Federal Court of Australia

Jenkins v National Disability Insurance Agency [2026] FCA 1307

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The respondent's interlocutory application to adduce further evidence on the appeal is dismissed.

3.    The decision of the Administrative Review Tribunal given on 21 November 2025 is set aside.

4.    The applicant's application for review of the respondent's decision to issue a notice under s 111(2) of the National Disability Insurance Scheme Act 2013 (Cth) in respect of compensation in the amount of $296,810.33 to be paid to the applicant is remitted to the Administrative Review Tribunal for determination according to law.

5.    The question of costs is reserved.

6.    On or before 18 September 2026, any party seeking an order as to costs shall file written submissions of no more than 4 pages specifying the order sought and the matters advanced in support of the making of the order together with any necessary affidavit in support.

7.    On or before 25 September 2026, the parties shall file written submissions of no more than 2 pages in response to any submissions seeking an order as to costs.

8.    Submissions filed in accordance with these orders shall use 12 point font, 1.5 line spacing and shall not include footnotes (with all references to be included in the body of the submissions).

9.    Unless otherwise ordered, the question of costs shall 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

COLVIN J

1    Ms Susanne Jenkins underwent knee replacement surgery. There were complications which resulted in the impairment of Ms Jenkins' mobility. She became a participant in the National Disability Insurance Scheme (NDIS). Just over a year after becoming an NDIS participant, Ms Jenkins brought a claim for medical negligence in the District Court of Western Australia. Almost three years later, the court proceedings were settled on terms recorded in a deed which provided for a substantial payment to be made to Ms Jenkins. The liability of the medical practitioner to make payments under the terms of the deed was indemnified by an insurer.

2    The National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) provides for circumstances in which certain types of compensation payments must be paid to the National Disability Insurance Agency. Speaking broadly, the statutory provisions allow the Agency to recover past supports paid by the Agency to an NDIS participant out of any compensation to be paid to the participant in respect of a personal injury that has caused the impairment which qualified the participant for those supports. These reimbursement provisions have been described as preventing 'double-dipping'. They include a statutory procedure whereby the Chief Executive Officer of the Agency (CEO) can issue a recovery notice to an indemnifying insurer requiring certain types of compensation to be paid to the Agency.

3    The CEO issued a recovery notice to the indemnifying insurer. It required most of the settlement amount that was agreed under the terms of the deed to be paid to the Agency. An issue arose as to whether there was a proper basis for the notice.

4    Ms Jenkins brought an internal review which upheld the decision to recover an amount from the settlement to be paid under the terms of the deed. She then sought to review the decision to issue the recovery notice in the Administrative Appeals Tribunal. Before a decision was made on the review, the Administrative Review Tribunal took over the review jurisdiction. There is no issue that the Tribunal had jurisdiction. The Tribunal affirmed the decision of the CEO to issue the recovery notice.

5    The proceedings before the Tribunal were conducted on the basis that Ms Jenkins had been granted access to the NDIS based on physical impairments resulting from a right leg above knee amputation as well as from obesity. In that regard, in its statement of facts, issues and contentions in the Tribunal, the Agency stated:

On 26 August 2019, Ms Jenkins was granted access to the National Disability Insurance Scheme (NDIS) on the basis of physical impairments resulting from a right leg above knee amputation, as well as from obesity.

6    By her reply, Ms Jenkins agreed to the above statement of fact.

7    In actuality, Ms Jenkins had been granted access to the NDIS a year before the amputation at a time when her knee joint had been fused after complications due to a prosthetic joint infection (PJI). The significance of this aspect is contentious and is considered below when dealing with Ms Jenkins' grounds of review in the present appeal.

8    The principal contention advanced by Ms Jenkins to the Tribunal was to the effect that the compensation to which she was entitled under the terms of the deed was for pain and suffering by reason of negligent delay in treatment of the PJI and the need for multiple procedures, not for the amputation outcome. Ms Jenkins relied upon medical evidence to the effect that, upon the infection occurring, the amputation was the probable outcome in any event. She also relied upon the following recitals to the deed, executed as a deed poll, in which Ms Jenkins is referred to as 'the Releasor':

B.    The Releasor's claim was limited to a claim that there was a negligent delay in the identification and treatment of her prosthetic joint infection (PJI). It was not alleged that [redacted] was negligent:

a)     to recommend the revision knee replacement surgery; or

b)     in the way he performed the revision knee replacement surgery; оr

c)     in some other way, causing the PJI to arise per se.

C.    The weight of evidence is that the Releasor's outlook was always poor due to the оссurrence (sic) of PJI once it occurred and that the alleged (and disputed) delay in identification and treatment of the PJI, was of limited, if any, causal consequence.

D.    The weight of the evidence is that it is most likely that, even had there been an earlier identification and treatment of her PJI, the Releasor would have had an outcome in which her level of disability and consequent need for NDIS supports would have been largely the same. There is a chance the Releasor would have had a better outcome than this and so had lesser need for NDIS supports, but the chance of this is small.

E.    The agreed settlement sum reflected this weight of the available evidence.

9    Ms Jenkins claimed that the benefits she had received from the NDIS were provided for the impairments that were a consequence of her amputation. Critically, she agreed with the Agency's submission to the Tribunal that it was her amputation which was the impairment that qualified her for participation in the NDIS scheme and the reason she received supports from the NDIS (see para 10 of the reply submissions by Ms Jenkins to the Tribunal). It was on that basis that she contended that there could be no 'recoverable amount' payable to the Agency from the compensation provided for by the deed.

10    For the Agency, considerable reliance was placed upon the nature of the case that Ms Jenkins had brought in the District Court, particularly her pleaded claim alleging that the negligence of her treating medical practitioner resulted in personal injury that included the amputation of her leg. The Agency also placed reliance upon the particulars of loss and damage that had been filed by Ms Jenkins which included compensation for the costs of the kind funded as reasonable and necessary supports as part of Ms Jenkins' approved plan under the NDIS scheme. The Agency challenged the significance of the recitals to the deed for determining whether the notice could be issued.

11    The Agency claimed that the amount the subject of the recovery notice was properly required to be paid by the indemnifying insurer to the Agency because the compensation fixed by the deed was in respect of a personal injury that caused 'to any extent' Ms Jenkins' impairments related to the amputation of her leg which was the impairment that qualified her for participation in the NDIS scheme.

12    Ms Jenkins maintained that the case as pleaded in the District Court was not determinative. She contended that what was relevant was the basis upon which her claim had been settled.

13    The Tribunal accepted the Agency's contentions. The Tribunal found that the impairment of Ms Jenkins was caused 'to any extent' by the injury forming the subject of the statement of claim. There was a further finding that there was 'a clear thread' throughout the entire District Court proceedings starting with the claim as made and concluding with the payment of compensation. A conclusion was reached that the compensation agreed 'was wholly or partly in respect of supports that were provided under the NDIS for impairments arising from the injury the subject of the settlement'.

14    Ms Jenkins now brings a statutory appeal by way of review of the Tribunal's decision. The available statutory review is confined to a question of law. Ms Jenkins says that the relevant questions of law concern the construction and application of s 107 of the NDIS Act, a provision which concerns the circumstances in which past NDIS amounts may be recovered by the Agency when a participant receives compensation under a consent judgment or settlement. Section 107(1) is in the following terms:

(1)     This section applies if:

(a)     an amount of compensation is fixed under a consent judgement or settlement in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and

(b)     before the day of the consent judgement or settlement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment.

15    The section goes on to provide: 'An amount (the recoverable amount) is payable by the participant to the Agency': s 107(2). It then describes the recoverable amount as an amount equal to:

(a)     unless subsection (4) applies—the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or

(b)     if subsection (4) applies—the amount worked out in accordance with that subsection.

16    In the present case, neither of subsection (3) nor (4) is applicable. Therefore, for present purposes the 'recoverable amount' is an amount equal to the sum of the past NDIS amounts. It will be necessary to return to the terms of s 107(1) and the significance of the statutory language (including that of the subsections) for the scope of the statutory power of the CEO to issue a recovery notice of the kind issued to the indemnifying insurer in the present case.

17    The term 'compensation' is defined in s 11(1) of the NDIS Act. Relevantly for present purposes, it captures a payment made without an admission of liability 'in respect of…compensation or damages in respect of personal injury…that is wholly or partly in respect of the cost of supports that may be provided to a participant'. There was no issue on the appeal that the amount to be paid to Ms Jenkins under the terms of the deed was compensation for the purposes of the NDIS Act. The issues concerned whether there was an amount that could be recovered by the Agency from that compensation.

18    Nevertheless, the terms of the definition are of some significance because it is compensation in respect of personal injury that is in respect of supports to which the term pertains. That is, the references to compensation in the NDIS Act are to compensation payments in respect of the costs of supports received as compensation for personal injury. Other types of payments for personal injury are not included in the definition of compensation.

The appeal grounds

19    After leave to amend, the appeal raises three grounds. They are to the following effect:

(1)    the Tribunal erred by focusing on the injury forming the subject of the statement of claim rather than the personal injury the subject of the deed;

(2)    the Tribunal erred in failing to identify the relevant impairment or impairments at all or with the necessary degree of precision, including by reason of the fact the Tribunal incorrectly identified the date of the amputation; and

(3)    the Tribunal erred by applying an incorrect threshold as to the causal link that was required under s 107(1).

20    Each ground is alleged to have involved a failure to give effect to a proper construction of s 107 of the NDIS Act.

21    Before considering the grounds, it is first necessary to be clear about the nature of the statutory appeal right invoked by Ms Jenkins, the relevant statutory provisions and the Tribunal's reasoning pathway.

The nature of the statutory right of appeal

22    Ms Jenkins' appeal is brought pursuant to s 172 of the Administrative Review Tribunal Act 2024 (Cth). It provides that a party to a proceeding in the Tribunal may appeal to this Court 'on a question of law'. Where an appeal on the basis of an error of law is provided for in respect of an administrative determination then the court is required to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72 at [15] (Gaudron, Gummow, Hayne and Callinan JJ).

23    The existence of a question of law is both the qualifying condition for the application and its sole subject matter: Brown v Repatriation Commission (1985) 7 FCR 302 at 304 (Bowen CJ, Fisher and Lockhart JJ).

24    The authorities as to the nature of the statutory right of appeal that were developed in the context of the Tribunal's statutory predecessor (being s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)) apply equally to s 172: eSafety Commissioner v Baumgarten [2026] FCAFC 12; (2026) 315 FCR 44 at [2] (Mortimer CJ and Beach J, Horan J agreeing). The principal authorities in that regard are Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 and May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; (2015) 233 FCR 397.

25    The statutory right to appeal to this Court from a decision of the Tribunal on a question of law does not extend to 'mere questions of fact'. There is no error of law in simply making a wrong finding of fact. However, there may be legally erroneous fact-finding. As to these matters, see Haritos at [192] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). Therefore, a mere allegation of factual error does not raise a question of law, but legal error may be demonstrated in the way fact finding has been undertaken.

26    As I sought to explain in VXQB v Child Support Registrar [2021] FCA 48 at [25]:

Therefore, it might be said that questions of law are those matters which form any part of the law which must be observed by the Tribunal in making its decision and, if not properly understood and implemented by the Tribunal, are the kind of matters that could misdirect the Tribunal in the lawful performance of its fact-finding task. They may concern the fairness of the Tribunal procedure and the manner in which its decision-making task is to be undertaken including by following both the requirements of the law and the content of legal principle to be given effect in making the decision. For example, in undertaking its fact-finding task the Tribunal is required by law to undertake its task in a logical way and to ensure that there is some material before the Tribunal to enable it to make the factual findings that support its decision. However, provided such boundaries are not breached, it is for the Tribunal and not the Court to determine the facts.

27    For present purposes, there is an important distinction between two types of alleged error. Where the question raised is whether, on the facts as found by the Tribunal, it was open to reach a conclusion that the terms of applicable statutory language were met or satisfied then that is a question of law. However, where there was material before the Tribunal that reasonably admitted of different conclusions and the question is whether, on that material, the statutory language was met or satisfied, the decision as to 'which side of the line' the case falls on will be a question of fact: see Haritos at [194]-[197], applying the statutory language in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 16 (Hill J) and May at [195]-[199]. See also Sladden v Commissioner of Taxation [2024] FCAFC 122; (2024) 304 FCR 492 at [72] (O'Sullivan, Hespe and Neskovcin JJ).

The relevant statutory provisions

28    The NDIS Act provides supports for those whom the CEO is satisfied meet the disability requirements or early intervention requirements of the legislation (and other requirements): see s 21. Those requirements are expressed in terms of 'impairments': see s 24 and s 25. When a person becomes a participant in the NDIS the CEO must give notice of various matters, including satisfaction of the requirements. The impairments that are the basis for the person's participation in the scheme are notified to that person by the Agency.

29    A plan is prepared for each participant in the NDIS and it must include a statement of supports to be funded. The participant may obtain funding for those supports. An amount paid under the NDIS 'in respect of supports (other than general supports) funded under a participant's plan' is an 'NDIS amount': s 9.

30    As has been mentioned, the term 'compensation' is defined in the NDIS Act. In that regard, s 11(1) provides that 'compensation' means:

a payment (with or without admission of liability) in respect of:

(a)    compensation or damages in respect of personal injury; or

(b)    personal injury, under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered under such a scheme; or

(c)    personal injury, in settlement of a claim for damages or a claim under such an insurance scheme;

that is wholly or partly in respect of the cost of supports that may be provided to a participant (whether or not specifically identified as such). It does not matter whether the payment is made directly to the person who sustained the personal injury or to another person in respect of that person….

31    Part 2 of Chapter 5 of the NDIS Act is styled 'Agency may recover compensation fixed after NDIS amounts have been paid'. Within Part 2, s 107 provides for the circumstances in which a 'recoverable amount' is payable by a participant to the Agency. For present purposes, the recoverable amount is the sum of past NDIS amounts. Section 107 applies if (a) 'an amount of compensation is fixed under a consent judgement or settlement in respect of a personal injury that has caused, to any extent, a participant's impairment'; and (b) NDIS amounts have been paid 'in respect of supports in relation to the participant's impairment' before the date of settlement.

32    Subsequent provisions deal with various mechanisms by which the Agency may obtain payment of the recoverable amount. As has been mentioned, one available mechanism is for the CEO of the Agency to give a recovery notice. The power to give such a notice to an indemnifying insurer is contained in s 111(2). Insofar as is presently relevant, s 111 provides:

(1)     If:

(a)     one or more NDIS amounts have been paid to a person in respect of a participant’s impairment; and

(b)     a person (the compensation payer):

(i)     is liable to pay compensation to the participant in relation to the impairment; or

(ii)     if the compensation payer is an authority of a State or Territory—has determined that a payment by way of compensation is to be made to the participant in relation to the impairment;

the CEO may give written notice to the compensation payer that the CEO proposes to recover from the compensation payer the amount specified in the notice.

(2)     If:

(a)     one or more NDIS amounts have been paid to a person in respect of a participant’s impairment; and

(b)     an insurer is liable, under a contract of insurance, to indemnify the compensation payer against any liability arising from a claim of the participant for compensation;

the CEO may give written notice to the insurer that the CEO proposes to recover from the insurer the amount specified in the notice.

(3)     If a compensation payer or insurer is given notice under subsection (1) or (2), the compensation payer or insurer is liable to pay to the Agency the amount specified in the notice.

(4)     The amount to be specified in the notice is the lesser of the following:

(a)     an amount equal to the sum of the NDIS amounts referred to in paragraph (1)(a) or (2)(a);

(b)     an amount equal to the recoverable amount in relation to the judgement, consent judgement or settlement to which the liability relates.

33    It can be seen that the term 'compensation payer' is defined in s 111(1). Relevantly for present purposes, a compensation payer is a person who is liable to pay compensation (that, is a payment of damages for personal injury that is wholly or partly in respect of the costs of supports) to a participant 'in relation to' an impairment for which the participant has received NDIS amounts. The CEO can give written notice to a compensation payer that the CEO proposes to recover from the compensation payer the amount specified in the notice: s 111(1). If such a notice is given, then the compensation payer 'is liable to pay to the Agency the amount specified in the notice': s 111(3).

34    The NDIS Act is prescriptive as to the amount to be specified in the notice. It must be the lesser of (a) the NDIS amounts that have been paid in relation to the impairment; and (b) the 'recoverable amount': s 111(4). The concept of 'recoverable amount' is defined in s 107. By the terms of s 107(1), s 107 only applies where the matters stated in s 107(1) apply. Those matters are that an amount of compensation is fixed under a consent judgment or settlement in respect of a personal injury that has caused to any extent the participant's impairment. Considered in that context, I infer that the language of s 107(1) it to be read as a further qualification to the concept of recoverable amount as deployed in s 111. On that basis, compensation that is in respect of a personal injury that has not caused to any extent the participant's impairment is not recoverable.

35    Further, as I have already mentioned, the term compensation itself is confined. Compensation that is payment in respect of a personal injury where that payment is not partly or wholly in respect of the costs of supports is not compensation for the purposes of the NDIS Act (see terms of definition quoted above). Consequently, it is compensation of a kind that cannot form part of a recoverable amount.

36    These conclusions have consequences for what may be specified in a recovery notice because that amount cannot exceed the recoverable amount as defined in s 107. This assumes considerable significance because if there is no amount of compensation that meets the statutory language for the recoverable amount then it does not matter how much the Agency may have paid as NDIS amounts, no amount can be recovered from the compensation.

37    It follows that the identification of the nature of the personal injury for which compensation is to be paid to a participant will be fundamental to determining the amount of compensation that may be recovered by the Agency. Compensation which is not in respect of the required kind of personal injury cannot be the subject of a recovery notice. I will come, in due course, to what is to occur if compensation is to be paid which is only partly in relation to the required kind of personal injury, but is to be paid as part of a lump sum without differentiation as to the components for which the compensation is to be paid. At this stage, it is sufficient to note that the statutory power of the CEO to issue a recovery notice to a compensation payer is confined to instances where a person is liable to pay compensation to a participant in respect of the required kind of personal injury.

38    A further statutory power is conferred on the CEO where there is an amount to be paid by an indemnifying insurer: see s 111(2) which applies where the insurer is liable, under a contract of insurance, to indemnify 'the compensation payer'. As has been explained, for present purposes, the compensation payer is a person who is liable to pay an amount in respect of a personal injury that is in respect of the cost of supports 'in relation to' an impairment in respect of which NDIS amounts have been paid to the participant. Where an insurer has an obligation to indemnify a compensation payer against any liability arising from a claim for compensation by a participant and NDIS amounts have been paid in respect of the participant's impairment then the CEO may give written notice that the CEO proposes to recover from the insurer the amount specified in the notice.

39    Of significance for present purposes are the following aspects of this scheme:

(1)    Section 107 is concerned with the circumstances in which the Agency may recover compensation from a participant;

(2)    Section 111(1) is concerned with the circumstances in which the Agency may require compensation that is due to be paid to a participant to instead be paid directly to the Agency;

(3)    Section 111(2) is concerned with the circumstances in which the Agency may require an indemnifying insurer to pay compensation that is due to be paid to a participant to instead be paid directly to the Agency;

(4)    Not all compensation amounts to be paid for personal injury are the subject of these provisions;

(5)    There is a limit on the amount that can be recovered that is defined by reference to the amount of compensation paid for a particular kind of personal injury (the required kind of personal injury); and

(6)    The required kind of personal injury is one that (a) has caused to any extent the participant's impairment; and (b) is an injury in respect of which an amount of compensation is to be paid wholly or partly in respect of the costs of supports that may be provided to the participant. Amounts of compensation for other types of personal injury cannot be recovered by the Agency.

40    So, what is to occur if a single amount of compensation is both for the required kind of personal injury and also for another kind of personal injury? Is the whole of the compensation properly characterised as being within the statutory language even though only part of it is for the required kind of personal injury?

41    In considering how the NDIS Act applies where a single compensation amount is to be paid in relation to multiple types of claims, it is appropriate to have regard to the context provided by s 107, the terms of which have already been quoted. As has been mentioned, it provides for 'the recoverable amount' to be payable by the participant to the Agency if the circumstances specified in s 107(1) pertain. The recoverable amount is the same amount that may be the subject of a recovery notice under s 111 (whether issued to a compensation payer or to the indemnifying insurer of a compensation payer). Like s 107, s 111 is directed to recovering compensation (that is, a payment in respect of personal injury that is wholly or partly in respect of the cost of supports) in relation to an impairment in respect of which NDIS payments have been made. In those circumstances, it would be expected that there would be coherence between the scope of s 111 and the scope of s 107.

42    As has been mentioned, s 107(1) requires there to be an amount of compensation 'fixed under a consent judgement or settlement in respect of a personal injury that has caused, to any extent, a participant's impairment' before the recoverable amount is to be payable by the participant to the Agency under s 107(2). Mention also has been made of the subsections that qualify the extent of the recoverable amount. They are subsections (3) and (4). Section 107(3) deals with an instance where there is an apportionment of some liability to the participant. It confines the recoverable amount by deducting the proportion attributed to the participant. Section 107(4) makes a deduction from the recoverable amount where amounts of the compensation are required under other Commonwealth laws to be paid to a person other than the participant.

43    These provisions manifest an intention to ensure that the recoverable amount (and hence the amount that may be recovered under s 107(2) or by a recovery notice under s 111) corresponds with the compensation (as defined under the Act) in respect of the relevant kind of personal injury that is to be received by the participant.

44    As has been mentioned, there are circumstances that must be met before a CEO can issue a recovery notice (whether under s 111(1) or s 111(2)). One of those circumstances is the existence of a compensation payer (a person liable to pay compensation to a participant 'in relation to' an impairment for which NDIS amounts have been paid to that participant). However, if a recovery notice can be issued, the amount that can be recovered is subject to the same cap as applies under s 107 because, in both instances, the amount that can be recovered is the 'recoverable amount'. As has been explained the recoverable amount is confined to compensation paid 'in respect of' the required kind of personal injury. The terminology 'in respect of' qualifies both provisions that delimit the required kind of personal injury, namely s 11(1) and s 107(1).

45    Returning then to what is to occur if a settlement sum is both for the required kind of personal injury and also for another kind of personal injury, the answer must be found in the language 'in respect of' as the qualifying words of connection.

46    Statutory terms like 'in respect of' or 'in relation to' are words of connection that take their meaning from context. The closeness of the relationship that is required by the terminology will depend upon what is evident from context. The relevant authorities were collected by Leeming JA in South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; (2017) 98 NSWLR 1 at [274] to [276].

47    As I have explained, there is no suggestion in the statutory scheme that the Agency would have an ability to recover NDIS amounts out of assets or entitlements of participants that were not a form of personal injury compensation for the impairments in respect of which NDIS amounts had been paid. Quite the contrary, the statutory provisions are consistent in their focus upon compensation amounts paid for a kind of personal injury. An entitlement to compensation for some other type of personal injury that is no part of the cause of the person's impairment would allow the Agency to appropriate those entitlements as a subsidy to the scheme. A power of that kind would be inconsistent with the insurance nature of the whole statutory scheme and is not supported by the language of s 107 or s 111. It is only where a participant is receiving compensation that can be said to be for the required kind of personal injury, namely one which has caused to an extent the impairments for which the person has received amounts under the NDIS that the possibility of contribution, a concept that is familiar in an insurance context, arises.

48    In those circumstances, the statutory language 'in respect of' should not be construed as including an amount of compensation on the basis that it forms part of a settlement sum only part of which is for the required kind of personal injury.

49    For those reasons, where compensation is paid for a number of different personal injuries and one or more of those personal injuries is not of the required kind it is necessary to determine the amount of compensation that is in respect of the required kind of personal injury (and thereby ensure that recovery is confined to the recoverable amount).

50    The appeal was conducted on the basis that it was the language in s 107(1) that assumed significance, particularly the requirement that the compensation is for a personal injury that has 'caused, to any extent' the participant's impairment. In effect, it was said by both parties to be the relevant qualification to the kind of personal injury for present purposes.

51    As I have explained, at the heart of Ms Jenkins' claim before the Tribunal was a contention that the whole of the compensation payable under the deed was in respect of a personal injury that did not cause the impairment for which she had received past NDIS amounts. The position of the Agency was that the whole of compensation was in respect of a personal injury that caused 'to any extent' the impairment that qualified her for participation in the NDIS scheme.

The Tribunal's reasoning pathway

52    Relevantly for present purposes, the Tribunal reasoned by the following steps:

(1)    The issue for determination was whether the Agency's decision to issue a recovery notice pursuant to s 111 of the NDIS Act was the correct decision (para 15);

(2)    The parties had agreed that:

(a)    'On 26 August 2019, [Ms Jenkins] was granted access to the NDIS based on physical impairments resulting from a right leg above knee amputation, as well as from obesity' (para 16);

(b)    In November 2020, Ms Jenkins brought proceedings in the District Court alleging that the negligence of her treating medical practitioner had resulted in personal injury to her, including the amputation (para 19);

(c)    Prior to the settlement of Ms Jenkins' claim in the District Court, the Agency provided Ms Jenkins with estimates of the recoverable amount the Agency may recover from her compensation payment, once her claim was finalised (paras 21 to 22, 25);

(d)    In February 2023, Ms Jenkins filed a document with the District Court setting out particulars of the compensation or damages she was seeking to recover (para 23);

(e)    On 19 April 2024, the Agency sent a recovery notice to the Insurer in the amount of $296,810.33 (para 27);

(f)    An internal review was undertaken at the request of Ms Jenkins but the recoverable amount was not changed (paras 28 and 29);

(g)    The amount of $296,810.33 has been received by the Agency from the insurer in response to the recovery notice (para 31);

(3)    The Tribunal set out the terms of the deed (paras 32 and 33);

(4)    The Tribunal summarised the competing contentions of the parties (paras 34 to 54), including:

(h)    A contention by Ms Jenkins that 'if the participant receives compensation for pain and suffering, lost wages or other forms of loss that are not related to the NDIS support received for an impairment then such compensation is not caught by s 107 and therefore cannot be recovered under s 111' (para 36);

(i)    A contention by the Agency that the statement of claim filed by Ms Jenkins in the District Court makes it clear that damages or compensation was in sought in respect of the need of assistance with personal care and domestic activities into the future as a result of the amputation (para 50);

(5)    The Tribunal stated its conclusion that the recovery notice that had been issued by the Agency to the insurer complied with s 111 of the NDIS Act (para 55) and then went on to express the basis for that overall finding;

(6)    It began by stating that the object of s 107 was to prevent the risk of double-dipping and to enhance the financial sustainability of the NDIS (para 56). Thereafter, it appears that it was the language of s 107 that the Tribunal was considering in determining whether there was compensation of a kind that supported the recovery notice;

(7)    The Tribunal at para 60 expressed the question for determination as being whether the impairment of Ms Jenkins was caused to any extent by personal injury and if so, if compensation had been received under a settlement in respect of the injury, and if an amount of compensation was fixed in respect of the injury;

(8)    The Tribunal found that it was not confined to considering the deed and 'must consider all relevant material to ascertain if there is a causal link between the claim for personal injury, the impairment, and the compensation agreed' (para 61);

(9)    The Tribunal found that the medical evidence relied upon by Ms Jenkins as the basis for the settlement did not absolutely rule out the possibility that an earlier identification of the PJI may have prevented amputation and the amputation was not as inevitable as portrayed by Ms Jenkins (para 63);

(10)    Although the chances of 'successful intervention' (that is, one that did not lead to amputation) may be less than 50%, the Tribunal was 'satisfied that there is a causal link between the injury the subject of the settlement, the impairment, and the compensation paid for supports arising from the injury' (para 63);

(11)    The Tribunal found 'that impairment of [Ms Jenkins] was caused, to any extent, by the injury forming the subject of the Statement of Claim' (para 64);

(12)    The Tribunal then found that there was a causal link based upon a 'clear thread that runs through the proceedings' that starts with the statement of claim and concludes with the payment of compensation pursuant to the deed (para 64). The Tribunal expressed that finding in the following terms:

Although there has not been a finding or admission of liability for personal injury, I find that there is a causal link to satisfy the requirement of ‘to any extent’ between the injury the subject of the Statement of Claim, the supports for which compensation was sought pursuant to the Statement of Claim, the impairments of the Applicant; the supports provided by the NDIS for those impairments; and the compensation received by the Applicant arising from the Deed of Release. There is a clear thread that runs through the entire proceeding, starting with the claim for personal injury in the Statement of Claim and concluding with a payment for compensation pursuant to the Deed of Release. The basis for calculating the claimed compensation is set out in the Statement of Claim. The mere fact that the Applicant settled for a lessor (sic) amount, is not adequate for me to find that the causal link had been severed.

(13)    As to a submission by Ms Jenkins that when all the medical evidence is considered, on the balance of probabilities, Ms Jenkins was unlikely to have achieved a better result, the statutory test in s 107(1) was said to set 'a different threshold' by using the phrase 'to any extent' and a finding of the basis for liability was not required for the purposes of the causation requirement in s 107(1) (para 65). The Tribunal then reasoned:

Based on the Statement of Claim, read with the supports for which compensation sought in the Statement of Claim and the final Deed of Release, I find that there is a causal link between the injury the subject of the settlement and the impairment.

(14)    The Tribunal then considered the significance of the payment under the deed being made without an admission of liability. The Tribunal reasoned (para 67) as follows:

It is not uncommon for a deed of release in personal injury proceedings to include a denial of liability-clause, but for purposes of this proceeding it carries little weight since the injury that arises from the Statement of Claim and the Deed of Release meets the statutory requirement. The Deed of Release fixes an amount of compensation under a consent settlement in respect of a personal injury that has caused, to any extent, [Ms Jenkins'] impairments. This causal link satisfies s 11(1) and s 107(1)(a) of the Act. The question then is whether the settlement fixed an amount of compensation in respect of the injury the subject of the Statement of Claim. I am satisfied that the compensation is, to any extent, for the injury that caused the impairment.

(added emphasis)

(15)    The references to the Statement of Claim in the above passages in the reasons must be considered in the context of the Tribunal's approach which was to view the events from the Statement of Claim until payment under the deed as a sequence of events through which there was a 'clear thread' as to the nature of the claim that was being pursued. I do not regard the Tribunal as expressing the view that the application turned on the manner in which Ms Jenkins' expressed her claim in the Statement of Claim. Rather, the reasoning is to the effect that there was a course of events and through that whole course a claim to compensation was made on the basis that amputation was part of the personal injury that was caused by the alleged negligence and it was that claim that came to be settled without admission of liability.

(16)    However, what is significant is the emphasis here (and elsewhere) upon the language used in s 107(1) of 'to any extent'. In my view, the Tribunal was approaching its task on the basis that the notice would be justified if there was 'any extent' to which the compensation to be received under the deed could be said to be compensation for a personal injury that caused the impairment. This is made clear by the Tribunal's repeated emphasis of that language in the paragraphs that follow. In other words, the Tribunal was proceeding on the basis that if there was a compensation amount that was to an extent paid as compensation for an injury that caused the impairment then the whole of the compensation could be the subject of a notice to an indemnifying insurer under s 111;

(17)    The Tribunal then rejected any significance to the recitals in the deed reasoning as follows (para 68):

I am not satisfied that Recitals C and D of the Deed of Release, when read with the expert medical reports, are adequately unequivocal for s 107(1)(a) of the Act not to apply. Since the personal injury claim was settled by agreement, it is not clear to what extent the risk of amputation could have been prevented by the [treating medical practitioner] in the earlier identification and treatment of the PJI. In any event, those Recitals seek to deal with liability, whilst the focus under s 107 of the Act is on a personal injury that has caused, to any extent, the impairments of the Applicant. I have nevertheless had regard to the [medical opinions]. [After summarising the opinions] While the likelihood for successful early intervention was relatively low, none of the experts completely rule out that earlier intervention may have been successful. The proposition by [Ms Jenkins] that the amputation would in any effect have occurred, is not unequivocally supported by the expert evidence.

(18)    The Tribunal then reasoned on the basis that the statutory question was whether a delay to identify the PJI may have caused or contributed, to any extent, to the impairment (paras 69 and 70);

(19)    The proposition in Recital C of the deed was not accepted and the Tribunal reasoned that the 'factual reality' was that the impairment of Ms Jenkins arose from the injury forming the subject of the settlement. In that regard the Tribunal concluded (para 71):

Ultimately, I find that the objective connection between the injury the subject of the settlement and the qualifying impairment was not only based on the Statement of Claim or the Deed of Release, but also on the medical reports before the NDIA when the Applicant was accepted as a participant in the Scheme (Pett at [65]).

(20)    The reference to Pett in the above passage is to the decision in Pett v National Disability Insurance Agency [2025] FCA 1252. The passage to which reference is made is as follows:

… it was submitted that the finding that Mrs Pett suffered an injury that caused the qualifying impairments could not be made by reference to her pleaded case in either of the civil proceedings because the objective fact of each injury had not been admitted. That argument cannot assist Mrs Pett. The Tribunal’s finding that there was objective connection between physical injury and the qualifying impairments was not based on the pleadings but on the medical reports before NDIA when Mrs Pett was accepted as a participant in the Scheme.

(21)    The Tribunal concluded this part of its reasons with a passage that was concerned with the significance of the statement of claim (para 72), namely:

I accept the submission of [Ms Jenkins] that my assessment should include all relevant material, not only the Statement of Claim. The Statement of Claim is lodged at the commencement of personal injury proceedings, and as evidence is in due course produced, the actual claim at hearing or in settlement discussions may depart from what had been stated previously. However, in my reading of the material, I find that there had been no departure in substance to what the Statement of Claim under the heading Loss and Damage asserted that [Ms Jenkins] ‘required assistance with personal care and domestic activities and will do in future’ (emphasis added), and the terms of the Deed of Release which included ‘any amount due to …National Disability Insurance Agency…’ The Statement of Claim alleges a personal injury giving rise to an impairment and that is reflected in the Deed of Release.

(Tribunal's emphasis, footnotes omitted)

(22)    The Tribunal then went on to consider the nature of the particular support that had been sought by Ms Jenkins and its significance for reaching a conclusion as to the nature of the personal injury for which the compensation in the deed was agreed to be paid (para 73):

I find that the use of the words in the Deed of Release of 'any amount due' to be paid the NDIS, is to be read in conjunction with the required assistance with personal care and domestic activities as originally claimed by [Ms Jenkins] for the injury in the Statement of Claim. I do not accept the submission that the compensation was solely directed at non-NDIS supports, for example pain and suffering or loss of income. At no stage in the material arising from the personal injury claim did [Ms Jenkins] depart from her claim for ‘personal care’ as per the Statement of Claim. (Pett at [60]) In Pett [at 70], it was found that the Tribunal is entitled to rely on allegations in pleadings ‘to support its findings on those questions it was entitled to do so.’ The finding of fact that [Ms Jenkins] has suffered from impairments ‘howsoever caused’, is adequate to satisfy the first part of s 107(1)(a), namely impairments forming the subject of the settlement. The second part of s 107(1)(a) is satisfied by my finding that the compensation received was in respect of the claim for damages for the impairment the subject of the settlement. (Pett at [62]).

(23)    The Tribunal then made findings as to the extent to which the supports that had been provided to Ms Jenkins were within the scope of the personal injury claim of Ms Jenkins as found by the Tribunal (paras 74 to 76).

53    The Tribunal's conclusion was expressed in the following terms:

(a)    [Ms Jenkins] claimed in the Statement of Claim to have suffered a personal injury which had caused, to any extent, the impairment by amputation of the leg of [Ms Jenkins];

(b)    the supports for which [Ms Jenkins] claimed compensation in the Statement of Claim arose from the injury the subject of the Statement of Claim;

(c)    [Ms Jenkins] received NDIS supports for the impairment arising from the injury the subject of the Statement of Claim;

(d)    [Ms Jenkins] received, until the day before the date of settlement, past NDIS amounts in respect of supports in relation to the impairment;

(e)    [Ms Jenkins] received 'compensation' (as defined in s 11 of the NDIS Act) under the Deed of Release in respect of the impairment;

(f)    the Deed of Release fixed an amount of compensation;

(g)    the claim of personal injury and subsequent payment of compensation to settle the claim, is, regardless of denial of liability, adequate to find that the impairment was to any extent caused by the injury forming the subject of the Dead of Release; and

(h)    the Agency properly issued the recovery notice for past NDIS supports for the recoverable amount.

(Emphasis added)

Ground (1): Did the Tribunal err by focusing on the injury forming the subject of the statement of claim rather than the personal injury the subject of the deed?

54    It is necessary to consider the Tribunal's reasons as a whole and without an eye attuned to finding error. I accept that if the Tribunal had approached its reasons on the basis that it was the injury in the statement of claim that determined the outcome to the statutory question posed by s 107 and s 111 then that would have been an error of the kind raised.

55    However, it is not the case that the Tribunal reasoned simply from the nature of the claim made in the statement of claim in reaching its conclusion that the requirements of s 107 of the NDIS Act were met in respect of the compensation to be paid under the terms of the deed. In substance, the Tribunal reasoned that the claims that had been made in the statement of claim were the claims that came to be compromised by the deed. That is to say, it did not accept the contention advanced by Ms Jenkins that the compensation to be paid under the terms of the deed was only for personal injury that was unrelated to the amputation.

56    The Tribunal engaged with the claim advanced for Ms Jenkins to the effect that the settlement, whilst compromising the whole of her claim, provided for an amount of money that was only for pain and suffering caused by delay in her treatment and not for the amputation outcome. I refer in particular to the Tribunal's summary at the beginning of the reasons which included the following (para 1):

[Ms Jenkins] says: (a) the Deed of Release to settle the claim was signed on the basis of denial of liability; (b) the leg amputation was likely to have eventuated for reasons unrelated to any act by the medical practitioner, and (c) the Deed of Release was not for compensation for payment of NDIS supports, but for her pain and suffering, which do not form part of her NDIS supports. [Ms Jenkins] says that on a balance of expert evidence the leg amputation was not caused by any negligence of the surgeon, and it is likely that the amputation would have occurred regardless of post-operative care by the surgeon. Therefore, monies paid to [Ms Jenkins] from her NDIS Plan of Supports until the time of settlement of the insurance claim is not recoverable by the Agency.

57    The case advanced by Ms Jenkins was also summarised in the part of the reasons dealing with her contentions where it was clear that the Tribunal understood that it depended upon claims that placed the terms of the statement of claim in the context of later events (paras 36 to 40).

58    The Tribunal considered and did not accept the submission by Ms Jenkins that, by the time of settlement, the medical evidence was to the effect that, on the balance of probabilities, the amputation outcome was inevitable and was not caused by delay in treatment. The Tribunal considered that evidence and concluded that there remained a chance that the amputation outcome may have been avoided. More significantly, the Tribunal reasoned that the medical evidence did not support the conclusion that there was no liability or risk as to the claim that the amputation resulted from the alleged negligence and that a settlement to compromise that claim did not need to be based on a view that, on the balance of probabilities, it would succeed. A payment in settlement of a risk of a claim was, on the Tribunal's reasoning, still a payment that was in respect of the personal injury that was the subject of the claim, namely the amputation (at least to the extent required).

59    The Tribunal also supported its conclusions by findings based on the course of the District Court proceedings, particularly the continued claim that the amputation outcome was caused by the alleged negligence, the provision of particulars of damage that sought compensation for the kinds of loss that was a consequence of the amputation (and not confined to pain and suffering) and the requests for information about the extent of NDIS supports that had been received because of Ms Jenkins' impairments.

60    The question posed by the Tribunal at para 67 of its reasons (and the answer given) reflects the overall course of the Tribunal's reasoning. The relevant passage is in the following terms:

The question then is whether the settlement fixed an amount of compensation in respect of the injury the subject of the Statement of Claim. I am satisfied that the compensation is, to any extent, for the injury that caused the impairment.

61    I do not regard this form of question to indicate that the Tribunal was simply looking at what was in the statement of claim and reaching a conclusion as to the claim for which the settlement amount was paid on that basis. Rather, it reflects the Tribunal's 'clear thread' analysis. It began with considering the nature of the claim made in the statement of claim. It concluded that it included a claim in respect of a personal injury that had caused to an extent the impairment (namely, the amputation). There was no real dispute between the parties that the claim had originally been formulated in those terms. Then, the Tribunal considered whether that claim continued to be advanced and formed a claim that was compromised by the deed on the basis of the agreed compensation. It concluded that the claim in the statement of claim continued to be the claim advanced and compromised by the deed.

62    This is made abundantly clear by the terms of para 72 (already quoted), where the Tribunal said, in terms, that it accepted the submission of Ms Jenkins that its assessment as to whether s 107 was met 'should include all relevant material, not only the Statement of Claim'.

63    For those reasons, ground (1) has not been made out.

Ground (2): Did the Tribunal err in failing to identify the relevant impairment or impairments at all or with the necessary degree of precision, including by reason of the fact the Tribunal incorrectly identified the date of the amputation?

64    As has been explained, the decision to be made by the Tribunal concerned statutory provisions that applied where there was the required connection between compensation and the impairment for which the participant had received NDIS amounts. Consequently, it may be accepted that the required decision could not be made without findings as to the nature of the relevant impairment.

65    The submissions in support of ground 2 began with the proposition that the Tribunal's finding as to the relevant impairment was 'simply wrong'. The relevant finding was at para 16 of the Tribunal's reasons and was in the following terms:

On 26 August 2019, [Ms Jenkins] was granted access to the NDIS based on physical impairments resulting from a right leg above knee amputation, as well as from obesity.

Significantly, as has been mentioned, the finding was made on the basis that it was a matter that was agreed between the parties.

66    The difficulty for Ms Jenkins is the clear basis upon which her contentions were put to the Tribunal. As has been mentioned, in her written response to the Agency's statement of facts, issues and contentions (being a response signed by counsel for Ms Jenkins), there was an express agreement with the Agency's contention which was in the terms ultimately found by the Tribunal. That is to say, the Tribunal's finding as to the impairment was precisely in the terms agreed between the parties.

67    Further, by the same written response, Ms Jenkins advanced the following further submissions (paras 10 to 14):

Critically, the applicant agrees with the concluding sentence to paragraph 24 of the respondent’s statement: it is her amputation which is the impairment that qualified her for participation in the NDIS scheme and the reason she received supports.

It follows, the critical question for section 107 is whether her ‘personal injury’ caused, to any extent such amputation (her relevant impairment)? The simple answer to this factual question, on the evidence, is ‘no.’

If it is accepted her amputation (and so impairment) was, in fact, not caused by her surgeon’s negligence and not in fact compensated for by the settlement, the respondent seems to say section 107 still requires that she pay for her amputation-related supports from such settlement, because earlier documents in the claim process asserted a causal link.

The applicant says that the relevant personal injury, for which “an amount of compensation is fixed under the settlement” is to be determined by the evidence as to what injury she in fact suffered as a consequence of her former surgeon's alleged negligence. For the reasons previously stated, this did not include amputation of her leg, which it is clear would have occurred (on a balance of probabilities), even with earlier, timely diagnosis of her joint infection and so commencement of treatment.

Also relevant evidence is the terms of the actual settlement. In this instance, the fact that the claim incorporating the applicant's amputation consequences (the particulars of damages document T19) was quantified at $2.426 million and yet the settlement was for a sum of $375,000, being approximately 15% of the total claimed.

(Original emphasis).

68    Plainly, the position advanced before the Tribunal with considerable emphasis was to the effect that the amputation was the impairment. The distinction being drawn was between compensation that was for 'amputation-related' supports (or consequences) and compensation that was for the consequences of the delay in diagnosis and treatment of the PJI (namely, associated pain and suffering).

69    In Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 334, it had been common ground before the Administrative Appeals Tribunal that Mr Kuswardana was an immigrant. Despite that, the Full Court found that it was an error of law for the Tribunal to not consider the issue where it was both a statutory precondition on which the Tribunal had to be satisfied and there was 'enough material and evidence before it to raise the issue independently of the parties' submissions': Bowen CJ at 343, Fox J at 348 and Deane J at 354-5 agreeing. Significantly, in that case, the relevant material and evidence was considered by the Tribunal on another point but was not considered as to the issue whether Mr Kuswardana was an immigrant.

70    However, in the Full Court decision in Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328, Drummond, Keifel and Dowsett JJ reasoned as follows concerning the proper approach to admissions or concessions before the Administrative Appeals Tribunal (at [39]):

The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision.

71    In Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511, Lindgren and Bennett JJ provided the following summary of the state of the authorities (omitting case references) at [78]:

The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to 'review' a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties:

•    The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance.

•    A party to the proceeding is not necessarily precluded from arguing on 'appeal' matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances.

•    Where a concession is made, there must be some difficulty in finding an 'error of law' when the contrary of the concession is raised for the first time in this Court.

•    A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material.

•    There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation.

•    Even though the parties may be 'able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it'.

•    A concession 'does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions'.

•    The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where:

(a)    the matter is a pure question of law, such as a question as to the validity of a regulation or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation;

(b)    the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself such as a shared misapprehension as to the applicable law; or

(c)    the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual.

72    In Ward v Commissioner of Taxation [2016] FCAFC 132; (2016) 247 FCR 372, leave was sought to amend the grounds of appeal against a decision of the Administrative Appeals Tribunal. The decision in Warren was applied. Leave was refused on the basis that there was a dispute over the facts and 'if these proposed grounds had been in issue before the Tribunal the parties may well have had to put further evidence before the Tribunal': at [31] (Robertson, Davies and Wigney JJ).

73    In Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 483, after referring to Warren and Comcare v Fiedler, Feutrill J put the matter succinctly at [84]

It follows that the Tribunal was not relieved of its duty to make the correct and preferable decision by the appellant’s concession that he would accept the imposition of the seven conditions. However, the Tribunal was not bound to inquire into the issue of the imposition of the seven conditions on the visa if granted unless there was reason to doubt that the concession on that issue was factually justified.

(original emphasis)

74    Recently in, Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59; (2024) 303 FCR 261 Rangiah, Thawley and Shariff JJ summarised the position in the following way at [32]:

It was the Tribunal’s statutory function to form its own view as to the correct or preferable decision and, in undertaking that task, it was legitimate for the Tribunal to be guided by the parties as to the salient issues and to accept relevant admissions: Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue [1994] FCA 367; 50 FCR 405 at 418-419. Of course, the Tribunal cannot permit the parties to place it in the position of deciding a case on an artificial or inadequate basis: Comcare v Fiedler [2001] FCA 1810; 115 FCR 328 at [39]- [40]. However, that is not the issue here.

75    So, it is not an error of law for the Tribunal to make its decision on the basis of a factual concession or admission. However, if the Tribunal is aware that the factual concession does not reflect the true position or has reason to doubt that it does (including by reason of the materials that were before the Tribunal), then it is an error of law for the Tribunal to proceed on the basis of the concession or admission and thereby decide the case on an artificial or inadequate basis.

76    Ms Jenkins relies upon the following matters, said to be evidence before the Tribunal that showed that her amputation occurred in August 2020, around a year after the Tribunal found that she was granted access to the NDIS:

(1)    A functional capacity assessment report dated 4 February 2021 which stated 'Amputation was completed on the 26/08/2020';

(2)    An earlier functional capacity assessment report dated 25 August 2020 which stated 'Amputation is due to go ahead on the 25/08/2020 at Fiona Stanley Hospital';

(3)    Particulars of damage in the District Court proceedings which referred to above knee amputation 'in August 2020';

(4)    Ms Jenkins statement of facts, issues and contentions before the Tribunal at para 3;

(5)    The transcript of the tribunal hearing at page 5.

77    As to (1), (2) and (3) there is no suggestion that these particular references were the subject of submissions or comment by the parties before the Tribunal. It was not suggested that these matters of detail were known to the Tribunal or should have been known.

78    As to (4), the statement made was: 'Because of her PJI, the applicant underwent extensive surgical and medical treatment. Her right knee was fused in 2017 and in August 2020, she underwent an above knee amputation of her right leg'. However, that statement must be considered alongside the matters presented by Ms Jenkins in her reply to the Agency's statement of facts, issues and contentions (as quoted above).

79    As to (5), counsel for Ms Jenkins made the following oral submission to the Tribunal:

And as you’ve probably appreciated, Senior Member, the critical question in this review is, did the applicant’s personal injury, which was the subject of her claim and the settlement, did that include the need for this amputation? Because it’s common ground between the parties that it is the amputation which has caused the applicant’s impairment for which she has received the supports by the NDIS.

80    In addition to this submission, counsel for Ms Jenkins made the following further submissions (transcript, pages 13-14):

Now, the literal wording of section 107; subsection (1) is clear, that the respondent must decide what is the personal injury for which the settlement is being paid, and whether that personal injury has caused, to an extent, the participant’s impairment for which the supports have been provided. If the answer to that is no, then no recoverable amount can arise. Now, the respondent accepts, and this is stated at paragraph 24 of the respondent’s submissions, that the impairment for which supports have been paid in this case is the above-knee amputation.

And so the critical question is whether the applicant’s personal injury for which compensation was fixed caused the amputation of her right leg, below her knee. Now the fundamental submission that the applicant makes is that in deciding how to characterise the personal injury and therefore whether there’s a causal connection between that personal injury and the impairment for which supports are being paid, that must involve an evaluation of all of the evidence that has been submitted going to that topic, both as to what in fact was the personal injury, but also whether that personal injury caused the relevant impairment or not.

(added emphasis).

81    Later, at transcript page 18, counsel then made the following further submission:

So if you have a personal injury which has caused some part of the supports that a participant in the NDIS has received, then those words, and they’re very important words, to any extent, would mean that a recoverable amount arises. The difficulty here, though, is that the only reason any supports have been provided is because she lost her leg. That’s conceded by the respondent in its submissions. And so for it to have caused, to any extent, the impairment, it must have caused the amputation. So in this situation where the reason for the supports is limited to that outcome, the words, ‘to any extent’, don’t make any difference. She either would have lost a leg or she wouldn’t have. And as I’ve said, and this was in the correspondence to the respondent a long time before any decisions were being made, that’s a decision to be made on a balance of probabilities and the three expert opinions all said, the answer to that question is it would not have avoided the amputation on a balance of probabilities.

(added emphasis)

82    A similar point was made by counsel for Ms Jenkins in his oral reply submissions to the Tribunal (transcript page 25):

I don’t think that helps us in relation to section 107. I think we still come back to this critical question of the participant’s impairment in this case is accepted as being a consequence of the amputation. And so the question is whether the personal injury for which the compensation is paid has caused that amputation. And for the reasons that I’ve explained, and I won’t go back into, in my submission it’s clear that the personal injury did not extend to those elements of the participant’s impairment.

(added emphasis)

83    The emphatic expression of Ms Jenkins case in that way is understandable. The distinction being drawn was between NDIS amounts that had been received for a mobility impairment and the compensation under the deed which was said not to relate to a personal injury that affected Ms Jenkins mobility. Even if there was to be regard to the evidence as to precise date when the amputation occurred, there is no suggestion that regard to those documents would mean that the some or all of the NDIS amounts had not been received for a mobility impairment. On Ms Jenkins' case the point being made was that the compensation to be paid under the deed was not for a personal injury that affected her mobility. Her contention was that the compensation was for the pain and suffering associated with the delays in treating her PJI. For that reason, the precise factual circumstances as to when her amputation occurred were not material. Indeed, it might be said that association of all of her NDIS amounts with the consequences of the amputation assisted in making the point.

84    In all the circumstances, I am not persuaded that there was an error of law in the Tribunal proceeding on the basis of the factual position as presented by the parties. This is not a case where there was reason for the Tribunal to doubt the common factual basis being put by the parties as to the nature of the impairment for which Ms Jenkins had received the relevant NDIS amounts. There was no reason for the Tribunal to question the common factual position being presented by the parties. It was not an instance of the Tribunal being asked to decide the case on an artificial or inadequate basis.

85    Further submissions were advanced for Ms Jenkins as to reasons why the question of law should be considered. However, on the authorities, they are matters which are to be considered in deciding whether, in the exercise of discretion, to allow an appeal on a point to be advanced where it does raise a question of law. For reasons I have given, I am not persuaded that there is an error of law, so the matters that may go to discretion do not arise for consideration. However, to the extent that there was an attempt to lay responsibility for the way in which the factual position was presented to the Tribunal at the feet of the Agency, that attempt should not be accepted. Plainly, the facts as to Ms Jenkins impairment were a matter well known to her.

86    The submissions for Ms Jenkins in support of Ground (2) also maintained that the Tribunal had failed to undertake the appropriate inquiry as to what constituted the relevant qualifying impairment and, in consequence, had failed to make a finding on a necessary statutory aspect. It was alleged that the Tribunal had reached conclusions to the effect that the injury the subject of the settlement caused the impairment without actually making a finding as to the nature of the impairment. Further, as the Tribunal was legally required to make a finding as to the impairment it was said that this amounted to an error of law. In substance these contentions amounted to a submission that the identification of the amputation as the relevant impairment failed to conform to the statutory concept of impairment.

87    The relevant statutory definition encompasses a physical impairment that is or is likely to be permanent that results in substantially reduced functional capacity to undertake mobility that affects the person's capacity for social or economic participation and the person is likely to require NDIS supports  for the person's lifetime. In certain cases, the nature of the relevant impairment may be captured in a description of the kind adopted by the parties in the present case, namely physical impairments resulting from a right leg above knee amputation, as well as from obesity. Much will depend upon the nature of the issues to be considered. In the present case, the key issue before the Tribunal concerned the identification with precision whether there was an amount of compensation that met the terms of s 107(1). There was no substantive dispute as to the NDIS amounts that had been received by Ms Jenkins nor as to the mobility consequences of her amputation being the impairment.

88    I am not persuaded that it was necessary for the Tribunal, in those particular circumstances, to adopt a more detailed consideration of the nature and extent of the relevant impairment. There was no error of law in its failure to do so.

89    For those reasons, Ground (2) has not been made out.

Ground (3): Did the Tribunal err by applying an incorrect threshold as to the causal link that was required under s 107(1)?

90    Particulars were provided for ground (3). Renumbering them for consistency with the style of these reasons, they were:

(1)    The Tribunal erred in finding that the statutory test in s 107(1) sets a different threshold than the balance of probabilities (para 65).

(2)    The Tribunal erred in concluding at para 65 that there was a 'causal link' between the injury the subject of the settlement and the impairment, including by failing to properly characterise the injury and by focusing on the pleaded claim rather than the 'settlement';

(3)    The Tribunal erred at para 68 by requiring 'unequivocal evidence' 'for s 107(1)(a) of the Act not to apply', rather than considering whether the statutory criteria for the application of s 107 had been met.

(4)    The Tribunal erred in law in concluding and not providing any adequate reasons for its conclusion or explanation as to its significance at para 71 that there was a 'factual reality of the impairment arising from the injury forming the subject of the settlement' which was not 'displaced' because the chance of a better outcome (presumably avoidance of amputation) was small.

(5)    The Tribunal erred in law in failing to provide adequate reasons for its conclusion that medical reports (unidentified), before the respondent, supported an 'objective connection' between the injury and impairment (para 71).

91    These particulars reflect the focus before the Tribunal and in the present appeal upon the statutory language of s 107(1), particularly the terminology 'caused, to any extent'. As has been explained, those words are used in s 107(1) to describe a required kind of personal injury.

92    The contentions advanced before the Tribunal were about the nature of the personal injury for which the compensation in the deed was to be paid. Ms Jenkins accepted that the claim had been made on the basis that negligent delay in treating the PJI had caused or materially contributed to the amputation (and consequently the relevant impairment). However, Ms Jenkins claimed that by the time the settlement was reached medical evidence was available that meant that settlement was approached on the basis that she could not establish that aspect of her claim. Rather, on her case as presented to the Tribunal, the settlement was reached on the basis that the consequence of the delay in treatment resulted in ongoing pain from the prolonged infection as well as a number of medical treatments that would have been avoided if there had not been the negligent delay. Therefore, on Ms Jenkins' case, no part of the compensation was paid in respect of a personal injury that caused to an extent the impairments for which she had been paid NDIS amounts.

93    In its written submissions on the appeal, the Agency advanced the following contention:

The statutory question was 'in respect of' what personal injury the claim had settled and compensation was paid – which on the facts matched with the claim actually brought – not some retrospective analysis about for what narrower injury the claim could properly have been brought.

94    Later the Agency submitted:

The language of s 107 is not ambiguous: if a participant receives, via settlement of a damages claim, an amount of compensation in respect of a personal injury that to any extent caused an impairment 'in relation to' (sic, 'in respect of') which supports were paid, the full cost of those supports is recoverable from the compensation award.

95    For reasons that have been given, the Agency was correct to focus on the 'in respect of' language and upon the personal injury for which the settlement amount was to be paid. The issue for the Tribunal was whether the amount for which the recovery notice had been issued was a recoverable amount. That would only be so, if sufficient of the compensation amount was for the required kind of personal injury (and consequently for a recoverable amount). That is to say, the extent of the compensation payable under the deed that was in respect of the required kind of personal injury (being an injury that has caused to any extent Ms Jenkins' impairment for which she has received the NDIS amounts) must be more than the NDIS amounts in the notice. The Agency's position before the Tribunal was that all of the compensation was in respect of a personal injury of that kind.

96    The fundamental question raised by Ground (3) is whether the Tribunal properly undertook the statutory task of reasoning as to the required causative link between the compensation to be paid under the deed and a cause of action of the required kind. For reasons that have been given, if part of the settlement was in respect of some other kind of personal injury then it was necessary to determine the part of the compensation that was in respect of the personal injury of the required kind. The Tribunal could not affirm the decision to issue the recovery notice on the basis that to an extent the amount of compensation to be paid to Ms Jenkins under the deed was in respect of the required kind of personal injury. The whole of the amount sought to be recovered had to be of the required kind. This was the required threshold for establishing causation.

97    Further, the Tribunal could not be diverted by the parties' submissions from the statutory task of reaching a conclusion as to whether the settlement amount was paid in respect of a personal injury of the required kind. The Tribunal's decision was required to conform to the statutory provisions as to the circumstances in which and the amount for which a recovery notice could be issued by the CEO of the Agency.

98    This aspect of the statutory task is to be differentiated from the factual findings to be made as to what the settlement was actually paid for, especially the personal injury for which the agreed amounts were to be paid. No question of law was raised as to the way in which those factual findings had been made. It was for the Tribunal to reach a conclusion, as a matter of fact, as to what the settlement amount was to be paid for. However, if the Tribunal's fact finding revealed a misunderstanding of the statutory task when it came to the nature of the threshold that had to be met by the Agency in seeking to support its recovery notice then that was an error as to a question of law.

99    Respectfully, the Tribunal's reasons on whether there was an amount of compensation fixed under the deed that was in respect of a personal injury that caused to any extent the impairment for which Ms Jenkins received NDIS amounts are somewhat difficult to follow. Principally, that is because the Tribunal did not reach an explicit conclusion as to the personal injury for which the compensation amount was paid. It is necessary to consider the Tribunal's reasoning on the threshold causation point in their entirety.

100    The Tribunal began the relevant part of its reasoning by summarising the contentions advanced by Ms Jenkins (para 62). That summary was to the effect that Ms Jenkins claimed that (a) she always faced difficulty in proving that the negligence of the medical practitioner caused the amputation of her leg; (b) even if the PJI had been identified earlier, the NDIS amounts were likely to have been the same; and (c) the compensation to be paid under the deed 'was directed to [Ms Jenkins'] pain and suffering, loss of economic opportunities, and other forms of loss which are not covered by her NDIS supports'.

101    The Tribunal then stated its conclusion: 'I find that the injury the subject of the settlement caused the impairment' (para 63). It then followed that opening with the sentence: '[Ms Jenkins] says that the leg amputation…was a high likelihood regardless of any omission or commission of the [medical practitioner]'. Considered in that context, it appears that the first sentence was a finding that the settlement was in respect of the amputation which caused the impairment. This reading of the reasons is confirmed when there is regard to the rest of the paragraph which deals with Ms Jenkins' contention that the leg amputation was 'inevitable' thereby ruling it out as a personal injury for which the compensation under the deed was to be paid. The Tribunal refers to medical evidence as to the chances of a 'successful intervention' (that is, one that did not result in amputation) and concludes the paragraph as follows:

Although the chances of successful intervention may be less than 50%, I am nevertheless satisfied that there is a causal link between the injury the subject of the settlement, the impairment, and the compensation paid for supports arising from the injury. The denial of liability is only one aspect for me to consider, but it is not conclusive.

102    This reasoning merges two distinct causation questions posed by the terms of s 107(1). First, is the compensation to be paid under the deed a fixed settlement amount 'in respect of' a personal injury and, if so, what personal injury? Second, is that personal injury one that has caused 'to any extent' a participant's impairment? These causal questions are not expressed in the same terms. A causative link 'to any extent' is sufficient between the personal injury and the impairment. However, if there is a personal injury of that kind, the compensation must be 'in respect of' that injury. Compensation that is 'in respect' of some other injury or loss is outside the terms of s 107(1). It is by no means clear what is meant by the Tribunal's rolled up finding about causal link. It is certainly not clear that the Tribunal has considered whether the compensation fixed under the deed is to be paid 'in respect of' the relevant personal injury, namely the amputation. There is certainly no indication of a finding that the whole of the compensation to be paid under the deed is only for the amputation.

103    Then the Tribunal turns to the injury that was the subject of the statement of claim. It begins with the finding (to which reference has been made) that the: 'impairment of [Ms Jenkins] was caused, to any extent, by the injury forming the subject of the Statement of Claim' (original emphasis) (para 64). This leads to the Tribunal's 'clear thread' conclusion. This reasoning is directed to the causative link between the 'injury' and the impairment. However, before the Tribunal at least, there was no issue that amputation was the cause of the impairment. Uncertainty as to what is meant by the Tribunal is created by its generic reference to the injury forming the subject of the Statement of Claim. This injury is not identified. On Ms Jenkins' case, the amputation was not the only personal injury. There was also the prolonged period of the PJI which caused pain of a kind that would have been avoided without negligent delay (irrespective of whether it also caused or contributed to the amputation personal injury).

104    Indeed, as will emerge, the Tribunal focussed upon whether the amount of compensation was to any extent for the amputation. At this point in the reasons this can be seen in the emphasis upon the 'to any extent' language which indicates that the Tribunal was approaching the causation aspect of its decision on the basis that any extent of connection between the claim made in the statement of claim and the compensation was an adequate foundation for the Agency to be able to issue the recovery notice to the indemnifying insurer. That is not what s 107(1) says.

105    Further, the paragraph ends by stating:

The mere fact that [Ms Jenkins] settled for a lessor (sic) amount, is not adequate for me to find that the causal link has been severed.

Put in those terms, the language indicates that the Tribunal was approaching the causation question on the basis that it was for Ms Jenkins to demonstrate that the Agency did not have power to issue the recovery notice. This was not the correct approach. The question for the Tribunal was whether, on the material before the Tribunal, the required connection existed between an amount of compensation fixed under the settlement and an identified personal injury that had caused to any extent the impairment of Ms Jenkins (which the parties had identified as the supports provided to Ms Jenkins in consequence of her amputation).

106    The Tribunal follows this reasoning with a paragraph that differentiates between the balance of probabilities and the statutory phrase 'to any extent' (para 65). Again, the focus is upon the required connection between the personal injury and the impairment not upon the required connection between the compensation and the personal injury. As I have explained, it is not the case that s 107(1) was met where compensation fixed under the deed was connected 'to any extent' to a personal injury with the required connection to the participant's impairment. The Tribunal's reasoning differentiates between a finding of liability for a personal injury (to be made on the balance of probabilities) and a finding of causation under s 107(1). The Tribunal then states:

I am satisfied that the qualifying impairments for which [Ms Jenkins] received NDIS supports, were 'caused to any extent' by the injury forming the subject of the [deed]'.

There follows a finding of:

…a causal link between the injury the subject of the settlement and the impairment.

107    Once again, this reasoning fails to identify what is meant by 'the injury'. What, in the view of the Tribunal, was the personal injury forming the subject of the deed? This was the real question at the heart of the competing contentions. There had to be a personal injury of the required kind for which an amount of compensation was fixed under the deed (not a personal injury for which part of the relevant amount of compensation was paid). There is no attempt to identify that injury. The fact that the analysis begins with the 'to any extent' language (and makes no reference to the 'in respect of' language) and then refers to a causal link between the injury the subject of the settlement and the impairment rather suggests that the Tribunal is proceeding on the basis that a causal link 'to any extent' between the settlement amount to be paid under the deed and the impairment will satisfy the terms of s 107(1). That approach is not correct. It fails to consider whether the compensation to be paid under the deed is 'in respect of' something other than a personal injury that has caused to any extent the impairment. That is, it fails to engage with the contention being advanced by Ms Jenkins.

108    The Tribunal at this point is dealing with a submission by Ms Jenkins that the Tribunal was required to reach a conclusion on the balance of probabilities as to whether the compensation was paid for the required kind of personal injury. The Tribunal reasoned that the phrase 'to any extent' was 'of different import than balance of probabilities'. The Tribunal then reasoned that: 'Causation of an impairment under s 107(1) is not to be treated as if a finding of liability for an impairment'. On balance, I do not regard this reasoning by the Tribunal as suggesting that it could make a factual finding based upon material that was insufficient or was somehow less than the material that would usually be required. Rather, the Tribunal is stating no more than that the question it must determine is not what Ms Jenkins would have succeeded on the balance of probabilities in establishing if there had been a trial of her claim. As to the use of the terminology 'balance of probabilities' to describe the process of administrative decision-making, I note that a whole range of approaches to decision-making in an administrative context may be correct: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282-283 (Brennan CJ, Toohey, McHugh and Gummow JJ), see also Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [115] (Flick and Perry JJ). The point here is that the Tribunal was not addressing the mode or standard of proof.

109    The next relevant part of the Tribunal's reasoning begins with a paragraph in which two different things are being said (para 67). The first is that the deed fixes an amount of compensation in respect of 'a personal injury that has caused, to any extent, [Ms Jenkins'] impairments'. The second is that 'the compensation is, to any extent, for the injury that caused the impairment' (para 67) (added emphasis). The first refers to the causal connection between the compensated personal injury and the impairments. The second refers to the causal connection between the compensation and the personal injury that caused the impairment. Only the first reflects the statutory language in s 107(1). The difference is significant and reveals error. The required connection between the compensation and the relevant personal injury (being an injury that has caused to any extent a participant's impairment) is that the settlement must be 'in respect of' that personal injury. The second formulation incorrectly reframes that causative connection in terms that the compensation is 'to any extent' for the personal injury.

110    Further, these findings are expressed in conclusionary terms. They do not identify the personal injury in respect of which the agreed compensation is to be paid. They do not explain why the whole of the compensation to be paid under the deed might be said to be 'in respect of' such a personal injury (as distinct from being, at least in part, compensation for pain and suffering associated with the delayed treatment of the PJI). They do not identify the personal injury that is said to have caused 'to any extent' the impairments.

111    It appears to be a finding that is made on the basis that the amputation is the personal injury. However, there was no issue between the parties as to the extent to which the amputation caused the impairments. Before the Tribunal, both parties accepted that the amputation was the cause. On the basis that s 107(1) was the relevant provision, the real issue for the Tribunal to determine was whether the compensation under the deed was 'in respect of' the amputation, an issue that the Tribunal appears to have incorrectly reframed as whether the compensation was to any extent for the amputation.

112    Next, the Tribunal considers the significance of the recitals to the deed. It observes that the settlement of the personal injury claim by agreement means that 'it is not clear to what extent the risk of amputation could have been prevented by the [treating medical practitioner] in the earlier identification and treatment of the PJI' (para 68). This is to point to uncertainty as to whether or not the compensation was being paid for the amputation as a personal injury consequent upon the negligence of the medical practitioner. The Tribunal then says:

In any event, those Recitals seek to deal with liability, whilst the focus under s 107 of the Act is on a personal injury that has caused, to any extent, the impairments of [Ms Jenkins].

113    This passage reflects only part of the terms of s 107(1) and once again fails to focus on whether there is the required connection between an amount of compensation to be paid under the deed and the required kind of personal injury (namely, an injury that has caused to any extent the impairments for which Ms Jenkins has received the NDIS amounts).

114    The Tribunal goes on to consider the medical evidence relied upon by Ms Jenkins. Based on the differing opinions as to whether earlier intervention would have obviated the need for amputation, the Tribunal concludes that 'in essence' the experts agree that the likelihood 'was relatively slim'. In other words, once the PJI occurred, even with early intervention the likelihood was that the amputation would occur. The Tribunal then finds 'none of the experts completely rule out that earlier intervention may have been successful'. This is used to reject the submission by Ms Jenkins that amputation was inevitable (and consequently the settlement amount was not for that personal injury). However, reasoning of that kind could not be the basis for finding what personal injury the compensation was paid for. It is simply reasoning that it is not possible to rule out, on the basis of the medical evidence, that some part of the compensation was for the amputation because the evidence did not rule out that possibility.

115    The Tribunal then reaches a conclusion that 'the proposition by [Ms Jenkins] that the amputation would in any effect have occurred, is not unequivocally supported by the expert evidence' (para 68). Presumably, the reference to 'in any effect' is intended to be to 'in any event'. These findings are not concerned with whether negligent delay in treatment of the PJI caused the ongoing injury in the form of the infection (and consequent pain and the need for ongoing treatment) that would have been avoided by earlier intervention. Rather, they are concerned with whether there was medical evidence which refuted a case that the negligent delay caused the amputation. The finding is to the effect that the medical evidence did not unequivocally support the conclusion that the delay did not cause the amputation. Reasoning of that kind imposed a burden on Ms Jenkins and did not address the point being made by Ms Jenkins.

116    Later, the Tribunal restates its earlier finding as to causation in the following terms (para 70):

…[Ms Jenkins] had suffered an injury forming the subject of the settlement that had caused to any extent the impairment and for which NDIS supports were provided.

117    Again, the terminology 'forming the subject of the settlement' is a departure from what is required by s 107(1). The statutory provision is not concerned with whether an injury formed the subject of a settlement. Rather, it is concerned with whether an amount of compensation fixed under a settlement is an amount to be paid in respect of an injury of a particular kind.

118    In order to apply s 107(1) it was necessary to consider what personal injury the compensation was 'in respect of'. In particular, was there an amount of compensation in respect of the required kind of personal injury? The failure by the Tribunal to apply the statutory language as to causation meant that it failed to consider whether all of the amount of compensation the subject of the recovery notice was in respect of the required type of personal injury. The Tribunal did not consider whether there was an amount of compensation that was actually 'in respect of' a personal injury for which Ms Jenkins had received no amount as a participant in the NDIS, namely the injury in the form of the ongoing untreated infection which led to pain and suffering but no impairment through disability.

119    In the passages that follow, the Tribunal does not identify the injury what is said to be 'the injury forming part of the settlement' (added emphasis) (para 71). However, the use by the Tribunal of the 'part of' terminology is revealing. In the context of its preceding analysis, it indicates a finding that it is enough if part of the amount of compensation is in respect of the relevant personal injury (amputation). The Tribunal repeats the 'injury the subject of the settlement' terminology later in the same paragraph. It must be taken to have found that an amount of compensation fixed under a settlement that is connected 'to any extent' with the required kind of personal injury meets the statutory requirement.

120    Finally, the Tribunal addresses the significance of the claims made in the statement of claim and the particulars of loss and damage. In the course of that analysis, it reasons as follows (para 73):

The finding of fact that [Ms Jenkins] has suffered from impairments 'howsoever caused', is adequate to satisfy the first part of s 107(1)(a), namely impairments forming the subject of settlement. The second part of s 107(1)(a) is satisfied by my finding that the compensation received was in respect of the claim for damages for the impairment the subject of the settlement.

121    With due respect, I have some difficulty in understanding this analysis. As I have stated, no doubt with undue repetition, s 107(1)(a) relevantly requires that there be an amount of compensation fixed under a settlement in respect of an identified type of personal injury. It is not possible to apply s 107(1)(a) unless that personal injury is identified. It is also not possible to identify that personal injury by simply saying that it was an injury the subject of the statement of claim or the settlement. Once identified, it is not possible to conclude that the whole of an amount compensation was in respect of that personal injury by pointing to 'some extent' to which the settlement is for a personal injury of the required kind, namely one which has caused to any extent the impairment for which the participant has received NDIS amounts. NDIS amounts are only payable out of compensation received for a personal injury which has caused to some extent the impairment for which the NDIS amounts have been paid. If an NDIS recipient receives compensation for some other kind of personal injury then the statutory preconditions in s 107 are not met in respect of that amount of compensation.

122    For the reasons I have given, there is a fundamental respect in which the Tribunal failed to apply the causation terms of s 107(1) that has permeated its reasoning. Although it concluded that the compensation to be paid under the deed was to an extent for the amputation, that conclusion was insufficient for the Tribunal to be able to apply the statutory provisions. That is because the Tribunal had to reach a conclusion that there was an amount of compensation payable under the deed that was in respect of the required kind of personal injury. To conclude that the compensation was to an extent for the amputation meant that there remained the possibility that it was also to an extent for the personal injury in the form of the untreated PJI. There is no indication in the reasons of the Tribunal that it concluded that the compensation in the deed was to be paid only for the amputation. On the contrary, the Tribunal's analysis and terminology shows that it proceeded on the legally incorrect premise that compensation that was to any extent for the amputation was compensation that could be the subject of a recovery notice. As has been explained that was a legally incorrect approach.

123    If, as appears to be the case, the Tribunal concluded that in fact the compensation amount in the deed was to an extent for amputation and to an extent for the injury in the form of the untreated PJI then the Tribunal had to go on and reach a conclusion as to a part of the compensation that was for the amputation. The Tribunal was required to do so even though it appears that the parties before the Tribunal approached the matter on the basis that the compensation was either for the amputation or it was not. The Tribunal could not be diverted from the required application of the statutory provisions by the parties' contentions.

124    Turning then to the particulars advanced as to Ground (3) (and following the numbering adopted above):

(1)    The Tribunal did not set an incorrect threshold as to the material that was required to establish the matters for the statutory test in s 107(1);

(2)    The Tribunal erred at para 65 in finding that there was the required causal link between the injury the subject of the settlement and the impairment;

(3)    The Tribunal erred at para 68 by requiring Ms Jenkins to establish matters in relation to whether the settlement amount was in respect of a required kind of personal injury rather than considering what was required by the statutory language of s 107(1); and

(4)    Properly construed in the context of the Tribunal's reasoning as a whole, the finding at para 71 was a finding that the impairment arose from the personal injury the subject of the settlement in the sense that the settlement was to an extent for the amputation, being a finding that was an insufficient foundation, as a matter of law, for the recovery notice (and on that basis the particular as alleged has not been established).

125    As to particular (5), it raises a point that has not yet been considered. In para 71, the Tribunal (in a passage that has already been quoted but is repeated here for convenience) said:

Ultimately, I find that the objective connection between the injury the subject of the settlement and the qualifying impairment was not only based on the Statement of Claim or the Deed of Release, but also on the medical reports before the NDIA when [Ms Jenkins] was accepted as a participant in the Scheme (Pett at [65]).

126    It appears that the Tribunal, at this point, is making an equivalent finding to that in Pett, namely a finding to the effect that there were medical reports before the NDIA when Ms Jenkins was accepted as a participant in the NDIS which connect the physical injury for which she was compensated under the deed to her qualifying impairments. It is difficult to understand the logic of this reasoning given the nature of the case being advanced by Ms Jenkins. Her case did not depend upon any disputed claim about the impairments that had qualified her as a participant in the NDIS. Before the Tribunal it was agreed that the impairment was her amputation. Rather, Ms Jenkins' case focussed upon the nature of the personal injury for which the compensation was to be paid under the deed and the significance of the medical evidence for whether that compensation was paid for what was (at least before the Tribunal) an agreed position as to impairments.

127    The complaint made by the particular is to the effect that the reasoning was inadequate as to the medical reports that were said to have been before the NDIA. It was submitted for Ms Jenkins that the reasons must be construed as being based on a form of understanding as to what must have existed because there is no reference to medical reports of that kind in the reasons or any explanation as to what those medical reports might show. The reference is particularly curious given that the issue being addressed concerned what the compensation payment in the deed was for, there being agreement before the Tribunal that the NDIS amounts had been for the mobility impairments the consequence of the amputation and contributed to by obesity.

128    Although submissions were advanced in the appeal by the Agency to the effect that the reasoning in Pett was correctly applied by the Tribunal when it had regard to the statement of claim as part of reaching a factual conclusion as to what was settled by the deed, they did not deal in precise terms with the issue of the medical reports to which the Tribunal was making reference. Although a submission was advanced for the Agency to the effect that there were reports before the Tribunal that had been before the Agency when a decision was made about Ms Jenkins' participation in the NDIS, no submission was advanced that might explain the reasoning at para 71.

129    It is not necessary to plumb the depths of these matters because, for reasons that have been given, a number of the particulars to Ground (3) should be accepted.

130    Finally, as to Ground (3), the Agency advanced submissions to the effect that the language 'in respect of' was capable of applying broadly. In particular, it was submitted that a settlement of a case that unjustifiably claimed liability for personal injury of a kind referred to in s 107(1) would still be in respect of such an injury. For reasons given when considering the statutory language, I am not persuaded that the 'in respect of' language allows the Agency to obtain payment of a recoverable amount where an NDIS participant is entitled to an amount of compensation that lacks connection to a personal injury of the kind specified (namely one which has caused, to any extent, a participant's impairment). The question is whether the compensation to be paid under a settlement is in respect of the required kind of personal injury. All would depend on what the compensation was paid for. It may be accepted that the 'to any extent' language is broad. But it does not allow the Agency to recover amounts from compensation which is paid for some type of personal injury that is not of the kind specified. Nor does it allow the recovery of the whole of a mixed amount. In the latter instance, it is necessary to identify 'an amount of compensation' that is the part that is fixed in respect of the relevant personal injury.

131    Finally, the Agency advanced a submission to the effect that the particulars to Ground (3), if established, were not material to the Tribunal's decision. I take this to be a submission as to the exercise of discretion whether to grant the relief sought. For reasons that have been given, the error by the Tribunal was as to a misunderstanding as to the nature of the threshold causation language in s 107(1). It infects the whole of the Tribunal's reasoning and conclusion. It is not possible for the conclusion to be supported by untainted aspects of the Tribunal's reasons in the manner submitted by the Agency.

The Agency's application to adduce further evidence

132    The Agency sought to rely on further evidence for the purpose of the Court considering whether to make an order for remitter or to find facts under s 177(1) of the Administrative Review Tribunal Act to avoid making an order for remitter. The documents were only said to become relevant if the Court finds that the Tribunal erred in law when finding facts in accordance with the facts agreed between the parties, particularly the Tribunal's finding as to the basis on which Ms Jenkins was granted access to the NDIS.

133    The parties proposed that the interlocutory application be held over for consideration when the outcome of the Ms Jenkins' contentions in support of the appeal were known. For reasons I have given, I have not upheld the aspect of the appeal that was concerned with the finding as to the basis on which Ms Jenkins was granted access to the NDIS. It follows that the premise on which the interlocutory application was based falls away. Therefore, it is appropriate for that interlocutory application to be dismissed.

The outcome and appropriate orders

134    The issue for determination by this Court is whether the appeal should be allowed. Save for the issue relating to the basis upon which Ms Jenkins was initially admitted as a participant in the NDIS, there was no issue between the parties that if any of the appeal grounds were upheld the appropriate outcome was for the proceedings to be remitted to the Tribunal for determination according to law.

135    I have considered whether it would be appropriate to invite submissions from the parties as to whether the remitter should be limited in some way. However, I am not persuaded that there is any real basis upon which such a course is open in the present case. The appropriate course is to require a fresh hearing.

136    I will allow the parties to make short written submissions as to costs. Unless otherwise ordered, I will deal with the question of costs on the papers.

Associate:

Dated:    3 September 2026