Federal Court of Australia

Discover Nursing Australia Pty Ltd v National Disability Insurance Agency [2026] FCA 1240

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) (Rules), compliance with the requirements of r 31.05(1) of the Rules be dispensed with.

2.    The respondent’s objection to competency in the notice filed on 26 February 2026 be upheld.

3.    The following paragraphs of the originating application filed on 6 February 2026 be dismissed:

(a)    prayers (c) and (d); and

(b)    paragraph [136(a)].

4.    The applicant is to pay the respondent’s costs of the objection to competency as agreed or assessed.

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

(a)    that party is to file and serve written submissions (of no more than 3 pages) and any evidence on which it relies within seven days after the date of these orders;

(b)    the other party is to file and serve any written submissions (of no more than 3 pages) and evidence on which it relies in response within seven days thereafter; and

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

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

REASONS FOR JUDGMENT

YOUNAN J:

INTRODUCTION

1    The applicant, Discover Nursing Australia Pty Ltd, is a registered provider under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). By an originating application filed on 6 February 2026, the applicant seeks relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) arising from inter alia the respondent’s decisions to:

(1)    place the applicant on the “Payments Integrity Review Program” (prayer (c)); and

(2)    “not remove” the applicant from the program (prayer (d)).

2    The applicant seeks an order pursuant to ss 5 and 16 of the ADJR Act “setting aside the decision of the Respondent to place the Applicant on the Payments Integrity Review Program” (but not to set aside the decision to “not remove” the applicant from the program. Nothing turns on this, in that the reasons outlined below would follow in any event). In written submissions filed on 21 April 2026, the applicant asserts that an order in the nature of certiorari is available and s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) is enlivened. This is contested by the respondent. The relief sought is predicated on the decisions of the respondent having effect on the legal rights of the applicant. That is the central issue in dispute between the parties.

3    On 26 February 2026, the respondent filed a notice of objection to competency of part of the (originating) application for review, pursuant to r 31.05(1) of the Federal Court Rules 2011 (Cth) (Rules), stating that the Court does not have jurisdiction to review the “decisions” in prayers (c) and (d) under the ADJR Act.

4    To the extent that the notice of objection to competency was filed more than 14 days after being served with the application, contrary to the requirements of r 31.05(1) of the Rules, I do not consider this non-compliance to affect the reasons below. As noted by Kennett J in Maysan Holdings Pty Ltd v National Disability Insurance Agency [2025] FCA 628 at [43], the notice of objection to competency is a procedural device that facilitates consideration of a jurisdictional issue, and so the failure to file such a notice cannot overcome a lack of relevant jurisdiction, although it may have costs consequences. Furthermore, any non-compliance was de minimis (in that the notice was filed within 21 days of the originating application). In those circumstances, I would dispense with compliance with r 31.05(1) under r 1.34 of the Rules.

5    As the originating application foreshadows, the applicant requires an extension of time in order to bring its application (as the decisions and purported decisions which are sought to be reviewed were made more than 28 days prior to the commencement of the proceeding on 6 February 2026). It is not necessary to resolve that issue in order to determine the respondent’s objection to competency.

6    On 10 March 2026, Registrar Farrell made orders including for the parties to file and serve written submissions and any evidence in relation to the notice of objection to competency.

7    On 4 May 2026, I made orders, by consent, including that the notice of objection to competency be determined without an oral hearing pursuant to s 20A(2)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

8    For the reasons that follow, the respondent’s objection to competency is upheld and, pursuant to r 31.05(5) of the Rules, the relevant paragraphs of the originating application are dismissed.

BACKGROUND

9    In support of its originating application, the applicant filed an affidavit of Andrea Sibila Sabados, Director of Clinical Services at the applicant provider sworn 3 February 2026. The respondent relied on an affidavit of Georgina Anne McGrath, the Branch Manager of the Scalable Integrity Responses Branch at the respondent agency affirmed 8 April 2026. Ms McGrath oversees the work of the Manual Payment Review Team, which sits within her branch.

10    As noted in the orders made on 4 May 2026, the parties indicated that there is no contest of fact for the purposes of the respondent’s objection to competency.

Evidence of respondent – operation of manual payment review

11    Ms McGrath gave evidence regarding the National Disability Insurance Scheme (NDIS) that explains the way in which payment claims are processed by the respondent. Claims for payment are made to the respondent by providers, or directly by participants, with every payment claim submitted by a provider going through an online portal (the “myplace” portal).

12    Ms McGrath gave evidence that:

The claim is then risk-assessed through an electronic, computerised process prior to payment. If a claim is identified 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 respondent has a process known as “manual payment review”, which can be applied to a particular provider, a particular participant, or both. This process was previously referred to as the “Payment Integrity Review Program”, which is the subject of prayers (c) and (d) of the originating application and the notice of objection to competency.

14    One reason that the respondent may undertake a manual payment review in relation to a particular provider is if the respondent “has concerns about the integrity of the claims or the claimants”. Ms McGrath stated the effect of a manual payment review to be as follows:

That fact that a provider or participant is identified for manual payment review does not mean that their claims will, or will not, be paid. A manual payment review simply means that an officer of the Agency will manually review and assess the claim to determine whether it should be paid. One step that may be undertaken during a manual payment review is that the officer reviewing that claim decides to seek more information from the claimant, to substantiate the claim. That could be, for example, by seeking 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.

…

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 later, with additional material to support the claim. That fresh claim would then be processed in the ordinary fashion.

15    Following the application of a manual payment review, the entity and associated treatments are reviewed periodically according to the level of identified risk, which includes consideration as to whether the review should be removed.

16    Where a manual payment review is undertaken in relation to a provider, its payment claims are allocated to a case worker to review. Once a case worker is assigned, a Request for Information (RFI) letter is sent to the claimant along with a list of the claims under review, outlining the information requested by the Manual Payment Review Team. The information supplied in response to the RFI is considered and there may be a request for further information.

17    When the case worker is considering rejecting a claim, an invitation to comment will be sent to the provider setting out the case worker’s preliminary concerns. Any response to that invitation is then considered before a determination is made. When the review is finalised, an outcome letter is provided to the claimant advising of the determination made. Where any claims are rejected, the claimant is notified that the decision does not prevent the resubmission of the rejected claims, and they are encouraged to provide new or additional documents to substantiate any resubmitted claims.

18    On 17 September 2024, the respondent’s Intelligence and Analytics team requested that the Manual Payment Review Team commence manual payment reviews of claims submitted by the applicant in relation to three participants “associated with” the applicant, which review was commenced that day. On 19 September 2024, the manual payment review was expanded to all payment claims made by the applicant at the request of the respondent’s Intelligence and Analytics team.

19    As at 8 April 2026, the applicant remains subject to a manual payment review.

Evidence of applicant – effect of manual payment review

20    As noted above, the applicant is a registered provider under the NDIS.

21    The applicant generates income for “direct supports” provided to participants of the NDIS, as well as for plan management services.

22    Ms Sabados gave evidence that, on a review of the applicant’s accounting software, in September 2024, prior to the commencement of the manual payment review, the applicant had invoiced “approximately 323 participants”. (It is not clear whether that approximation refers to the month of September, or a calculation to that date. The distinction is not material.) As at 3 February 2026, the applicant was actively supporting “only about 27 participants”.

23    Ms Sabados stated that the reduction in participants was a “direct result of the ongoing manual payment review”, with the “direct effect” of the review including impacts to the applicant’s cashflow, and to support (and other) services offered. Ms Sabados opines that, as a result, it may not be viable for the applicant to continue operating as a business or providing vital support services to participants of the NDIS.

LEGISLATIVE SCHEME

24    The NDIS Act establishes the NDIS and the respondent, which delivers the scheme. As summarised by Kennett J in Maysan at [4]–[6], 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 [of the respondent]” (s 33(2)), who is responsible for the day-to-day administration of the respondent, 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 in Div 3 of Pt 2 of Ch 3 of the NDIS Act.

25    Within that Division, s 45 provides for the payment of amounts payable under the NDIS in respect of a participant’s plan. As Neskovcin J explained in Affinity Care Services Pty Ltd as Trustee for the Balmerino Australia Trust v National Disability Insurance Agency [2024] FCA 1314 at [58], s 45 of the NDIS Act “provides for the making of a determination by the CEO as to the payment of amounts payable under the NDIS in respect of a participant’s plan, including but not limited to the determination of whether, when and how such amounts are to be paid”. Her Honour further explained (at [63]):

Under the NDIS, an entitlement to funding arises from the approval of a participant’s plan, and in particular from the statement of participant supports set out in that plan. That funding gives rise to the “amounts payable under the NDIS in respect of a participant’s plan” within the meaning of s 45 of the NDIS Act and, once paid, are “NDIS amounts”: Northern Disability Services at [82] (Horan J). There are no “funds” or payments belonging to the applicant in respect of a participant to whom it provides supports or services under the NDIS. The applicant’s entitlement is to submit payment claims for “amounts payable under the NDIS in respect of a participant’s plan” and the CEO’s obligation is to make a determination in respect of the applicant’s claims pursuant to s 45 of the NDIS Act.

26    In Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892, Horan J considered at [105] that the making of a determination under s 45 of the NDIS Act is “unquestionably” a decision within the meaning of s 3(2) of the ADJR Act.

CHARACTERISATION OF DECISIONS

27    In Maysan, Kennett J outlined the relevant principles concerning the characterisation of decisions for the purposes of review under the ADJR Act (at [36]–[39]):

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.

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”.

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.)

28    Justice Kennett then continued to hold in relation to a similar complaint that (at [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.

29    As regards the availability of a writ (or an order in the nature) of certiorari, his Honour considered that (at [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.

30    Pursuant to r 31.05(2) of the Rules, the applicant carries the burden of establishing the competency of an application.

Respondent’s submissions – no effect on legal rights

31    The respondent contends that placing the applicant on the “Payments Integrity Review Program” (now manual payment review) is not a “decision” to which the ADJR Act applies, such that this aspect of the applicant’s application is incompetent.

32    The respondent relies on the judgment of Kennett J in Maysan as being “directly on point”, as, like in Maysan, the applicant in this case:

(a)    challenges the decision to place it on a manual payment review (and to “keep the Applicant on” that review); and

(b)    the applicant seeks relief pursuant to ss 5 and 16 of the ADJR Act to “set aside” that decision.

33    The respondent submits that from “a characterisation point of view [the decision to place the applicant on a manual payment review] is no different to deciding to ask for further information or receipts or use data-matching before deciding whether to approve a claim for payment”.

34    The respondent submits that there is no basis to find that the decision in Maysan is plainly wrong; it is “clearly correct”.

35    The respondent submits that the fact that there is a manual payment review for a provider says nothing about whether a payment claim will ultimately be accepted and paid out pursuant to s 45 of the NDIS Act. Instead, it is a preliminary and procedural step that does not of itself alter or affect the applicant’s legal rights or obligations. On this point, the respondent states that there is no “right” to the payment of an amount claimed by a provider, which is said to reflect the decision of Neskovcin J in Affinity Care Services (at [58] and [63]).

36    The respondent contends further that any reliance on s 39B of the Judiciary Act would not assist the applicant. With reference to Kennett J’s finding in Maysan at [41], the respondent submits that a remedy in the nature of certiorari “has no meaning and does not lie in relation to a decision that has no effect on legal rights”.

Applicant’s submissions – directly affects, in a practical sense, right to prompt payment

37    The applicant submits that the Court has jurisdiction to review the “decisions” in prayers (c) and (d) of the applicant’s originating application, either under the ADJR Act or by virtue of s 39B of the Judiciary Act and s 19 of the FCA Act. (I have taken the reference to “prayers (a) and (b) of the Originating Application” in paragraph [2] of the applicant’s written submissions to be intended to refer to prayers (c) and (d).)

38    The applicant submits that it has a legal right to have claims made under the NDIS Act processed in a manner permitting it to maintain its business and achieve the provision of services consistent with the purposes of the NDIS Act. It submits that this right competes with the right of the CEO of the respondent to satisfy themselves of the legitimacy of the claims, which is said to be “not at large” and subject to reasonableness, natural justice and procedural fairness.

39    The applicant submits that the decision of Kennett J in Maysan is “plainly wrong” and should not be followed. The applicant challenges the conclusion in Maysan (at [40]) that the decision to place the applicant under manual payment review was a “preliminary, intramural decision of the NDIA as to how it would approach its decision-making task” on the basis that such a decision “directly affects, in a practical sense, the right of the Applicant to prompt payment”. This is said to be so given “the accepted and serious practical effect of the decision upon the Applicant in that case”.

40    As a result, the applicant submits that it is “entitled to plead, and raise the issue, and ultimately preserve the ability to have the question of the correctness of the decision in Maysan to be determined by the Full Court.” It is said that for this reason alone the notice of objection to competency fails. On that matter, it is not evident how essentially reserving the applicant’s right – i.e., to argue against the correctness of Maysan on appeal – means that the respondent’s objection should fail. The success of the respondent’s objection (which is predicated on the correctness of Maysan) is the occasion for the exercise of that right.

41    The applicant submits further that the decisions to place the applicant on, and not to remove the applicant from, the manual payment review, do not afford procedural fairness at common law. It is not evident how that argument aids the question of characterisation of the “decisions”; rather, it appears to assume the outcome of that characterisation.

Consideration

42    There is no contest between the parties as to the legal principles concerning the characterisation of “decisions” for the purposes of review under the ADJR Act; only a contest as to their application to the decision to place the applicant on a manual payment review.

43    In my view, the decision to place the applicant on a manual payment review is not a “decision” to which the ADJR Act applies, or for the purpose of a review pursuant to s 39B of the Judiciary Act, as the decision did not confer, alter or otherwise affect the applicant’s legal rights in the sense outlined in Griffith University v Tang (2005) 221 CLR 99. That view was the foundation for Kennett J’s decision in Maysan. I am not satisfied that Kennett J’s decision is “plainly wrong”: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75] per French J. In my view, the pellucid logic of his Honour’s reasons suggests that it is plainly correct.

44    The submission advanced by the applicant as to the correctness of Maysan relates to the effect of the decision on its “practical interests”. As Kennett J in Maysan said (at [40]): “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.” That reasoning applies with equal force in the present case.

45    As the evidence in this case demonstrates, placing the applicant on a manual payment review says nothing about whether a payment claim will or will not ultimately be accepted and paid out pursuant to s 45 of the NDIS Act. That placement might facilitate the review of payment claims, but it does not anticipate the outcome of the review. In this way, it cannot be said that the applicant’s legal rights or duties owe “in an immediate sense” their existence to the decision to place the applicant on the manual payment review.

46    Furthermore, the applicant has not demonstrated how that “decision” (the subject of a request by the respondent’s Intelligence and Analytics team) is expressly or impliedly required or authorised by the NDIS Act. As was found by Kennett J in Maysan, the decision to place the applicant on a manual payment review (and to keep the applicant on that review) is not “a decision under an enactment” as required by the ADJR Act. The result would not differ if the application sought to invoke the Court’s jurisdiction under s 39B of the Judiciary Act and seek relief in the form of a constitutional writ (or an order in the nature) of certiorari – i.e., there is no legal effect of the decision to quash: Maysan at [41] citing Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 per Mason CJ, Dawson, Toohey and Gaudron JJ.

47    The applicant’s reliance on a right to prompt payment (which is said to be directly affected by the decision) is misconceived. First, it assumes that which for which it contends: i.e., the legitimacy of its claim (which is the subject of the manual payment review). Second, the right remains unaffected by the decision to place the applicant on a manual payment review.

48    Justice Kennett in Maysan recognised the potential for unreasonable delay (and therefore the potential for relief in the form of a writ (or an order in the nature) of mandamus). However, as his Honour stated at [40], “that is a separate issue to be considered later”.

49    In light of the above conclusions, it is not necessary to form a concluded view as to the content of any obligations of procedural fairness that arose in respect of the decision in question: see Maysan at [44]. First, as a preliminary step in a decision-making process that involves different steps before a final decision is made, the requirements of natural justice are to be viewed holistically: Ainsworth at 578 per Mason CJ, Dawson, Toohey and Gaudron JJ. Second, insofar as the applicant seeks relief for the denial of procedural fairness, for the reasons stated above, an order in the nature of certiorari is not available.

CONCLUSION

50    The applicant has not discharged its burden of establishing the competency of the originating application insofar as it seeks to review the “decisions” to place, and not remove, the applicant from manual payment review. The originating application is therefore incompetent in that regard, such that prayers (c) and (d), and paragraph [136(a)], must be dismissed.

Costs

51    While no party made any submissions as to costs, there is no apparent reason why costs should not follow the event. Even if the notice of objection to competency was filed late, any delay and subsequent non-compliance was de minimis. However, I will make additional orders permitting the parties to seek a different order as to costs, should they wish to do so, which is to be determined on the papers.

Associate:

Dated:    28 August 2026