Federal Court of Australia

Maysan Holdings Pty Ltd v National Disability Insurance Agency [2025] FCA 628

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant is to pay the costs of the respondent as agreed or assessed.

3.    If any party seeks a different order as to costs:

(a)    that party is to file and serve written submissions and any evidence on which it relies within seven days after the publication of the Court’s reasons;

(b)    the other party is to file any written submissions and evidence on which it relies in response within seven days thereafter; and

(c)    the issue of costs will be determined on the papers.

4.    Pursuant to rule 36.03(b) the time for filing any notice of appeal is extended to 28 days after the publication of the Court’s reasons.

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

REASONS FOR JUDGMENT

KENNETT J:

1    The applicant, which trades as Support Services for NDIS (SSNDIS), is a registered provider under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). By an originating application filed on 10 February 2025, the applicant seeks the following substantive orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act):

(a)    an order setting aside what is described as the NDIA’s “purported decision of 19 July 2024 to place the applicant on manual payment review” (the manual payment review decision) (prayer 3);

(b)    an order setting aside a decision made by the respondent (the NDIA) on 2 January 2025 concluding that 6,362 claims for payment were not payable under the NDIS Act (the 2 January decision) (prayer 1);

(c)    a declaration that there has been unreasonable delay by the NDIA in making decisions to approve or deny a number of claims for payment (prayer 7); and

(d)    an order compelling the respondent to make decisions on those claims forthwith or within such reasonable time as the Court deems necessary (prayer 6).

2    Extensions of time are sought in relation to the first and second of these orders and are not opposed.

3    While some of the prayers for relief in the originating application make reference to writs of certiorari and mandamus, it seems clear that the source of jurisdiction invoked by the originating application is the ADJR Act. Argument on the application proceeded by reference to that Act and not s 39B(1A) of the Judiciary Act 1903 (Cth) (the Judiciary Act).

Relevant aspects of the legislative scheme

4    The NDIS Act establishes the National Disability Insurance Scheme (NDIS). The objects of the NDIS Act include supporting the independence and social and economic participation of people with disability, the provision of reasonable and necessary supports for participants in the NDIS, and enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports: s 3(1)(c), (d) and (e). The Act also establishes the NDIA (s 117) and provides that its functions include delivering the NDIS (s 118(1)(a)). The NDIA is empowered to do anything incidental or conducive to the performance of its functions under the NDIS Act (s 118(1)(h)) and all things necessary or convenient to be done for or in connection with the performance of its functions (s 119(1)). In performing those functions, it is required to use its best endeavours to act in a proper, efficient and effective manner and ensure the financial sustainability of the NDIS: s 118(2)(b) and (c). The Chief Executive Officer of the NDIA (the CEO) is to be appointed by the Board and, under s 159(1), is responsible for the “day-to-day administration of the Agency”. The CEO is also referred to in some specific provisions of the NDIS Act, apparently as a repository of powers and duties.

5    The broad outline of the NDIS Act was usefully summarised by Neskovcin J in Affinity Care Services Pty Ltd as Trustee for the Balmerino Australia Trust v National Disability Insurance Agency [2024] FCA 1314 at [38]-[41] as follows.

The objects of the NDIS Act include supporting the independence and social and economic participation of people with disability, the provision of reasonable and necessary supports for participants in the NDIS, and enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports: s 3(1)(c), (d) and (e). The objects are to be achieved by, among other things, establishing a national regulatory framework for persons and entities who provide supports and services to people with disability: s 3(2)(c). The general principles guiding actions under the NDIS Act include that people with disability should be supported to receive reasonable and necessary supports, including early intervention supports: s 4(5).

Chapter 2 of the NDIS Act deals with assistance for people with disability. Section 14(2) of the NDIS Act relevantly provides that the Agency may provide assistance in the form of funding for persons or entities to assist one or more participants to receive supports.

Chapter 3 of the NDIS Act deals with participants and their plans. A person becomes a participant in the NDIS when the CEO of the Agency decides that the person meets the access criteria: s 28. If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan: s 32(1). The matters that must be included in a participant’s plan include the participant’s statement of goals and aspirations and a statement of participant supports: s 33(1) and (2). The statement of participant supports, which is to be prepared with the participant and approved by the CEO, must include a statement that specifies (among other things) the general supports (if any) that will be provided to, or in relation to, the participant, the reasonable and necessary supports (if any) that will be funded under the NDIS, and the management of the funding for supports under the plan: s 33(2)(a), (b) and (d).

Division 3 of Part 2 of Chapter 3 of the NDIS Act is entitled “Managing the funding for supports under participants’ plans”. For the purposes of the NDIS Act, the phrase “managing the funding for supports” under a participant’s plan means doing one or more of purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports), or receiving, managing or acquitting any funding provided by the Agency: s 42(1). In specifying the management of the funding for supports under a participant’s plan, the plan must specify that such funding is to be managed wholly, or to a specified extent, by the participant, a registered plan management provider, the Agency or the plan nominee: s 42(2). A participant may request that the funding for supports under his or her plan either be self-managed, or be managed by a nominated registered plan management provider or by the Agency: s 43(1).

6    As this summary indicates, the scheme of the NDIS Act revolves around participants and their plans. The plan for a participant is to be “prepared with the participant and approved by the CEO” (s 33(2)) and funding is provided under the NDIS for the “reasonable and necessary supports” that are specified in that plan. That funding is “managed” pursuant to the provisions of Division 3 of Part 2 of Chapter 3.

7    Within that Division, s 45 of the NDIS Act provides, relevantly here, as follows.

45  Payment of amounts payable under the National Disability Insurance Scheme—general

(1)     An amount payable under the National Disability Insurance Scheme in respect of a participant’s plan is to be paid:

(a)     to the person determined by the CEO; and

(b)     either:

(i)     in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this subparagraph; or

(ii)     if there are no such rules—in the manner determined by the CEO.

 (2)     Paragraph (1)(b) extends to dealing with:

(a)     whether amounts are to be paid in instalments or as lump sums; and

(b)     if amounts are to be paid in instalments—the amounts of those instalments; and

(c)     the timing of payments of amounts.

(3)     The National Disability Insurance Scheme rules may provide that an amount is not payable to a person until the person nominates a bank account into which the amount is to be paid.

(4)     The Agency must not pay an amount under the National Disability Insurance Scheme to any person in respect of a participant’s plan if:

(a)     the plan is a new framework plan that provides that flexible funding will be provided under the plan and the payment would result in any of the following events occurring:

(i)     the total amount of flexible funding provided under the plan exceeding the total funding amount specified in the plan under paragraph 32E(2)(a);

(ii)     the total amount of flexible funding provided under the plan during a funding period exceeding the amount of funding that is to be provided under the plan during the funding period; or

(b)     the plan is a new framework plan that provides that funding will be provided under the plan for a stated support, or class of stated supports, and the payment would result in any of the following events occurring:

(i)     the total amount of funding provided under the plan for the stated support or class of stated supports exceeding any total funding amount specified in the plan under paragraph 32G(2)(a);

(ii)     the total amount of funding provided under the plan for the stated support or class of stated supports during a funding period for the support or class of supports exceeding the amount of funding that is to be provided under the plan during the funding period for the support or class of supports; or

(c)     the plan is an old framework plan and the payment would result in any of the following events occurring:

(i)     the total amount of funding provided under the plan for reasonable and necessary supports exceeding the total funding amount specified in the plan;

(ii)     the total amount of funding provided under the plan for reasonable and necessary supports in a group of supports to which a funding component amount relates exceeding that funding component amount;

(iii)     if the plan specifies funding periods for all reasonable and necessary supports funded under the plan, taken as a whole—the total amount of funding provided under the plan for such supports during a funding period exceeding the amount of funding for such supports that is to be provided under the plan during the funding period;

(iv)     if the plan specifies funding periods for one or more groups of reasonable and necessary supports—the total amount of funding provided under the plan for supports in such a group during a funding period for that group exceeding the amount of funding for supports in that group that is to be provided under the plan during the funding period.

…

8    It will be noted that s 45(1) refers to an “amount payable under the [NDIS]”, an expression which is not defined in the NDIS Act. Section 45(1) and (2) confer powers on the CEO to decide how and to whom an “amount payable” should be paid, but do not expressly confer any power in relation to whether the amount is “payable” or not. Section 45(3) permits rules made under the NDIS Act to limit the persons to whom an amount may be paid, by requiring a bank account to be nominated. Section 45(4) sets out circumstances in which the NDIA “must not pay an amount under the [NDIS] to any person”, which are (in short) circumstances where the payment would result in an amount of funding specified in the participant’s plan being exceeded.

9    Section 45A places a further limit on the making of payments under the NDIS Act. Section 45A(1) provides that an amount is “not payable under the NDIS” in respect of the acquisition or provision of a support under a plan unless the CEO is satisfied that a claim has been made for the payment in accordance with s 45A(2), (3) and (5). Those subsections deal, respectively, with who can make a claim, the form of the claim and the time (after the provision of the support) within which the claim must be made.

10    Section 46 is headed “acquittal of NDIS amounts”. Section 46(1)-(1B) are directed at requiring amounts paid under the NDIS to be spent only on NDIS supports and in accordance with the relevant participant’s plan. Section 46(2) and (3) provide that the rules made under the NDIS Act may make provision to the retention of records, including by NDIS providers who receive NDIS amounts on behalf of participants.

The present case

NDIA processes

11    Before turning to the specific facts of this case, it is appropriate to note that, according to the Explanatory Memorandum to an amending Bill introduced in 2024 (Revised Supplementary Explanatory Memorandum SK118 to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Bill 2024 (Cth) at pp 7-8), the NDIA processes approximately 400,000 claims for payment under the NDIS per day. For such large numbers of claims (often for small amounts of money) to be individually assessed and approved for payment by officers would obviously be a poor use of resources. Nicholas Winton, a Branch Manager in the NDIA, gave uncontroversial evidence that the NDIA maintains an online portal (referred to as “myplace”) through which registered providers can make payment requests for services they have provided to participants by submitting a claim or a batch of claims. The payment requests with which this proceeding is concerned were submitted by this method.

12    Mr Winton deposed as follows.

Every claim the Agency receives through the ‘myplace’ portal is risk-assessed through an electronic process. If a claim is flagged as ‘high-risk’ by that process it may undergo manual intervention. ‘High risk’ claims are ones which may to [sic] pose significant risks to participants of the Scheme or to the financial sustainability of the Scheme. If no ‘risk’ factors are identified against a claim made through the ‘myplace’ portal, it will be paid automatically. Those payments are generally made within 2-3 days.

13    The NDIA also has a process known as “manual payment review”, which involves an assessment being made about a provider or a participant rather than an individual claim. This step can be taken if the NDIA has “concerns about the integrity of the claims or the claimants” Such concerns can arise from tip-offs from members of the public, referrals from other government agencies or the NDIA’s “intelligence and analytics functions”. Mr Winton described the consequence of a provider being placed on manual payment review, in its application to an individual claim as follows.

A manual payment review means that an officer of the Agency will manually review and assess the claim to determine whether or not it should be paid. One step that will be undertaken during a manual payment review is that the officer reviewing that claim decides to seek more information from the claimant, in order to substantiate the claim. That could be, for example, by the seeking of records about the support provided and the circumstances in which it was provided. The officer will then assess all the available material to determine whether each individual claim should be paid or not.

If a provider can substantiate that their claim is payable, it will be paid. If not, it will not be paid (which is done by a ‘cancellation’ of the claim, which means it was rejected). In this way, manual payment reviews operate to safeguard participants and their plans, while also educating and leading to corrections in non-compliant claiming behaviour. Also, if a payment claim is “cancelled” or rejected, it remains open for the claimant to re-lodge the payment claim at a later time, with additional material to support the claim. That fresh claim would be then be processed in the ordinary fashion.

14    If a provider is subjected to manual payment review, all of its payment claims are allocated to a case worker in what is referred to as the “Review Team”. A “Request for Information” letter (RFI) is sent to the provider with a list of the claims that are under review and a request for information about them (including for copies of documents such as invoices and support notes). The claims canvassed in an RFI letter are allocated an identifier that begins with “RTP” for the purpose of identifying them. The information supplied in response to an RFI letter is considered and there may be a request for further information. Mr Winton also deposed that, if the case worker is minded to reject a claim or a group of claims, an invitation to comment is sent to the provider setting out the officer’s concerns and the provider’s response is considered before a decision is made as to whether the claim or claims should be paid. However, the facts to be summarised below include instances where that did not occur until ordered by this Court.

15    Since November 2022 there has been in existence a “Fraud Fusion Taskforce” (the Taskforce), which is a partnership between a number of government agencies designed to find and stop fraud in the NDIS and other programs. The Branch in the NDIA which Mr Winton heads is part of the Taskforce.

The applicant’s claims

16    The applicant, as noted above, trades as SSNDIS and is a registered provider under the NDIS. As at February 2025 it provided services to around 95 NDIS participants, who included “NDIA managed”, “plan managed” and “self-managed” participants. Providing NDIS support is the applicant’s sole source of income.

17    On 19 July 2024 the Taskforce asked the Review Team to commence manual payment reviews of claims submitted to the NDIA by the applicant. The request came from the NDIA’s Director of Intelligence Operations, which also operates within the Taskforce. Manual payment review was put in place in respect of the applicant on 23 July 2024, so that all payment claims submitted by the applicant since that time have been subject to manual review.

18    What has happened since that time can be summarised as follows.

Claims determined in January 2025

19    An RFI letter designated RTP0417 was sent to the applicant on 5 August 2024. It dealt with claims lodged between 25 July 2024 and 4 August 2024. On 16 August 2024 the Review Team received a series of emails from Mr Wasfa Amoor, a director of the applicant, attaching documents relating to the claims referred to in RTP0417. After some further correspondence, the Review Team sent an “outcome letter” to the applicant on 21 October 2024 expressing its view that none of the claims had been substantiated.

20    On 10 September 2024 an RFI letter designated RTP0561 was issued to the applicant. It dealt with claims lodged between 5 August 2024 and 8 September 2024. Mr Amoor sent 16 emails to the NDIA between 24 and 27 September 2024 attaching documents in relation to these claims.

21    On 30 September 2024 an RFI letter designated RTP1226 was issued to the applicant. It dealt with claims lodged between 23 July 2024 and 28 September 2024. Mr Amoor sent the NDIA four emails on 14 October 2024 attaching documents relevant to these claims.

22    On 24 October 2024 an RFI letter designated RTP1330 was issued to the applicant. It dealt with claims lodged between 1 October 2024 and 22 October 2024. Mr Amoor sent the NDIA four emails on 14 November 2024 attaching documents relevant to these claims.

23    On 11 November 2024 the applicant commenced proceedings in this Court. Those proceedings were resolved by consent, with orders made on 5 December 2024 (the consent orders). The orders quashed the decision made on 21 October 2024 (relating to RTP0417) on the ground that there had been a failure to afford procedural fairness and required the NDIA to determine within 28 days the claims referred to in RTP0561, RTP1226, RTP1330 and a further RFI letter designated RTP1472.

24    RTP1472 was issued on 11 December 2024, after the consent orders had been made, notwithstanding that it was part of the subject matter of those orders. It dealt with claims lodged between 23 October 2024 and 5 December 2024.

25    On 17 December 2024 the NDIS sent a letter to the applicant inviting it to comment on adverse information, and provide information, in relation to the claims the subject of the consent orders. The applicant responded on 23 and 24 December 2024 by sending several emails with zip files attached to them.

26    On 2 January 2025 the NDIA sent a letter to the applicant notifying its decision in relation to all of the claims covered by the consent orders (the January outcome letter). 6,575 claims were dealt with by this decision, with 213 found to be amounts payable and 6,362 found not to be payable.

(a)    Of the claims found by the NDIA not to be payable, 1,076 were said not to have been supported by any documentary material. The remainder were considered not to be supported by sufficient material to allow the decision maker to be satisfied that they were payable.

(b)    203 of the claims found to be payable had been paid by 8 January 2025 (totalling $141,402.25). Funds for the remaining 10 claims (totalling $1,561.07) were released to the applicant on 28 March 2025 and paid shortly thereafter.

Undetermined claims

27    There were four more groups of claims that had not been determined at the time Mr Winton affirmed his first affidavit on 4 April 2025. The position in relation to these claims was updated in a second affidavit of Mr Winton affirmed on 7 May 2025.

28    999 claims made between 30 September 2024 and 6 February 2025 (for a total of $434,399.29) were the subject of a RFI letter designated RTP1885, dated 4 March 2025. The applicant provided a response to this letter on 18 March 2025. 264 of these claims (totalling $145,147.31) were determined to be payable and the funds were released on 5 May 2025. An invitation to comment was issued to the applicant in relation to the remaining claims on 5 May 2025.

29    615 claims made between 30 September 2024 and 29 January 2025 (for a total of $310,735.61) were the subject of a RFI letter designated RTP2570, dated 19 March 2025. The applicant provided a response to this letter on 2 April 2025. 329 of these claims, totalling $168,934.88, were determined to be payable and the funds were released on 5 May 2025. An invitation to comment in relation to the remaining claims was also issued on 5 May 2025.

30    966 claims made between 20 February 2025 and 17 March 2025 (for a total of $426,030.63) were the subject of a RFI letter designated RTP2367, dated 19 March 2025. The applicant provided a response to this letter on 2 April 2025. These claims were still under consideration at the time of Mr Winton’s second affidavit.

31    201 claims made on 12 February 2025 (for a total of $85,879.10) were the subject of a RFI letter designated RTP2307, dated 4 March 2025. The applicant provided a response to this letter on 18 March 2025. These claims were also still under consideration at the time of Mr Winton’s second affidavit.

32    The rejection of many of the applicant’s claims and the delay in determining others has placed it in financial difficulty. Mr Amoor deposed that the applicant’s directors have had to make loans to the applicant to support its operations, for which purpose they have themselves had to borrow money.

33    In the light of these factors and with the agreement of the parties, the matter was case managed so as to enable a final hearing relatively quickly. It was heard on 9 May 2025, with written submissions having been filed by both parties beforehand.

34    At the close of the hearing, counsel for the applicant sought leave to file written submissions in reply. I was reluctant to allow this step after oral argument, but granted leave for additional references to authority to be provided and for the NDIA to respond to anything in those references that raised a new issue. On 14 May 2025 I received what were in effect further written submissions from counsel for the applicant covering prayer 3 (the attack on the manual payment review decision). In response, the respondents submitted that I should not entertain those submissions but also engaged with their content. I have treated these further submissions as part of the argument in the case, despite their irregularity.

The manual payment review decision

35    The grounds of review set out in respect of this decision in the originating application are as follows.

a.     The applicant has been and continues to be a lawfully registered NDIS provider since 6 September 2019.

b.     Between 13 October 2021 and 6 July 2024 the respondent received 28 allegations adverse to the applicant.

i.     The respondent failed to put any of the 28 allegations to the applicant;

ii.     The Respondent was not afforded an opportunity to respond to any of the allegations;

iii.     The respondent was unaware of the allegations until the information was forthcoming in litigation in late November 2024.

iv.     Between July 2024 until November 2024 the applicant had made many inquiries as to why the payments had ceased and were subject to scrutiny. No explanation was forthcoming until 29. November 2024 during litigation between the applicant and respondent.

c.     In making the purported decision, the applicant has been denied procedural fairness in:

i.     Not having the particulars of each allegation properly brought to it’s [sic] attention;

ii.     Not being afforded an opportunity to respond to any of the allegations;

d.     In making the purported decision, the respondent committed jurisdictional error in failing their duty to inquire.

36    The ADJR Act provides for applications to be made to review a “decision to which this Act applies”, which is defined in s 3 as a “decision of an administrative character made, proposed to be made, or required to be made … under an enactment”. “Enactment” includes, relevantly, a Commonwealth Act or an instrument made under such an Act.

37    In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, Mason CJ (with whom Brennan and Deane JJ agreed) observed that a reviewable “decision” under the ADJR Act is one for which provision is made by statute, which normally entails a decision which is “final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”, and that another essential quality of a reviewable decision is that it be “a substantive determination”.

38    The concepts of a “final or operative” and “substantive” determination in this passage are linked to the requirement that the decision be one for which provision is made by statute: the decision must be operative and substantive in that it brings the provisions of the statute to bear on the legal rights of persons affected. This was made clearer in Griffith University v Tang [2005] HCA 7; 221 CLR 99 (Tang), which concerned a Queensland judicial review statute in relevantly the same terms as the ADJR Act. In that case Gummow, Callinan and Heydon JJ said at [79]-[80] and [89]:

The decision so required or authorised must be “of an administrative character”. This element of the definition casts some light on the force to be given by the phrase “under an enactment”. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? 

…

The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met. 

(Emphasis in original; footnotes omitted.)

39    The issue under consideration in Tang was whether a decision that derived legal force from the general law was relevantly made “under an enactment”. However, the passage illustrates that the terms “decision”, “administrative character” and “under an enactment” all fit together so that a reviewable decision is one that (i) is required or authorised by an enactment, (ii) affects legal rights (eg by conferring, abrogating or overriding rights or obligations), and (iii) has that effect on rights by force of the enactment.

40    The decision to place the applicant under manual payment review was clearly not such a decision. Neither the NDIS Act nor the rules made under it confer any rights in relation to the technology to be used in deciding a request for funding or in relation to the depth of analysis or information to be sought for the purpose of deciding individual claims. While it is clear that the practical interests of the applicant are deeply affected by the decision, no legal rights were determined by it; it was a preliminary, intramural decision of the NDIA as to how it would approach its decision-making task. Such decisions may have the consequence of raising questions as to unreasonable delay, but that is a separate issue to be considered later.

41    Although the applicant relied on the ADJR Act, the proposed order was framed in prayer 3 as an “order in the nature of Certiorari”; that is, an order quashing the decision. The result would be the same if the application were understood to invoke the Court’s jurisdiction under s 39B of the Judiciary Act and seek constitutional writ relief in the form of a writ (or an order in the nature) of certiorari. The function of certiorari is to quash the legal effect or legal consequences of the decision under review: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ). The remedy has no meaning and does not lie in relation to a decision that has no effect on legal rights.

42    The originating application must therefore be dismissed in so far as it seeks to set aside the decision to place the applicant on manual payment review.

43    I should note that I do not regard this result as foreclosed by the failure of the NDIA to file a notice of objection to competency under r 31.05 of the Federal Court Rules 2011 (Cth) (the Rules) in relation to this aspect of the originating application, even though the characterisation of the decision sought to be reviewed is an issue that goes to the Court’s jurisdiction under the ADJR Act. A notice of objection to competency is a procedural device that facilitates the identification of a jurisdictional issue and allows it to be decided as a threshold question if appropriate. The failure to file such a notice may have costs implications in some cases but cannot overcome a lack of relevant jurisdiction. To the extent necessary, I would dispense with compliance with r 31.05 under r 1.34 of the Rules.

44    In the light of these conclusions, it is not necessary to form a view as to the content of any obligations of procedural fairness that arose in respect of the manual payment review decision.

The 2 January decision

45    The grounds set out in the originating application in respect of this prayer for relief are that the NDIA:

a.     Failed to apply the correct legal test in coming to it’s [sic] conclusion;

b.     Took into account irrelevant considerations;

c.     Failed to take relevant consideration [sic] into account;

d.     Denied the applicant procedural fairness;

e.     Failed the respondent’s duty to inquire.

Preliminary points

46    The first point that should be noted is that the legal character of the function being performed by the CEO under s 45 of the NDIS Act is nebulous. A discretion is conferred as to the manner of payment but not as to whether an amount is to be paid. There are express provisions as to circumstances in which an amount is not to be paid, but no express definition of the circumstances in which an amount is “payable”. Nor is there any provision in the NDIS Act that expressly makes the payability of an amount dependent on the satisfaction of the CEO or any other officer. Uninstructed by authority, I would regard it as arguable that the assessment of the payability of a claim by the NDIA is not determinative of whether any amount is “payable” under the NDIS and the so-called “decision” of 2 January 2025 was therefore not a “decision to which this Act applies” for the purposes of the ADJR Act (or otherwise amenable to public law remedies). However, Horan J held in Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892 (Northern Disability Services) that s 45 required a substantive determination by the CEO and such a determination was a decision to which the ADJR Act applied. Both parties have framed their submissions on the basis that this understanding is correct and there is no occasion here to question it.

47    One consequence of treating the 2 January decision as the exercise of a power (or performance of a duty) under s 45 of the NDIS Act is that the person who made the decision must have been appointed as a delegate of the CEO in order for the decision to be valid. I have assumed this to be the case, with the applicant not having raised any issue concerning the decision maker’s authority.

48    The second preliminary point is that, for the purposes of considering relief under the ADJR Act (or the constitutional writs), the “decision” of 2 January 2025 actually comprised 6,575 decisions on individual claims for payment. This is the level of analysis which ss 45 and 45A of the NDIS Act dictate. 213 of those decisions were favourable to the applicant (and presumably are not intended to be set aside). The remaining 6,362 decisions were unfavourable.

49    Although the material supplied by the applicant to the NDIA was in evidence, and reference was made in submissions to some isolated examples, no attempt was made to establish what the NDIA took into account or how it reasoned in respect of the individual decisions. To be fair, such an exercise would obviously have been extremely time-consuming and probably infeasible in an expedited proceeding. It might have been possible for the parties to put detailed arguments by reference to some agreed examples and use the Court’s rulings on these to develop appropriate orders in relation to the whole body of decisions or categories of them; however, this was not attempted. It was not sufficient to put all of the thousands of pages of documents into evidence and expect the Court to analyse them for itself (and I did not apprehend that the applicant was expecting this.) In so far as complaints are made about reasoning, therefore, those complaints must find a foundation in the January outcome letter and must be applicable to all 6,362 rejected claims (or to all claims within a category that is the subject of relevant observations in the January outcome letter).

The arguments

Procedural fairness

50    The invitation to comment letter that was sent to the applicant on 17 December 2024 was thorough. The letter explained at a general level the substance of 28 tip-offs that had been received between 2021 and 2024 making allegations about the applicant, which raised issues for the NDIA about whether the services for which it was claiming had been provided and were properly payable, and then explained several respects in which the NDIA considered that the material so far provided by the applicant in respect of the claims in issue was incomplete or was suggestive of over-claiming or claims not properly made. The letter then said:

Prior to making a decision in relation to SSNDIS’s payment claims, we invite you to comment on the information above. We also invite you to submit any information not previously provided to the Agency that SSNDIS considers suggests services claimed for were (i) in fact provided, (ii) appropriately provided in accordance with participants’ plans; and (iii) payable pursuant to s 45 of the NDIS Act. You can comment by sending your response to us by email: [address].

51    Finally, the letter noted the deadline for a decision imposed by the consent orders (2 January 2025) and the several public holidays due to occur before that date, sought the applicant’s consent for that deadline to be extended to 17 January 2025, and (in the event that an extension was not agreed) asked for the applicant to respond to the invitation by 23 December 2024.

52    I infer from the dates of the applicant’s response and the decision that the applicant did not agree to an extension of time.

53    The invitation to comment allowed the applicant only six days to digest the concerns expressed by the NDIA and respond to them. However, a short time frame was unavoidable given the deadline that had been imposed on the NDIA by the consent orders (which the applicant had presumably sought, and evidently did not wish to extend).

54    The applicant made a written response on 23 December 2024, dealing as best it could with the unparticularised allegations derived from the tip-offs and engaging in some detail with the other observations in the invitation to comment. It also provided a large amount of further documentary material in support of the disputed claims.

55    The alleged denial of procedural fairness was developed by way of a proposition that the applicant was entitled to know the basis on which the NDIA would form its satisfaction; and, if further material was required, the applicant was entitled to know the issue that the NDIA’s satisfaction would turn on.

56    So far as the tip-offs are concerned, this point has some force. The applicant could not be expected to respond to allegations of this kind without knowing with some precision what it was alleged to have done or not done and what evidence was thought to support the allegations. However, the substance of the tip-offs was not directly in issue: the NDIA was not, for example, considering the imposition of any sanction against the applicant on the basis of them. Rather, they were part of the background as to why the applicant was being asked to substantiate its claims before the claimed amounts instead of those amounts being paid automatically. This was the starting point for the substantiation exercise rather than something likely to affect its conduct or outcome.

57    More broadly, the procedural fairness argument faces two insurmountable difficulties.

58    First, this was not a case where there was an opposing party advancing a case that the applicant had to meet. The applicant was entitled to have its attention directed to the “critical issues or factors on which the decision was likely to turn” and to be able to respond to any adverse conclusions from the known material that was not an obvious and natural evaluation of that material; however, the decision maker was not required to disclose what they were minded to decide and invite comment, or give a running commentary on their thoughts in relation to the evidence provided: Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 (Northrop, Miles and French JJ). In order to establish a breach of that standard, the applicant had to demonstrate the existence of an important issue to which its attention was not drawn (and which was not already obvious from the nature of the decision) or a conclusion from the material provided to the decision maker that could not have been anticipated.

59    This was not done. Instead, there was a general complaint that the NDIA did not tell the applicant what it wanted. Addendum A to the January outcome letter addressed the claims that had been rejected in (sometimes overlapping) categories and gave an account of why the decision maker had not been satisfied in relation to them. This was an understandable approach given the large number of claims. In each category the problem identified was the absence of fairly basic documents (such as invoices or timesheets) or information (such as the participant’s identity or the type of service received), or contradictions within the information provided as to what service had actually been provided. These were unremarkable matters of substantiation: I was not directed to anything in this document (which is the only evidence of the decision maker’s reasoning) that suggested an unanticipated issue or an unheralded conclusion. This, it will be recalled, was in circumstances where the applicant had been invited both to comment on the topics raised in the invitation to comment and to provide any information (in addition to that already provided) that in its view “suggests services claimed for were (i) in fact provided, (ii) appropriately provided in accordance with participants’ plans; and (iii) payable pursuant to s 45 of the NDIS Act”.

60    Secondly, what procedural fairness requires is always context-specific: see eg Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [48] (McHugh and Gummow JJ). In the same vein, Brennan J described the principles of procedural fairness as “chameleon-like”: Kioa v West (1985) 159 CLR 550 at 612.

61    Here, two important aspects of the context need to be noted. One is the position taken by the NDIA, including in the January outcome letter, that a claim for payment which it had rejected could be resubmitted with further documents. It has not been suggested that this understanding of the statutory scheme was incorrect. If it was correct, the decisions being made were not truly final: the applicant could submit further information, if it existed, to remedy the gaps and contradictions identified in the letter. This makes the matter somewhat akin to cases involving multi-stage decision-making, where what needs to be considered is whether the process as a whole is procedurally fair (see eg South Australia v O’Shea (1987) 163 CLR 378 at 389 (Mason CJ)). The applicant could keep agitating its claims for payment until either they were accepted or the well of potentially relevant material was exhausted.

62    The other significant contextual matter is the timetable that had been imposed by the consent orders (which, as noted earlier, were made in proceedings instigated by the applicant). The NDIA needed to make a decision by 2 January 2025 in order to avoid breaching orders of this Court. This compressed the time available for each stage of the process, including the formulation of the invitation to comment and the period that could be allowed for the applicant to respond. Between the applicant’s response (on 23 December 2024) and the deadline for a decision fell the Christmas-New Year period, when staff were entitled to take time off and it could not be assumed that the applicant’s office would be operating. It would not have been feasible for the NDIA to alert the applicant to what it saw as gaps in the documentation provided, receive further material and then consider that material before the time allowed for a decision expired. It has not been shown that the process could have been fairer than it actually was in these circumstances.

Other error of law

63    To a significant extent, the applicant’s submissions appeared to reduce to a proposition that it had provided ample justification for its claims for payment and the decision maker was wrong to conclude to the contrary. This does not rise above disagreement with the merits of the decision and does not provide a basis on which the Court could set any part of it aside. There are three more specific submissions that should be noted.

64    First, the applicant submitted that a difficulty with the NDIA’s approach was that there was “no expressed limitation or prescription on the requisite satisfaction of the CEO” and that the “level of satisfaction ought not rise above that of probability”. The point appears to be that the decision maker applied too rigorous a standard to deciding whether they were satisfied that claims were payable.

65    One version of this argument is indistinguishable from a complaint about the merits: that the decision maker was simply too hard to persuade, and should have been persuaded by the material that the applicant provided.

66    A different version of the argument does raise a legal point. On the basis (established by Northern Disability Services at [105]) that s 45 involves a determination by the CEO which is “a substantive determination of matters relating to the payment of amounts payable under the NDIS in respect of a participant’s plan”, a determination is required that involves consideration of whether each amount claimed is properly payable under the NDIS in respect of that plan. Implicitly at least, the CEO or their delegate must be satisfied that the amount is properly payable in order to determine that it is to be paid. Satisfaction, in this context, is “a state of mind — an ‘actual persuasion of [the] occurrence or existence’ of the thing in issue” (Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 at [38] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) (square brackets in original and footnotes omitted)). Attempts to apply concepts such as “onus” or “standard of proof” to the formation of such states of mind by administrative decision makers have been unsuccessful (see eg Sun v Minister for Immigration [2016] FCAFC 52; 243 FCR 220 at [7] (Logan J), [63]-[68] (Flick and Rangiah JJ)), so that it would be wrong to suggest that the CEO or delegate was obliged to form the relevant state of satisfaction by reference to (for example) the “balance of probabilities”. Within the bounds of rationality and subject to the principles of procedural fairness, the decision maker could assess the material and form an opinion in whatever way they thought appropriate. On the other hand, there would at least arguably be an error of law if the decision maker had felt an “actual persuasion” that a claim was payable but nevertheless determined not to treat it as payable for some reason (eg, a policy that no claim should be paid in the absence of some specific piece of evidence).

67    The difficulty is that no such refusal to regard claims as payable has been demonstrated on the evidence. It obviously is not demonstrated in respect of individual claims: the NDIA’s reasoning is not expressed at that level; and, as noted earlier, the parties’ submissions have not engaged with individual claims with a degree of completeness that would allow any inferences about the decision maker’s thought process to be inferred from the state of the materials. Nor is it demonstrated at a global level (or in respect of categories of claims) from anything that is said in the January outcome letter or Addendum A to that letter.

68    Indeed, the January outcome letter and its Addendum contradict any assertion that an impossibly high standard of proof was applied. One obvious point is that 213 of the applicant’s claims were accepted as payable. In addition, Addendum A begins with the following passage.

To establish that a claim submitted by SSNDIS is payable in accordance with the NDIS Act, I consider I need to be reasonably satisfied the supports the subject of the claims were in fact provided and were payable in accordance with the relevant participants’ plans and the NDIS Act (the reasonable satisfaction a claim is payable requirement). In considering SSNDIS’s payment claims I have had regard to the matters raised in its response to the Invitation to Comment letter but do not consider those matters suggest the reasonable satisfaction a claim is payable requirement will be met in the absence of credible corroborative information suggesting the supports the subject of the claims were in fact provided and were payable in accordance with the relevant participants’ plans and the NDIS Act.

(Emphasis in original.)

69    Secondly, it was submitted that the NDIA had “failed to apply their own guidelines”. It is possible that departure by a decision maker from “guidelines” that have been issued to inform the public about decision making processes could give rise to reviewable error, but how that conclusion follows requires explanation. Guidelines, at least ordinarily, are not legally binding. Here, there was a simple complaint that guidelines had not been followed. If true, this was no doubt vexing; however, it does not point to legal error.

70    The guidelines to which reference was made here were contained in a document entitled “Documentation by support type”. As the title suggests, that document gives an outline of the material that the NDIA considers should be submitted in order to substantiate claims for payment for supports of various kinds. The document does not contain a representation that provision of this material will necessarily lead to a claim being considered payable or that further material will not be requested. This claim is not made out.

71    Thirdly, it was submitted that the decision maker had failed to consider material supplied by the applicant. If the submission is that the decision maker did not turn their mind to any of the voluminous material supplied by the applicant (including in response to the invitation to comment), this can obviously be treated as an allegation of legal error of a fundamental kind. However, if the submission is that particular parts of the material were not considered, the issue becomes more complex. It is not necessary to resolve those complexities because there is not a proper evidentiary basis for either version of the submission.

72    An aspect of this argument may be that the applicant’s claims were (so it thought) more than sufficiently substantiated by the material it had provided to the NDIA, and a failure to prove its claims must therefore involve a failure to consider that material. However, in the absence of a detailed analysis of individual claims and the documents presented to support them, this inference is impossible to draw and the argument is no more than a generalised complaint about the merits.

73    Either version of the argument is contradicted by the terms of the January outcome letter. Under the heading “Material reviewed”, it said that “The material taken into consideration by the NDIA includes” the “information received” (I infer from the applicant) on several dates in 2024 including 24 December. Assertions of this kind by decision makers can be said to be self-serving and are clearly not immune from being proved to be incorrect. However, I was not directed to any evidence capable of raising questions about the veracity of the decision maker’s statement here.

74    The applicant sought to draw something from the following passage in Addendum A to the January outcome letter.

In the case of 1,076 payment claims, no documentary material (in addition to SSNDIS’s correspondence to the NDIA) was provided by SSNDIS to substantiate them. SSNDIS’s letter to the NDIA of 24 December 2024 stated several times that SSNDIS maintained detailed and accurate records to support the claims made and was prepared to provide necessary evidence detailing the work purportedly undertaken (the detailed and accurate records representation). However, such records / evidence have not been provided in relation to these claims.

(Emphasis in original.)

75    However, read fairly and in full, this statement (which in any event applies only to a subset of the claims) demonstrates engagement with the material provided by the applicant and the formation of an understanding about what it proved and did not prove.

Conclusion

76    No proper basis for setting aside the 2 January decision has been demonstrated. This prayer for relief must be rejected.

The undetermined decisions: unreasonable delay?

77    These prayers for relief concern the undetermined claims the subject of RTP1885, RTP2570, RTP2367 and RTP2307, referred to at [28]-[31] above. As mentioned there, 593 out of these 2,781 claims had been determined to be payable (and funds had been released) by the time of the hearing. Invitations to comment had been issued to the applicant in respect of the unapproved claims in RTP1885 and RTP2570 (1,021 claims by my calculation). In effect, therefore, the process of dealing with the claims in RTP1885 and RTP2570 was well advanced although it had been moving slowly (the relevant claims having been lodged between 30 September 2024 and 6 February 2025). The 1,167 claims in RTP2367 and RTP2307 (dating from between 12 February 2025 and 17 March 2025) were still under consideration.

78    The declaration sought by the applicant can only serve to resolve a controversy about legal rights if the phrase “unreasonable delay by the respondent” is understood to mean delay of a kind that justifies an order in the nature of mandamus requiring decisions to be made. The proposed declaration therefore adds nothing to the claim for mandamus.

79    The terms of the proposed declaration do, however, reflect a correct understanding that, in the absence of any express statutory time limit for making a decision, mandamus (or an order to the same effect under the ADJR Act) will lie in cases of delay only where the decision has not been made within a “reasonable” time. The principles governing the availability of mandamus or equivalent relief on the basis of unreasonable delay were recently expounded by the Full Court in Patrick v Australian Information Commissioner [2024] FCAFC 93; 304 FCR 1 at [29], [30], [37]-[39], [61] and [73] (Bromwich, Abraham and McEvoy JJ). The following points emerge from this analysis.

(a)    The standard of reasonableness is objective and depends on the statutory scheme.

(b)    Whether delay is unreasonable depends on an assessment of all the circumstances.

(c)    The level of resources available to the agency responsible for making the decision is not irrelevant.

(d)    The issue ultimately posed by their Honours at [71] — whether the delay had occurred because of “capriciousness, negligence or oversight” — reflects the continuing influence of a statement by Fisher J in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292, which their Honours set out 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.

80    The phrase “justified and not capricious” and the reference to “neglect, oversight or perversity” indicate that a party who seeks mandamus on the basis of unreasonable delay faces a high hurdle. That hurdle has not been surmounted in the present case, for the following reasons.

81    First, there is a large number of claims still in issue. If they are to be considered by officers looking at the documents submitted in support rather than fed into an automated process (a point to which I return below), it is natural to expect that that consideration will take a considerable amount of time. The applicant is one of many providers submitting claims for payment under the NDIS Act.

82    Secondly, Mr Winton has given evidence about the resources available to the Review Team in the NDIA. The Review Team usually has the equivalent of around 40 full time staff. As at 30 April 2024 there were around 2200 entities that were subject to manual payment review and around 55,000 individual claims requiring consideration. Additional recruitment was under way but was not expected to increase the capacity of the Review Team in the short term.

83    Thirdly, the progress that had been made on the claims in RTP1885 and RTP2570 between the commencement of the proceedings and the hearing indicates that the applicant’s claims are receiving attention, even though progress is undesirably slow. There is no indication of any particular disinclination to deal with the applicant’s claims.

84    Fourthly, while it can properly be said that the NDIS relies on the existence of registered providers and on efficient mechanisms for payment of very large numbers of claims, integrity and financial rectitude are also important values underpinning the statutory scheme. The NDIS could not be regarded as financially sustainable or as an appropriate use of public funds in the absence of some procedures for checking whether amounts claimed are properly payable. Such procedures inevitably cause delay.

85    What emerges is that the considerable (and significantly burdensome) delays that the applicant is experiencing are the consequence of it having been placed on manual payment review. No real improvement can be expected unless there is a decision to return the applicant to the electronic risk-assessment process.

86    An affidavit affirmed by Ms Ngarita Gregory-Hunt, the Director of the NDIA’s Intelligence Operations Team, gives some indication of the thinking behind the manual payment review decision. It is apparent that it was based on consideration of information received from several sources and a preliminary analysis of the applicant’s claims history. Although the applicant sought in this proceeding to set aside the manual payment review decision, that attack was based on an asserted failure to provide procedural fairness rather than a lack of foundation for the decision. It has not been submitted that the manual payment review decision was irrational, let alone that the NDIA’s adherence to that decision is “capricious” or a product of “neglect, oversight or perversity”.

87    For these reasons, the prayers seeking mandamus and declaratory relief must also be dismissed.

Disposition

88    The originating application must be dismissed. There is no reason why costs should not follow the event.

Associate:

Dated:    16 June 2025