Federal Court of Australia

Kapoor v Chief Executive Officer, National Disability Insurance Agency [2026] FCA 1058

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal from a tribunal accepted for filing on 16 June 2026 be struck out.

2.    The applicant have leave to file an originating application in accordance with Form 69 for relief under s 39B of the Judiciary Act 1903 (Cth) and an amended statement of claim or a concise statement which properly and adequately identifies the grounds for the relief that he seeks and the material facts on which he relies.

3.    Any documents to be filed under order 2, be filed and served by 28 August 2026.

4.    The proceeding be listed for case management on 4 September 2026.

5.    Costs reserved.

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

REASONS FOR JUDGMENT

STEWART J:

1    The applicant commenced this proceeding by filing a notice of appeal from a decision of the Administrative Review Tribunal. The relevant decision, given on 15 May 2026 at Melbourne, was “to grant the Respondent leave to inspect the Applicant’s private medical records produced under summons”.

2    The reasons for the decision of the Tribunal reveal that the applicant filed an application with the Tribunal seeking a review of the decision of a delegate of the Chief Executive Officer of the National Disability Insurance Agency approving a statement of participant supports for the applicant. The applicant contends before the Tribunal that various forms of support that he requires and should be granted were denied by the Agency. The relief that he seeks in the Tribunal is that he is granted those forms of support.

3    In dealing with the review proceeding before it, the Tribunal, on the application of the Agency, issued summonses to several medical practices, medical centres and hospitals where the applicant had received medical treatment. The summonses were for the production of medical records relating to the applicant.

4    Then, against the objections of the applicant, the Tribunal granted leave for the Agency to inspect the documents that were produced under the summonses. That is the decision of the Tribunal from which the applicant seeks to appeal under s 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).

5    The grounds the applicant relies on in his notice of appeal are that:

(1)    The decision was affected by jurisdictional error;

(2)    The Tribunal denied the applicant procedural fairness;

(3)    The Tribunal failed to make reasonable adjustments for the applicant’s disability;

(4)    The conduct of the Tribunal and the respondent constitutes misfeasance in public office; and

(5)    The decision was unreasonable.

6    In his statement of claim, the applicant pleads that the decision “constitutes a serious breach of s 62 of the National Disability Insurance Scheme Act 2013 (Cth), denial of procedural fairness, and misfeasance in public office”.

7    There are several shortcomings to the applicant’s appeal, no doubt explicable by the fact that he is not represented by a lawyer. Some of those shortcomings can be remedied. They include that he has not cited the Tribunal as a respondent and that, since the hearing before the Tribunal (albeit a hearing on the papers) was held in Melbourne, the notice of appeal was required to have been filed in the Victorian Registry of the Court (r 33.12(3) of the Federal Court Rules 2011 (Cth)). However, as I will come to, the more fundamental difficulty with the applicant’s proceeding is that it seeks to appeal from an interlocutory decision of the Tribunal.

8    The proceeding came before me for the first case management hearing on 3 July 2026. I raised with the parties whether the proceeding was competent. The respondent quite properly pointed out that notwithstanding that the proceeding was commenced by a notice of appeal from a tribunal in accordance with Form 75 to the Court’s rules, the applicant’s statement of claim refers to the proceeding being brought under ss 5 and 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).

9    Concerned that the proceeding is required to be regularised, I made orders granting the applicant the opportunity to file and serve written submissions addressing two issues. The first was why, to the extent that the proceeding is an appeal under s 172 of the ART Act, it is competent with reference to Director-General of Social Services v Chaney [1980] FCA 87; 31 ALR 571 (Chaney). The second was, to the extent that reliance is placed on some other basis to impugn the decision of the Tribunal, exactly what that basis is, including by identifying any statutory provisions relied on and the material facts said to justify the relief. The applicant availed himself of that opportunity and filed submissions to which the respondent responded and the applicant then replied.

10    The respondent submits that the statutory appeal under the ART Act is incompetent and should be dismissed, but that appropriate orders regularising the proceeding as being a proceeding for judicial review under s 39B of the Judiciary Act would not be opposed.

11    The parties did not object to me deciding further orders for the conduct of the proceeding on the papers, which I now do.

12    Dealing first with the competency of the statutory appeal, it was settled a long time ago that under the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), an appeal would only lie “from a decision of the tribunal which constitutes the effective decision or determination of the application for review”: Chaney 31 ALR 571 at 593 per Deane J, Fisher J agreeing. The same holds true for appeals to the Court under s 172 of the ART Act: Pratten v Commissioner of Taxation [2025] FCA 749 at [8]-[18] and [27] per Sarah C Derrington J; RPPL Pty Ltd v Commissioner of Taxation [2025] FCA 1126 at [64]-[83] per Cheeseman J.

13    Section 172(1) of the ART Act provides that a party to a proceeding in the Tribunal “may appeal to the Federal Court, on a question of law, from the decision of the Tribunal in the proceeding” (emphasis added). That is most obviously a reference to the decision of the Tribunal that determines the review to the Tribunal of the reviewable decision in question. The position under the AAT Act was less clear, s 44 having provided that an appeal lay to this Court, on a question of law, “from any decision of the Tribunal” (emphasis added). Notwithstanding that, the proper construction of the section was held to be limited – with few exceptions, to which I will return – to the dispositive decision of the Tribunal in the proceeding before it.

14    The Revised Explanatory Memorandum to the ART Act (at [1097]) draws attention to this very point, stating that s 172(1) of the ART Act:

is equivalent to subsection 44(1) of the AAT Act with one minor change. The phrase ‘the decision’ (as opposed to ‘any decision’) clarifies that it is generally the final decision in a proceeding that may be appealed, as held in Director-General of Social Services v Chaney (1980) 3 ALD 161. The effect of the provision is the same.

15    Whether or not the applicant’s appeal is competent turns on the meaning of “the decision” in s 172(1) of the ART Act. As in s 3(3) of the AAT Act, “decision” is defined very broadly in s 4 of the ART Act. Indeed, the definitions are identical. It was reasoned in Chaney (at 591) that:

the specific activities mentioned in the definition …, which are in the nature of effective action rather than intermediate ‘decision’ on the path to such action, provide some indication that a reference to ‘decision’ in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination.

16    The same must hold true of the definition in s 4 of the ART Act.

17    In Chaney (at 592), the Court observed that under s 46 of the AAT Act the Tribunal was obliged to cause to be sent to the court “all documents that were before the Tribunal in connection with the proceeding to which the appeal or reference relates” once an appeal was instituted. That provision is materially the same as s 187 of the ART Act. The Court observed that fulfilling that obligation would be disruptive of the proceedings before the Tribunal if an appeal could be brought at any intermediate stage. The Court reasoned that it was unlikely that the legislative intent was that a party to a proceeding should be entitled to disrupt the orderly hearing before the Tribunal by instituting an appeal, as of right, from any of the various interlocutory decisions it might be called upon to make in the course of dealing with the proceeding before it, even those which might ultimately prove irrelevant to the final operative decision. That reasoning applies with equal force to the ART Act.

18    In any event, that question of legislative intent is put beyond doubt by the Revised Explanatory Memorandum as referred to above. I have regard to that to confirm that the meaning of “the decision” in s 172 of the ART Act is confined to the effective decision or determination of the application for review before the Tribunal: s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth). If it was thought that the meaning was ambiguous or obscure, then reference to the Revised Explanatory Memorandum would still clear that up: s 15AB(1)(b)(i) of the Acts Interpretation Act 1901 (Cth).

19    In Douglass v Administrative Appeals Tribunal [2017] FCA 1105 at [20], Griffiths J identified four exceptions to the Chaney rule. The applicant does not seek to bring his case against the Tribunal’s decision within any of those exceptions. It is therefore not necessary to consider whether those exceptions also apply in relation to appeals under s 172 of the ART Act.

20    In the circumstances, no purpose can be served by allowing the applicant’s purported statutory appeal to continue – it is bound to fail as lacking competence. The notice of appeal should be struck out.

21    However, it is possible that the applicant can plead a proper case for review under s 39B of the Judiciary Act. He wishes to do so and, as mentioned, his statement of claim identified that he brought such a case. He has not said that he wishes to pursue any relief under the ADJR Act so that can be put to one side.

22    The appropriate orders to make are accordingly that:

(1)    The notice of appeal from a tribunal accepted for filing on 16 June 2026 be struck out.

(2)    The applicant have leave to file an originating application in accordance with Form 69 for relief under s 39B of the Judiciary Act 1903 (Cth) and an amended statement of claim or a concise statement which properly and adequately identifies the grounds for the relief that he seeks and the material facts on which he relies.

(3)    Any documents to be filed under order 2, be filed and served by 28 August 2026.

(4)    The proceeding be listed for case management on 4 September 2026.

(5)    Costs reserved.

Associate:

Dated:    3 August 2026