Federal Court of Australia

Commissioner of the NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq) (No 4) [2026] FCA 1394

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 8.21 of the Federal Court Rules 2011 (Cth), the applicant has leave to amend the originating application filed on 13 September 2024 in accordance with the reasons for judgment of Horan J.

2.    The costs of the applicant’s interlocutory application filed on 16 September 2026 are reserved.

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

REASONS FOR JUDGMENT

HORAN J:

1    By an interlocutory application filed on 16 September 2026, being the third day of the trial in this proceeding, the Commissioner of the NDIS Quality and Safeguards Commission seeks leave under r 8.21 of the Federal Court Rules 2011 (Cth) to amend its originating application.

2    The proceeding is brought by the Commissioner for declarations of contravention and pecuniary penalty orders against each of the respondents in respect of alleged contraventions of ss 73J and 73V of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and rr 6(c), (d) and (e) of the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth). In broad terms, the Commissioner relevantly alleges that:

(a)    the first respondent, Irabina Autism Services (in liq), used prohibited restrictive practices on NDIS participants and persons with a disability on multiple occasions between October 2019 and May 2021, and continued to train staff on techniques involving the use of prohibited restrictive practices and to use such practices notwithstanding that concerns had been raised with it about the use of such practices;

(b)    the second respondent, Debra Goldfinch, in her capacity as the former Chief Executive Officer of Irabina, permitted Irabina to use prohibited restrictive practices and to train staff on and use prohibited restrictive techniques within its severe behaviour program, and failed to prevent Irabina’s use of those practices and continued training on and use of those techniques; and

(c)    the third respondent, Rebecca Goldfinch, in her capacity as Irabina’s former General Manager Specialist Services and Authorised Program Officer (APO), failed to prevent or otherwise permitted each use by Irabina of prohibited restrictive practices, and failed to prevent the use of such practices and continued training of staff on and use of prohibited restrictive techniques upon concerns being raised about Irabina’s proposed or potential use of such practices.

3    The Commissioner’s proposed amended originating application was exhibited to an affidavit of Mr Hugh Copley sworn on 16 September 2026, which classified the proposed amendments into four categories, the first two of which are uncontroversial:

(a)    certain typographical corrections to the citation of r 6 of the Code of Conduct (as in force at the relevant times);

(b)    amendments to confine the time periods specified in the declarations of contravention sought against the respondents, so as to align those periods with the Commissioner’s opening submissions and the evidence that has been adduced by the Commissioner;

(c)    amendments to the declaration of contravention sought against Debra in paragraph 4 of the originating application in order to “clarify that the [Commissioner] seeks declaratory relief for multiple contraventions by Debra of r 6(c) of the [Code of Conduct] and s 73V of [NDIS Act] on the occasion of each use of prohibited restrictive practices”, so as to align the declaration sought against Debra to the declarations sought against Irabina and Rebecca in the originating application;

(d)    amendments to the declarations of contravention sought against Irabina, Debra and Rebecca respectively in paragraphs 2, 5 and 8 of the originating application to “clarify that the [Commissioner] seeks declaratory relief for multiple contraventions of r 6(e) of the [Code of Conduct] and s 73V of the NDIS Act in relation to Irabina’s, Debra’s and Rebecca’s failure to act on concerns raised about matters that may impact the quality and safety of supports and services provided to people with disability”.

4    Mr Copley deposed that the proposed amendments “are directed to aligning the case identified against each of the respondents in the [Commissioner’s] Written Opening Submissions and the case opened orally in this trial”. In this regard, Mr Copley stated that “[o]n reflection, the Originating Application should have been prepared to make expressly clear the manner in which the number of contraventions alleged were calculated in paragraph 4 and paragraphs 2, 5 and 8”, and that “[t]he failure to do so was an error”.

5    The central substantive issue that is sought to be addressed by the proposed amendments concerns the number of contraventions alleged to have been committed by the respondents.

(a)    First, in respect of what has been described as the “Use and Training Contraventions” alleged against Debra, the Commissioner contends that there was a separate contravention of r 6(c) of the Code of Conduct and s 73V of the NDIS Act on each occasion that a prohibited restrictive practice was used by Irabina, as opposed to one single contravention covering all such uses during the relevant period.

(b)    Second, in respect of what has been described as the “Failure to Act Contraventions” alleged against each of Irabina, Debra and Rebecca, the Commissioner contends that there was a separate contravention of r 6(e) of the Code of Conduct and s 73V of the NDIS Act on each occasion that a prohibited restrictive practice was used by Irabina.

6    Debra and Rebecca opposed the amendments referred to in paragraph 3(c) and (d) above, submitting that the application was made too late and would cause them significant prejudice.

7    Irabina is in liquidation, and has not actively participated in the proceeding. The Commissioner was granted leave to proceed against Irabina subject to an undertaking not to enforce any pecuniary penalty order or costs order made against it unless there is a surplus of assets in the liquidation. The liquidator has been notified of the Commissioner’s application, but has not sought to be heard on the application. Any references to “the respondents” in these reasons are, unless otherwise indicated, intended to refer to Debra and Rebecca.

8    In addition to the uncontentious amendments referred to in paragraph 3(a) and (b) above, I would grant the Commissioner leave to amend paragraph 4 of the originating application in relation to the alleged contravention by Debra of r 6(c) of the Code of Conduct and s 73V of the NDIS Act. I would otherwise refuse leave to amend paragraphs 2, 5 and 8 of the originating application in relation to the alleged contravention by each of Irabina, Debra and Rebecca of r 6(e) of the Code of Conduct and s 73V of the NDIS Act.

PROCEDURAL HISTORY

Originating application

9    The proceeding was commenced by an originating application filed by the Commissioner on 13 September 2024. The originating application set out the relief sought by the Commissioner, on the grounds set out in an accompanying Concise Statement dated 13 September 2024. The relief comprised declarations of contraventions of the NDIS Act against each respondent, along with pecuniary penalty orders under s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), and costs.

10    For the purposes of understanding the declarations sought in the originating application, it is convenient to note the following legislative provisions (as in force at the relevant times).

(a)    A person contravenes s 73V of the NDIS Act if the person is subject to a requirement under the Code of Conduct and fails to comply with the requirement. This is a civil penalty provision.

(b)    Rule 6 of the Code of Conduct relevantly provides that, in providing supports or services to people with disability, a “Code-covered person” must:

(i)    provide supports and services in a safe and competent manner, with care and skill (r 6(c));

(ii)    act with integrity, honesty and transparency (r 6(d)); and

(iii)    promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability (r 6(e)).

For such purposes, a Code-covered person includes an NDIS provider, and all persons employed or otherwise engaged by an NDIS provider.

11    The declarations sought against the respondents were framed in different terms, corresponding to the several distinct aspects of the Commissioner’s case. In these reasons, I will assume that the typographical corrections have been made to the citation of r 6 of the Code of Conduct.

12    The first aspect of the Commissioner’s case addressed Irabina’s use of prohibited restrictive practices on NDIS participants during the specified period. This was relevantly alleged to involve a failure to provide supports and services in a safe and competent manner and with care and skill, as required by r 6(c) of the Code of Conduct.

(a)    Irabina: Paragraph 1 of the originating application sought a declaration that Irabina contravened s 73V of the NDIS Act in respect of each use of prohibited restrictive practices, contrary to r 6(c) of the Code of Conduct. The Commissioner also sought a declaration that, in respect of each such use, Irabina contravened s 73J of the NDIS Act by breaching the conditions of its registration as a registered NDIS provider, in that it failed to comply with applicable requirements under the Code of Conduct, the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) and the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support Rules) 2018 (Cth).

(b)    Debra: Paragraph 4 of the originating application sought a declaration that Debra contravened s 73V of the NDIS Act, “by permitting Irabina to train staff on and use prohibited restrictive techniques, and use prohibited restrictive practices, within Irabina’s severe behaviour program on and from 10 September 2019”, contrary to r 6(c) of the Code of Conduct.

(c)    Rebecca: Paragraph 7 of the originating application sought a declaration that Rebecca contravened s 73V of the NDIS Act, “by failing on and from 10 September 2019 while Irabina’s APO or Irabina’s General Manager of Specialist Services to prevent, or otherwise permitting, each use by Irabina referred to in paragraph 1 of prohibited restrictive practices”, contrary to r 6(c) of the Code of Conduct.

13    It may be noted that the declarations in paragraph 1 (against Irabina) and paragraph 7 (against Rebecca) referred to a contravention in respect of each use of prohibited restrictive practices by Irabina. However, the declaration in paragraph 4 (against Debra) did not expressly refer to separate contraventions in respect of each use of a prohibited restrictive practice.

14    The second aspect of the Commissioner’s case addressed the respondents’ failure to act on concerns raised by third parties about the use of prohibited restrictive practices. This was relevantly alleged to involve a failure promptly to take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability, as required by r 6(e) of the Code of Conduct.

(a)    Irabina: Paragraph 2 of the originating application sought a declaration that Irabina contravened s 73V of the NDIS Act “by continuing staff training on prohibited restrictive techniques and using prohibited restrictive practices between January 2020 to June 2021 notwithstanding concerns raised with it by third parties about use of prohibited restrictive practices”, contrary to r 6(e) of the Code of Conduct.

(b)    Debra: Paragraph 5 of the originating application sought a declaration that Debra contravened s 73V of the NDIS Act by failing to prevent Irabina’s continued training on and use of prohibited restrictive techniques and its use of prohibited restrictive practices within its severe behaviour program on and from 10 September 2019 (or alternatively from January 2020), and by failing to remove Rebecca from her roles and positions on and from around 13 July 2019 or alternatively by no later than around April 2020, contrary to r 6(e) of the Code of Conduct.

(c)    Rebecca: Paragraph 8 of the originating application sought a declaration that Rebecca contravened s 73V of the NDIS Act by failing to prevent continued staff training on and use of prohibited restrictive techniques and its use of prohibited restrictive practices within its severe behaviour unit, upon concerns being raised by persons on and from January 2020, contrary to r 6(e) of the Code of Conduct.

15    Putting to one side some slight differences in the language of the declarations set out in paragraphs 2, 5 and 8 of the originating application, it may be noted that none of those declarations expressly referred to separate contraventions in respect of each use of a prohibited restrictive practice during the specific period.

16    The third aspect of the Commissioner’s case addressed the employment of Rebecca in roles for which she was not competent or did not possess relevant expertise or experience. In respect of Irabina, paragraph 3 of the originating application sought a declaration of contravention of s 73J of the NDIS Act by failing to meet the requirements under cl 15 of Sch 1 of the Practice Standards. In respect of Debra, paragraph 6 of the originating application sought a declaration of contravention of s 73V of the NDIS Act by failing to comply with r 6(d) of the Code of Conduct. Further, paragraph 5(c) of the originating application alleged that Debra contravened r 6(e) by failing to remove Rebecca from her roles and positions. As the Commissioner’s interlocutory application does not seek any substantive amendments to paragraphs 3, 5(c) or 6 of the originating application, nothing more need be said about those paragraphs.

Concise Statement

17    In setting out the important facts giving rise to the claim and the primary legal grounds for the relief sought, the Concise Statement largely reflected the scope of the relief claimed in the originating application.

18    Relevantly, paragraph 3 of the Concise Statement comprised an introductory paragraph which addressed the allegations against Debra and Rebecca, as follows:

3.    Debra Goldfinch, Irabina’s chief executive officer, and Rebecca Goldfinch, Irabina’s General Manager of Specialist Services and an “Authorised Program Officer” contravened the NDIS Code of Conduct, and therefore also s 73V of the NDIS Act, on multiple occasions in connection with Irabina’s use of prohibited restrictive practices.

(Emphasis added.)

19    While this paragraph contemplated contraventions of s 73V of the NDIS Act by Debra and Rebecca “on multiple occasions” in connection with the use of prohibited restrictive practices by Irabina, it was drafted in a rolled-up fashion encompassing both Debra and Rebecca and (implicitly) covered contraventions of both r 6(c) and r 6(e) of the Code of Conduct. The paragraph did not clearly identify whether or not separate contraventions were being alleged against Debra in respect of her failure to comply with r 6(c) of the Code of Conduct on the occasion of each use of a prohibited restrictive practice, nor whether separate contraventions were alleged against Debra or Rebecca in respect of their failure to comply with r 6(e) of the Code of Conduct.

20    Paragraph 11 of the Concise Statement addressed Irabina’s use of prohibited restrictive practices and training on prohibited restrictive techniques within its severe behaviour program. Paragraphs 12 to 15 set out facts in relation to Debra and Rebecca. In particular, paragraph 12 relevantly stated that Debra “regularly observed the conduct of, and maintained oversight and control over, [the severe behaviour program] during the Relevant Period, including viewing the application of physical restraints to persons with disability from time to time, and actively encouraging other Irabina staff to observe also” (emphasis in original). Paragraph 17 alleged that, after being told by the Victorian Senior Practitioner on 17 April 2020 that prohibited restrictive practices would not be approved, “Debra and Rebecca continued from time to time to permit and/or view the use of prohibited restrictive practices on persons with disability, including those explicitly identified by the Senior Practitioner as prohibited”.

21    Part D of the Concise Statement set out the primary legal grounds for the relief sought against each of the respondents. Relevantly:

(a)    Paragraphs 23 to 25 addressed the grounds on which relief was sought against Irabina. Paragraph 23 alleged that Irabina failed to comply with the conditions of its registration, and thereby contravened s 73J of the NDIS Act, “[e]ach time that [it] used prohibited restrictive practices in the Relevant Period”. It was also specifically alleged that “[e]ach contravention” of the Code of Conduct was also a contravention of s 73V of the NDIS Act. Paragraph 24 alleged that Irabina failed to comply with r 6(e) of the Code of Conduct, and contravened s 73V of the NDIS Act, “[b]y using and permitting prohibited restrictive practices” despite concerns having been raised by various persons about the use of such practices.

(b)    Paragraphs 26 and 27 addressed the grounds on which relief was sought against Debra. Relevantly, paragraph 26 alleged that Debra breached r 6(c) and r 6(e), and thereby contravened s 73V of the NDIS Act, “[b]y permitting Irabina to train on and use prohibited restrictive techniques, and use prohibited restrictive practices, within its severe behaviour program on and from 10 September 2019”.

(c)    Paragraph 28 addressed the grounds on which relief was sought against Rebecca. That paragraph alleged that Rebecca breached r 6(c) of the Code of Conduct “[b]y failing to prevent, or otherwise permitting, each use by Irabina of prohibited restrictive practices on and from 10 September 2019 while APO or General Manager of Specialist Services”. It was further alleged that Rebecca breached r 6(e) of the Code of Conduct “by doing so” notwithstanding the concerns having been raised by various persons about the use of such practices. It was alleged that “[e]ach such breach of the [Code of Conduct] also contravened s 73V of the NDIS Act”.

22    It can be seen that the Concise Statement was drafted in a manner consistent with the declaratory relief sought in the originating application, in that there were express references to separate contraventions by Irabina and Rebecca of r 6(c) of the Code of Conduct and s 73V of the NDIS Act in respect of each use of prohibited restrictive practices, but no equivalent reference in the grounds for the relief sought against Debra.

Particulars of Concise Statement

23    In response to requests made by Debra and Rebecca, the Commissioner provided further particulars on 15 November 2024 and 13 December 2024, which were amended on 13 February 2025.

24    In respect of paragraph 3 of the Concise Statement, Debra and Rebecca requested the following particulars:

Re [3]: In respect of each occasion, who contravened the Code, on which date, how, and in respect of which client(s), and what was the content of the client’s behaviour support plan at the relevant time?

25    In response to this request, while noting that paragraph 3 of the Concise Statement “form[ed] part of the introduction section which merely summarises its claims in the Proceedings”, the Commissioner relevantly stated:

a)     With respect to Debra Goldfinch, her alleged contraventions of the NDIS Code of Conduct are set out in paragraphs 4 to 6 of the Originating Application and paragraphs 26 and 27 of the Concise Statement, which are based on the matters set out in paragraphs 12 to 17 of the Concise Statement and in respect of which further particulars have been provided in paragraphs 14(c) and 16 of the Response below.

b)    With respect to Rebecca Goldfinch, her alleged contraventions of the NDIS Code of Conduct are set out in paragraphs 7 and 8 of the Originating Application and paragraphs 28 of the Concise Statement, and in respect of which further particulars have been provided in paragraphs 14(d) and 18 of the Response below. For the purposes of paragraph 28 of the Concise Statement, the details of the instances in which Irabina used prohibited restrictive practices in the Relevant Period are set out in paragraph 8 of the Response and Schedule 1.

26    The respondents also requested particulars in relation to each prohibited restrictive practice that was alleged to have been used by Irabina. The Commissioner provided a table setting out details of 49 alleged incidents involving 137 alleged uses of a prohibited restrictive practice. The Commissioner alleged that “each use of the prohibited restrictive practices was engaged in by staff employed by Irabina, and in each case was engaged in, overseen, or directed, by one or more staff members of the severe behaviour program who reported to Rebecca Goldfinch (see paragraph 14 of the Concise Statement)”. The Commissioner also provided details of facts from which it could be inferred that Debra viewed the application of physical restraints from time to time and actively encouraged others to do so.

27    In response to a request for particulars of the allegation that Debra permitted the use of prohibited restrictive practices by staff in the severe behaviour program, the Commissioner stated that Debra, “by reason of her position as CEO and her involvement in the severe behaviour program”, knew that staff were using such practices, observed the use of such practices on multiple occasions, knew that staff were being trained on prohibited restrictive techniques, knew that such practices were prohibited, and did not herself take any action to cease Irabina’s use of such practices. The Commissioner provided similar particulars of the allegation that Rebecca permitted prohibited restrictive practices to be used by staff, “by reason of her position as General Manager of Specialist Services and APO”.

28    In respect of the allegation in paragraph 26 of the Concise Statement that Debra breached r 6(c) and r 6(e) of the Code of Conduct by permitting Irabina to use prohibited restrictive practices and to train on and use prohibited restrictive techniques, Debra and Rebecca requested particulars for “each alleged ‘prohibited restrictive practice’” and “each alleged ‘prohibited restrictive technique’”. The Commissioner responded to those requests by reference to the table setting out details of the alleged prohibited restrictive practices.

29    While the particulars did not dispel any latent ambiguity about the number of contraventions alleged against Debra in respect of Irabina’s use of prohibited restrictive practices or training on prohibited restrictive techniques, they are consistent with the Commissioner’s reliance on each alleged use of a prohibited restrictive practice as being relevant to the case brought against Debra, subject to issues about the basis on which she was alleged to have permitted such practices to be used on those occasions.

Application for pleadings

30    On 20 December 2024, the respondents filed an interlocutory application for orders that the matter proceed by way of pleadings rather than the concise statement method. That application was dismissed on 21 March 2025: Commissioner of the NDIS Quality and Safeguards Commission v Irabina Autism Services (in liq) (No 2) [2025] FCA 238.

31    For present purposes, it is unnecessary to recount in detail the respondents’ complaints about perceived deficiencies in the Concise Statement and further particulars. Among other things, they argued that “meaningful particulars” had not been given of the “central allegation” made against Debra in paragraph 26 of the Concise Statement, including details of the individuals who allegedly carried out the prohibited restrictive practice on each occasion, and the circumstances by reason of which the relevant practice was alleged to be prohibited.

32    At the hearing of the interlocutory application on 14 February 2025, counsel for the respondents referred to paragraph 26 of the Concise Statement and submitted that “a critical issue that will arise at trial is what techniques did Debra permit to be used at Irabina and are those techniques prohibited restrictive techniques for the purposes of the legislation”. After emphasising the need for Debra to understand the context and circumstances in which alleged prohibited restrictive techniques were used, counsel indicated that “the killing ground at any trial will be a very close analysis of the circumstances of the exact use of the prohibited restrictive techniques in exact circumstances on exact persons with needs by very specific employees of Irabina”.

33    This led to the following exchange with counsel:

HIS HONOUR: Well, that might be the case at trial, but is the alleged contravention constituted by each separate occasion? Is it like a civil penalty for misrepresentation-type case where at the end of the day there will be, at least subject to issues of totality and course of conduct, a separate contravention alleged for every incident, or are these examples that might then make it more likely they’re evidence of some more general contravention?

MS O’GORMAN: And, your Honour, I will leave that to my learned friend to answer with precision. We expect that the answer is that it’s the former. And the reason for that is found in schedule 1, if I could take the court to it if it’s convenient. Schedule 1 to the applicant’s response to the first request for particulars.

[Emphasis added.]

34    Schedule 1 contained the table in which the Commissioner had particularised the separate occasions on which it was alleged that prohibited restrictive practices had been used by Irabina. Among other things, the respondents submitted that those particulars did not make clear the occasions on which it was alleged that a prohibited restrictive practice had been used with Debra’s knowledge or involvement, as opposed to permitting staff to be trained on prohibited restrictive techniques.

35    Later in the hearing of the interlocutory application, a similar issue was raised with senior counsel for the Commissioner, namely whether it was “the fact of one or more breaches of the prohibition that, then together, constitute a failure to provide supports and services in a safe and competent manner with care and skill, or other breaches of the Code of Conduct, rather than every single time the prohibition under State law is contravened that that is, itself, a separate contravention of the NDIS Code of Conduct” (emphasis added). Counsel confirmed that the Commissioner’s case was that “it would have occurred on numerous occasions” and that “it’s a multiple contravention case”, as opposed to a single contravention of failing to provide supports and services in a safe and competent manner contrary to r 6(c) because there were one or more uses of prohibited restrictive practices. I made an observation to counsel that this “might make it more important to identify and particularise each alleged breach of the prohibition”.

36    In dismissing the respondents’ interlocutory application, I concluded that the Commissioner had provided adequate particulars of each alleged use of prohibited restrictive practices, and the training of staff on the alleged prohibited restrictive techniques: Irabina Autism Services (in liq) (No 2) at [53]. I also stated (at [54]):

To the extent that the respondents raise any separate complaint about the allegations regarding Debra’s knowledge of the prohibited restrictive practices, the Commissioner has given particulars of the incidents in respect of which it is alleged that Debra or Rebecca were physically present or in the vicinity when the practices were used, or were informed of the use of those practices, and has confirmed that those particulars are complete.

Concise statements in response, evidence and discovery

37    On 5 May 2025, each of Debra and Rebecca filed a concise statement in response. Under cover of a general reliance on the privilege against self-exposure to penalty and the privilege against self-incrimination, Debra and Rebecca denied any failure to provide supports and services in a safe and competent manner and with care and skill in contravention of r 6(c) of the Code of Conduct, referring to complex clinical and legal issues raised by the use of the techniques in the Marcus Crisis Prevention Program that were alleged to have involved physical restraints. Their responses did not descend into the detail of the separate occasions on which prohibited restrictive practices were alleged to have been used by Irabina.

38    On 19 May 2025, the Commissioner filed a concise statement in reply.

39    The Commissioner filed affidavit evidence in late July 2025, including an expert report prepared by Mark Di Marco. In December 2025, the Commissioner filed a supplementary expert report of Mr Di Marco.

40    In May 2026, the Commissioner provided discovery pursuant to orders made by Judicial Registrar Luxton on 12 February 2026.

Commissioner’s outline of opening submissions

41    On 14 August 2026, the Commissioner filed a written Outline of Opening Submissions on liability issues. Any ambiguity that might otherwise have existed about the number of contraventions that were alleged against each of the respondents was removed by the summary set out in Part B of the Outline, together with Parts D, E and F which addressed the Commissioner’s case against Irabina, Debra and Rebecca respectively.

42    In particular, the Commissioner contended that Debra, by permitting each use of prohibited restrictive practices, acted contrary to r 6(c) of the Code of Conduct “on many occasions (relevantly 143 occasions)” and contravened s 73V of the NDIS Act “on the occasion of each use”: see paragraph 19 of the Outline, by reference to the incidents and uses itemized in Annexure A. This brought those aspects of the Commissioner’s case into line with the contentions advanced against Irabina and Rebecca in respect of their alleged failure to comply with rule 6(c) of the Code of Conduct.

43    Further, the Commissioner contended that each of Irabina, Debra and Rebecca acted contrary to r 6(e) of the Code of Conduct by the continued training and use of prohibited restrictive practices “on many occasions”, and contravened s 73V of the NDIS Act “on the occasion of each use”: see paragraphs 16, 20 and 25 of the Outline, by reference to the incidents and uses itemized in Annexure A.

44    As discussed above, the articulation of these aspects of the Commissioner’s case did not align with the express terms of the declarations sought in the originating application or the allegations set out in the Concise Statement.

Amended concise statements in response

45    On 4 September 2026, each of Debra and Rebecca filed an amended concise statement in response. While still relying on the privileges against self-exposure to penalty and self-incrimination, they made certain admissions and consented to declarations being made in relation to their contravention of s 73V of the NDIS Act.

46    Debra and Rebecca admitted that they contravened the Code of Conduct and s 73V of the NDIS Act in connection with Irabina’s use of prohibited restrictive practices. In particular, they admitted that Irabina used prohibited restrictive practices, and trained staff on techniques that involved such practices, in most (but not all) of the instances specified in Annexure A to the Commissioner’s Outline.

47    Each of Debra and Rebecca consented to a declaration that she acted contrary to r 6(c) of the Code of Conduct, and contravened s 73V of the NDIS Act: in Debra’s case, “[b]y permitting Irabina to train staff on and use prohibited restrictive techniques, and use prohibited restrictive practices, within Irabina’s severe behaviour program on and from 17 April 2020”; and in Rebecca’s case, “[b]y failing on and from 17 April 2020 … to prevent the use of prohibited restrictive practices within Irabina’s severe behaviour program”.

48    The form of declaration to which Debra consented was in similar terms to that sought in paragraph 4 of the originating application, but with the following differences.

(a)    First, the declaration in the amended concise statement in response covered a period commencing from 17 April 2020 (as opposed to “on and from 10 September 2019, or in the alternative from January 2020”).

(b)    Secondly, rather than stating that Debra “failed to provide supports and services in a safe and competent manner, with care and skill”, the declaration in the amended concise statement in response stated that Debra “failed to assist Irabina to provide supports and services in a safe and competent manner with care and skill” (emphasis added.)

49    The form of declaration to which Rebecca consented also covered only the period from 17 April 2020, rather than on and from 10 September 2019 as sought by the Commission, and referred to Rebecca having failed to assist Irabina to provide supports and services in a safe and competent manner with care and skill. Further, Rebecca did not consent to a declaration that she acted contrary to r 6(c) by failing to prevent or otherwise permitting “each use by Irabina … of prohibited restrictive practices”, as sought by the Commissioner in paragraph 7 of the originating application.

50    In relation to r 6(e) of the Code of Conduct, each of Debra and Rebecca consented to a declaration that she acted contrary to r 6(e), and contravened s 73V of the NDIS Act, by failing to prevent Irabina’s continued training on and use of prohibited restrictive techniques and use of prohibited restrictive practices within the severe behaviour unit on and from 17 April 2020. Those declarations largely mirrored paragraphs 5 and 8 of the originating application, but only in respect of the period from 17 April 2020. Further, Debra did not consent to paragraph 5(c) of the originating application, which related to an alleged breach of r 6(e) based on Debra’s failure to remove Rebecca from her roles and positions.

51    The effect of the admissions in the amended concise statements in response was that Debra and Rebecca joined issue on the date from which their contraventions of r 6(c) and r 6(e) arose, and did not admit that they breached r 6(c) by failing to provide supports and services in a safe and competent manner with care and skill, as opposed to failing to assist Irabina to do so.

52    In so far as the Commissioner had alleged separate contraventions of r 6(c) against Rebecca for failing to prevent or otherwise permitting each use of prohibited restrictive practices by Irabina, Rebecca’s amended concise statement in response stopped short of admitting multiple contraventions or consenting to any declaration in such terms.

53    Any similar controversy as to the number of contraventions of r 6(c) alleged against Debra, or the number of contraventions of r 6(e) alleged against both Debra and Rebecca, was less evident on the face of the concise statements, in circumstances where the relief sought in the originating application and the Concise Statement did not expressly articulate that separate contraventions were alleged on the occasion of each use of prohibited restrictive practices.

Amendment application

54    A pre-trial case management hearing was held on 4 September 2026. There was some discussion at this hearing of the effect of the admissions made in the amended concise statements in response. In response to a suggestion that the Commissioner was alleging separate contraventions by Debra and Rebecca that “mapped” onto each alleged use of a prohibited restrictive practice, counsel for the respondents stated that “[w]e would say that’s not how the applicant has articulated their case as against [Debra and Rebecca]”, and continued:

Certainly, they do need to prove each contravention as it concerns Irabina, but as it concerns the second and third respondent, the first one being, “We permitted Irabina to train on and use the practices generally” – and that’s tied primarily to the use of the system by Marcus – and then, secondly, that, “When concerns were raised about the use of those techniques, we did not take steps to prevent Irabina from continuing to use them”.

55    In the light of this position, the following exchange took place with senior counsel for the Commissioner:

MR STAR: Your Honour, can I just make some short points. There’s really five short points. The first one is to agree with the way that your Honour ultimately understood the Commissioner’s case against the second and third respondents, to use my words, having a direct liability. It’s not accessorial liability in that formal way. There – it’s a direct liability under relevant rules and the Act, just like there’s a direct liability on Irabina.

HIS HONOUR: I think it’s not so much that it’s a wrong distinction in a way, but I think the point that Ms [O’Gorman] was making is that the direct liabilities for contraventions involving failures in supervision or the – permitting or allowing techniques to be used, which might descend to particular instances, but it might be slightly higher-level direct contravention, like a breach of due care and skill and so on, than alleging that a particular use of a practice on a particular date is something that is a separate contravention. But I – in due course … the submissions will have to identify what the number – what are the precise contraventions and what the number of contraventions are, because that will be important for penalties.

MR STAR: It certainly will. And - - -

HIS HONOUR: Subject to a course of conduct and totality and - - -

MR STAR: Yes. Yes. And, again, I can only – the Commissioner’s written submissions have taken a position, and that position is that there are multiple, numerous, separate contraventions by each of the second and third respondents by reference to incidents and uses of prohibited practices in those incidents. I’m not saying anything that’s not in the written submissions; I just wanted to be plain about that, because it – I don’t know yet, and, on the limited time I’ve looked at the amended concise response, it’s not apparent what the second and third respondents’ position is on that.

And they’ve got the benefit of the penalty privilege, and they can make such admission in such way they choose to make it. But on my reading, that does not match up to the Commissioner’s allegations of numerous separate contraventions in the way articulated in the written opening submissions. But, again, that’s a matter for trial …

56    On 8 September 2026, the Commissioner’s lawyer wrote to the respondents’ legal representatives, seeking to clarify certain aspects of the admissions made in the amended concise statements in response. In particular, the Commissioner asked:

6.    Having regard to the Second and Third Respondents’ admissions in [8A] and in particular in [8B] of the ACSR, does each admit that, excluding the uses identified in the table in [8A(k)] of their ACSR, each other use in the incidents contained within Annexure A to the Applicant’s Outline of Opening Submissions from 17 April 2020 until around 28 June 2021 was:

a.     contrary to r 6(c) of the Code of Conduct and a separate contravention by each of them of the [sic] s 73V of the NDIS Act; and

b.     contrary to r 6(e) of the Code of Conduct and a separate contravention by each of them of the [sic] s 73V of the NDIS Act?

57    The respondents’ legal representatives replied on 10 September 2026, stating:

2.     The only alleged contravention as against either [Debra or Rebecca] that the Applicant seeks in the originating application (OA) that is referrable to the particularised uses pleaded in Annexure A to the Applicant’s Outline of Opening Submissions (Annexure A) is the declaration sought in [7] of the OA in respect of [Rebecca].

3.     [Debra] therefore does not make any admissions about Annexure A, because those alleged uses are not relevant to any declaration of contravention that the applicant has sought in respect of her. Each of the matters responded to below needs to be read subject to this clarification as to the scope of the applicant’s case. That is, any admission identified below in respect of Annexure A is an admission made only by the third respondent and only in respect of the declaration sought in [7] of the OA.

58    In response to the question raised by the Commissioner (as set out in paragraph 54 above), the respondents answered as follows:

6. It is admitted that, from 17 April 2020 until around 28 June 2021, each use in the incidents falling within that period and contained within in [sic] Annexure A (excluding the uses identified in the table and the early uses) was contrary to r 6(c) of the Code of Conduct and constituted a single contravention of s 73V of the NDIS Act by [Rebecca].

The applicant does not seek in [8] of the OA any declaration of contravention in respect of r 6(e) in respect of any pleaded or specified incidents, included [sic] any in Annexure A, so [Rebecca] does not make any admission in respect of r 6(e) in respect of Annexure A.

59    While not completely free of ambiguity, this answer may be taken to indicate Rebecca’s position that the admitted uses of prohibited restrictive practices by Irabina from 17 April 2020 gave rise to a single contravention by Rebecca of s 73V of the NDIS Act. The respondents otherwise disputed that the specific uses of prohibited restrictive practices by Irabina were relevant to any declaration of contravention sought against Debra in respect of either r 6(c) or r 6(e) of the Code of Conduct, or to any declaration of contravention sought against Rebecca in respect of r 6(e) of the Code of Conduct.

60    In short, neither Debra nor Rebecca were making any admission as to separate contraventions of s 73V of the NDIS Act in respect of, or on the occasion of, each use of prohibited restrictive practices by Irabina as specified in Annexure A of the Commissioner’s Outline.

61    In such circumstances, the Commissioner made the present interlocutory application for leave to amend the originating application.

CONSIDERATION

62    Rule 8.21(1) of the Rules relevantly provides:

8.21     Amendment generally

(1)    An applicant may apply to the Court for leave to amend an originating application for any reason, including:

(a)    to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or

…

(g)    to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

(i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

(ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

63    The Court has a broad discretion to grant leave to amend, which must be exercised in the way that best promotes the overarching purpose to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth), s 37M; see generally Caason Investments Pty Ltd v Cao (2015) 236 FCR 322 at [19]–[21] (Gilmour and Foster JJ). Rule 8.21(1)(a) recognises that an object of the power to amend is to cure defects or mistakes so as to ensure that the Court can determine the real questions in controversy: see, e.g., Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [13]–[14] (French CJ), [68]–[69] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Caason Investments at [20] (Gilmour and Foster JJ). Nevertheless, the Court must also have regard to case management principles, including any prejudice to the parties and the effect on the Court and other litigants. A party does not have a right to an amendment: Aon Risk Services at [96] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

64    A range of factors may be taken into account in exercising the discretion conferred by r 8.21 of the Rules, including (but not limited to):

(a)    the nature and importance of the amendment to the party applying for it;

(b)    the extent of the delay and the costs associated with the amendment;

(c)    the prejudice that might be assumed to follow from the amendment, and that which is shown;

(d)    the explanation for any delay in applying for leave to amend;

(e)    the parties’ choices to date in the litigation and the consequences of those choices;

(f)    the detriment to other litigants in the Court; and

(g)    the potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.

See Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098 at [127]–[128] (Gleeson J) (affirmed in Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu [2016] FCAFC 2); Aon Risk Services at [102]–[103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

65    This calls for a balancing process which may vary depending on the particular facts of each case: Tamaya Resources at [128] (Gleeson J). In that balancing process, some emphasis may be placed on whether or not the party seeking leave to amend has had a sufficient opportunity to identify the issues that they seek to agitate in the proceeding: see Murden v NM Superannuation Pty Ltd as trustee of the AMP Super Fund [2025] FCA 148 at [26] (Derrington J); Aon Risk Services at [94], [98], [102], [112].

66    The onus is on the Commissioner to persuade the Court that leave to amend should be given: see Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [17] (Marshall, Rares and Flick JJ).

67    The Commissioner submitted that the proposed amendments to the originating application were necessary “to formally reflect the case” made against Debra and Rebecca in the written Outline of Opening Submissions dated 12 August 2026, and in oral opening submissions on the first day of the trial. The Commissioner relevantly submitted:

Each amendment should be permitted. Each involves only a matter of law. Each is consistent with the just resolution of the dispute as quickly, inexpensively and efficiently as possible: s 37M(1) of the Federal Court of Australia Act 1976 (FCA Act), and results in the determination of the real issues in dispute (on matters of public importance in respect of remedial legislation).

The amendments do not cause delay or give rise to wasted cost. They do not expand the evidence or subject matter of the proceeding (for example by expanding the evidence or occasions of Prohibited Restrictive Practice relied upon, or by expanding the factual matters to be considered by an individual respondent). That is, they arise out of the same facts as those already pleaded, based on the existing evidence that was served and raise only a legal point.

68    The amendments were opposed by Debra and Rebecca. Senior counsel for the respondents relied in particular on the observations made by Derrington J in Australian Securities and Investments Commission v National Australia Bank Limited (No 2) [2023] FCA 1118 (NAB (No 2)) at [35], to the effect that a regulator who elects to commence a civil penalty proceeding by the use of a concise statement “can be expected to draft that document diligently”, and that “a concise statement is not an excuse for laziness in analysis or vagueness or imprecision in expression” (referring to Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388 at [153] (McKerracher and Colvin JJ)). Justice Derrington continued:

The alleged contravenor must, more so than the ordinary respondent in a civil proceeding, be entitled to take its opponent’s case as it finds it: whilst it may be expected to seek clarification of patent ambiguity and to work to ascertain the real issues in dispute, it cannot reasonably be required to interrogate a concise statement that appears, on its face, to disclose a certain case merely for the purpose of ensuring that it will not be treated by the regulator, at some later stage, as in fact giving rise to another. Accordingly, whilst the taking of purely tactical or technical points is to be eschewed, the regulator’s articulation of its case in a concise statement must still be understood to have a degree of “rigidity” to it, in the sense explained above

69    The respondents submitted that the proposed amendments would cause them prejudice, in circumstances where they had made admissions based on the current state of the originating application, as well as forensic decisions in relation to the cross-examination of witnesses. In particular, it was submitted that Debra had understood that the relief sought against her was directed to a single contravention in respect of multiple occasions on which prohibited restrictive practices had been used by Irabina within the severe behaviour unit. The respondents submitted that they were entitled to rely on the originating application and the Concise Statement as defining and confining the scope of the Commissioner’s case against Debra and Rebecca, particularly in a civil penalty proceeding in which the individual respondents were entitled to claim the privileges against self-exposure to a penalty and self-incrimination.

70    As the Commissioner submitted, the issue in NAB (No 2) arose at the penalty stage of the relevant proceeding, after a declaration of contravention had been made against the respondent following a hearing on liability issues. The question was whether a characterisation of the respondent’s conduct as amounting to multiple separate contraventions of the applicable civil penalty provision was inconsistent with the manner in which the regulator had articulated and prosecuted its case at the liability stage of the proceedings: NAB (No 2) at [8]–[9].

71    More generally, the discussion in NAB (No 2), as in many of the cases referred to therein, was not directly concerned with the exercise of the discretion to grant leave to amend an originating application or a pleading. Accepting that respondents to a civil penalty proceeding are entitled to be informed clearly and precisely of the case they have to meet, this remains subject to the making of a formal application for amendment: see, e.g., NAB (No 2) at [18]; Delor Vue at [149] (McKerracher and Colvin JJ); Commissioner of Taxation v Ludekens (2013) 214 FCR 149 at [20] (Allsop CJ, Gilmour and Gordon JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [64] (Logan, Bromberg and Katzmann JJ). Any such application for leave to amend must be determined in accordance with the principles set out above.

72    The Commissioner’s case should be approached in the light of its provision of particulars and the filing of evidence and written opening submissions, together with the conduct of case management hearings in the proceeding: NAB (No 2) at [24]–[29]; Irabina Autism Services (in liq) (No 2) at [40]–[41] (Horan J).

73    In my view, it was made sufficiently clear in the conduct of the proceeding that the Commissioner is alleging separate contraventions of r 6(c) by Debra in respect of each use of prohibited restrictive practices by Irabina during the relevant period, as specified in Schedule 1 of the particulars dated 15 November 2024 and, ultimately, in Annexure A of the Commissioner’s Outline. This ensures that a consistent approach is taken to the alleged contraventions of r 6(c) (i.e. the “use” contraventions) by Irabina, Debra and Rebecca respectively, although the liability of each respondent for the use of prohibited restrictive practices must ultimately be considered individually. While the respondents submitted that there was a rational basis on which to differentiate Debra from Irabina and Rebecca by alleging a single contravention of r 6(c), I consider that the Commissioner’s case against Debra is reasonably understood as alleging separate contraventions in respect of each use of prohibited restrictive practices.

74    Accordingly, it is appropriate to grant the Commissioner leave to amend paragraph 4 of the originating application so as to seek a declaration that Debra acted contrary to r 6(c), and in contravention of s 73V of the NDIS Act, on the occasion of each use of prohibited restrictive practices within Irabina’s severe behaviour program on and from 23 January 2020 to 25 May 2021.

75    In my view, such an amendment is important to the Commissioner’s case and will ensure that the real issues in dispute are able to be determined. While the application was not made until after the trial had commenced, the respondents have been on notice of the scope of the Commissioner’s case in relation to Debra’s use contraventions since at least early 2025. As a matter of “practical evaluation” (see NAB (No 2) at [19]), Debra has not been denied an opportunity to know and meet the case advanced against her. The amendment does not require any further evidence to be filed by the Commissioner. It remains open to the respondents to lead evidence in the proceeding. Although the Commissioner has now closed her case, the respondents can seek leave to recall any witnesses for cross-examination, in so far as that might be necessary in order to afford them procedural fairness.

76    It may be noted that the respondents filed their amended concise statements in response, and made the admissions contained therein, after the Commissioner had filed and served her Outline, in which the nature of the case against Debra was fully exposed. Nevertheless, if Debra wishes to argue that the amendment to paragraph 4 of the originating application has a material bearing on the admissions contained in her amended concise statement in response, she may apply for leave to amend that concise statement and, if necessary, to modify or withdraw any such admissions. It may be noted that, at present, Debra has neither admitted nor consented to a declaration of separate contraventions on the occasion of each use of prohibited restrictive practices. In this regard, her position is comparable to that of Rebecca in relation to the alleged contraventions of r 6(c) of the Code of Conduct.

77    On balance, however, I do not consider that it is appropriate to grant leave to the Commissioner to amend paragraphs 2, 5 and 8 of the originating application, so as to seek declarations of contravention by each respondent of r 6(e) of the Code of Conduct and s 73V of the NDIS Act on the occasion of each use of prohibited restrictive practices by Irabina.

78    In my view, the Commissioner’s case against the respondents based on r 6(e) is properly understood as having been based on their alleged failure promptly to take steps to act on concerns in relation to the use of prohibited restrictive practices within Irabina’s severe behaviour program or unit.

79    At least in relation to Debra and Rebecca, the contravening conduct under r 6(e) was not equated to the use of prohibited restrictive practices by Irabina on each of the specified occasions. Otherwise, any alleged contravention or contraventions of s 73V of the NDIS Act based on r 6(e) would arguably be constituted by the same conduct as the alleged contraventions based on r 6(c). While that would not be impermissible, it could not attract a separate pecuniary penalty: see Regulatory Powers Act, s 84. Accordingly, such a declaration may be of limited utility, other than perhaps as an alternative basis on which to obtain a penalty in relation to that conduct: cf. Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629 at [51]–[58] (Abraham J); Commissioner of the NDIS Quality and Safeguards Commission v Lifestyle Solutions (Aust) Ltd (Hakone House Proceeding) [2025] FCA 1393 at [64] (Abraham J).

80    The form of declarations sought in paragraphs 2, 5 and 8 of the originating application is consistent for each respondent, which does not suggest that there was any error or oversight in failing to refer to a contravention of r 6(e) and s 73V on the occasion of each use of prohibited restrictive practices. That does not necessarily preclude argument that there were separate breaches of r 6(e) of the Code of Conduct by each of the respondents. However, I consider that any such argument should be conducted by reference to paragraphs 2, 5 and 8 of the originating application in their existing form (save for the uncontentious amendments in relation to the date ranges).

81    It appears that the first occasion on which the Commissioner clearly indicated that she was alleging separate contraventions of r 6(e) in respect of each use of prohibited restrictive practices by Irabina was in the Commissioner’s Outline. No steps were taken to formalise this position until after the commencement of the trial. In my view, it is too late for the Commissioner to make material substantive changes of this nature to the declarations sought in paragraphs 2, 5 and 8 of the originating application.

82    I would otherwise grant leave to amend the originating application to correct the citation of r 6 of the Code of Conduct, and to narrow the periods during which the contraventions are alleged to have occurred (see paragraph 3(a) and (b) above).

CONCLUSION

83    For the reasons set out above, the Commissioner has leave to amend the originating application:

(a)    to correct the citation of r 6 of the Code of Conduct in paragraphs 1, 2, 4, 5, 6, 7 and 8;

(b)    to amend the date ranges in paragraphs 1, 2, 4, 5, 6, 7 and 8; and

(c)    to amend paragraph 4 to refer to a contravention of r 6(c) of the Code of Conduct and s 73V of the NDIS Act on the occasion of each use of prohibited restrictive techniques or prohibited restrictive practices by Irabina.

84    The costs of the interlocutory application are reserved.

Associate:

Dated:    21 September 2026