Federal Court of Australia

HXHS, by his litigation representative LOT26 v National Disability Insurance Agency [2026] FCA 1455

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the ground contained in s 37AG(1)(a) of the FCA Act, until further order of the Court:

(a)    the names of the applicant and the applicant’s litigation representative be prohibited from publication, save as between the parties, unless otherwise ordered by this Court;

(b)    the applicant’s mother be known by “LOT26” for the purposes of this proceeding;

(c)    the name of the applicant in the proceeding be amended to “HXHS, by his litigation representative LOT26”; and

(d)    the title of the proceeding is amended to read “HXHS, by his litigation representative LOT26 v National Disability Insurance Agency”.

2.    The respondent’s application for leave to file the interlocutory application lodged on 22 May 2026, and the affidavit of Mr Woolley affirmed on 22 May 2026, is granted.

3.    Pursuant to r 9.63 of the Federal Court Rules 2011 (Cth) (Rules) and s 37P(3)(f) of the FCA Act, LOT26 is appointed as the applicant’s litigation representative for the proceeding with effect on and from the filing of the applicant’s originating application on 4 February 2026.

4.    Pursuant to r 1.34 of the Rules, compliance with rr 9.63, 9.64 and 9.66(3) of the Rules is dispensed with.

5.    Pursuant to s 31A of the FCA Act and r 26.01 of the Rules, the applicant’s originating application filed on 4 February 2026 is dismissed.

6.    The applicant’s interlocutory application filed on 4 February 2026 is dismissed.

7.    The applicant’s interlocutory application filed on 14 April 2026 is dismissed.

8.    The applicant’s oral application for leave to appeal made on 17 April 2026 is refused.

9.    The applicant’s request for leave to rely on the affidavit of LOT26 affirmed on 5 May 2026 is refused.

10.    Paragraph 2 of the respondent’s interlocutory application filed on 22 May 2026 is dismissed.

11.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    The applicant in this matter proceeds by his mother, who is a litigant-in-person. The respondent is the National Disability Insurance Agency (the respondent or NDIA). The issues arise out of complaints the applicant has about his NDIS plan. The applicant primarily claims that the respondent has failed to implement a decision of the Administrative Review Tribunal in relation to his NDIS plan. As the matter unfolded, the applicant made a number of other complaints including relating to changes in his circumstances and objected to what he described as the effectiveness of “administrative pathways”.

2    For the purposes of not revealing the parties’ identities, I refer to the applicant’s mother as “the mother”, and to the applicant as “the applicant”.

BACKGROUND

3    As will become apparent from the below, the mother’s approach to this matter was inconsistent and confusing. She initially claimed that the matter was urgent but, after it had been timetabled to an early hearing date, at various times sought adjournments of differing durations, as well as a permanent stay of the proceeding, the latter being highly unusual for an applicant. To appreciate this approach, it bears briefly setting out the background of the applicant’s dealings, requests and applications with respect to the respondent, as well as the procedural history in this Court.

Background before the NDIA

4    The background of the applicant’s dealings, requests and applications with respect to the respondent emerges from an affidavit of Mr Woolley affirmed on 20 April 2026 (First Woolley Affidavit), the contents of which were largely based on documents relating to the applicant’s various NDIS plans. The veracity of that affidavit was not challenged. From this affidavit, the following emerges.

5    On 28 November 2022, the respondent approved a statement of participant supports (SOPS) within an NDIS Plan (First NDIS Plan). That plan was due for reassessment on or before 23 November 2025. On 2 December 2022, the applicant, via the mother, applied for internal review of the First NDIS Plan. The respondent confirmed the decision to approve the SOPS in the First NDIS Plan on 25 January 2023. On 9 February 2023, the applicant, via the mother, sought review in the Tribunal of the respondent’s internal review decision. The plan ultimately under review was one made on 23 April 2024 (Second NDIS Plan), pursuant to s 48 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), as varied from (among other instances) 22 January 2025. This plan was to be reassessed on or before 23 April 2026. The breakdown of the SOPS in the Second NDIS Plan was as follows:

    Total funding amount: $210,214.66.

    Core Flexible (Plan-managed): $90,174.09. This funding could be used for “Assistance with Daily Life”, “Assistance with Social, Economic and Community Participation”, “Consumables” and “Transport”.

    Choice and Control (Plan-managed): $3,429.89.

    Behaviour Support (Plan-managed): $29,160.25.

    Improved Daily Living Skills (Plan-managed): $68,949.48. The description of “Improved Daily Living Skills” was as follows:

Assessment, training or therapy (including Early Childhood Intervention) to help build your skills, independence and community participation. These services can be delivered in groups or individually.

Support for an Occupational Therapist, Psychologist, Speech Pathologist and other Allied Health staff to assess and provide strategies to increase independence and skills. Your therapists will need to provide the NDIS with a progress report 6 weeks before the next plan reassessment.

    Support Coordination and Psychosocial Recovery Coaches: $18,500.95.

6    The Tribunal determined the applicant’s application on the papers, issued its decision on 29 October 2025 and provided reasons on 30 October 2025 (HXHS and CEO, National Disability Insurance Agency [2025] ARTA 2297) (Tribunal Decision). The Tribunal’s orders were as follows:

1.     Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that within 28 days of this decision HXHS’s statement of participant supports specifies the following supports:

a.     Support worker assistance as follows:

i.     10 hours per week for personal care at a weekday rate;

ii.     7 hours per week for ‘Domestic Instrumental’, comprised of 5 hours at a weekday rate, 1 hour at a Saturday rate, and 1 hour at a Sunday rate;

iii.     10.5 hours per week for Community & Civic Participation, comprised of 6 hours per week at a weekday rate and 4 hours per week at a Saturday rate; and 2 hours per month at a Sunday rate.

b.     38 hours of speech therapy.

c.     The date by which the Agency must reassess HXHS’s plan is to be 12 months after the date on which the supports in (a) and (b) above are included in HXHS’s statement of participant supports.

d.     All other supports in HXHS’s existing statement of participant supports are to be replicated pro rata from the date of this decision until the reassessment date.

e.     The management of funding in HXHS’s plan is to remain the same as is specified in HXHS’s current statement of participant supports.

7    The direction as to remittal in the Tribunal Decision was that within 28 days of the Tribunal Decision, the respondent approve a SOPS that specified additional supports (i.e., paragraphs a and b above) that the Tribunal had determined were reasonable and necessary under s 34(1) of the NDIS Act, and all of the applicant’s other existing supports as contained in the SOPS in the Second NDIS Plan, before the Tribunal. The other existing supports included occupational therapy, psychology, a floating budget for improved daily living skills, specialist behaviour intervention support, a behaviour management plan, plan management funds, and support coordination.

8    On 4 November 2025, the applicant sought to refer the Tribunal Decision to the Tribunal’s Guidance and Appeals Panel (GAP Request). By letter dated 6 November 2025, the Tribunal advised the respondent of the GAP Request, and required it to provide a response within 21 days. The respondent, on 4 December 2025, opposed the applicant’s request to refer the Tribunal Decision to the Tribunal’s Guidance and Appeals Panel.

9    Mr Woolley deposed that his instructions were that:

(1)    Due to the GAP Request, the respondent did not implement the Tribunal Decision, pending the outcome of the GAP Request. Further, the respondent considered there to be a possibility that a stay of the Tribunal Decision would be requested, and that consent might be given to this request.

(2)    The respondent’s actions were intended to preserve the applicant’s ability to request, through the GAP Request, that the Tribunal Decision not be implemented.

(3)    Upon receipt of correspondence from the mother enquiring about why the Tribunal Decision had not been implemented, and advising that existing plan funds were being depleted, the respondent decided, on or around 17 December 2025, to implement the Tribunal Decision, despite the GAP Request not being finalised.

(4)    It became apparent to the respondent on or around 17 December 2025 that the Tribunal Decision had required implementation within 28 days, some 21 days prior to this date.

(5)    The applicant was not disadvantaged by the delay in implementation, as a plan manager may submit a manual payment request to seek payment of supports already provided, and now considered reasonable and necessary.

10    On 17 December 2025, the applicant lodged a change of circumstances application (First Change of Circumstances Application) citing “updated medical and support needs” and seeking a variety of increased supports which the applicant said were “reasonable and necessary”. The basis for this was the applicant’s “significant deterioration”, said to be confirmed by a recent admission to hospital, as well as abnormal endocrine and metabolic testing, and escalating functional and safety risks (First Change of Circumstances).

11    On 23 December 2025, the respondent issued a new NDIS plan (Third NDIS Plan) in purported implementation of the Tribunal Decision. The Third NDIS Plan was to be reassessed on 22 December 2026. The breakdown of the SOPS was as follows:

    Total funding amount: $176,419.71.

    Core Flexible (Plan-managed): $111,777.36, being $27,944.34 every three months. The funding was provided for “Assistance with Daily Life”, “Assistance with Social, Economic and Community Participation”, “Consumables” and “Transport”.

    Choice and Control (Plan-managed): $1,253.40, for the period of 23 December 2025 to 22 January 2026.

    Behaviour Support (Plan-managed): $16,309.30, being $4,077.34 every three months.

    Improved Daily Living Skills (Plan-managed): $37,816.65, being $9,454.17 every three months. The description of “Improved Daily Living Skills” was as follows:

Assessment, training or therapy (including Early Childhood Intervention) to help build your skills, independence and community participation.

These services can be delivered in groups or individually.Therapy supports Supports to assess and provide strategies to help you build your skills and independence. * Occupational Therapist 45 hours*Psychologist 52 hours*Speech Pathologist 38 hoursAs quoted $9600.00 2 x Soul Shack, Occupational Therapy led capacity building 5 day Camps.Your therapists need to provide us with a progress report 6 weeks before your next plan reassessment.

(Errors in original.)

    Support Coordination and Psychosocial Recovery Coaches (Plan-managed): $9,263.00, being $2,315.75 every three months.

12    It should be noted that Mr Woolley deposed that the respondent acknowledged that it did not comply with the timeframe required by the Tribunal Decision.

13    On 6 January 2026, the Tribunal rejected the GAP Request.

14    On 19 March 2026, the respondent considered the First Change of Circumstances Application and determined not to reassess the applicant’s NDIS plan (First Change of Circumstances Decision). On 16 April 2026, the respondent confirmed this decision and informed the applicant that the next step was the exercise of review rights in the Tribunal (First Change of Circumstances Internal Review Decision).

15    On 16 April 2026, the Third NDIS Plan was varied (Fourth NDIS Plan) to amend the description of the applicant’s “Improved Daily Living Budget” to clarify how that funding may be utilised. The description of “Improved Daily Living Skills” was changed to the following:

Assessment, training or therapy (including Early Childhood Intervention) to help build your skills, independence and community participation. These services can be delivered in groups or individually.

The following supports have been determined not to be reasonable and necessary and are not funded under Improved Daily Living: PTSD counselling or psychotherapy; AFRID and PTSD residential treatment programs; AFRID programs involving allied health or personal training; Lego Therapy; Art Therapy; and Music Therapy.

This category includes supports to assist with assessment, training and therapy to increase skills, independence and community participation. Supports may be delivered individually or in a group setting and focus on building the Participant’s capacity to achieve their stated NDIS goals.

Funding has been calculated on the basis that the following supports have been determined to be reasonable and necessary for a 12‑month period from the plan start date:

Occupational Therapy – 45 hours

Psychology – 52 hours

Speech Pathology – 38 hours

As quoted: $9,600 for two Soul Shack Occupational Therapy‑led five‑day capacity‑building camps

The Agency acknowledges that the Participant may choose to use alternative supports within this support category in place of the above reasonable and necessary supports. This is acceptable where the funding is used to develop skills and increase independence and community participation.

All supports accessed must be directly related to the Participant’s disability as recognised by the Scheme and must be delivered by a provider who meets the professional and provider requirements outlined in the NDIS Pricing Arrangements and Price Limits. The Agency may request evidence to support the appropriate use of funding.

Supports must be accessed in accordance with the NDIS Act and align with the goals outlined in the Participant’s plan. Providers are required to submit a progress report six weeks prior to the next plan reassessment.

16    The quantum of the funded supports was not changed.

Procedural history in this Court

17    To understand the evolving way in which the mother prosecuted her case, the procedural history in this Court will also be set out at a high level. In general, her approach reflected a capricious and often nonsensical attitude towards the Court’s processes. A consistent feature of the mother’s approach was also her difficulty in linking the applications she made to relevant evidence and submissions.

18    The mother commenced this proceeding by way of an originating application lodged on 4 February 2026 (Originating Application) brought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act). Generally, she asserted that the respondent had failed to lawfully implement the Tribunal Decision. At the same time, she also lodged an interlocutory application (Applicant’s February Interlocutory Application) which sought an urgent ex parte hearing and, generally, that the respondent be ordered to immediately amend the Third NDIS Plan to provide additional supports. The asserted urgency was due to the “risk of serious harm to a minor applicant” on the basis of the respondent’s failure to implement the Tribunal Decision and a recent material escalation in the applicant’s medical condition. The mother also filed an affidavit affirmed on 4 February 2026 (Mother’s First Affidavit).

19    The Originating Application and the Applicant’s February Interlocutory Application were accepted for filing on 16 March 2026 and the matter was allocated to my docket on 26 March 2026. On 27 March 2026, I convened an urgent hearing to be held on 2 April 2026 in light of the mother’s emails to the Court Registry that the applicant was in a life-threatening situation as a result of alleged failures by the Respondent to implement the Tribunal Decision. I directed the Court Registry to make it clear to the Applicant that I would not hear the Applicant’s February Interlocutory Application ex parte.

20    At that hearing, I did not grant the relief sought in the Applicant’s February Interlocutory Application because, broadly, the applicant had not exhausted all rights of review available in relation to the subject matter of the Applicant’s February Interlocutory Application, including in relation to the applicant’s recent medical escalation. Further, the Tribunal was available to consider the First Change of Circumstances Decision, including on an urgent basis. On that basis, the urgent relief sought in the February Interlocutory Application was not granted.

21    The respondent’s alleged failure to implement the Tribunal Decision was not an issue that was so urgent that it necessitated interlocutory relief at the hearing. I did however timetable the matter towards a hearing on 7 May 2026, adopting a very compressed timeframe in view of the nature of the application. I also referred the matter to mediation before a Registrar of the Court to provide the parties with, inter alia, an opportunity to discuss the nature of the relief available in this Court. A mediation was held 11 days later on 13 April 2026, but the matter did not settle.

22    On 14 April 2026, the applicant lodged a further interlocutory application (Applicant’s April Interlocutory Application) seeking urgent relief in the form of funding for several supports for the applicant. An affidavit of the mother, affirmed on 14 April 2026 (Mother’s Second Affidavit), was also filed. The matter was listed for hearing before me on 17 April 2026, again on an urgent basis in light of repeated emails from the mother to the Court Registry that a change of circumstances involved “urgent safety concerns which require[d] consideration beyond procedural directions”, being the risk to the applicant’s life and the risk of longer hospitalisation. For reasons that will be explained below, that application was also not granted.

23    On 20 April 2026, the respondent filed:

(1)    a notice of objection to competency (Notice of Objection to Competency); and

(2)    an interlocutory application (Respondent’s First Interlocutory Application) seeking orders that:

(a)    pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (Rules), there be judgment for the respondent in respect of the whole of the proceeding; and

(b)    all interlocutory applications filed by the applicant be dismissed.

24    The respondent also filed the following material:

(1)    two affidavits affirmed by Mr Woolley on 20 April 2026 (First Woolley Affidavit and Second Woolley Affidavit);

(2)    an affidavit affirmed by Mr Woolley on 28 April 2026 (Third Woolley Affidavit); and

(3)    written submissions dated 28 April 2026.

25    On 28 April 2026, the applicant filed submissions in support of the Originating Application and February Interlocutory Application.

26    On 1 May 2026, the mother wrote to the Court Registry seeking leave to rely on (1) a “short reply note”, (2) a supplementary affidavit of the mother (Mother’s Third Affidavit) and (3) proposed draft orders. The abovementioned material was said to be responsive to correspondence from the respondent of 20 April 2026, to material filed by the respondent on 28 April 2026 and to events occurring after 20 April 2026. On 5 May 2026, the mother filed and emailed documents to the Court Registry, including reply submissions.

27    The respondent, on 6 May 2026, indicated that it opposed leave being granted for the applicant to rely on the Mother’s Third Affidavit, but did not oppose leave being granted for the applicant to rely on the “short reply note”. The respondent also indicated that it did not consent to the applicant’s proposed draft final orders. On 8 May 2026, I made orders which timetabled the filing of submissions in relation to the applicant’s request for leave to rely on the Mother’s Third Affidavit. On 15 May 2026, the applicant filed submissions in support of leave being granted to rely on the Mother’s Third Affidavit. On 22 May 2026, the respondent filed submissions opposing the grant of leave.

28    On 6 May 2026, despite having up to this point pressed for the proceeding to be determined urgently, the mother emailed the Court seeking to adjourn the final hearing on the basis of her own illness and consequent inability to meaningfully participate in oral argument, as well as a deterioration in the applicant’s medical condition requiring urgent overnight monitoring (Adjournment Request). In this regard, she noted that “in the early hours” of the morning of 6 May 2026, she had called an ambulance due to concerns about the applicant’s blood pressure and blood glucose levels. The paramedics had recommended that the applicant present at the hospital, but the applicant had “remained at home with ongoing monitoring and support”. Attached to that email was a screenshot showing outbound phone calls to “Emergency number” and “GCUH (2)” at 2:09am. The mother stated that allowing the hearing to proceed would cause real prejudice to the applicant, and further that the applicant was actively seeking legal representation to assist with the hearing. She stated that legal representation was being sought because the proceeding had expanded “beyond the original practical implementation issue”, to issues of summary judgment, objections to competency, jurisdiction, and other issues. She stated that legal representation was warranted, if it could be obtained. On these bases, she sought an adjournment of three to four weeks.

29    In the alternative, if the Court were not minded to grant an adjournment, the mother sought inter alia that the proceeding be determined on the papers.

30    The respondent, by email sent on 6 May 2026, opposed the Adjournment Request, broadly on the bases that there was no evidence as to the mother’s or the applicant’s medical status. Further, the prospect of the applicant obtaining legal representation had never been raised before, and the mother had been on notice of the respondent’s likely course in the proceeding since 2 April 2026. The respondent did not object to the proceeding being determined on the papers were the Court to consider this appropriate.

31    On 6 May 2026, I directed the Court Registry to notify the parties that the Court was content to determine the matter without an oral hearing. For the avoidance of doubt, that email stated that no adjournment was granted. Being satisfied that there was no real issue of fact relevant to the determination of the matter (i.e., whether the respondent had implemented the Tribunal Decision), and that the legal arguments could be dealt with adequately by written submissions (see s 20A(2)(c) of the FCA Act), on 8 May 2026 I made orders that, after receiving submissions in relation to the applicant relying on the Mother’s Third Affidavit, the matter would be determined on the papers.

32    On 18 May 2026, paradoxically in light of her having pressed for the proceeding to be determined urgently, the mother wrote to the Court seeking that the matter be stayed until further order, with the matter to be re-listed for a directions hearing in early October 2026 (First Stay Request). The basis for the First Stay Request was a claimed material escalation in the applicant’s medical situation, and the mother’s inability to conduct litigation while managing the applicant’s medical condition.

33    On 22 May 2026, the respondent filed an interlocutory application (Respondent’s Second Interlocutory Application) seeking, pursuant to ss 23 and 37AF(1) – (2) of the FCA Act, that the applicant and the applicant’s mother be assigned pseudonyms. It also sought, pursuant to r 39.04(1) and (2) of the Rules, that the order made on 8 May 2026, namely that the matter be determined on the papers, be set aside. That application is supported by an affidavit of Mr Woolley affirmed on 22 May 2026 (Fourth Woolley Affidavit). Leave to file the Respondent’s Second Interlocutory Application and the Fourth Woolley Affidavit is sought in the respondent’s written submissions of 22 May 2026. The basis for the Respondent’s Second Interlocutory Application was set out in its submissions filed on 22 May 2026. Those submissions inter alia raised the issue of the mother having acted up to this point in her capacity as the applicant’s litigation representative, without any orders made under r 9.66(3) of the Rules formalising this position. It therefore invited the Court to consider whether to formalise her appointment as such.

34    On 27 May 2026, the matter was listed for a case management hearing on 4 June 2026. On 27 May 2026, the respondent wrote to the Court stating its understanding that the mother sought a stay of the order that the proceeding be determined on the papers, pursuant to r 41.03 of the Rules, pending a case management hearing to be held in early October 2026. The respondent opposed the First Stay Request, noting that no formal application or any affidavit material had been filed.

35    On 28 May 2026, the mother responded stating “This is to advise, I have been sick the last few days”. On 1 June 2026, the mother wrote to the Court Registry advising that she was unable to attend the case management hearing listed for 4 June 2026, and requesting that the proceeding be stayed now for six months (Second Stay Request), with such a stay applying to (1) any “current or proposed determination on the papers”, (2) any interlocutory application filed by the respondent, including in relation to the orders that the proceeding be determined on the papers, or in relation to r 9.66(3) of the Rules, and (3) at or before the relisted case management hearing, the Court consider whether the matter should be referred for pro bono legal assistance. She also requested that the case management hearing of 4 June 2026 be vacated, or alternatively that she be excused from attending. She again requested that the Court consider a referral for pro bono legal assistance when she was able to return to the proceeding.

36    In response to the respondent’s email of 27 May 2026, referred to above at [34], the mother stated that the request made was now for six months, given that the circumstances had “escalated and clarified”. She said that the applicant’s condition required “urgent monitoring, specialist escalation, possible interstate travel, possible intensive endocrine testing, possible hospital admission, and stabilisation over time”. She additionally stated that she was unable to file an interlocutory application or affidavit and requested that the Court accept her email and available medical material as sufficient, or alternatively defer any requirement for an affidavit until after the stay period.

37    In a further change of position, the mother also stated that if the matter, or the Respondent’s Second Interlocutory Application, proceeded to being determined on the papers, the applicant would suffer serious prejudice, as the result of the determination would be affected “not by the true merits” of his position, but by her inability to engage in the proceeding and protect his interests. Additionally, she stated that the balance of convenience favoured granting a stay because it preserved the proceeding and avoided “unfairness, repeated urgent requests, and unnecessary procedural conflict”. By contrast, refusing the stay risked severe prejudice to the applicant given that his litigation representative was “presently incapacitated”.

38    On 3 June 2026, at my direction, the Court Registry wrote to the parties indicating that the case management hearing listed for 4 June 2026 would be vacated, and the proceeding stayed until 7 August 2026. By that date the mother was required to provide to the Court an indication of her attitude to the issue arising under r 9.66(3) of the Rules. Depending on that indication, the Court would consider whether any further steps needed to be taken. Failing an indication being provided by the mother, the Court would proceed to determining the matter on the papers.

39    No response was received from the applicant by 7 August 2026 or thereafter in relation to the mother’s attitude to the issue arising under r 9.66(3) of the Rules. On 11 August 2026, the mother made a request that determination of the matter be “deferred” until she was able to provide a further update in relation to r 9.66 of the Rules, on the basis that as it stood, she was unable to participate in the proceeding due to being occupied with the applicant’s medical, educational and travel needs. On 11 August 2026, the Court Registry informed the parties that I would proceed to determining the matter on the papers.

40    On 24 August 2026, the mother filed correspondence (Third Stay Request) in which she sought a permanent stay of the proceeding, despite having commenced the proceeding and, as set out above, having pressed for it to be determined urgently. In the alternative, she sought a stay until further order. The basis for the Third Stay Request was again a claimed deterioration in her own circumstances as well as those of the applicant, which rendered her unable to participate in the proceeding. No satisfactory evidence supporting this deterioration was provided. Additionally, she said that basic supports on which she relied had been removed, that she and the applicant had been required to travel to see specialists, that the applicant had pressing concerns related to his education, and that she had a general inability to participate in the proceeding due to her disability and lack of legal representation.

41    At my direction, on 27 August 2026, the Court Registry invited the parties to address it on the appropriateness of the applicant filing a notice of discontinuance, rather than seeking a permanent stay of the proceeding. On 9 September 2026, the respondent indicated by email to the Court Registry that the mother no longer pressed the Third Stay Request, and instead sought a fixed stay until 31 December 2026 (Fourth Stay Request). The mother confirmed this position in her own email of the same date, based on her claimed continued inability to participate in the proceeding.

42    On 17 September 2026, I made orders restricting the communication which the parties could engage in with the Court (Communications Orders). The reasons for the Communications Orders are explained below.

THE ISSUES FOR DETERMINATION

43    The proceeding raises the following issues for determination:

(1)    Whether the applicant and the mother should be assigned pseudonyms.

(2)    Whether an order should be made to regularise the mother’s position as the applicant’s litigation representative in this proceeding.

(3)    Whether the applicant should be granted leave to rely on the Mother’s Third Affidavit.

(4)    Whether the applicant should be referred for pro bono legal assistance.

(5)    Whether the respondent has failed to implement the Tribunal Decision. As will be seen below, and despite previously having sought a review of the Tribunal Decision in the Guidance and Appeals Panel and an appeal in this Court, the applicant repeatedly emphasised that he was not seeking to challenge the correctness of that decision or its findings.

44    The following reasons also explain the bases for the following orders:

(1)    The refusal to set aside the order that the proceeding be determined on the papers.

(2)    The Communications Orders.

(3)    The refusal of the April Interlocutory Application.

preliminary matters

The basis for the decisions in relation to the mother’s requests for stays

First Stay Request

45    As noted, the basis for the First Stay Request was a material escalation in the applicant’s medical situation, and the mother’s asserted inability to conduct litigation while managing the applicant’s medical condition. The mother also raised that the applicant’s doctor, Dr Dahiya, was in contact with Dr Bhansali, the head of the Department of Endocrinology at the Postgraduate Institute of Medical Education and Research, Chandigarh, India, which she said demonstrated the complexity and urgency of the applicant’s medical situation. Attached to the email was a WhatsApp message from “Gurjot PGI” which stated as follows:

Hello [LOT26],

Dr Bhansali had a good discussion with Dr Dahiya. He thinks they have done extensive work up but he has a couple of things that he wants to explore more.

He told Dr Dahiya that he wants to involve and take opinion of Dr Marta Korbonits at Queens Mary, University of London https://www.qmul.ac.uk/whri/people/academic-staff/items/korbonitsmarta.html

He will send her an email with [HXHS’s] case summary and his opinion to see what she has to say about that as she also has done a lot of research around this condition. They bith had discussions in the past as well. Then he will discuss with Dr Dahiya again. He said …

46    The email also attached a screenshot of outgoing calls to “Emergency number” and “GCUH (2)” at 2:09am. Further, the mother indicated that urgent overseas specialist treatment was being arranged for the applicant, and that she and the applicant expected to leave Australia between 10 and 16 June 2026, with the travel period possibly requiring four months in total.

47    The respondent opposed the First Stay Request. It referred to [33] – [34] of ADG Digital Pty Ltd v Trigon Trading Pty Ltd (Admins Apptd) [2023] FCA 232, for the proposition that the relevant principles applicable to a request for a stay were the following:

(1)    The applicant bears the onus to demonstrate a proper basis for a stay that will be fair to all the parties.

(2)    The Court has a broad discretion to grant a stay, and it is not necessary for an applicant to demonstrate special or exceptional circumstances. It suffices that an applicant demonstrates a reason or appropriate case to warrant the exercise of discretion.

(3)    A stay will usually be granted if there is a real risk that the applicant will suffer prejudice or damage, if a stay is not granted.

(4)    In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.

48    The respondent in this regard submitted, by its email, that the information provided by the mother regarding the period of unavailability due to overseas travel was vague. Further, the claimed recent developments in the applicant’s medical care did not suggest the emergence of a new, urgent or acute medical risk. Additionally, the information that the mother had provided was insufficient to allow the Court to properly assess, rely or act upon her claimed “practical incapacity”. It summarised its submission as being that the mother had not demonstrated a reason why no step should be taken in the proceeding for a period of four months, or what prejudice or damage the applicant would suffer if the stay were not granted.

Second Stay Request

49    The First Stay Request appeared to be superseded by the Second Stay Request.

50    As to the Second Stay Request, the mother referred to ss 23, 37M and 37N of the FCA Act and rr 1.32 and 1.34 of the Rules. She stated that to the extent that the Court considered the request under r 41.03, or “by analogy with stay principles”, that test was satisfied. Additionally, she requested that there be no order as to costs in relation to the Second Stay Request, or alternatively that costs be reserved.

51    The mother noted that the proceeding was commenced before a letter sent by Dr Dahiya dated 27 February 2026 (Second Dahiya Letter), which “formally documented [the applicant’s] adrenal insufficiency and the life-threatening nature of the adrenal crisis risk”; therefore, the Second Stay Request was not based on circumstances that existed at the time the proceeding was commenced, but was based on changes in circumstances arising after the proceeding was commenced. That letter is more fulsomely set out below at [134(1)] in the context of the Applicant’s April Interlocutory Application. The mother argued that the Second Stay Request was sought on the basis of the complexity of the applicant’s medical condition and the attempt to coordinate “urgent specialist review, intensive investigation, and stabilisation of a rare and potentially life-threatening multi-system condition”. The mother referred to having had conversations with interstate and overseas specialists, and that she was “waiting to learn whether [the applicant] will be required to travel to Darwin for personal attendance, intensive testing and possible hospital stay”. If attendance in Darwin was required, she would be required to manage travel, medical records, care planning and hospital attendance. Even if hospital attendance were not immediately required, the specialist review and stabilisation process would be complex, time-consuming and “incompatible with litigation”.

52    As noted, by email sent on 3 June 2026, the parties were informed that the proceeding was stayed until 7 August 2026. The stay was, effectively, a stay of the order of 8 May 2026 that the matter be determined on the papers after the parties had filed submissions regarding the applicant’s request to rely on the Mother’s Third Affidavit. Rule 41.03 of the Rules permits a party to apply to the Court for an order that an order be stayed.

53    The decision to grant the mother until 7 August 2026 to indicate her position to the Court was taken having regard to her status as a litigant-in-person and to the Court’s duty to accord procedural fairness to the parties before it. The Court’s duties to a litigant-in-person were stated by the Full Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 280 FCR 479 at [51] – [57]. In particular, the following principles are noteworthy:

(1)    The Court’s duty to litigants-in-person is “factually idiosyncratic”: at [57].

(2)    The Court has a duty to ensure that litigants-in-person do not suffer any disadvantage from exercising their right to be self-represented: at [51].

(3)    Whilst disadvantages exist and the Court is obliged to act to ameliorate them by giving assistance to the unrepresented litigant, its role is constrained by its concurrent duty to remain an impartial adjudicator: at [53].

(4)    The assistance provided to a litigant‐in‐person must therefore be limited to that which is necessary to diminish the disadvantage which he or she will ordinarily suffer, and the Court should be wary to avoid placing a litigant‐in‐person in a position of advantage or privilege over a represented opponent: at [54].

(5)    The assistance that the Court might give to a litigant in-person might extend to ensuring that he or she has sufficient knowledge of the Court’s practice and procedure to make effective choices about the conduct of the proceeding: at [55].

54    Had the proceeding not been stayed, the applicant might have been denied an opportunity to present his proposed course of action in relation to the issue of the mother’s appointment as his litigation representative, which may have amounted to a denial of procedural fairness: see Flightdeck at [58] – [60]. Accordingly, I granted the applicant a stay of the proceeding. The applicant was granted until 7 August 2026 to state his position because (1) this was the time initially sought by the mother in correspondence to the respondent dated 11 May 2026 (referred to below at [59]) and submissions dated 15 May 2026, to allow her to consider her position in relation to r 9.66(3) of the Rules (see below at [59] – [61]), and (2) this period of time plainly provided the applicant sufficient time to consider his position and seek legal representation, if needed. This decision aimed to reduce the risk (if any) of the applicant suffering prejudice by not being granted the opportunity to consider his position in relation to r 9.66(3) of the Rules. It was also consistent with the Court’s broad discretion to grant a stay. As to the balance of convenience, I considered that granting a stay until 7 August 2026 allowed the applicant ample time to take any necessary steps in relation to r 9.66(3) of the Rules, without inordinately depriving the respondent of knowing the outcome of its interlocutory applications and Notice of Objection to Competency: see ADG Digital at [33] – [34]. See also Flight Centre Ltd v Australian Competition and Consumer Commission [2014] FCA 658 at [9].

Fourth Stay Request

55    As noted, the mother withdrew the Third Stay Request. The respondent filed submissions on 11 September 2026 which, inter alia, addressed the Fourth Stay Request. It stated that granting the Fourth Stay Request would not serve the overarching purpose of civil litigation in this Court (see s 37M of the FCA Act) or serve the interests of justice, finality or the maintenance of public confidence in the administration of justice (see Elliott-Carde v McDonald’s Australia Limited (Stay Application) [2023] FCA 1210; 301 FCR 84 at [36], and the authorities there cited). Further, it said that there was no evidence before the Court supporting the Fourth Stay Request.

56    To the extent that the Fourth Stay Request can be treated as an application for a stay of the proceeding until 31 December 2026, it is not granted. No procedural step is outstanding in this proceeding. All the material that the Court requires to determine the matter is before it. In these circumstances, granting the Fourth Stay Request would not promote the just resolution of disputes as quickly, inexpensively and efficiently as possible: s 37M(1)(b) of the FCA Act. It would also be inconsistent with the efficient use of judicial and administrative resources and the efficient disposal of the Court’s caseload in a timely manner: see s 37M(2)(b) – (c) of the FCA Act. Further, the interests of justice do not require a stay to be granted, because all the issues before the Court can be determined on the basis of the material available to it. Finally, the evidence before the Court as to the mother’s continued inability to participate in the proceeding was not satisfactory. In these circumstances, the Fourth Stay Request is refused.

Orders should be made with respect to pseudonyms and the mother’s appointment as the applicant’s litigation representative

57    From the Fourth Woolley Affidavit, inter alia, the following background appears in relation to the Respondent’s Second Interlocutory Application.

58    The respondent noted, in correspondence to the mother sent on 7 May 2026 following a telephone conversation, her agreement that the respondent (1) suggest to the Court that a pseudonym be substituted for her name and that of the applicant, and (2) seek to formalise her appointment as the applicant’s litigation representative. She would further consider, in relation to r 9.66 of the Rules, whether she wished to revisit the issue of obtaining legal representation, or asking that that requirement be dispensed with. The respondent informed the Court that it took no position as to whether dispensing with r 9.66(3) of the Rules was appropriate, but said that determining the issue involved a matter of balancing case management considerations and the need to protect the applicant’s interests. It considered that adopting pseudonyms was appropriate where the applicant was a minor, and was unable to make the decision about whether to commence an application in which his personal medical information was disclosed.

59    The mother stated on 8 May 2026 that she agreed in principle to pseudonymisation orders, but did not give final agreement. She was considering her position regarding the issue of her appointment as the applicant’s litigation representative, noting that she had always been identified as such in the proceeding. To the extent that r 9.66(3) of the Rules “create[d] a procedural issue”, the respondent needed to explain why it was not raised until after the Respondent’s First Interlocutory Application and the Notice of Objection to Competency were filed, and before “substantial costs and interlocutory steps had accumulated”. She was concerned about the respondent taking unfair advantage of these circumstances. That position was broadly reiterated in correspondence of the mother dated 11 May 2026, wherein she also raised the prospect of seeking that the matter be stayed, by consent, until a directions hearing to be heard in early August 2026, on the basis that she was arranging overseas travel for the applicant to see a medical specialist.

Applicant’s position

The mother’s role as litigation representative

60    In his submissions filed on 15 May 2026, the applicant raised concerns regarding the timing of r 9.66 of the Rules being raised, the consequences which the respondent sought to draw from it, any attempt to use the issue to prejudice the applicant, invalidate material filed, or to support an adverse costs order against the applicant. The applicant submitted that the respondent had been aware from the commencement of the proceeding that the mother was identified as the applicant’s litigation representative, and was a litigant-in-person. He submitted that the timing of the issue regarding r 9.66(3) of the Rules being raised was relevant to “costs, proportionality and procedural fairness”.

61    His submissions were not to be taken as consenting to the mother’s role being formalised, or any waiver or election in relation to r 9.66(3) of the Rules. He said that if the Court considered that r 9.66(3) of the Rules needed to be addressed before the proceeding was substantively determined, the proceeding should be “preserved and appropriate directions made”. The mother reiterated this position in an email of 18 May 2026.

Pseudonym orders

62    The applicant, by his submissions filed on 15 May 2026, indicated his consent to appropriate orders being made assigning him a pseudonym and otherwise anonymising the proceeding, subject to the precise wording of the orders. Ultimately, no position as to any proposed wording was forthcoming from the applicant.

Respondent’s position

The mother’s role as litigation representative

63    The respondent took a neutral position in relation to the mother’s role as the applicant’s litigation representative, noting that this role had so far been assumed by the parties and the Court. It did so in light of its role as a contradictor, and the lack of an evidentiary foundation regarding the mother’s interest, referring to r 9.64(b) of the Rules. Though r 9.63 of the Rules contemplated a party or interested person applying for an order to appoint a person as a litigation representative, no party had done so. The respondent submitted that the Court had wide powers to make appropriate orders under ss 23 and 37P of the FCA Act, and accordingly it would be open to the Court to exercise its power to protect the interests of a person under a legal incapacity and preserve the integrity of the proceeding. Further, it would be an unlikely outcome that the Court were powerless to address the issue, given that under r 9.61 of the Rules, a person under a legal incapacity may start or defend a proceeding only by that person’s legal representative. Should an order be made, it submitted that an ancillary order dispensing with or directing compliance with r 9.64 of the Rules may be appropriate.

Pseudonym orders

64    The basis for the respondent seeking orders identifying the applicant and the mother by pseudonyms was that the applicant, as a minor, had been and was unable to make his own decision about whether to commence or continue this proceeding, in which his personal medical information was in issue and liable to being disclosed. Publication of the mother’s name would also allow identification of the applicant. The respondent submitted that even taking into account the primacy of open justice, these considerations favoured pseudonym orders being made. The orders were necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a) of the FCA Act.

65    The respondent referred to the following proceedings decided by the Full Court in which similar pseudonymisation orders to those advanced by it were made: Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181; 295 FCR 379; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189; National Disability Insurance Agency v SSBV by his Litigation Guardian [2018] FCAFC 197. The respondent noted the mother’s in-principle agreement to pseudonym orders, and drew attention to the fact that no proposed alternative wording was provided, nor was any concern identified with the form of orders proposed by the respondent.

Application to set aside the order for determination on the papers

66    The respondent’s stated basis for seeking to set aside the order that the matter be determined on the papers was the possibility that the Court proceeded on a misapprehension of the law, as the respondent’s legal representatives had not previously informed the Court regarding the requirement in r 9.66(3) of the Rules. The respondent relied on r 39.04(2) of the Rules, which provides as follows:

39.04  Varying or setting aside a judgment or order before it has been entered

…

(2)     If an interlocutory application for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the Court may determine the application, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

…

67    The respondent contended, relying on Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 2) [2015] FCAFC 26 at [9], that the power to vary or set aside an order (under r 39.04(2) of the Rules) is discretionary, with the central consideration being the interests of justice. Referring to Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72; 202 FCR 506 at [6], it stated that “the power is to be exercised sparingly, indeed cautiously, having regard to the public interest in the finality of litigation”.

68    Alternatively, the respondent stated that the circumstances would enliven the “slip rule”, or r 39.05 of the Rules. It referred to Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375 at [26], where the Court stated:

The purpose of the slip rule is to avoid injustice to litigants (Gould v Vaggelas (1985) 157 CLR 215 at 274-275) by ensuring that the Court’s judgment or order reflects its intention at the time the order was made or the judgment was published, or reflects the intention that the Court would have had but for the failure that caused the accidental slip or omission: Symes v Commonwealth (1987) 89 FLR 356 at 357. It may be exercised to prevent unintended consequences of the order and in this way give effect to the Court's intentions: Newmont Yandal Operations Pty Ltd v J Aron Corporation and Goldman Sachs Group Inc (2007) 70 NSWLR 411 (Newmont Yandal) at [116], [185], [194]. It is not confined to errors or omissions of the Court; it extends to errors or omissions resulting from the inadvertence of a party’s legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 (Shaddock) at 594-595.

(Respondent’s emphasis.)

69    In support of its application to set aside the order that the matter be determined on the papers, the respondent noted that r 9.66(3) of the Rules provides, “A litigation representative who is not a lawyer must be represented by a lawyer.” It noted that it had not been aware of r 9.66(3) of the Rules when conveying its position to the Court on 6 May 2026 (see above at [30]). Further, it pointed out that while the applicant had not yet made a decision regarding r 9.66(3) of the Rules, no explanation was offered as to why preservation of the applicant’s position without making an election about whether to engage a lawyer was necessary or desirable.

70    The respondent submitted that it was possible that the Court would have permitted the applicant an opportunity to appoint a lawyer but for the omission of the respondent’s legal representatives, and that it was in the interests of justice that the Court’s order reflect the intention that it would have had, had those omissions not been made. Setting aside the order would allow the mother an opportunity to address the Court as to whether she pressed for the opportunity to appoint a lawyer, or alternatively sought an order to dispense with r 9.66(3) of the Rules. Further, setting aside the order would allow the respondent to address the Court regarding the appropriateness of the Court permitting the applicant to appoint a lawyer, if necessary.

71    Additionally, the respondent acknowledged that it would be open for the Court to refuse the application to set aside the order, in light of s 37M(1) of the FCA Act, the public interest in finality of litigation, and the mother’s ambiguous position. This was so especially if the Court’s order reflected its intention even taking into account r 9.66(3) of the Rules. In that event, it submitted that an order dispensing with r 9.66(3) of the Rules may be appropriate.

Consideration

72    The respondent, being entitled to appear and be heard by the Court on an application for a suppression order, seeks leave to file the Respondent’s Second Interlocutory Application and to apply for an order suppressing the name of the applicant and of the mother. That leave is granted.

73    For completeness, contrary to any suggestion by the mother, I note that the respondent sought to do nothing adverse to the applicant in seeking to regularise the mother’s appointment as the applicant’s litigation representative in this proceeding. Rather, it acted entirely appropriately in raising the issue upon becoming aware of the requirements of r 9.66 of the Rules.

The applicant and the mother should be assigned pseudonyms

74    Sections 37AE, 37AF and 37AG of the FCA Act provide as follows:

37AE  Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

37AF  Power to make orders

(1)     The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)     information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b)     information that relates to a proceeding before the Court and is:

(i)     information that comprises evidence or information about evidence; or

(ii)     information obtained by the process of discovery; or

(iii)     information produced under a subpoena; or

(iv)     information lodged with or filed in the Court.

(2)     The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

37AG  Grounds for making an order

(1)     The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)     the order is necessary to prevent prejudice to the proper administration of justice;

…

(2)     A suppression order or non-publication order must specify the ground or grounds on which the order is made.

75    The Court may make a suppression order or non-publication order on the application of a party to the proceeding: s 37AH(1)(a) of the FCA Act. Before the Court makes an order pursuant to s 37AF of the FCA Act, there must be material from which the Court can reasonably reach the conclusion that it is necessary to make an order prohibiting publication: Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 at [110]. The Court’s discretionary power to allocate a pseudonym in this instance is found in the above provisions: Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCAFC 81 at [8]. In Swannick, the Court at [12] – [14] adopted the High Court’s explanation of the word “necessary” in Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] – [33], in relation to the now-repealed s 50 of the FCA Act, as applicable to s 37AG(1)(a) of the FCA Act. The Court in Swannick at [14] – [15] went on to observe the following:

(1)    The threshold to be met by an applicant seeking to demonstrate that a non-publication order is necessary, is high. Mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice.

(2)    The Court is not permitted to undertake a “balancing exercise” between the public interest in open justice and the prejudice that may occur if the relevant information is released. The Court’s assessment is confined to assessing “whether or not the applicant has satisfied the threshold of demonstrating that the order is necessary to prevent prejudice to the proper administration of justice” (original emphasis).

76    I consider that in this case, for reasons similar to those expressed by Longbottom J in GTO26 by their litigation representative GTS26 v Board of Trustees of the Brisbane Grammar School (operating as Brisbane Grammar School) [2026] FCA 809 at [15], pseudonym orders prohibiting or restricting the publication or disclosure of information which would tend to reveal the identity of the applicant are appropriate. This proceeding concerns the applicant’s medical conditions. His mother has, at various points, adduced evidence which is said to support the severity of his condition. That has necessarily extended to the private and personal impacts on both the applicant and his mother. Additionally, as the respondent submits, the applicant is a minor. The applicant’s mother, and not the applicant, has commenced this litigation, in which this information is in issue and may be disclosed. Orders assigning him a pseudonym are necessary because otherwise, other potential litigants who are minors may be reluctant to access the Court out of fear that their identities may be revealed, and their personal information disclosed. This would prejudice the proper administration of justice: GTO26 at [15]; Smith v A High School [2025] FCA 1432 at [11]; A on behalf of B v New South Wales (Department of Education and Training) [2013] FCA 331 at [10]. Orders should also extend to the applicant’s mother, because identification of the mother will tend to identify the applicant: see GTO26 at [18]. For ease, I will order that the applicant be identified by the same pseudonym as he was identified in the Tribunal Decision, namely “HXHS”. In the Tribunal Decision, the mother was referred to as “M”. I will order that the mother be identified by a pseudonym in accordance with the Court’s formatting for pseudonyms.

The mother should be appointed as the applicant’s litigation representative in this proceeding

77    Rules 9.61, 9.63, 9.64 and 9.66 of the Rules are as follows:

9.61  Proceeding by or against person under a legal incapacity

A person under a legal incapacity may start, or defend, a proceeding only by the person’s litigation representative.

9.63  Appointment of litigation representative by the Court

(1)     A party or an interested person may apply to the Court for an order appointing a person as a litigation representative.

(2) A copy of the application must be served on the person under a legal incapacity.

(3) The application must be accompanied by an affidavit stating:

(a) that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and

(b) that the proposed litigation representative:

(i) has consented, in writing, to the appointment; and

(ii) is a person who, under rule 9.62, may be appointed as a litigation representative.

9.64  Consent to be filed

A litigation representative must not take a step in the proceeding unless the following documents have been filed:

(a)     the litigation representative’s consent;

(b)     a certificate, including a statement that the litigation representative has no interest in the proceeding that is adverse to the interest of the person under a legal incapacity, signed by:

(i)     if the litigation representative is a lawyer—the litigation representative; and

(ii)     if the litigation representative is not a lawyer—the litigation representative’s lawyer.

9.66  Conduct of proceeding

…

(3)     A litigation representative who is not a lawyer must be represented by a lawyer.

78    A “person under a legal incapacity” is defined to mean, inter alia, a minor.

79    Rule 1.34 permits the Court to dispense with compliance with any of the Rules, either before or after the occasion for compliance arises. A wide discretion is conferred, which must be exercised judicially, not arbitrarily or capriciously: OneSteel Manufacturing Pty Ltd v Comptroller-General of Customs (No 2) [2017] FCA 959 at [31]. It has been said that the Court has a wide discretion to “do what justice appears to require”: Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [61].

80    As noted above, the applicant made much of the respondent’s failure to raise the issue of a litigation representative needing to be formally appointed, and needing to proceed by way of a lawyer in this proceeding until early May 2026. His submissions reflected a concern that the respondent raising the issue at that stage might prejudice the applicant in his conduct of the proceeding, diminish the probative value of the material filed, or support adverse costs orders. The applicant did not indicate his position in relation to this issue, save that the proceeding needed to be “preserved and appropriate directions made”. The respondent took no position in relation to the applicant’s mother being appointed as the applicant’s litigation representative for reasons already noted. No case authority was provided to me in support of any course of action the Court might take in relation to this issue.

81    I consider that the appropriate exercise of the discretion conferred by r 1.34 of the Rules here is to retrospectively appoint the applicant’s mother as the applicant’s litigation representative under r 9.61 of the Rules, and to dispense with the requirements under rr 9.63, 9.64 and 9.66(3) of the Rules. As the applicant submits, the matter has proceeded on the basis that the applicant’s mother was his litigation representative, and no issue was raised in this regard until early May 2026. The respondent has been aware of the manner in which the matter has proceeded since the beginning of the proceeding. Further, the stage of the proceeding is significant. Material has been filed in relation to the various substantive issues. No material is outstanding. Indeed, the only issue in respect of which the applicant’s position has not been received, despite having been given ample opportunity to provide it, is as to the appointment of his mother as his litigation representative. In these circumstances, I consider that “doing what justice appears to require” is to regularise the proceeding by appointing the applicant’s mother as his litigation representative and exercising the discretion in r 1.34 of the Rules to dispense with the procedural requirements attendant on the appointment of a litigation representative. Contrary to the apprehension expressed by the mother, the respondent neither sought nor took any advantage of the applicant in any way arising out of the issue regarding the appointment of a litigation representative.

82    The applicant does not suffer any disadvantage in the mother being retrospectively appointed as his litigation representative at this juncture. Doing so is consistent with how the parties have dealt with each other over the course of the proceeding, as well as with how the Court has dealt with the parties.

83    As to the respondent’s observation that r 9.63 of the Rules refers to an application being made by a “party or an interested person” for an order appointing a person as a litigation representative, which has not occurred in this proceeding, I consider that at least s 37P(3)(f) of the FCA Act provides the Court with the requisite power to appoint the applicant’s mother as his litigation representative. Section 37P of the FCA Act provides as follows:

37P  Power of the Court to give directions about practice and procedure in a civil proceeding

(1)     This section applies in relation to a civil proceeding before the Court.

(2)     The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.

(3)     Without limiting the generality of subsection (2), a direction may:

…

(f)     waive or vary any provision of the Rules of Court in their application to the proceeding; or

…

…

84    Section 37P of the FCA Act forms part of the Court’s “practice and procedure provisions”; therefore, it “must be interpreted and exercised in a way that best promotes the overarching purpose, namely to ‘facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible’”: s 37M(1) of the FCA Act; Prodata Solutions Pty Ltd v South Australian Fire and Emergency Services Commission (No 3) [2020] FCA 1210 at [84]. The powers with respect to case management, as reflected in, inter alia, s 37P of the FCA Act, are broad. However, the powers are procedural, and must not be used to “set aside, revoke or suspend substantive rights of parties to litigation”: Okewood Pty Ltd v Commissioner of the Australian Federal Police (No 3) [2021] FCA 2 at [45]. I consider that s 37P of the FCA Act, in its terms, provides the Court with a power to order, of its own motion, that the applicant’s mother be appointed the applicant’s litigation representative. For the reasons noted in relation to dispensing with the procedural requirements surrounding the appointment of a litigation representative, the Court’s order that the applicant’s mother be appointed the applicant’s litigation representative is in accordance with the Court’s overarching purpose provisions: ss 37M and 37N of the FCA Act. The appointment of the applicant’s mother is procedural, and does not, in and of itself, impact the applicant’s substantive rights. The issue of whether s 23 of the FCA Act also empowers the Court to make such orders therefore does not need to be considered.

85    For the same reasons, the Court does not need to set aside the order that the matter be determined on the papers. While I accept the respondent’s submission that the Court may reopen its orders if “it is convinced that, in its earlier consideration of the point, it has proceeded ‘on a misapprehension as to the facts or the law’, where ‘there is some matter calling for review’ or where ‘the interests of justice so require’” (De L v Director-General Department of Community Services (NSW) (No 2) [1997] HCA 14; 190 CLR 207 at 215), the central consideration in the exercise of the Court’s discretion in this circumstance is the interests of justice: Romero at [9]. In light of the fact that the applicant has had the opportunity to communicate his view regarding the appointment of his mother as a litigation representative, and that her appointment can be regularised by dispensing with the requirements of the rules referred to above, no injustice occurs as a result of the order that the proceeding be determined on the papers staying in place.

86    For completeness, as to the respondent’s alternative basis for setting aside the order, I would have been satisfied, had r 9.66(3) of the Rules been brought to my attention at the time of the emails of 6 May 2026 (above at [27] – [31]), that the issue of the applicant’s mother’s appointment as his litigation representative could have been dealt with on the papers: see Flint at [26]; Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404; 209 FCR 123 at [10]. No real issue of fact arises for consideration, and the legal arguments have been outlined in detail by the parties’ written submissions: s 20A of the FCA Act.

The applicant should be refused leave to rely on the Mother’s Third Affidavit

The contents of the Mother’s Third Affidavit

87    The mother stated by email that the additional material upon which she sought to rely was directed to (1) clarifying that the “live issue” was “practicable claimability under a stated support category”, (2) clarifying that the proceeding was not intended to be an “ART appeal”, (3) addressing the respondent’s assertion that a single point of contact within the respondent had been appointed, (4) addressing the respondent’s reliance on the ordinary administrative pathway, and (5) identifying the limited practical relief sought.

88    The Mother’s Third Affidavit was said to be responsive to the respondent’s letter of 20 April 2026, to its material filed on 28 April 2026, and to the events occurring after 20 April 2026. The mother deposed that she made the affidavit “for the limited purpose of responding to the Respondent’s assertion that the administrative pathway is available and functioning, and to explain why the Applicant seeks leave to rely on short supplementary material”. The mother additionally deposed to, inter alia, the following.

89    First, she deposed to several phone calls with the respondent in relation to the applicant’s file, in support of the argument that notwithstanding the respondent’s contrary assertion, its administrative pathway was not operating effectively in practice. Second, she deposed that the proceeding was not an appeal from the Tribunal Decision, and in support of this annexed a Form 75 Notice of Appeal from a Tribunal, by which she sought to challenge the Tribunal Decision, which she had lodged on 6 February 2026. The lodgement was rejected on 9 February 2026, the reason given by the Court Registry being that it was out of time.

90    Third, she deposed that the Fourth NDIS Plan did not reflect the applicant’s current goals, information, circumstances or support needs. She had attempted to have certain information updated, but had not been able to obtain an effective pathway by which to do so through the respondent. She stated that she was concerned that the respondent’s file, which included a “Functional Capacity Assessment Report” of 18 April 2025 relating to the applicant, and “planning material”, did not properly reflect the applicant’s current diagnoses, risks, circumstances, goals and support needs. These matters showed that the “ordinary administrative pathway” was not operating effectively in practice.

91    Fourth, she referred to a letter from Ms Mills, an Accredited Mental Health Social Worker, dated 31 March 2026 (Mills Letter) (see below at [134(2)]), as evidence of the importance of “continuity, predictability and a trusted therapeutic relationship”. She stated that, given that mental health social worker supports could not be processed in the ordinary way under the Third NDIS Plan, and given that she was unable to privately fund required sessions, she was concerned about the continuity of the applicant’s relationships and therapeutic continuity. Therefore, she sought “limited practical relief”, including a “48-hour urgent evidence response protocol”, and “determination of reimbursement or equivalent funding adjustment for mental health social work / allied health supports affected by late implementation and practical non-claimability”.

Applicant’s submissions

92    Insofar as the submissions of 15 May 2026 related to the Mother’s Third Affidavit, the applicant’s submissions were as follows.

93    The applicant relied on rr 1.32, 1.34 and 29.07 of the Rules, which provide as follows:

1.32  Court may make any order it considers appropriate in the interests of justice

The Court may make any order that the Court considers appropriate in the interests of justice.

Note: See sections 23 and 28 of the Act.

1.34  Dispensing with compliance with Rules

The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises.

29.07  Use of affidavit not filed or in irregular form

A party must apply for the leave of the Court to use an affidavit that has not been filed, or that has been filed but is irregular in form.

94    The applicant also referred to the overarching purpose provisions of the Court (see ss 37M and 37N of the FCA Act), as well as to s 75 of the Evidence Act 1995 (Cth) which provides that the hearsay rule does not apply in interlocutory proceedings if evidence of the source of the evidence is adduced.

95    He submitted that in the context of a summary judgment application, the Court should be cautious of excluding responsive material where that material was directed to the issues put in play by the moving party. He submitted, broadly, that the Mother’s Third Affidavit was tendered for the following purposes:

(1)    To show that the administrative pathway upon which the respondent relied was not operating effectively, which he said was relevant to the respondent’s submission that the proceeding should be summarily dismissed, in his words, “on the basis that the administrative pathway is available, functioning and adequate”.

(2)    To respond to the respondent’s assertion that the issues about the “file flag”, the “single contact” and the “ordinary pathway” had been resolved.

(3)    To explain why the proceeding was not, and was not intended to be, an appeal against the Tribunal Decision. Rather, he submitted that this proceeding “proceed[ed] on the basis that the [Tribunal Decision] was binding and required practical implementation”.

(4)    To show why the respondent’s funding comparison between the Second, and Third and Fourth, NDIS Plans did not answer the “practical claimability issue”; namely, that the Third NDIS Plan omitted wording from the Second NDIS Plan, causing mental health social work to become unavailable.

(5)    To address outdated information insofar as this bore on the issue of whether the administrative pathway adopted by the respondent was functioning.

(6)    To support the applicant’s combined request for practical relief, including “reimbursement or equivalent funding adjustment, written reasons, and a 48-hour urgent evidence response protocol”.

(7)    To provide context relevant to costs, proportionality and fairness. The submissions addressed that the Mother’s Third Affidavit was relevant to costs because it outlined the practical circumstances of the proceeding, the respondent’s admitted delayed implementation, its impacts, administrative difficulties, and the nature of the proceeding itself.

Respondent’s submissions

96    The respondent opposed the applicant being granted leave to rely on the Mother’s Third Affidavit. The basis for its objection to the Mother’s Third Affidavit was that its contents were not relevant to the facts in issue in this proceeding. The only contentious issue, for the purpose of the respondent’s application for summary judgment, was whether the applicant had a reasonable prospect of establishing that the respondent had not given effect to the orders in the Tribunal Decision to approve a SOPS that replaced the supports in the SOPS under the Second NDIS Plan. The respondent accurately summarised the Mother’s Third Affidavit as concerning:

(1)    Formalities and submissions about its relevance.

(2)    The removal of a flag placed on the applicant’s NDIS profile suggesting that an active Tribunal application was on foot.

(3)    The mother’s administrative difficulties communicating with the respondent’s staff between 20 and 28 April 2026.

(4)    A “parallel appeal” of the Tribunal Decision to this Court, referring to the mother’s attempt to challenge the Tribunal Decision via a separate proceeding in this Court (as referred to at [90] above).

(5)    The refusal of an application to refer the Tribunal Decision to the Tribunal’s Guidance and Appeals Panel.

(6)    Claimed inadequacies in the statement of goals and aspirations included in the Third NDIS Plan.

(7)    “[A]rgumentative statements” that mental health social work invoices could not be processed without demonstrating that requests to the respondent to process those invoices had been made.

(8)    A claimed updated invoice for mental health social work services, which appeared to be an Osko receipt, which did not identify the service provided or the service recipient.

97    It submitted that none of the above matters was capable of “rationally affecting” whether the respondent had given effect to the orders in the Tribunal Decision.

98    The respondent submitted that the applicant’s stated purposes for seeking to rely on the Mother’s Third Affidavit confirmed that its content was irrelevant (see above at [96]). First, it submitted that the “effective operation in practice” of the respondent’s administrative processes was not a fact in issue. Further, it said that (1) the existence of separate appeal proceedings in respect of the Tribunal Decision did not negate the fact that the February Interlocutory Application sought to increase the funding under the Third NDIS Plan, (2) where the applicant’s stated purpose was to establish “practical funding issues or a purported failure to reimburse expenses”, evidence that did not tend to prove or disprove that the respondent had declined to fund services provided by a mental health social worker could not be relevant and admissible for that purpose, and (3) the evidence had no contextual relevance to “costs, proportionality and fairness”.

99    In this regard, the respondent relied on Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 where at [30], Meagher JA stated, “It is for the party tendering evidence or asking a question to make clear to the trial judge the purpose for which the evidence is tendered and how it becomes relevant and admissible”.

Consideration

100    Section 56(2) of the Evidence Act provides that “Evidence that is not relevant in the proceeding is not admissible”. Section 55 defines relevant evidence as “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. In assessing relevance, no discretion falls to be exercised. Evidence is relevant, or it is not. In determining relevance, it is fundamentally important to identify what are the issues at the trial: Smith v The Queen [2001] HCA 50; 206 CLR 650 at [6] – [7]. It is for the party tendering evidence or asking a question to make clear to the trial judge the purpose for which the evidence is tendered and how it becomes relevant and admissible: Taouk at [30].

101    The relief sought in the Originating Application relates to the respondent’s alleged failure to implement the Tribunal Decision (by issuing the Third NDIS Plan). The relief sought in the February Interlocutory Application is a variation of the Third NDIS Plan and reimbursement of the applicant for out-of-pocket expenses incurred as a result of the alleged non-implementation of the Tribunal Decision. The applicant in his submissions has at various points confined the “single issue” in this proceeding to “whether the Respondent has given effect to the legal consequences of” the Tribunal Decision. The respondent properly characterised the issue for the purposes of its application for summary judgment as “whether the applicant ha[d] a reasonable prospect of establishing that the Agency has not given effect to the order of the” Tribunal Decision to approve a SOPS and replicate the supports in the applicant’s existing SOPS (the Second NDIS Plan) before the Tribunal. Accordingly, whether the contents of the Mother’s Third Affidavit are relevant depends on whether they could rationally affect, directly or indirectly, the assessment of the probability of whether the respondent had failed to lawfully implement, or give effect to, the Tribunal Decision.

102    I agree that the applicant should not be granted leave to rely on the Mother’s Third Affidavit.

103    First, as to the applicant’s submission that the Mother’s Third Affidavit is relevant to the availability and effectiveness of existing administrative pathways within the respondent, and in the Tribunal, to resolve the proceeding, it is not apparent from the respondent’s submissions which such pathways are relied upon. Further, the applicant identifies, as the attempts to “use the asserted administrative pathway”, the attempts to “contact the [respondent], locate [the applicant’s] file, identify or use the asserted single point of contact, and progress a plan manager change”. None of these were the subject of the direction made in the Tribunal Decision, and therefore cannot rationally affect the assessment of the probability of whether the respondent has implemented the Tribunal Decision. In any event, the adequacy of an available pathway to review or vary the Third NDIS Plan cannot rationally affect the assessment of whether the Tribunal Decision itself was implemented. The effective operation of the respondent’s “administrative pathways” is not a fact in issue. For the same reasons, the evidence relating to the existence of the “file flag”, “single contact” and “ordinary pathway” within the respondent is not relevant.

104    Second, the existence of an attempt to appeal the Tribunal Decision does not rationally affect the assessment of whether the Tribunal Decision itself was implemented. The applicant relied on evidence of the attempted appeal to demonstrate that this proceeding was not an attempt to appeal the Tribunal Decision, apparently in response to the respondent’s submission that by the February Interlocutory Application, the applicant sought a reassessment of the Third NDIS Plan. The ultimate issue that is relevant to the grant of the relief sought in the February Interlocutory Application is the underlying issue, raised in the Originating Application, of whether the respondent has failed to implement the Tribunal Decision. Alternatively, the respondent framed the issue as being either:

(1)    whether the respondent had a duty to do the acts which the applicant sought to compel it to do by the February Interlocutory Application (i.e. amend the Third NDIS Plan and reimburse the applicant for out-of-pocket expenses) and had failed to discharge such a duty; or

(2)    whether the applicant had satisfied the requirements for the grant of an interlocutory injunction, which necessarily directed the Court to determining whether there was a prima facie case of a failure to perform a function or exercise a jurisdiction.

105    However this proceeding might be characterised, the existence of an attempt to appeal the Tribunal Decision does not rationally affect the determination of the above issues.

106    Third, the applicant’s “profile, goals, functional information and diagnoses” were not the subject of the directions in the Tribunal Decision. Therefore, evidence of the respondent’s alleged failure to keep this information up to date cannot rationally affect the determination of whether the respondent lawfully implemented the Tribunal Decision. As stated above, the “ordinary administrative pathway” of the respondent was not in issue in this proceeding.

107    Fourth, the impacts of the alleged failure to implement the Tribunal Decision, rather than the alleged failure to implement the Tribunal Decision, are not in issue. Therefore, the alleged “[p]ractical effect of non-claimability” said to flow from that alleged failure is not relevant. Similarly, the applicant’s evidence regarding invoices is not relevant. To the extent that the February Interlocutory Application seeks reimbursement of the applicant’s out-of-pocket expenses, the evidence annexed to the Mother’s Third Affidavit (being a copy of a bank transfer to Ms Mills dated 21 April 2026 for $193.99), does not tend to prove or disprove either that requests that the respondent process invoices have been made and refused, or that mental health social work invoices cannot be processed.

108    Fifth, it is not shown how the contents of the Mother’s Third Affidavit are relevant to the issue of costs in this proceeding. In any event, the respondent has now clarified that if the matter is determined on the papers, it does not seek its costs of the proceeding, so the issue does not arise.

No referral for pro bono assistance should be made

109    The mother at various times by her more recent correspondence seeking stays sought that the matter be referred for pro bono legal assistance (Legal Representation Request).

110    The Court’s power to make referrals for legal assistance is contained in r 4.12 of the Rules, the exercise of which is a matter for the Court’s discretion: Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64 at [147]. The removal from r 4.12 of the Rules (as compared to the predecessor rule, O 80 r 4(1) of the Federal Court Rules 1979 (Cth) (Old Rules)) of the qualification that a referral be “in the interests of the administration of justice” demonstrates the breadth of the Court’s discretionary power: see Fuller v Toms [2012] FCA 27; 247 FCR 440 at [92] – [93].

111    Rule 4.13 of the Rules makes clear that “[a] party is not entitled to apply to the Court for a referral under rule 4.12”, though a party raising the question of a referral may be “a means of initiating the Court’s consideration of the exercise of its discretion”: Fuller at [94]; DQV20 v Minister for Immigration, Citizenship & Multicultural Affairs [2025] FCA 430 at [68]. In this regard, it is worth noting that the Legal Representation Request is referred to as such because the Court’s consideration of it should not be taken as expressing a view that an application seeking a referral for legal representation under r 4.12 of the Rules can be made to the Court.

112    The mere fact that a party is unrepresented is not a sufficient reason for issuing a certificate. Legal services which members of the legal profession are prepared to offer for free are a resource to be cherished, not abused: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [29]. Thus, referrals are generally to be reserved for matters perceived to have appropriate merit: DQV20 at [72]. Further, even where a referral is made, there may be no legal practitioner willing and available to act for no fee, a prospect whose likelihood increases the more referrals are made. This is a factor to be considered when deciding whether to make a referral: see AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 99 at [9].

113    In Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319, in reference to O 80 r 4 of the Old Rules, French J at [10] observed that the absence of legal representation, even where the outcome of the case would be sufficiently significant to afford the applicant every opportunity to present their case, did not mean that “the litigation must come to a halt”. Rather, “[i]t may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself”.

114    The Court should refuse the Legal Representation Request.

115    First, the applicant has no right to bring an application for a referral under r 4.12 of the Rules: r 4.13 of the Rules.

116    Second, the mother only raised with the Court the prospect of obtaining legal representation on 6 May 2026, one day before the final hearing was listed, as part of the First Stay Request. She only sought a referral for pro bono representation for the first time on 1 June 2026. This proceeding was brought on as a matter of urgency, and was the subject of an expedited timetable. It would not be consistent with the efficient disposition of the matter for it to come to a halt in order to find pro bono legal representation for the mother: Taylor at [10]. This is especially so in circumstances where all the material that the Court requires to determine the matter is now before it.

117    Third, the mother’s status as a litigant-in-person does not in and of itself mean that the applicant should be referred to pro bono representation. The existence of r 4.12 is arguably premised on a party to a proceeding being a litigant-in-person; therefore, little to no weight can be given to this circumstance. Further, it must be borne in mind that the mother brought this proceeding, presumably with knowledge of the attendant complexity.

118    Fourth, it must be borne in mind that when the Court is exercising its discretion to make a referral for pro bono representation, this has an impact on the availability of pro bono legal representation to other litigants. Because no further procedural steps are required in this proceeding, the Court is ready to determine the matter, and as will be seen, the merits of the applicant’s application are poor, this is not a case in which the Court should make a referral under r 4.12 of the Rules and deplete the scarce resource of pro bono assistance.

119    Accordingly, the Court should not issue a referral under r 4.12 of the Rules.

The reasons for the Communications Orders

120    The respondent by its written submissions filed on 11 September 2026 sought an order that limited the manner in which the parties could communicate with the Court in this matter: namely, to the Court Registry only, and (1) with the consent of the other party, or (2) for the purpose of a communication described in [4.1] of the Court’s Guide to Communications with Registry Staff, or (3) at the invitation of the Court Registry. On 17 September 2026, I made the Communications Orders, which were in those terms.

121    The catalyst for the respondent seeking the Communications Orders was the mother’s frequent correspondence concerning procedural matters including requests for stays (including a permanent stay) and her position in relation to her appointment as the applicant’s litigation representative, which included voluminous and repetitive correspondence in relation to other matters which were not relevant to the issues in this proceeding. As already noted, her position would frequently change, reflecting her capricious and nonsensical attitude to this litigation.

122    The respondent’s overarching submission was that material should be formally filed, and the parties should not litigate by email. It drew attention to rr 17.01 and 17.02 of the Rules, which require interlocutory relief to be sought formally, noting that the mother had not done so in respect of several of her requests for relief. This included the First Stay Request, the Second Stay Request, the Third Stay Request, the Fourth Stay Request, and the Legal Representation Request.

123    The respondent submitted that the “volume and nature of [the mother’s] informal requests” risked the integrity and impartiality of the Court. It noted that the Court was not required to treat any informal application as an application in the proceeding, while balancing accommodations to ensure that the applicant did not suffer disadvantage by virtue of being unrepresented: Ezekiel-Hart v The Council of the Law Society of the ACT (No 5) [2023] ACTSC 218 at [25] – [38]; Walker v Fedex Express Australia Pty Ltd [2024] FCA 1095 at [82] – [84]. I accept that submission.

124    The respondent referred me to the following remarks of Collier J in Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170; 208 FCR 128 at [26]:

A key reason for each proceeding in a Court of Record having a “file” is that material properly brought before the Court is formally recorded for consideration by the Court at particular times during the course of the proceedings up until judgment is delivered. Failure to properly bring material before the Court is inherently risky …

125    It also referred me to the Court’s practice of requiring that a party’s case be presented during hearings or in documents that the Court had ordered be provided, and of proscribing simply copying others to communications with Chambers or the Registry where issues of controversy existed or were likely to arise: see Litigants-in-person Practice Note (GPN-LIP) at [4.10] and Central Practice Note (CPN-1) at [15.2]. It submitted that litigants-in-person could be accommodated without dispensing with the formal process, which was protective of the parties and the Court.

126    It supported the Communications Orders on the basis that they would, inter alia, affect the parties equally, increase the efficient disposition of the Court’s case load, not prevent appropriate communications with the Court, and be interlocutory, such that either party could apply to set them aside or vary them. It grounded them in the Court’s power to make orders on its own initiative that it considered appropriate in the interests of justice and for the purpose of promoting the overarching purpose of the civil practice and procedure provisions described in s 37M of the FCA Act (see also rr 1.32, 1.36 and 1.40(a) of the Rules). I agree that on that basis the Communications Orders should be made.

127    In Kirkham v Monash University [2026] FCA 453, Feutrill J at [40] – [42] stated as follows:

It is necessary for the proper administration of justice that judges of the Court have sufficient and appropriate assistance and resources to allow them to perform their judicial functions. Registrars and other Court staff form part of that assistance and those resources. In addition, judges have staff that work directly with them in judge’s chambers. In many, if not most, proceedings the effective and efficient administration of justice is facilitated by parties to proceedings having the ability to communicate with a judge’s chambers staff on a range of non-controversial administrative matters. However, the time and resources of chambers staff are limited and must be allocated amongst all matters in a judge’s docket. Excessive or undue time spent corresponding with parties or their legal representatives distracts and prevents chambers staff from performing other work in support of a judge’s judicial functions.

Section 37M(1) of the Federal Court Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The overarching purpose has objectives that include the efficient use of the judicial and administrative resources available for the purposes of the Court and the efficient disposal of the Court’s overall case load: s 37M(2). The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out in the way that best promotes the overarching purpose: s 37M(3). The parties to a civil proceeding must conduct the proceeding in a way that is consistent with the overarching purpose: s 37N(1).

The Court may make any order it considers appropriate in the interests of justice, may make orders other than in open court, on its own initiative and without an oral hearing: rr 1.32, 1.36, 1.40(a) of the Rules; s 17(2) and s 20A of the Federal Court Act. The Court may also make directions or orders of an administrative nature that do not involve the exercise of judicial power in that they have no effect on a party’s substantive or procedural rights and, while related to proceedings before the Court, are not truly ancillary to those proceedings: Legal Aid Commission (WA) v Edwards (No 2) (1982) 42 ALR 154 at 158-159 (Toohey J); Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42; 128 FCR 353 at [15]-[20] (Lee, Whitlam and Jacobson JJ); Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162; 170 FCR 426 at [20] (Gray, Branson and Besanko JJ).

(Emphasis added.)

128    Those remarks are applicable here. The Communications Orders would have the effect of preserving the Court’s and chambers’ resources by further regulating the manner in which the parties may communicate in relation to this proceeding. That is consistent with the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the FCA Act. Further, the Communications Orders would serve the protective purpose of ensuring that all applications are filed in accordance with the Rules and are brought to chambers’ attention in the ordinary course.

The substantive proceeding

Applicant’s April Interlocutory Application

129    While brought later in time, as already noted, I heard the Applicant’s April Interlocutory Application on an urgent basis on 17 April 2026, and did not grant the relief sought therein. The below are my reasons for doing so.

130    The orders sought in the Applicant’s April Interlocutory Application included the following:

1.    That the Respondent, pending final determination of this proceeding, provide or fund the following supports for the Applicant:

(a)     Daily Support

•    Support worker assistance of 24 hours per day, 7 days per week,

•    with provision for RN oversight and/or high-intensity support as required

(b)     Overnight Support

•    Inactive overnight support (sleepover model),

•    with escalation if clinically required

(c)     Mental Health Support

•    Mental health social work support of 3 sessions per week (minimum)

(d)     Support Coordination

•    Level 3 support coordination, initially 4–6 hours per week

(e)     Short-Term Accommodation (STA)

•    STA for a period of 2 months,

•    with monthly review thereafter,

•    pending implementation of longer-term accommodation solutions

131    The basis of the urgent relief sought was a further material change of circumstances, namely the applicant presenting at hospital on 8 April 2026 (Third Change of Circumstances).

132    In the Mother’s Second Affidavit, the mother deposed to, inter alia, the following:

(1)    The applicant’s presentation at Gold Coast University Hospital on 8 April 2026 due to “severe hypertensive instability”, during which “medical staff” discovered he was suffering from “severe hepatic steatosis … and protein in his urine”, which had stemmed from his “unmanaged diagnoses of Central Adrenal Insufficiency and Type 2 Diabetes”.

(2)    A Clinical Support Letter from Ms Leanne Cleaver dated 12 April 2026 in which Ms Cleaver opined that the current funding for 12-hour care left the applicant “dangerously exposed” as he required 24-hour monitoring to “prevent a fatal nocturnal adrenal crisis, cardiac arrest, or renal failure” in light of the mother’s carer fatigue.

(3)    The existence of a “flag” on the respondent’s records of the applicant, which had “frozen the file” and prevented meaningful assessment of the documentation submitted in support of a change of circumstances.

(4)    A high probability of the applicant suffering a “fatal medical event” if the Court did not “grant an interim injunction to fund 24-hour nursing/support care immediately”.

133    The annexures to the Mother’s Second Affidavit included:

(1)    The Second Dahiya Letter, which referred to the applicant’s adrenal insufficiency, Type 2 Diabetes and other diagnoses and recommended:

(a)    12 hours per day of support worker assistance.

(b)    A minimum of three to six hours per week of social worker/psychologist support.

(c)    One to two sessions of occupational therapy support per month, plus reporting.

(d)    Weekly ongoing physiotherapy and/or exercise physiology.

(e)    Regular podiatry support.

(f)    Weekly or fortnightly dietitian assistance to help with dietary modification.

(g)    High-level parenting support of eight hours per day.

(h)    Funding for air conditioning or temperature control.

(i)    High-level support coordination.

(2)    The Mills Letter, dated 31 March 2026, which recommended “[f]lexible [s]upports and [e]ngagement [s]trategies” in light of the intersection between the applicant’s autism, anxiety, Avoidant Restrictive Food Intake Disorder and his Type 2 Diabetes and central adrenal insufficiency.

(3)    An email from Ms Cleaver dated 13 April 2026, wherein she described herself as the “nurse and NDIS support worker providing direct clinical care” to the applicant in his home, referred to the applicant’s hospital presentation on 8 April 2026 and stated her “professional nursing opinion … [that the applicant] requires 24hour [sic] care – not 12 hours as initially requested by his endocrinologist [Dr Dahiya]”. Ms Cleaver justified this on the basis that the mother was at “risk of complete carer breakdown” and did not have nursing training, and that the applicant was at risk at any time of day if unsupervised.

134    While not included as an annexure, the mother sent to the Court Registry a copy of the discharge letter issued by the Emergency Department of the Gold Coast University Hospital at 8:39pm on 8 April 2026 (Discharge Letter), which recorded that the applicant had presented there at 1:03am earlier that same day. The Discharge Letter provided as follows:

[HXHS] was brought in by mum due to hypertension and was reviewed by the paediatric team. BP in ED has been <145 systolic consistently and he underwent a renal artery doppler which was normal and excluded renal artery stenosis. [HXHS’s] urine had some protein which will be reviewed ongoing by his treating teams.

[HXHS] is due for follow up with the paediatric outpatient team in June. The oncall [sic] paediatrician will attempt to move this forward. He will aslo [sic] be arranging outpatient referrals to endocrinology and to gastroenterology due to severe hepatic steatosis on MRI.

Mum has been advised to follow up with the GP for BP monitoring and liasing [sic] with [HXHS’s] treating team. The NDIS support worker who attended ED with mum has been advised to discuss BP and emergency management plan with [HXHS’s] endocrinology team.

135    The Discharge Letter recommended that the applicant “[r]eturn to ED if [there were] further concerns”.

Submissions

136    At the hearing on 17 April 2026, the mother submitted that based on the circumstances of the applicant’s medical condition and the contents of the annexures to the Mother’s Second Affidavit, 24-hour care was required to avoid a life-threatening situation. The mother referred to the First Change of Circumstances Internal Review Decision, in which the respondent had refused the First Change of Circumstances Application. However, she accepted that the respondent, in conducting the First Change of Circumstances Internal Review Decision, did not take into account the applicant’s “more recent hospitalisation and the further evidence … from [Ms Cleaver] and the further evidence that we have from [Ms Mills]” because this information was not available at the time the First Change of Circumstances Application was made. She also made further submissions in support of the argument that the respondent had failed to implement the Tribunal Decision, and that the respondent should fund the supports recommended in the First and Second Dahiya Letters.

137    The respondent’s submission was that the urgency said to support the Applicant’s April Interlocutory Application was not made out. Relying on the Discharge Letter, the respondent submitted that there was no material change of circumstance. Rather, what the Discharge Letter indicated was that the applicant had presented to the emergency department in relation to hypertension, and that a plan was formulated for further follow-up and outpatient treatment, which did not speak of emergency. The respondent further submitted that the applicant had been pressing for further supports for a long period of time, and that in that respect, there was no material change of circumstances.

138    The respondent noted that the First Change of Circumstances Application had been determined unfavourably by the respondent, which decision was subsequently confirmed in the First Change of Circumstances Internal Review Decision on 16 April 2026. The First Change of Circumstances Internal Review Decision makes it clear that the next step for the applicant, if dissatisfied with this outcome, is to seek merits review in the Tribunal. The mother accepted that she had not yet done this, on the basis that the Tribunal had “no capacity”. The respondent submitted that merits review in the Tribunal would encompass all issues raised in relation to the applicant’s diagnosis, consequent impairments and whether there was a need to reassess the Fourth NDIS Plan. In these circumstances, the respondent submitted that this was not an issue properly for the Court to determine.

139    Further, the respondent submitted that:

(1)    The respondent had appointed a single contact person to assist with the mother’s inquiries.

(2)    The respondent had removed the flag on the applicant’s file.

140    In relation to the Court’s jurisdiction to grant the relief sought in the Applicant’s April Interlocutory Application, the mother submitted that:

(1)    The Court had power under s 39B of the Judiciary Act such that “if there’s an officer of the Commonwealth … there can be an injunction or an enforcement on a duty that they have”. Here, the asserted duty was to “engage with the very strong language of Dr Dahiya’s letter” which specifically addressed the NDIS criteria.

(2)    The Court had power under s 23 of the FCA Act “in relation to matters in which it ha[d] jurisdiction to make such orders, including interlocutory orders, as the Court considers appropriate”.

141    The mother submitted that the respondent’s decisions in respect of which she sought interlocutory orders, including “non-engaging with [the] doctor’s letter … and acting on that” were administrative decisions in respect of which the Court had jurisdiction, and that she was not inviting the Court to weigh on the merits of the respondent’s decision-making.

142    Following an adjournment of this hearing, the mother informed the Court that she had called the Tribunal Registry and been informed that there was “nothing there that they can say that they can hear within 24 to 48 hours” and the Tribunal was therefore “not in any capacity to address the situation”. The applicant asserted that the Tribunal could “expedite things”, if the Court “decided to remit [the matter] … referencing the urgency”. Though the applicant did not state this explicitly, any suggestion of this nature by the Tribunal appeared to proceed on the assumption that a decision of the Tribunal was under review in the Court, and not that the issue for consideration was simply an order (whether by a writ of mandamus or otherwise) compelling the Tribunal to make a decision on the merits on an urgent basis.

143    In this regard, the respondent submitted that the Court should not place significant weight on a telephone discussion with the Tribunal Registry in circumstances where no application to the Tribunal had actually been made. Further, the respondent submitted that in any event the mother appeared not to have proceeded with a pathway available to her, namely an application to the Tribunal.

Consideration

144    The mother appeared to have conflated two issues at the 17 April 2026 hearing: (1) the issue of whether the respondent had correctly implemented the Tribunal Decision and (2) the issue of a further change of circumstances in view of the applicant’s recent presentation at the emergency department on 8 April 2026. In the course of the applicant’s oral argument, the mother referred to seeking a writ in the nature of mandamus or an order under s 23 of the FCA Act to compel the respondent to implement the Tribunal Decision. I made clear to her on numerous occasions that this was not the issue of particular urgency the subject of her Applicant’s April Interlocutory Application, and that it would be dealt with at the expedited hearing set down for 7 May 2026. At the hearing on 2 April 2026, the mother herself had ultimately accepted that issue (1) was not of such urgency as to require the Court’s immediate consideration.

145    As the reasons below explain, issue (2) has not been the subject of an administrative decision by the respondent or the Tribunal. Further, the relief sought by the applicant in respect of issue (2) would have the Court engage in the merits of a change of circumstances application, which is beyond its power to do.

Jurisdiction

146    The Court’s “first duty” is to determine whether it has jurisdiction to make the orders sought: Federated Engine Drivers’ and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; 12 CLR 398 at 415 (Griffith CJ); Truthful Endeavour Pty Ltd v Condon [2015] FCAFC 70; 233 FCR 174 at [24] (Allsop CJ, Katzmann and Gleeson JJ).

147    When the Court is called on to review a decision made by a member of the executive branch of government, the Court’s duty and jurisdiction “do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power”: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35 – 36 (Brennan J); see also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [51] – [58] (Gageler J), [83] (Nettle and Gordon JJ). In Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180, a unanimous High Court stated as follows at [81]:

… [I]t is axiomatic that a court exercising its own curial jurisdiction to review administrative action on a ground of jurisdictional error … does not “go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power”. That is not to say that the court must proceed in a normative vacuum; but it is to say that the court can proceed only for that purpose. “If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error”.

(Emphasis added, footnotes omitted.)

148    The applicant did not particularise the legal basis for the orders sought in the Applicant’s April Interlocutory Application other than by making reference to s 23 of the FCA Act. Section 23 of the FCA Act provides that “[t]he Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”. The mother referred to s 39B of the Judiciary Act in her oral submissions but did not refer to s 5 of the ADJR Act. However, as the Originating Application is premised on the applicant being granted relief under s 5 of the ADJR Act and s 39B of the Judiciary Act, it would seem implicit that the interlocutory relief sought in the Applicant’s April Interlocutory Application is premised on that same final relief.

149    For the reasons that follow, the Court does not have jurisdiction to grant the relief sought in the Applicant’s April Interlocutory Application.

150    The Court’s jurisdiction under s 5 of the ADJR Act is not enlivened because the applicant has not sought review of an administrative decision, or alternatively, the respondent has not yet made a decision, in respect of the Third Change of Circumstances. To enliven the Court’s jurisdiction to exercise judicial review under s 5 of the ADJR Act, there must be, inter alia, a decision which is “final or operative and determinative”: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 337 (Mason CJ).

151    It appeared at the hearing of 17 April 2026 that the mother had not placed the further material relating to the Third Change of Circumstances before the respondent. In the First Change of Circumstances Internal Review Decision, the delegate of the Chief Executive Officer of the respondent stated that she had referred, in addition to the relevant legislation and guidelines, to the following information:

•    Participant Statement of Supports (NDIS Plan)

•    Paediatrician Report, Dr Rachana Dahiya, 27/02/2026

•    Change of details or change of situation, [LOT26], 17/12/2025

•    Updated Medical/Support Needs - change of circumstances, 17/12/2025

152    At the hearing it was unclear whether the following documents had been placed before the respondent:

(1)    The Mills Letter.

(2)    The Discharge Letter.

(3)    The email from Ms Cleaver dated 13 April 2026.

153    In that regard, the applicant gave evidence from the bar table that the respondent had in its possession a Steroid Emergency Management Plan prepared by Dr Dahiya on 17 January 2026 (referred to more fulsomely at [191] below) recommending ongoing medication regimes as well as escalation steps in the event that the applicant presented signs of being unwell, and indeed “has everything at this stage”. However, there was no evidence before the Court to that effect and the respondent’s solicitor told the Court that he would need to make further inquiries as to whether these materials had been considered by the respondent in making the First Change of Circumstances Internal Review Decision. There was therefore real doubt about whether the respondent’s delegate had considered this material.

154    Nor has the applicant brought any application in the Tribunal in respect of the decision in the First Change of Circumstances Internal Review Decision, or the Third Change of Circumstances. When asked why an application for a further change of circumstances was not before the Tribunal, the mother stated that in an emergency situation, it was logical for her to go to this Court, rather than the Tribunal, to seek urgent relief.

155    In these circumstances, I consider that there is insufficient evidence that the respondent has yet made a decision in respect of the Third Change of Circumstances. The applicant has therefore not demonstrated a right to judicial review in respect of the Third Change of Circumstances under s 5 of the ADJR Act and the Court’s jurisdiction under that section is not enlivened.

156    As to s 39B of the Judiciary Act, the orders sought by the applicant in the Applicant’s April Interlocutory Application are beyond the Court’s jurisdiction because they would be a decision on the merits regarding the applicant’s NDIS Plan: see Quin at 35 – 36 (Brennan J).

157    The orders sought in the Applicant’s April Interlocutory Application relate to the application of the NDIS Act to the particular circumstances of the applicant. They concern the provision of support which might properly be the subject of an NDIS plan made or varied under the NDIS Act. They seek that the Court effectively vary the First Change of Circumstances Internal Review Decision, which the respondent’s delegate made pursuant to a power contained in s 100 of the NDIS Act. The Tribunal has power to review this decision on the merits under s 103 of the NDIS Act. And the Court has a power under s 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to hear appeals on questions of law and under s 5 of the ADJR Act to engage in judicial review of the legality of the Tribunal’s decision. The Court has other powers to engage in judicial review and to grant the “constitutional writs” by virtue of s 39B of the Judiciary Act.

158    But the Court does not have power to apply the NDIS Act to make a decision regarding the applicant’s entitlements under his NDIS plan, including in response to the Third Change of Circumstances. Such a power rests with the respondent and subsequently with the Tribunal, which exercises all the powers and discretions conferred on the respondent under the NDIS Act: see ART Act s 54. For the Court to make a decision regarding the applicant’s entitlements under his NDIS Plan, as the applicant invites it to do by the Applicant’s April Interlocutory Application, would be to impermissibly intrude upon the merits of the decision.

159    The Court does not have the power to make the orders sought by the applicant.

160    Further, there is some doubt as to whether the Court has jurisdiction to grant a writ of mandamus against the respondent under s 39B of the Judiciary Act in the way framed by the applicant. For a writ of mandamus to issue against an officer of the Commonwealth, it must be sought against an officer of the Commonwealth: see Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, Thomson Reuters, 2022) at [2.160].

161    In AZC20 v Commonwealth [2023] FCA 845; 182 ALD 241, Banks-Smith J at [81] gave the examples of the “Secretary, Ombudsman or Minister” in respect of reporting obligations under Pt 8C of the Migration Act 1958 (Cth). It may be doubted whether the respondent, a body corporate established by s 117 of the NDIS Act, rather than an individual answering the description of an officer of the respondent, may properly be the subject of a writ of mandamus: see McGowan v Migration Agents Registration Authority [2003] FCA 482; 129 FCR 118 at [26] (Branson J). In AZC20, the absence of an officer of the Commonwealth meant that this Court’s jurisdiction to grant mandamus was not enlivened: at [81]; see also Productivity Partners Pty Ltd v Commonwealth [2018] FCA 1562; 162 ALD 154 at [61] (Rangiah J).

162    Further, there is doubt as to whether the Court has jurisdiction to grant relief in the form of a constitutional writ, including mandamus, in respect of errors of law committed by an officer of the Commonwealth within its jurisdiction: see, e.g., Re Heerey; Ex parte Heinrich [2001] HCA 74; 185 ALR 106 at [20], where Kirby J considered that such errors are not amenable to a writ of mandamus. If the applicant sought mandamus to compel the correct exercise of jurisdiction, it was not shown what jurisdictional error was sought to be corrected.

163    The Court’s jurisdiction under s 39B of the Judiciary Act is therefore not enlivened.

Discretion not to exercise jurisdiction – s 39B of the Judiciary Act

164    The grant of the “constitutional writs” is a matter of discretion: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [28] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). This discretion “is not at large”: Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [157] (Allsop CJ, Markovic and Colvin JJ); Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [43] – [62] (Gaudron and Gummow JJ, with whom Gleeson CJ and Hayne J agreed at [5] and [172], respectively), [145] – [150] (Kirby J); SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [80] (McHugh J).

165    In Aala, Gaudron and Gummow JJ noted at [56] that “some guidance” regarding “the circumstances which may attract an exercise of discretion adverse to an applicant” could be found in the joint judgment in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389, which concerned the writ of mandamus. At 400, the Court stated:

For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.

(Emphasis added.)

166    The above statement of the Court has been referred to in Federal Commissioner of Taxation v Cancer and Bowel Research Association Inc [2013] FCAFC 140; 305 ALR 534 at [13] (Edmonds, Pagone and Davies JJ), SZQBN v Minister for Immigration and Citizenship [2013] FCAFC 94; 213 FCR 297 at [39] – [44] and Bechara at [159]. Cases where the Court has refused to grant relief include where there is a suitable alternative remedy: Phong v Attorney-General (Cth) [2001] FCA 1241; 114 FCR 75 at [45] – [54]; and futility or lack of utility of granting the relief: Aala at [58] (Gaudron and Gummow JJ).

167    The Court should be careful that mandamus is not used to avoid recourse to the remedy that the legislature has provided which it has designated as appropriate and adequate: Tooth & Co Ltd v Parramatta City Council [1955] HCA 21; 97 CLR 492 at 498 (Dixon CJ); Kant v Chief Executive Officer, National Anti-Corruption Commission [2026] FCA 13 at [52] (Horan J). As Davies J stated in Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 at 34, “it is generally desirable that the time of this Court should not be taken up with issues for the determination of which the legislature has established adequate administrative remedies”.

168    Therefore, even if the applicant had established that the Court had the jurisdiction to grant the orders sought in the Applicant’s April Interlocutory Application, the factors of this case strongly compel the conclusion that the Court’s discretion to grant a writ of mandamus should not be exercised. First, there is a clear legislative pathway for the applicant to have the First Change of Circumstances Internal Review Decision externally reviewed in the Tribunal. In McGowan, Branson J dismissed an application for judicial review under s 39B of the Judiciary Act, because his Honour considered that there was an alternative right of review in the then Administrative Appeals Tribunal: at [57] – [77]. The applicant could make use of a further change of circumstances application with the respondent, or an application seeking merits review in the Tribunal, to obtain a decision in relation to the Third Change of Circumstances, which is the basis for the Applicant’s April Interlocutory Application.

169    Second, even if the Court could grant a writ of mandamus, this would be limited to commanding the respondent or the Tribunal to consider any application by the applicant in respect of a change of circumstances according to law. Mandamus will issue to “compel the performance of a public or quasi-public legal duty” which a person subject to the duty has refused to perform, and performance cannot be enforced by any other adequate legal remedy. However, whilst mandamus can order that the person perform their duty by exercising a discretion, it cannot control how the discretion is exercised: Cuming Campbell Investments Pty Ltd v Collector of Imposts (Vic) [1938] HCA 53; 60 CLR 741 at 749 – 750 (Latham CJ). Mandamus cannot be used to compel a person to arrive at a particular decision; the Court cannot do more than direct the person to perform their statutory duty: Cuming Campbell at 750. To the extent that the applicant seeks to found the orders sought in the Applicant’s April Interlocutory Application on a writ of mandamus, the Court cannot exercise its discretion to issue this writ in the manner sought.

170    Further, the requirement to consider the decision according to law is already one that exists by virtue of the NDIS Act and the ART Act; thus, little would be gained were a writ of mandamus to issue from the Court. I consider that this factor also weighs in favour of the Court refusing to exercise its discretion under s 39B of the Judiciary Act to grant relief.

Discretion not to exercise jurisdiction – s 5 of the ADJR Act

171    The position is similar with respect to relief sought under s 5 of the ADJR Act. Section 10(2)(b)(ii) provides:

Notwithstanding subsection (1):

…

 (b)     the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

…

(ii)     that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

172    In McGowan, Branson J at [57] considered the discretion granted by s 10(2)(b)(ii) of the ADJR Act to dismiss judicial review proceedings could similarly be exercised on the basis that an alternative pathway of review of an administrative decision existed and had been commenced. The discretion extends to cases where a merits review proceeding has not yet been commenced in the Tribunal; it suffices that there is a suitable alternative remedy: Kant at [56] – [57] (Horan J). In Kant, the applicant had a right to apply to the Information Commissioner for internal review under Pt VI of the Freedom of Information Act 1982 (Cth). In the event that an extension of time was required, the Information Commissioner could decide whether to grant one. The applicant then had a right to apply to the Tribunal if dissatisfied with the Information Commissioner’s decision: at [59] – [60].

173    On Horan J’s view, this provided a sufficient justification for exercising the discretion to dismiss the application for judicial review under s 39B of the Judiciary Act which Horan J appeared to consider analogous to the discretion under s 10(2)(b)(ii) of the ADJR Act, following McGowan: see Kant at [54]. I consider that the position is the same here. The applicant can apply for external merits review of the First Change of Circumstances Internal Review Decision in the Tribunal, and place before it the evidence said to support the Third Change of Circumstances. The mere fact of the Tribunal being unable to grant a remedy in the nature of mandamus, which the applicant seeks, is not by itself determinative of whether the Court should allow the applicant to bypass review in the Tribunal: see CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCAFC 10; 221 FCR 165 at [231] – [237] (Allsop CJ, Mansfield J agreeing at [240]). Alternatively, the applicant could make a further change of circumstances application with the respondent. For the reasons given above at [165] – [171], there would be little or no utility in granting such a writ, such that the Tribunal’s inability to do so does not undermine the making of a further change of circumstances application in that forum: compare CSL Australia at [236].

174    To the extent that the Court’s jurisdiction under s 5 of the ADJR Act is enlivened, the Court refuses in its discretion to exercise this jurisdiction on the basis that the applicant can apply to the Tribunal to seek external merits review or make a further change of circumstances application with the respondent.

Discretion to decline to grant interlocutory relief

175    Even if the Court’s jurisdiction were enlivened under s 5 of the ADJR Act and s 39B of the Judiciary Act, and the Court could therefore grant relief under s 23 of the FCA Act, the Court should not grant the interlocutory relief which the applicant seeks.

176    Entitlement to interlocutory relief requires an applicant to demonstrate that (1) there is a prima facie case or a “serious question to be tried” and (2) the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [19] (Gleeson CJ and Crennan J). The principles relevant to the grant of interlocutory relief were helpfully summarised by Jackson J in Frigger v Trenfield [2019] FCA 1746 at [6]. A “fundamental principle” attaching to the grant of an injunction is that the Court “should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’”, including, for example, where the party in whose favour the injunction is granted is unsuccessful at trial: Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834 at [16] (Jackson J), quoting Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680 (Hoffman J).

177    The questions of a prima facie case and the balance of convenience are not to be considered in isolation from each other. The apparent strength of the applicant’s case is a matter to be weighed in the balance: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [67]. The weaker the applicant’s case, the more the balance of convenience moves against making an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 54 – 55 (Young CJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [11] (Beech J). Mandatory interlocutory injunctions, which require a party to take some positive step or undo something that has been done, carry a greater risk of injustice if granted rather than withheld, “unless the court feels a high degree of assurance that the applicant would be able to establish the relevant right at a trial”: Frigger at [6].

178    It is worth noting that the parties did not address the elements of an injunction at the hearing of 17 April 2026. However, the discussion above regarding (1) the Court’s lack of jurisdiction to grant the relief sought and (2) the discretionary reasons which justify the Court refusing to exercise its jurisdiction (if any) also support that the applicant has not established a prima facie case, with the balance of convenience therefore weighing in the respondent’s favour. Further, the fact that the Applicant’s April Interlocutory Application seeks mandatory relief weighs the balance of convenience even further against the applicant. The balance of convenience additionally weighs against the applicant given that there are alternative pathways to seek review of the decision in respect of which the Applicant’s April Interlocutory Application is brought, or to make a further change of circumstances application with the respondent based on the Third Change of Circumstances. In these circumstances, I do not consider that the applicant has established a case strong enough to attract the interlocutory relief sought.

179    Even if the Court had the jurisdiction to grant the relief sought in the Applicant’s April Interlocutory Application, the Court would not do so.

Leave to appeal

180    A Court’s decision to dismiss an application on the ground that it lacks jurisdiction to grant the relief sought is interlocutory. Therefore, leave to appeal is required: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [2] – [4] (Ryan, Stone and Jagot JJ); Alexakis v Secretary, Dept of Employment and Workplace Relations [2009] FCAFC 124 at [28] (Siopis, Cowdroy and Reeves JJ). Rule 35.01 of the Rules permits a party to apply orally for leave to appeal from an interlocutory judgment of the Court.

181    At the hearing on 17 April 2026, the mother sought leave to appeal against my finding that the Court did not have jurisdiction in relation to the orders sought in the Applicant’s April Interlocutory Application or, alternatively, sought that the matter be listed for urgent reconsideration by a duty Judge. I refused leave to appeal. The authorities indicate that the same Judge has appellate jurisdiction to decide an oral application for leave to appeal made to that Judge: see Hastwell v Kott Gunning (No 4) [2019] FCA 1805 at [3] (Jackson J); Wentworth Metals Group Pty Ltd v Leigh (No 2) [2013] FCA 374 at [1] – [2] (Griffiths J).

182    I consider that the Court’s decision is not attended by sufficient doubt to warrant the grant of leave, and substantial injustice would not result if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398 – 399.

183    The mother’s oral arguments in support of the application for leave to appeal were the following:

The problem is that what you have and what has not been acknowledged in this court, and it’s very hard to believe it – right – what has not been acknowledged is the seriousness of my son’s medical condition, despite the abundance and very strong, irrefutable evidence in front of you. You have nothing to the contrary.

You only have evidence that supports that my son has a very serious life-threatening condition and that he requires between 12 and 24 hours care. That’s the only evidence you have. There is nothing on the other side that comes up. They haven’t got a doctor’s report saying, you know, he gets headaches because of something or other. They have nothing. I have everything. And you have the power and the jurisdiction to actually, you know, deal with that now. They could actually provide an undertaking to a review and have a look at that in 24, 48 hours.

184    In substance, they were the same as those advanced in support of the Applicant’s April Interlocutory Application. For the reasons already given, the Court does not have jurisdiction to entertain the application, and even if it did, it would exercise its discretion not to grant the relief sought. There was therefore no substance in the arguments for leave to appeal, and there was no prospect for an appeal to succeed on the short oral argument advanced by the mother. This supported the refusal of leave to appeal: see Lin v Rail Corporation New South Wales [2011] FCA 546 at [23] (Buchanan J).

Originating Application and February Interlocutory Application

185    The Originating Application was brought pursuant to s 5 of the ADJR Act and s 39B(1) of the Judiciary Act. It sought the following relief:

1.     The Applicant seeks relief arising from the Respondent’s failure to lawfully implement a binding decision of the Administrative Review Tribunal dated 29 October 2025 (ART 2023/0870).

2.     Despite the Tribunal directing that all existing supports in the Applicant’s Statement of Participant Supports be replicated pro rata from the date of decision, the Respondent issued an NDIS plan dated 23 December 2025 which omitted existing allied health supports, including mental health social work, and failed to give effect to the Tribunal’s operative orders.

3.     The Respondent’s conduct constitutes jurisdictional error, legal unreasonableness, unreasonable delay, and maladministration, resulting in ongoing and urgent risk of serious harm to the Applicant.

4.     Further particulars are set out in the accompanying interlocutory application and affidavit.

(Original emphasis.)

186    The February Interlocutory Application sought the following interlocutory orders:

1.     That the application be heard ex parte due to extreme urgency and risk of serious harm to a minor applicant.

2.     Pending the final determination of this proceeding, the Respondent be ordered to immediately amend the Applicant's NDIS plan dated 23 December 2025 so as to:

a. (a)     include funding for mental health social work as an allied health support, being a support required to be replicated pursuant to the Administrative Review Tribunal decision dated 29 October 2025; and

b. (b)     include sufficient support worker hours to enable implementation of the Applicant’s urgent medical treatment and emergency care requirements.

3.     Pending final determination, the Respondent be ordered to fund support workers to:

a. (a)     accompany the Applicant during travel and community access; and

b. (b)     assist with emergency medical response, including administration of Solu-Cortef (hydrocortisone) 100 mg intramuscular injection if required under the Applicant’s emergency cortisol management plan.

4.     That the Respondent reimburse the Applicant for out-of-pocket therapeutic costs incurred as a result of non-implementation of the Tribunal decision, on an interim basis.

5.     Liberty to apply on 24 hours’ notice.

6.     Costs reserved.

(Original emphasis.)

187    These documents were accompanied by the Mother’s First Affidavit in support of the Applicant’s February Interlocutory Application. The Mother’s First Affidavit made reference to the Tribunal Decision and the Third NDIS Plan. By it the mother asserted that the respondent had omitted from the Third NDIS Plan existing allied health supports, including mental health social work which had been funded under the Second NDIS Plan and “was required to be replicated” pursuant to the Tribunal Decision. As a result of the alleged omission, she had, in her words, been “required to self-fund essential therapy to prevent disruption”.

188    The mother deposed that on 28 January 2026, Dr Rachana Dahiya diagnosed the applicant with Type 2 diabetes mellitus and adrenal insufficiency with low cortisol levels (Second Change of Circumstances). In her letter of 28 January 2026 (First Dahiya Letter), Dr Dahiya prepared and recommended an emergency cortisol management plan for the applicant.

189    Due to the respondent’s alleged failure to implement the Tribunal Decision, the applicant was currently without “continuity of funded therapeutic support” and the necessary “support worker assistance required” in the event that urgent medical care and cortisol management became necessary. In these circumstances, the applicant was at a “real and immediate risk of serious harm”.

190    Annexed to the Mother’s First Affidavit were, inter alia, the following:

(1)    Correspondence dated 29 December 2025 from Plan Hero, informing the mother that as the applicant’s plan had now changed, services provided, including mental health social work, could no longer be claimed using NDIS funds. This was confirmed in correspondence from Plan Hero dated 15 January 2026.

(2)    Correspondence between 17 December 2025 and 21 January 2026 between the applicant and delegates of the respondent regarding the respondent’s alleged failure to implement the Tribunal Decision. In substance, the respondent maintained the position that it had correctly implemented the Tribunal Decision, and recommended that the applicant seek an internal review if dissatisfied.

(3)    The Steroid Emergency Management Plan prepared by Dr Rachana Dahiya on 17 January 2026 recommending ongoing medication regimes as well as escalation steps in the event that the applicant presented signs of being unwell.

(4)    The First Dahiya Letter which referred to the applicant’s “new onset type 2 diabetes and adrenal insufficiency” which she had “reviewed by phone appointment” and which she considered “need[ed] treatment”. Dr Dahiya recommended medication which the applicant’s general practitioner would administer for him weekly. Additionally, Dr Dahiya recommended that when the applicant “is sick with high fever … vomiting or has fracture or surgery, he [would] need stress dose steroids” according to the Steroid Emergency Management Plan.

191    The Mother’s First Affidavit made clear that the applicant did “not challenge the Tribunal’s refusal of certain supports”, which were the subject of “separate review processes”. Rather, the applicant sought relief in respect of “only the Respondent’s failure to implement the Tribunal’s operative orders”.

The Respondent’s First Interlocutory Application and Notice of Objection to Competency

192    By the Respondent’s First Interlocutory Application, it sought orders that (1) pursuant to s 31A of the FCA Act and r 26.01 of the Rules, there be judgment for the respondent in respect of the whole of the proceeding, and (2) all interlocutory applications filed by the applicant be dismissed.

193    By the Notice of Objection to Competency, the respondent objected to the competency of the proceeding on the basis that “the impugned conduct is not conduct engaged in ‘for the purpose of making a decision’ within the scope of s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)”.

The parties’ submissions

The applicant’s submissions

194    The applicant, inter alia, opposed the Respondent’s First Interlocutory Application and the Notice of Objection to Competency. By his submissions, he also sought declarations in relation to the respondent’s alleged failure to implement or give lawful effect to the Tribunal Decision, namley that between November 2025 and April 2026 this constituted a failure to exercise its statutory duty. He also sought orders that the respondent consider and determine reimbursement of expenses incurred as a result of that alleged failure, and that it review “urgent clinical evidence” within 48 hours where provided, and respond with reasons.

195    By his submissions of 28 April 2026, the applicant confined the proceeding to a “single issue”, being “whether the Respondent has given effect to the legal consequences of” the Tribunal Decision. He framed the proceeding as one not concerned with merits review, but one concerning “legal compliance with an existing determination”. He submitted that the respondent has not given effect to the legal consequences of the Tribunal Decision.

196    The applicant noted that for the Court to grant summary judgment, it must be satisfied that “the Applicant has no reasonable prospect of successfully prosecuting the proceeding”, stating that it is a stringent test that is not met where there are real, arguable issues of fact or law.

197    The applicant submitted that jurisdiction arises under s 5 of the ADJR Act and s 39B of the Judiciary Act. He stated that the Notice of Objection to Competency focused only on s 6 of the ADJR Act, without answering the applicant’s reliance on the two abovementioned sections. He characterised this proceeding as one involving the respondent’s “failure to perform a statutory function required to give effect to a binding Tribunal determination”, such that the relief falls within s 39B of the Judiciary Act. Additionally, the applicant submitted that the character of the proceeding “concerns post-decision conduct”, referring to the respondent’s failure to implement the Tribunal Decision. He submitted that it does not constitute merits review.

198    The applicant submitted that the respondent failed to give effect to the Tribunal Decision, such failure being evidenced by (1) the omission of “critical plan wording”, namely the omission of “other Allied Health staff”, (2) its refusal to process supports, and (3) its admitted delay in implementation. The applicant said that the respondent failed to meaningfully engage with clinical findings by Dr Dahiya, and consequently did not lawfully discharge its obligation to implement the Tribunal Decision. As a consequence, supports became practically unavailable, continuity of care was disrupted, and the mother was required to self-fund (in her submission) essential services.

199    By reference to what the applicant characterised as the respondent’s admissions regarding (1) delayed implementation, (2) administrative impediments including “file flagging” and (3) subsequent corrective action, the applicant submitted that the respondent’s implementation obligation was not fulfilled in the relevant period. By delayed implementation, I take the applicant to mean that the respondent admitted it delayed in implementing the Tribunal Decision as a result of the applicant’s GAP Request (see above at [8] – [9]).

200    In these circumstances, he submitted that summary judgment was not appropriate, as there were serious and arguable questions regarding whether the Tribunal Decision was lawfully implemented, whether subsequent steps cured the defect, and what consequences flowed. He submitted that the “partial correction” made on 16 April 2026 to the Third NDIS Plan (see above at [15]) did not cure these issues. In these circumstances, he submitted that, relying on Spencer v Commonwealth [2010] HCA 28; 241 CLR 118, the proceeding was not suitable for summary dismissal. He also referred to the respondent’s model litigant obligations, stating that it should not be permitted to rely on “technical defences where administrative error has been admitted”, and that its attempt to terminate the proceeding despite those admissions should be approached cautiously.

The respondent’s submissions

201    The respondent’s position in the substantive proceeding, articulated in its submissions filed on 8 May 2026, is that the Court should dismiss the Originating Application on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding, and should dismiss the Applicant’s February Interlocutory Application because there is no serious question to be tried, and the balance of convenience is against the grant of interlocutory relief.

202    The respondent objects to the competency of the Originating Application on the basis that it seeks to review conduct pursuant to s 6 of the ADJR Act. The respondent notes that the Originating Application does not specifically refer to s 6 of the ADJR Act; however, the substantive allegations expressly seek review of the respondent’s conduct. The respondent refers to the following passage of Mason CJ from Bond at 341 – 342:

… In its setting in s. 6 the word “conduct” points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. …

Accordingly, there is a clear distinction between a “decision” and “conduct” engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous.

203    The respondent submits that the conduct complained of by the applicant is not “procedural action taken prospectively for the purpose of making a reviewable decision”; rather, it is regarding the respondent’s substantive decision. Therefore, the Originating Application should be found to be incompetent insofar as it invokes jurisdiction pursuant to s 6 of the ADJR Act.

204    As to the respondent’s delay in implementing the Tribunal decision, insofar as that is raised in the Originating Application, the respondent submits that there is a second jurisdictional issue, namely that the Court does not have jurisdiction under s 39B of the Judiciary Act, because such jurisdiction is tied to a “matter”: Unions NSW v New South Wales [2023] HCA 4; 277 CLR 627 at [13] – [15], [23] – [26]. The respondent submits, referring to AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 at [31] – [32], that there is “no matter where there is no ‘immediate right, duty or liability’ to be established by determination of the court”. As far as concerns this proceeding, there is no “current or continuing controversy” regarding the respondent’s delay in giving effect to the Tribunal Decision. The respondent submits that at best, the applicant’s concern relates to the respondent’s past compliance with the Tribunal Decision, and his apprehension that it will not reimburse expenses for that period. However, the evidence is that the respondent has invited the applicant to provide details of such expenses so that consideration can be given to reimbursement. Further, it submits that there is no reason to apprehend that the respondent will not comply with the law and give effect to the Tribunal Decision.

Supporting affidavit material

205    In relation to the applicant’s allegation that the respondent omitted existing allied health supports from the SOPS implementing the Tribunal decision, the respondent’s evidence in the Third Woolley Affidavit is that a comparison between the supports included in the applicant’s SOPS in the Second NDIS Plan (as set aside in the Tribunal Decision), and the supports in the SOPS in the Third NDIS Plan, reveals that all existing supports from the Second NDIS Plan have been replicated pro rata in the Third NDIS Plan. In particular, that evidence indicates that where the categories of support referred to in the orders in the Tribunal Decision, are not support items listed within the respondent’s Pricing Arrangements and Price Limits, the respondent has, in calculating the applicant’s current supports, in general adopted support categories which result in a more favourable funding outcome for the applicant.

206    As to the applicant’s complaint as to being out of pocket, on 20 April 2026, the respondent wrote to the mother stating, inter alia, that she may provide it with details of out-of-pocket expenses incurred for any additional supports between 26 November 2025 and 22 December 2025, so that consideration could be given to manual reimbursement. By that letter, the respondent also indicated that it had varied the SOPS included in the Third NDIS Plan to include an amended description as to how the Improved Daily Living Skills budget was calculated (see above at [15]).

Summary judgment

207    The respondent relies on the Court’s power to grant summary judgment in s 31A(2) of the FCA Act and r 26.01 of the Rules. It refers to the statements of principle regarding summary judgment in Quach v Registrar of Trade Marks [2025] FCA 311; 187 IPR 156 at [43] – [48] and Davis v Military Rehabilitation and Compensation Commission [2024] FCA 322 at [27] – [29].

208    As to the claims under the ADJR Act, the respondent submits that if the Court considers that the respondent’s delay in giving effect to the Tribunal Decision is part of the conduct at issue in the Originating Application, the Court should exercise its discretion to refuse relief under s 16(2) of the ADJR Act. The respondent submits that the issue no longer has any practical significance, there is no current controversy, and in these circumstances a declaration of rights would be advisory only, and any other order would not be necessary to do justice between the parties. The respondent relies, in this regard, on Alders v Tax Agents’ Board of Queensland [2006] FCA 1442 at [13]; Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 31.

209    Further, the respondent submits that the complaint that the applicant relies upon as the basis for relief under the ADJR Act, being the respondent’s purported failure to give effect to the portion of the orders of the Tribunal Decision by “omitting existing allied health supports” in the SOPS under the Second NDIS Plan, is “without any evidentiary basis”. The respondent submits that based on the respondent’s comparison, referred to above at [206], a failure to implement the Tribunal Decision on the respondent’s part is not established on the evidence. Therefore, the allegation cannot establish any ground of review.

210    The respondent contends that the same basis for the dismissal of the claims under the ADJR Act operates to defeat any claim for relief under the Judiciary Act.

Dismissal of Applicant’s February Interlocutory Application

211    The respondent refers to s 23 of the FCA Act, which grants the Court the power to make interlocutory orders in “matters in which [the Court] has jurisdiction”. The respondent submits that if the Court concludes that parts of the Originating Application are not within its jurisdiction, or would not be heard and decided by the Court as a matter of discretion, no corresponding interlocutory relief is available.

212    Separately, the respondent also, by its written submissions, addresses the Court as to whether it should make interlocutory orders that it:

(1)    Immediately amend the Third NDIS Plan to include funding for a mental health social worker and to increase the funded supports.

(2)    Reimburse the applicant’s out-of-pocket expenses.

213    The respondent characterises these orders as an order for mandamus, or an interlocutory injunction, submitting that it would not be appropriate to make orders of either kind.

214    As to mandamus, the respondent submits, relying on R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228 at 242 – 243, that mandamus is only available to “compel the performance of ‘some duty of a public nature which remains unperformed’”, contending that the respondent has no duty to fund a “mental health social worker” or to increase the supports funded through the Third NDIS Plan. It submits that as the respondent has implemented the Tribunal Decision, has discharged its duties to decide the First Change of Circumstances Application, and to review the First Change of Circumstances Decision, the respondent has no duty to do more. Further, the respondent submits that there is no evidence of “actual or constructive failure by the [respondent] to reimburse any out-of-pocket expenses”; rather, the evidence is that the respondent has invited the applicant to provide relevant details such that it may do so.

215    The respondent then relies on the principles applicable to the grant of an interlocutory injunction, summarised by Gleeson CJ and Crennan J in O’Neill at [19]. It submits that because there is no constructive failure by the respondent to perform a duty or exercise jurisdiction, there is no serious question to be tried, the applicant has not suffered any harm, and the balance of convenience cannot weigh in favour of the grant of an injunction. It submits that the availability of alternative relief, in which the applicant can seek reassessment of his plan and access reimbursement, weighs against the grant of relief.

The applicant’s reply submissions

216    First, the mother submits in reply that to the extent that the Notice of Objection to Competency proceeds on the basis that the proceeding is, in substance, an attempt by the applicant to appeal or re-litigate the Tribunal Decision, that is not correct. The mother notes that she attempted to lodge an appeal against that decision, which lodgement was rejected, but notes that this proceeding “proceeds on the basis that the ART decision was binding and had to be implemented”. She characterises this proceeding as concerning the respondent’s “post-decision implementation conduct, including the omission of the prior ‘other Allied Health staff’ wording, the resulting “practical non-claimability” of mental health social work, and the later urgent medical context”.

217    Second, the mother submits that the respondent has still not adequately explained why “other Allied Health staff”, or other wording consistent with the flexible nature of NDIS plans, was omitted from the Third NDIS Plan. She notes that this resulted in mental health social work not being able to be claimed. In relation to the Third NDIS Plan, the applicant acknowledges that the respondent “varied the plan on 16 April 2026 to clarify flexible use without changing quantum”, noting that “If the later correction did not change funding, then the problem was not the amount of funding,” and therefore the problem was “wording and practical claimability”. She states that her position remains that “the Respondent replicated numbers; it did not replicate practical access”. That appeared to be a submission that the underlying problem was that under the Third and Fourth NDIS Plans, the applicant was unable to claim supports to which he should be entitled, due to defective wording.

Consideration

Originating Application

Jurisdiction

218    As already noted, the Court’s “first duty” is to determine whether it has jurisdiction to make the orders sought: Broken Hill at 415 (Griffith CJ). The respondent’s submissions in relation to jurisdiction are accepted.

219    First, I agree with the respondent that the Originating Application is incompetent to the extent that it seeks to review conduct under s 6 of the ADJR Act. The respondent’s issuing of the Third NDIS Plan in purported implementation of the Tribunal Decision was not an action taken in the course of, or for the purpose of, making a reviewable decision: Bond at 341 – 342. Rather, as the respondent submits, the Originating Application relates to the respondent’s substantive decision to issue the Third NDIS Plan.

220    Second, to the extent that the applicant points to the respondent’s (admitted) delay in giving effect to the Tribunal Decision, I agree with the respondent’s submission that there is no jurisdiction in respect of this purported failure to implement the Tribunal Decision under s 39B(1) of the Judiciary Act, because there is no longer a “matter”. In Unions NSW, Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ at [14] – [15] stated as follows:

… the function of the Court is not the giving of legal answers or the declaration of legal principle – it is the resolution of a controversy about a legal right, duty or liability. The giving of answers or the making of declarations is an exercise of judicial power only where the seeking and giving of those answers or declarations arise in or out of the judicial determination of the rights and liabilities in issue in the dispute. That understanding of the Court’s function is reflected in the constitutional requirement that a dispute involves a “matter” for the purposes of Ch III of the Constitution.

Exceptional categories aside, there can be no “matter” within the meaning of Ch III of the Constitution unless “there is some immediate right, duty or liability to be established by the determination of the Court” in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief. Standing to seek relief is in that way “subsumed within the constitutional requirement of a ‘matter’”. While the concepts of standing and matter are not entirely co-extensive, both are concerned to “mark out the boundaries of judicial power”; their attempted severance is “conceptually awkward, if not impossible”.

(Footnotes omitted.)

221    The respondent has now purportedly implemented the Tribunal Decision, so its delay in itself does not give rise to a justiciable controversy. The fact that the respondent issued the Third NDIS Plan and the Fourth NDIS Plan has quelled any controversy that could be said to arise out of its delay in implementing the Tribunal Decision. To the extent that the applicant having incurred out-of-pocket expenses due to the respondent’s delay could be said to give rise to a justiciable controversy, there is no reason to doubt the respondent’s offer to consider reimbursing such expenses, given its status as a model litigant.

222    Third, for the same reasons as those given above at [161] – [163], there is doubt as to whether the Court has jurisdiction to grant a writ of mandamus under s 39B of the Judiciary Act against the respondent in the way framed by the Originating Application. A writ of mandamus must be sought against an officer of the Commonwealth. To the extent that the relief sought in the Originating Application included a writ of mandamus, there is real doubt as to whether the Court has jurisdiction to grant the relief in the way framed.

Summary judgment

223    Section 31A of the FCA Act provides as follows:

31A  Summary judgment

…

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

…

224    Rule 26.01 of the Rules provides as follows:

26.01  Summary judgment

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)     the proceeding is frivolous or vexatious; or

(c)     no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; or

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

…

225    In Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3], McKerracher J set out the applicable principles in a summary judgment application:

Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

•    the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;

•    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]);

•    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Ltd (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);

•    s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);

•    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]);

•    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);

•    s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);

•    summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);

•    the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);

•    despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);

•    the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and

•    each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

226    At [59] of Spencer v Commonwealth [2010] HCA 28; 241 CLR 118, Hayne, Crennan, Kiefel and Bell JJ stated:

In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

227    As the respondent submits, the basis for the Originating Application is not established. The comparison annexed to the Third Woolley Affidavit indicates that the additional supports, and the other existing supports in the Second NDIS Plan, were indeed replicated pro rata in the Third NDIS Plan (and now the Fourth NDIS Plan). The support items and number of hours contained in the calculations in that comparison correspond to the amounts referred to in the Tribunal Decision, and the value of the relevant supports corresponds to the NDIS Pricing Arrangements and Price Limits 2025 – 2026. Further, the description of “Improved Daily Living Budget” in the Fourth NDIS Plan, issued on 16 April 2026, clarifies any potential ambiguity as to whether the Tribunal Decision was implemented, as that description is in line with the reasoning contained in, and the orders made as a consequence of, the Tribunal Decision. The allegation that the respondent has not implemented the Tribunal Decision is therefore not established on the evidence. For these reasons, the applicant has no reasonable prospect of successfully prosecuting the Originating Application under either ss 5 and 6 of the ADJR Act, or s 39B of the Judiciary Act.

Discretionary refusal of relief

228    The respondent located its submissions regarding discretionary refusal of relief under the ADJR Act together with its submissions regarding summary judgment. However, I consider that these are more appropriately dealt with separately given that the argument supporting a discretionary refusal of relief, and the cases cited, referred to the inutility of a declaration and the absence of a need for any other form of relief “to do justice between the parties”, rather than the applicant’s application lacking any “reasonable prospect of success”.

229    Section 16 of the ADJR Act provides as follows:

16  Powers of the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) in respect of applications for order of review

…

(2)     On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make either or both of the following orders:

(a)     an order declaring the rights of the parties in respect of any matter to which the conduct relates;

(b)     an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

230    Ozmanian, on which the respondent relied, is authority for the proposition that only in rare cases will a declaration be seen to be justified. It will only be justified if it “serves to do justice between the parties to the controversy by playing a part in the resolution of their dispute”: at 33. More broadly, the question of whether relief sought should be granted, as well as the form of such relief, is discretionary: Sino Iron Pty Ltd v Secretary of the Department of Infrastructure and Transport [2014] FCAFC 103; 225 FCR 22 at [157]. Relief may be refused, both under s 16 of the ADJR Act, and s 39B of the Judiciary Act, where “events have moved on” since the decision or conduct the subject of judicial review, even if the relevant ground of review is found to be established: Australian Institute of Professional Education Pty Ltd v Australian Skills Quality Authority [2016] FCA 814; 156 ALD 224 at [44].

231    As noted above, the respondent has implemented the Tribunal Decision by issuing the Third NDIS Plan, and there is no justiciable controversy as far as concerns the respondent’s delay in implementing the Tribunal Decision or in relation to whether the applicant is entitled to a refund. As to the former, whether a delay is capable of founding a claim for relief under the ADJR Act or the Judiciary Act, no utility would be served by the grant of relief because the Tribunal Decision has been implemented in any event. As to the latter, the respondent has indicated its willingness to consider any claim for reimbursement of the applicant’s out-of-pocket expenses. Relief should therefore be refused in the exercise of the Court’s discretion.

Applicant’s February Interlocutory Application

232    I agree with the respondent’s submission that if parts of the Originating Application are outside the Court’s jurisdiction, or would not be heard and decided on the basis of the Court’s jurisdiction in any event, then no corresponding interlocutory relief is available in respect of those matters. For the reasons already given above in relation to the Originating Application, the corresponding interlocutory relief sought in the Applicant’s February Interlocutory Application should be refused.

233    Further, I agree with the respondent’s alternative submissions that the Court should not grant the relief sought in the Applicant’s February Interlocutory Application in any event. As to the characterisation of the relief sought in the Applicant’s February Interlocutory Application as mandamus, I agree with the respondent that there is no “public or quasi-public legal duty”, performance of which may be compelled: see Cuming Campbell at 749 – 750. The respondent has no duty to fund a “mental health social worker” or to increase or vary the SOPS in the relevant NDIS plan. As to its duties, the respondent has implemented the Tribunal Decision, and has determined the First Change of Circumstances Application, and the First Change of Circumstances Internal Review Decision: see ss 48 and 100 of the NDIS Act. Further, the respondent has not failed to reimburse the applicant’s out-of-pocket costs incurred by reason of its delayed implementation of the Tribunal Decision. Rather, it has invited the applicant to provide details so that consideration can be given to reimbursement.

234    Additionally, for the reasons noted at [170], even if an unperformed public duty were shown to exist, mandamus would only issue commanding the respondent to reconsider the decision according to law; it would not extend, as the applicant seeks, to directing how the respondent’s decision-making power is exercised: Cuming Campbell at 749 – 750. Finally, for the same reasons as those noted above at [159], for the Court to effectively grant mandamus in the manner sought by the applicant would be to intrude on the merits of the decision regarding the applicant’s SOPS under the relevant NDIS plan. Doing so would effectively amount to relitigating in this Court the application that ultimately culminated in the Tribunal Decision, because by that decision the Tribunal decided the supports which would be the subject of the applicant’s SOPS.

235    As to the elements of an interlocutory injunction set out in O’Neill at [19], I agree with the respondent that the applicant has not established his entitlement to interlocutory relief. No prima facie case of a failure on the part of the respondent to perform a duty or exercise jurisdiction is established, nor has the applicant established that the Court has jurisdiction; therefore, no entitlement to interlocutory relief arises. As noted above in relation to the Applicant’s April Interlocutory Application, the weaker the applicant’s case, the more the balance of convenience weighs against the making of an order: Glenwood at 54 – 55. Mandatory interlocutory injunctions carry a greater risk of injustice if granted, unless the Court feels a high degree of assurance that the applicant would be successful at trial: Frigger at [6]. As the claims in the Originating Application have no reasonable prospect of success, the balance of convenience is decisively against the grant of an interlocutory injunction. Therefore, the Applicant’s February Interlocutory Application should be dismissed.

Conclusion

236    The applicant has not established that this Court should grant the orders sought in the Originating Application or the Applicant’s February and April Interlocutory Applications. Accordingly, each is dismissed.

costs

237    The applicant, at various points, sought orders which allowed for the parties to file submissions in relation to costs. The respondent indicated that it sought no order as to costs if the matter were determined on the papers. Accordingly, no order as to costs is made.

Associate:

Dated:    2 October 2026