in this proceeding and was cross-examined. Mr Winton is a member of the Agency’s Manual Payment Review Committee. Mr Winton gave evidence that on 5 March 2025 the Committee was satisfied that a review of the applicant’s claims was appropriate, and that a Manual Payment Review was then applied. This had the consequence that any claims for payment made by the applicant would be released only after manual review, or until such time as the Manual Payment Review was removed.

The processing of the applicant’s claims

38    Ms McDonald gave evidence that the investigation of the applicant’s claims was one of the bigger investigations that was underway, and the largest investigation currently on foot in her “space”.

39    On 7 March 2025, the Agency sent a letter to the applicant which stated that it had commenced a manual review of claims which the applicant had made and which were posted on 6 March 2025. The claims were specified in a schedule to the letter. The claims were 314 in number, and totalled $177,803. By its letter, the Agency requested information such as invoices, service agreements, support notes, pay slips of support workers, rosters, time sheets, contact details of support workers, and travel logs.

40    Over the course of the following weeks the Agency sent a series of further letters advising the applicant that batches of claims that the applicant had made would be the subject of manual review, and seeking further information of the same type that had been sought in the initial 7 March 2025 letter. Those letters, including the initial letter, were as follows –

41    In overview, in relation to the claims that have been made by the applicant and which have been the subject of the manual review process by the Agency, the relevant steps taken have been as follows –

(a)    the applicant has lodged its claims for payment;

(b)    the Agency has sent written requests for information to the applicant requiring it to assemble and produce supporting documentation, generally within 14 days;

(c)    the applicant has responded to the requests for information by producing documents which in respect of most of the “RTP” batches of claims have comprised hundreds of individual documents, and in total have comprised thousands of documents;

(d)    the documents are reviewed by a case worker assigned to the matter;

(e)    upon the case officer reviewing the documents, the case is examined by a supervisor for quality assurance purposes;

(f)    a letter is sent to the applicant inviting comment upon any preliminary findings;

(g)    any comments from the provider are then considered; and

(h)    when the review is finalised, an outcome letter is sent to the claimant which includes notification that any rejected claims may be resubmitted.

42    Mr Winton is also the Branch Manager of the Scalable Integrity Responses Branch and oversees the Manual Payment Review Team. Mr Winton gave some general evidence about the Agency’s “Crack Down on Fraud” program, which complements the work of the Fraud Fusion Taskforce. He also gave evidence about payment integrity programs that have involved analysing and sampling exercises. He stated that the budget for the Scheme for the 2024-2025 year is approximately $43 billion. He said that analysing and sampling exercises for the 2023-2024 year showed that there were payment errors or anomalies of approximately 4.97% of the monetary value of claims sampled for that year, which represented an increase from 1.23% in the 2020-2021 year. As a result, the Agency is now undertaking more work in relation to payment integrity.

43    Mr Winton described the process of manual payment review that can be applied to a particular provider or in relation to a particular participant where grounds exist in the form of concerns about the integrity of the claims or the claimants. Mr Winton stated that the purpose of a manual payment review is to prevent amounts being paid automatically where the Agency has reason to hold concerns about the integrity of claiming behaviour. Where a manual payment review is applied to a provider, all of its claims for payment are the subject of manual review.

44    Mr Winton stated that since April 2024 the work of the Taskforce and of the Review Team had been scaled up and continues to increase. As at 10 April 2025 there were approximately 2,000 entities and 44,500 individual claims that were the subject of manual review. There are approximately 25 full time equivalent staff currently working in the Review Team. There have been recent additions to the number of staff, and further recruitment is underway. However, it will likely be several months before recruitment of additional staff will have any real impact on the time taken to review claims manually given the need for training and other matters.

45    At the time of the hearing, the manual review of the applicant’s claims for payment was the largest review that the Agency was undertaking. Of the staff in the Review Team, 12 people were working solely on the manual review of the applicant’s claims. This number included junior staff, senior case officers, and supervisors. Many of the staff were working overtime, including on weekends, to deal with the workload. Mr Winton had been informed by the Agency’s Workforce Planning Team that a number of staff in the Review Team have been working “excessive hours”, which had caused Mr Winton to become concerned for their wellbeing. Mr Winton also gave evidence that the resources available to undertake the manual reviews were affected by litigation in which the Agency was engaged. Mr Winton stated that there were three active proceedings in this Court, including the first of these matters, that had placed additional demands on his time and that of the Review Team.

46    Mr Winton gave evidence of what was involved in reviewing the applicant’s claims. Between 5 March 2025 and 10 April 2025 the applicant submitted 9,462 claims. Mr Winton stated in his affidavit of 11 April 2025 that based upon the analysis of evidence to that point, the applicant’s claims were likely to be difficult to assess. Mr Winton referred to the significant volume of claims and the associated volume of evidence and stated that much of the evidence had deficiencies or had been difficult to assess. Mr Winton pointed to rosters not appearing to align with invoices and case notes, and to documents showing multiple participants receiving support from multiple support workers at the same time, across multiple shifts, rather than information in the form of individual case notes and invoices. Mr Winton stated that the information presented in the former way required the Review Team to cross-reference documents in order to match and validate evidence.

47    Mr Winton set out in his affidavit some features of each of the batches of claims that had been given an “RTP” number, such as –

(a)    the date the claims were submitted;

(b)    the date the claims were assigned to a case officer;

(c)    the date on which a letter requesting information was sent to the applicant;

(d)    the date of any response to the request for information;

(e)    the course of the review, including quality assurance by a case supervisor;

(f)    the expected timeframe for invitations to the applicant to comment on preliminary findings.

48    Mr Winton stated that where claims were substantiated, then payment would be released.

49    As to payments that have been made to the applicant since the inception of the manual review process, Mr Winton gave evidence in his first affidavit that several amounts in respect of 1,939 claims to the value of $1,231,030.69 had been unintentionally released to the applicant directly or via plan managers. Of this amount, $450,699.80 was referrable to 829 claims that are the subject of the allegations of unreasonable delay in these proceedings. In cross-examination, Mr Winton stated that the release of payments had occurred prior to a review of the relevant claims being completed and as a result of miscommunication on four occasions between two teams within the Agency. Mr Winton stated that claims that had been the subject of the unintentional payments would be given a lower priority in the review process, noting the large volume of other claims requiring review. Mr Winton also stated in cross-examination that in addition to giving lower priority to a review of the claims that had been unintentionally paid, the Agency had tried to prioritise those claims that were of lower risk and where payment could be facilitated, and that the Agency did not want to create undue delay.

50    In his second affidavit, which was affirmed on 30 April 2025, Mr Winton provided an update in relation to the “RTP” batches of claims that were the subject of review. The position remained that the reviews of the different batches were at different stages. Mr Winton stated that since making his first affidavit a further 815 claims with a value of $616,938.14 had been determined to be payable and that funds either had been released, or would be released within days. Importantly, there were a number of claims within the “RTP” batches that Mr Winton identified in his affidavit that were the subject of existing or pending requests for comment and further information relating to the Agency’s preliminary findings. There were substantial claims in number and value that had been the subject of determinations that the claims were payable. In these cases, Mr Winton stated that the funds would be released within one to two days, which was unchallenged. Other batches of claims were subject to ongoing review, or were awaiting review. The overall picture was that there was activity in relation to the review of all the batches of claims, with less completed activity on those batches of claims where requests for information were outstanding, or where documents had only been recently received.

51    In evidence were some invitations from the Agency to the applicant to comment on specified concerns raised by the Agency in relation to individual claims that had been reviewed. One invitation was dated 24 April 2025 and attached a table specifying individual claims of concern spanning 13 pages. Another was an invitation to the applicant dated 5 May 2025 to comment on various concerns that were contained in an attached table spanning 15 pages. Illustratively, the exceptions raised related to discrepancies in the invoices, invoices not matching rosters or claim information, overclaiming where the amount claimed did not match the rostered hours, claims that appeared to be overlapping with other claims, and the absence of certain records supporting the claims that were made. The individual claims were for the most part in the hundreds of dollars, but several claims exceeded $1,000.

52    Senior counsel for the applicant submitted to the Court a helpful aide mémoire which summarised in a table the status of each batch of claims by reference to the evidence. Some figures in the table were disputed by the Agency. The table showed that within several batches of claims there was a residual number of undecided claims that had not been the subject of any request for comment or further information and which remained unpaid many weeks after the applicant had furnished the information that was requested. I will not itemise all these instances, but illustratively the table recorded that within batch RTP2448 –

(a)    200 claims to a value of $143,550.73 were made;

(b)    83 claims to a value of $81,587.31 had been decided by the Agency to be payable;

(c)    of the 117 claims to a value of $62,963.42 that were undecided –

(i)    66 claims to a value of $33,986.81 were the subject of invitations to comment; and

(ii)    51 claims to a value of $27,976.61 remained subject to ongoing review; and

(iii)    more than six weeks had elapsed since the applicant had submitted its response to the Agency’s request for information.

53    The table showed that there were many other claims within the nominated batches that remained undecided after the passage of weeks from the applicant’s responses to the Agency’s requests for information. At the other end of the spectrum, all the claims within batch RTP2449 valued at $313,481.27 remained unpaid 11 days following the submission of information by the applicant.

54    In cross-examination, Mr Winton stated that after a period of review of approximately two months he had not yet found any fraud by the applicant, but said that many claims had been the subject of written communications to the applicant raising concerns and deficiencies. Mr Winton gave evidence that there were instances of claims where evidence had not been provided, claims where there were multiple pieces of evidence that did not match up, and other instances of invoices that were presented and where it was unclear whether the invoice was in respect of a NDIS service. Importantly, Mr Winton stated that in the course of its manual review the Agency was finding a relatively high level of non-compliant claims that had been the subject of letters inviting comment from the applicant. However, Mr Winton agreed in cross-examination that the Agency had not found in a concluded way any instance of non-compliance.

55    It was put to Mr Winton in cross-examination that there were other alternatives open to the Agency in reviewing claims where there was reason to think that they might be suspect. The first was to review a sample of claims, rather than subject every claim to a manual review. Mr Winton rejected this approach because it would be inherent that claims which raised concerns as to their validity would potentially be missed. The second alternative was to conduct a manual review of claims individually, rather than in batches. Mr Winton stated that there was administrative efficiency in reviewing claims in batches, and he was not challenged on this answer. The third alternative was to reject claims that were thought to be suspect in circumstances where the provider could resubmit the claim. Mr Winton’s response was that a claim would only be rejected after a process involving inviting the provider to comment on the concerns. In re-examination, he explained that there was a need to accord a party procedural fairness before making a decision to reject a claim. The fourth alternative that was put to Mr Winton was that the Agency could pay all the claims, and then review them, and if it was subsequently determined that any claims should not have been paid, then they could be offset against future payments. Mr Winton acknowledged that the Agency did have the capacity to raise a debt if a payment had been incorrectly made, but said that this was not an approach that the Agency generally took.

56    The overall picture painted by Mr Winton’s evidence was that all the batches of claims were at different stages of review, that the staff allocated to the review were working at maximum capacity, and that while some payments had been made, none of the reviews was complete, and that the process of review was ongoing.

Submissions

The applicant’s submissions

57    The applicant accepted that it was open to the Agency on the material before it on 7 March 2025 to determine to conduct a manual review of the applicant’s claims. The applicant fairly accepted that the Agency was busy and was acting diligently, and that the review was not characterised by periods of inactivity. It was submitted, however, that activity did not equate to reasonableness, and that a lack of resources did not save a delay from being unreasonable, citing Northern Disability at [124].

58    It was submitted that the ongoing manual review of the applicant’s claims was taking many months, and could not be justified in view of the fact that there had been no concluded determinations that there had been fraud or non-compliance by the applicant. It was submitted that the reasons for the decision to commence the manual review had not been substantiated by the evidence of the product of the review.

59    The applicant relied on the evidence of Mr Latif as justifying the claims made by the applicant in relation to services or supports provided to prisoners. It was submitted that there had been no impropriety in providing these services, and the concerns that had been raised had not been borne out. The applicant relied on Mr Latif’s evidence that, contrary to the assumptions underlying the concerns that had been expressed by the Agency, the applicant did provide services to participants in the Scheme while they were incarcerated, and where participants were unexpectedly incarcerated claims for cancellations at short notice had been made in line with the relevant pricing arrangements and policies.

60    It was further submitted that the concerns expressed by the Commission about claims relating to participants in the Scheme who had passed away was also not borne out by the evidence. I note, however, that this was an issue raised by the Commission as a ground supporting its proposal to refuse the applicant’s application to renew its registration, and was not a consideration to which Ms McDonald had referred in her evidence as a reason for recommending that the applicant’s claims undergo a process of manual review.

61    In relation to the audit reports, the applicant submitted that they had no bearing on the integrity of the applicant’s claims under the Scheme, and relied on Mr Latif’s evidence that the applicant had been audited several times for compliance against the relevant NDIS Practice Standards and had been found compliant. It was submitted that the truth of the contents of the audit reports had not been proven, and that the author of them had not given evidence. It was submitted that the audit reports were no more than a fact upon which the Agency had acted.

62    In relation to the three infringement notices on which Ms McDonald relied, the applicant submitted that none of them related to the applicant’s claiming practices. It was further submitted that the payment of the penalties provided for by the infringement notices was without admissions, and that it was unfair for the Agency to rely on them in a way that was adverse to the applicant’s interests.

63    The applicant submitted that the Scheme was not one that had to achieve a standard of perfection. In the normal course, claims are paid on scant material, and because of the volume of claims, not every claim will be flawless. The applicant pointed to alternatives that existed in order to scrutinise claims, such as reviewing the claims after they are paid, and offsetting mistaken payments. Another alternative was a sampling process, which it was submitted would not consume the same resources or cause the same level of delay and inefficiencies.

64    The applicant relied upon what was submitted to be statements of principle by Horan J in Northern Disability. In that case, there was no evidence before the Court to justify a process of integrity review of the applicant’s claims for payment. In those circumstances, Horan J held at [127] and [131] that a period of 60 days or more to substantiate a claim for payment was not reasonable, and that in view of the fact that payments were generally processed within two or three business days, an indicative period within which a claim for payment should be determined was something in the vicinity of two weeks after the provision of documents in response to a request for information to substantiate the payment. As I have mentioned, the applicant accepted that there was evidence in this case to justify the commencement of an investigation by way of a manual review process. However, the applicant relied on the framework within which Horan J made those findings, including the objects of the NDIS Act. It was submitted that in giving effect to those objects regard must be had to the need to ensure the financial viability of the Scheme, including the financial sustainability of its providers.

65    The applicant also relied on the factual findings by Horan J in Northern Disability as a point of comparison. It was submitted that the circumstances of the present case could not be meaningfully distinguished, save that the periods of delay in the present case were longer. It was submitted that –

(a)    there was no real justification to assess all of the applicant’s claims as “high risk”, and that doing so was predominantly based on false conclusions that services were not provided to incarcerated people;

(b)    in any event, there were perfectly adequate alternatives to reviewing manually all payment claims that the Agency could have adopted which would have been more efficient whilst still protecting the financial interests of the Agency; and

(c)    in the circumstances, the delay was unreasonable.

66    The applicant relied on four alternative ways in which it submitted the Agency could reasonably address its concerns, reflecting the substance of what had been put to Mr Winton in cross-examination, namely –

(a)    the Agency should manually review fewer payment claims;

(b)    the Agency should review the claims individually rather than bundling them up in batches;

(c)    if the Agency is not satisfied that a claim has been substantiated, it was open to the Agency to refuse the claim rather than going through a process of making preliminary findings and inviting comment; and

(d)    the Agency could manually review each claim, but withhold only a portion of the claims and otherwise pay the remainder in the ordinary way within two to three business days.

67    The applicant submitted that it cannot continue to pay its employees to provide services and supports to vulnerable people without receiving payment in consideration of those services. In this regard, there was evidence from Mr Latif that the applicant had secured external funding to meet its ongoing financial commitments, but that this would come at an expense to the applicant.

68    The applicant submitted that the inevitable consequence of the Agency’s decision to undertake a manual review of all the applicant’s claims was to place in jeopardy the continued employment of its 1,200 employees and 190 vulnerable persons to whom it provided critical supports. It was submitted that if the current situation continued, the applicant would not be able to continue trading.

The Agency’s submissions

69    The Agency submitted that whether delay in the making of a decision to which the ADJR Act applies is unreasonable is to be assessed objectively, and having regard to the circumstances of the particular case within the context of the decision-making framework established by the relevant Act. It was submitted that the threshold for finding unreasonable delay is usually high.

70    The Agency emphasised in its submissions the importance of the need to ensure the financial sustainability of the Scheme. It relied on the evidence of Mr Winton as to the ways in which that object has been pursued by the Agency’s “Crack Down on Fraud” program. In circumstances where s 45 did not fix a time period for the completion of manual review of claims, the Agency submitted that a reasonable time should be informed by a number of considerations –

(a)    the subject matter of the power concerns the payment of public moneys;

(b)    the statutory purpose may broadly be identified as facilitating the payment of amounts which are properly payable under the Scheme;

(c)    the importance of the exercise of the power is informed by a number of competing interests –

(i)    the public interest requires that only valid claims are paid and recovery of wrongly paid moneys pursuant to Part 1 of Chapter 7 of the NDIS Act is inherently uncertain and would involve spending yet further moneys and resources;

(ii)    the Scheme operates in a context where there are significant concerns about payment integrity, including fraud on the NDIS;

(iii)    participants in the Scheme have an interest in ensuring that claims are only made where supports or services have in fact been provided; and

(iv)    the applicant has an interest in the prompt payment of valid claims;

(d)    the likely prejudicial impact upon the applicant of any delay is essentially commercial and, more particularly, concerned with cash flow considerations while the corresponding prejudice in incorrect payment is, as outlined above, the spending of potentially irrecoverable public moneys; and

(e)    the practical limitations which attend s 45 of the NDIS Act by reason of the nature of the decision that was required, and the preparation, investigation and considerations called for are relevant, insofar as the payment review is likely (as in this case) to involve review of many individual transactions and (to the extent that substantiating information is provided) many corresponding documents.

71    The Agency submitted that where there were grounds to raise concerns about payment integrity, then the Agency had to be given a reasonable period of time to verify the validity of the claims for payment, lest claims be erroneously allowed or rejected. It was submitted that manual reviews are necessarily complex and time consuming, and that the usual timeframe of two to three business days was not a valid comparison because that was the period within which payments were made automatically where there were no real reasons to hold concerns for the integrity of the claims. It was submitted that the time taken to process individual claims should not be assessed in isolation, but within the context of the volume of claims that the Agency was reviewing.

72    The Agency submitted that having regard to the circumstances, there was no relevant delay that called for any explanation. However, if an explanation was called for, then the Agency submitted that it had been provided –

(a)    there is a legitimate concern about the accuracy of the applicant’s claims for payment;

(b)    the applicant had accepted that there had been instances where it has overcharged and the Agency should be refunded, and had accepted that further refunds may be required;

(c)    it was reasonable to expect that in reviewing claims in these circumstances, the review will be conducted with a degree of scrutiny;

(d)    the resources of the team reviewing payment claims were not unlimited, and staff were working at full capacity;

(e)    three active Federal Court proceedings had placed additional demands on the Review Team, affecting their ability to review and process claims;

(f)    the nature of the task is to manually review each payment claim, which can involve reviewing information including invoices, service agreements, support notes, pay slips, rosters and timesheets, support worker details and travel logs, and communications with third parties to verify claims;

(g)    the review of the applicant’s claims for payment the subject of these proceedings required the Agency, amongst other things, to –

(i)    issue multiple letters to the applicant seeking information;

(ii)    review and cross check voluminous documents and information submitted by the applicant;

(iii)    deal with links to information provided by the applicant that cannot be opened and viewed; and

(iv)    prepare preliminary findings and letters to the applicant inviting them to comment.

73    The Agency submitted that there was no extended period of inactivity, and no basis to conclude that there had been any neglect, oversight, or perversity. Rather, it was submitted that this case was an instance of an affirmative and considered decision to take a particular course in examining the applicant’s claims for payment. It was submitted that the evidence indicated that the reviews have been progressed diligently in accordance with ordinary operations and resourcing, and the evidence showed that considerable progress had been made by the Agency in relation to its consideration of the applicant’s claims for payment, with significant amounts having been approved for payment. The Agency relied on Mr Winton’s recent evidence that 815 claims with a value of $616,938.14 had been determined by the Agency to be payable.

74    The Agency submitted that its manual review of the applicant’s claims was ongoing, and that its continuation was justified. It relied on the outcome of one aspect of a review of claims by the applicant relating to purported specialist disability accommodation provided to Scheme participants for the period 14 August 2020 to 31 August 2024. That review concluded that the applicant may not be entitled to payments of $246,480.93 that had been made to it because addresses of premises that related to the claims were not enrolled or approved. The review resulted in a letter sent by the Agency to the applicant dated 29 April 2025 in which a demand for repayment was made, coupled with an opportunity to provide further information. The Agency also relied on the evidence of Mr Winton that the review process had resulted in the identification of claims where the Agency was not satisfied on the information that had been provided that they were properly payable, and where comment had been, or was to be sought from the applicant.

75    In relation to the applicant’s case that alternatives were available to the agency, including the making of some payments but withholding a percentage, or refusing payments without seeking further information, leaving it to the applicant to resubmit claims, the Agency submitted that its officers and employees had obligations under the PGPA Act, which precluded taking those types of steps.

76    As for the applicant’s submissions that were based on the cashflow difficulties that the Agency’s review process had caused, the Agency submitted that the capital resources of the applicant were matters for it, as were its record-keeping processes, and that this consideration was not overriding, let alone decisive.

Consideration

77    The consideration by the Court of an allegation that there has been unreasonable delay in making an administrative decision must have regard to the statutory framework, and the factual circumstances, as the Full Court held in Patrick at [37]–[46], to which I referred at [15] above. And in evaluating the factual circumstances, it must be kept in mind that decision-making is a function of the real world: see Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 469 (Hill J, Gummow J and O’Connor J agreeing).

78    Thornton is a leading authority that has been cited with approval many times. The following passage from the judgment of Fisher J was cited with approval by the Full Court in Patrick at [37] –

The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity. …

79    In accordance with the objects and purposes of the Act, the Agency is entitled, and in some circumstances may be obligated, to check the veracity and legitimacy of claims for payment that have been made. In checking claims, the Agency is entitled to adjust the focal length of its examination depending upon the circumstances that are raised by those claims.

80    The Agency’s decision not to allow the applicant’s claims for payment to continue to be processed automatically, but to subject them to a process of manual review, was a considered decision. This is not a situation where there has been administrative oversight, or incompetence, or maladministration. On the contrary, the Agency led evidence, which I accept, of the process that led to its decision to subject the applicant’s claims to scrutiny. This distinguishes the present case from Northern Disability, where a material factor that was relevant to Horan J’s decision was the absence of any such evidence. Horan J’s observation at [131] that something in the vicinity of two weeks after the provision of documents was an indicative period within which a decision about payment should reasonably be made must be understood as being an evaluative observation within the factual context of Northern Disability. And it must be recalled that observations made by judges in deciding issues of fact ought not to be treated as laying down rules of law: see Teubner v Humble (1963) 108 CLR 491 at 503 (Windeyer J), cited in Bus v Sydney County Council (1989) 167 CLR 78 at 89 (Mason CJ, Deane, Dawson and Toohey JJ).

81    Although Ms McDonald was challenged on some aspects of the justification for the manual review, and in particular the information that the applicant had been providing services to participants while they were incarcerated, it has not been shown that Ms McDonald lacked an intelligible foundation to form the opinion that there were good reasons to scrutinise the applicant’s claims in furtherance of the Agency’s policies to crack down on non-compliance and fraud. The decision to subject the applicant’s claims to manual review has not been shown to be unreasonable, and as I have mentioned, in closing submissions senior counsel for the applicant accepted this to be the case.

82    The applicant’s case turned to whether having instigated the manual review it was unreasonable for the Agency to continue it, given the evidence that no determinations of fraud or non-compliance had been made notwithstanding the passage of some weeks of review. The applicant relied on the alternatives that were open to the Agency to scrutinise the applicant’s claims that were put to Mr Winton as showing that the continued manual review was unreasonable.

83    The difficulty with the applicant’s arguments is that they effectively invite the Court to step into the shoes of the Agency and to oversee a complex process of review and to countermand decisions that have been made by the Agency as to its own processes, including the prioritisation to be afforded to particular claims for payment under the NDIS Act. Ensuring the integrity of the Scheme is very important, and it is for the Agency to determine the best way in which that object is to be achieved. It is not the Court’s role to supervise the administration of the Agency, except where some issue involving the legality of the Agency’s conduct arises, such as unreasonable delay proven to the requisite high threshold that is required.

84    While it is certainly conceivable that a process of sampling the applicant’s claims is open to the Agency, it has not been shown that it is unreasonable to check every claim, at least at this point in time. The reasons for which the manual review was instigated still have currency. The fact that anomalies have been identified and raised with the applicant support the continuation of the manual review for the time being. It is not for the Court to impose a standard of perfection on the Agency’s administration, or to oversee the Agency’s consideration of individual claims made by the applicant. Different minds might reasonably have different views as to how the Agency might act so as to reduce the incidents of fraud or unsupported or anomalous claims for payment. Having regard to the separation of powers, which underlies the high threshold for making a finding of unreasonableness, the Court should be slow to conclude that there have been unreasonable delays that warrant the making of declarations and coercive orders of the Court which will inevitably amount to interfering with the processes which the Agency has put in place to review the applicant’s claims, and the priorities that the Agency has determined.

85    In any event, there is no basis in the evidence for the Court to conclude that the way in which the review of the applicant’s claims has been organised by the Agency is not reasonable. I find on the evidence that the staff who have been allocated to the review of the applicant’s claims are working at full capacity. It was no part of the applicant’s case that the Agency should reasonably apply more resources to the exercise, and it was not suggested to Mr Winton that his management of the exercise was unreasonable in any way, save for putting the four alternatives to undertaking a manual review, which he did not accept. It was not put that the process reasonably had to terminate at some point.

86    The alternative courses that were put to Mr Winton in cross-examination were all answered by Mr Winton. On the limited evidence before the Court, I am not affirmatively persuaded that any of those courses is a preferable alternative in the circumstances, still less that continuing the process of manual review is an unreasonable course. I accept Mr Winton’s evidence that the process of sampling the applicant’s claims would lead to a likelihood that invalid claims will be missed. I accept Mr Winton’s evidence that it is a reasonable course of action for the Agency to request information before making a payment, rather than making a payment and then chasing information later. The making of a payment without adequate information exposes the Agency to the vagaries of debt collection where it is at least doubtful that overpayments could be offset against future payments. Further, if enquiries are made only after a payment is made, the Agency is reliant on the coercive powers in s 53 of the NDIS Act to clothe or enforce a request for information, rather than the self-interest that a provider has in giving information prior to a payment being approved. And in the absence of some specific statutory authority to withhold sums as retention amounts, or to require the giving of security such as a bank guarantee to cover overpayments, the applicant has not shown that in the circumstances of this case it is unreasonable for the Agency to request and then consider information before authorising payments.

87    As to some of the factual matters underpinning the decision to commence, and by extension continue the manual review, it is not for the Court on this application to make findings about whether the applicant has justified its claims in relation to supports or services provided to incarcerated persons or in respect of deceased participants. That is the subject of the Agency’s ongoing review and the Commissioner’s consideration. The applicant did not submit to the contrary and accepted that the Court could go no further than to say that the allegations that were made were disputed by the applicant.

88    In relation to the audit reports, I do not accept the submissions of the applicant that they were not evidence of the truth of their contents. Under s 1305(1) of the Corporations Act 2001 (Cth), a book kept by a body corporate under a requirement of the Act is admissible as prima facie evidence of any matter recorded in the book. No submissions were made about the applicability of this provision. Further, audited accounts would qualify as business records for the purposes of the exception to the hearsay rule under s 69 of the Evidence Act 1995 (Cth). No application was made to exclude the audited accounts or to limit their use. In any event, the principal purpose for which they were adduced in evidence was as one of the bases on which Ms McDonald considered that a manual review of the applicant’s claims was warranted. I accept Ms McDonald’s evidence as to the reasons for which she recommended that the applicant’s claims be the subject of a manual review, and I accept that the contents of the audit reports was a cogent foundation supporting the recommendation.

89    This brings me to the form of relief sought by the applicant, which would require that the Agency make a decision “forthwith” in relation to the very large number of claims that remain under review, save for those that have been the subject of a request for further information or comment. The requirement that the Agency file an affidavit within seven days in relation to its compliance with the proposed order gives content to what is intended by “forthwith”.

90    For the reasons I have given, I am not satisfied that there has been unreasonable delay by the Agency. The Agency’s review of all the applicant’s claims is one large project which is progressing in a way, and at a pace, that is the product of the Agency’s policies about claim compliance and the resources that the Agency has allocated to the project. In circumstances where there is evidence of significant payments that have been made, and where the evidence is that upon satisfaction that claims are valid the Agency will make payment within days, it is not appropriate that the Court disentangle the Agency’s process and isolate particular claims for scrutiny. Indeed, that was not how the applicant’s case was argued. Furthermore, I would not in any event order the Agency to make decisions “forthwith” in relation to such a large volume of claims. That would involve a significant interference with the Agency’s administration and would be oppressive. I gave the applicant an opportunity to clarify whether this was the only timeframe for the purposes of the orders that were sought, which the applicant confirmed.

91    The applications will be dismissed with costs.

Associate:

Dated:    20 May 2025