Federal Court of Australia

Satyadharma by his Litigation Representative Hryniewiecki v Chief Executive Officer, National Disability Insurance Agency [2026] FCA 1646

ORDERS

THE COURT ORDERS THAT:

1.    Mariusz Henryk Hryniewiecki is appointed as the litigation representative of the applicant for the purposes of the conduct of an interlocutory application for injunctive relief in these proceedings.

2.    For the purposes of the interlocutory application, compliance with r 9.66(3) of the Federal Court Rules is dispensed with.

3.    The name of the applicant be amended to Amal Satyadharma by his litigation representative Mariusz Henryk Hryniewiecki.

4.    The application proceed as an application pursuant to s 39B of the Judiciary Act for relief against the respondent.

5.    The time for serving the interlocutory application for injunctive relief dated 26 October 2026 is abridged to enable the application to be heard on 28 October 2026.

6.    The interlocutory application for injunctive relief is dismissed.

7.    On or before 16 November 2026, each party shall file submissions of no more than 3 pages in support of any application for an order as to costs specifying the order that is sought and the reasons advanced as to why the order should be made.

8.    On or before 23 November 2026, each party shall file submissions of no more than 2 pages in reply to any submissions as to costs of the other party.

9.    Unless otherwise ordered, the costs of the interlocutory application shall be determined on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Amal Satyadharam is 17 years of age. He lives with severe Autism Spectrum Disorder and epilepsy. He is a participant in the National Disability Insurance Scheme (NDIS). Last Friday, Amal completed High School and the care, structure and supervision that has been provided to Amal during school hours came to an end. In anticipation of this significant change, Amal's parents made plans for Amal to participate in the Workpower Bentley Life Learn post-school transition bridge, a program that helps build essential skills for life (Workpower Support). It appears that if sufficient funding was available Amal could be a participant in the post-school transition program in a way that would provide the same extent of hours of care and supervision that had been provided at High School (or that participation could be combined with attendance at another program to achieve that outcome).

2    In August this year, Amal's father, Mr Mariusz Hryniewiecki, acting as Amal's appointed NDIS nominee, sought a variation to Amal's NDIS plan to add funding for the Workpower Support and for a support worker to assist with Amal getting to Workpower Bentley, together with transport costs (together, New Supports).

3    A few weeks later a decision was made to substantially reduce the extent of NDIS funding for Amal in several respects. The reduction was reflected in the terms of a NDIS Plan dated 17 September 2026 (September Plan).

4    Acting as 'litigation guardian' for Amal, Mr Hyrniewiecki applied to the Administrative Review Tribunal for a stay of the September Plan pending the review. The stay was sought on the basis that the previous plan would be reinstated. However, the previous plan was premised on Amal's needs whilst he was attending High School. Accordingly, in addition to a stay, what was described as a 'transitional order' was sought from the Tribunal requiring funding for the New Supports to be provided. The order was sought on the basis of a contention that the Tribunal could exercise the powers and directions of the decision-maker pending the review. The contention relied upon the terms of s 54 of the Administrative Review Tribunal Act 2024 (Cth).

5    The Tribunal declined to order a stay or make a form of transitional order.

6    Since the Tribunal's decision, there has been a further variation to the NDIS Plan for Amal. It was made on 19 October 2026 after a further request for variation by Mr Hryniewiecki (October Plan). The October Plan provides some limited funding for the Workpower Support and other funding. It confines the extent to which other supports that had been funded under the plan that applied before the September Plan could continue to be obtained. Those supports are said to relate, in particular, to speech therapy and physiotherapy.

7    Mr Hyrniewiecki says that without one on one supervision Amal 'is exposed to unmitigated risks of severe epileptic seizures without immediate intervention, [sudden unexpected death in epilepsy], wandering, and the inability to manage basic personal hygiene or emotional regulation'. He also says that depriving Amal of specialized therapy and a structured routine during his 'critical transition' from High School 'will cause irreversible [behavioural] and functional regression'. He says that he and Amal's mother are unable to provide Amal's required supports because of their own disabilities. These and other matters have been raised with the CEO in relation to Amal's plan and are the subject of an application to be heard by the Tribunal in December 2026.

8    Mr Hyrniewiecki now seeks to bring proceedings in this Court acting as litigation representative for Amal. The proceedings in this Court were commenced by Mr Hyrniewiecki as a litigant in person and took the form of an appeal pursuant to s 172 of the Administrative Review Tribunal Act. The named respondent to those proceedings is the Chief Executive Officer of the National Disability Insurance Agency (CEO). Mr Hyrniewiecki also filed an interlocutory application seeking a stay of the CEO's decision concerning the September Plan and the reinstatement of previous funding with a variation to allow for part of that funding to be allocated to the New Supports. However, the statutory right of appeal conferred by s 172 is confined to dispositive decisions by the Tribunal: RPPL Pty Ltd v Commissioner of Taxation [2025] FCA 1126 at [82]-[83] (Cheeseman J). Therefore, the appeal lacks competence and is liable to be struck out (noting the possibility of review under s 39B of the Judiciary Act 1903 (Cth): Kapoor v Chief Executive Officer, National Disability Insurance Agency [2026] FCA 1058 at [20]-[21] (Stewart J).

9    In circumstances where Mr Hyrniewiecki sought urgent interlocutory relief, he was informed by the Court of the procedural possibility that the appeal might be treated as an application for judicial review. Mr Hyrniewiecki then filed a new interlocutory application on the basis that his application to this Court was for relief under s 39B of the Judiciary Act. He also filed submissions, prepared with the assistance of an artificial intelligence agent, that stated four alleged jurisdictional errors by the Tribunal (Alleged Errors).

10    I note that the new interlocutory application was filed after the decision by the CEO concerning the October Plan.

11    The written submissions in support of the new interlocutory application describe the nature of the orders sought by way of interlocutory injunction as being 'to construct a temporary operational care bridge, preventing a total collapse of Amal's care structure until [the Tribunal] determines the substantive merits of the Agency's funding decision'. The written submissions do not explain why it is said that the care bridge is not provided by the October Plan. However, as will emerge, aspects of those matters were addressed by Mr Hyrniewiecki in oral submissions.

12    To the extent that the application is to proceed as an application under s 39B of the Judiciary Act for relief against the Tribunal, the Tribunal is a necessary party to the application.

13    However, in the course of oral submissions it emerged that Mr Hyrniewiecki sought to support his claim to interlocutory injunctive orders on the basis that the decisions by the CEO in respect of the September Plan and the October Plan were legally unreasonable having regard to (a) the known circumstances pertaining to Amal and his parents; (b) Amal's care needs; and (c) the reductions in the level of previous supports that were effected by the September Plan and the October Plan. This aspect is addressed further below.

The procedural issues and the interlocutory injunctive orders sought

14    In the above circumstances, the following procedural issues arise:

(1)    Should Mr Hyrniewiecki be appointed as a litigation representative for Amal for the purposes of bringing proceedings pursuant to s 39B of the Judiciary Act and, if so, should the appointment be on terms that allow him to conduct the proceedings as a litigant in person?

(2)    Should an order be made that the proceedings continue as an application pursuant to s 39B of the Judiciary Act for relief?

(3)    If yes to (2), should the Tribunal be joined as a party to the proceedings?

15    If procedural orders are made that would allow the new interlocutory application to proceed, then the interlocutory orders sought until determination of the application before the Tribunal to review the decision of the CEO concerning the September Plan are to the following effect:

(1)    An interlocutory injunction restraining the CEO from giving effect to the September Plan;

(2)    A mandatory interlocutory injunction reinstating the previous NDIS Plan as approved on 31 August 2026 (August Plan);

(3)    A mandatory interlocutory injunction varying the supports provided under the August Plan to include funding that could be expended on the New Supports;

(4)    An interlocutory injunction restraining the CEO from giving effect to the changes made by the September Plan pending the outcome of the review of that plan by the Tribunal.

16    It can be seen that, although the application under s 39B of the Judiciary Act is based upon alleged jurisdictional error by the Tribunal, the relief sought would be directed to the CEO. It is possible that an interlocutory injunction might be directed towards third parties taking steps to give effect to a decision that is challenged on the basis of alleged jurisdictional error. However, whether such relief might be granted would depend upon the merits of a challenge to the decision by the Tribunal on the stay application. It would also need to take a form that was justified by the nature and extent of the claim made under s 39B of the Judiciary Act. Otherwise, to support relief against the CEO, it would be necessary to identify grounds of review of the exercise of power by the CEO in relation to Amal's plan.

17    When the parties were asked to consider whether the Tribunal should be joined as a party to the application under s 39B of the Judiciary Act, Mr Hyrniewiecki filed a written submission, prepared with the assistance of an artificial intelligence agent, which maintained that the application sought no 'prerogative writ, declaration, or coercive order against the Tribunal itself'. He maintained that it was not procedurally necessary to join the Tribunal. In the alternative, he indicated that he consented to the joinder.

18    The confused nature of the application is a common feature of cases advanced with the assistance of artificial intelligence. Trying to comprehend such applications is placing an increasing burden on the Court. The difficulty is that litigants in person often lack the knowledge to be able to meaningfully engage with the Court to clarify the position expressed in documents prepared by an artificial intelligence agent. The result is that the Court is left having to address the case as advanced, in effect, by an artificial intelligence agent unaided by the usual scrutiny at an oral hearing to elucidate the true nature of the case. Also absent is the assistance that would be given by a lawyer arguing a case for a party consistently with the lawyer's professional obligations.

19    Generally speaking, a litigant in person must present their own case. They are unable to call upon the assistance of a person who is not a lawyer to present the case for them. This is a long-standing practice to prevent unqualified and unsupervised third parties meddling in court proceedings. The court explains matters of procedure to litigants in person and will seek to understand whether there is a legal basis to their case. This involves evaluating the way in which the litigant in person explains the basis for their case and seeking appropriate clarification. However, the Court must maintain its independence in a system for administration of justice that allows each party to present its case and requires the Court to make an independent judgment as to the outcome.

20    Particular difficulties arise where a litigant in person simply presents a formulation of their case that has been prepared by an artificial intelligence agent. There is no meaningful way in which the Court can test the logic of the contentions that are made. Generally, the litigant in person is unable to engage with questions about the case as formulated. Further, a case formulated in that way is not confined in the same way as a case prepared by a lawyer. Lawyers must undertake considerable training not only in the law but also in the professional obligations to be performed when conducting court proceedings on behalf of a party. These obligations are often captured in the description of lawyers as acting as officers of the Court with duties to the Court. One of those duties is to assist in the proper, orderly and expeditious conduct of proceedings by confining the case to the real issues, presenting the case as clearly and as concisely as possible and by not advancing unarguable claims: Dyczynski v Gibson [2020] FCAFC 120; (2020) 280 FCR 583 at [215]-[220] (Murphy and Colvin JJ). Performance of those duties is supervised by the Court. Breach of them may lead to suspension from legal practice. There is no mechanism by which the submissions of an artificial intelligence agent may be supervised in the same way. They cannot be approached as if they were prepared by some form of lawyer substitute or as if they represent only a source of information that is used by the litigant in person.

21    Nevertheless, where an artificial intelligence agent is used to formulate and present that case, the litigant in person continues to bear the responsibility of all litigants to identify a proper basis for a claim.

22    The Court has explained the responsibilities of litigants in person in its Litigants in Person Practice Note (GPN-LIP) expressed in simple English and available in translated versions. As is stated in that Practice Note (paras 2.8 and 2.10):

Do not use Generative Artificial Intelligence (AI) programs (like Chat GPT, Claude, Microsoft Copilot or Google Gemini) to get legal help about whether you have a case you can win. Those programs are not reliable for legal help about whether to start or defend a case. They are not trained like lawyers. They might give you answers that are based on American law. American law is different from Australian law. AI  programs can give false answers to legal questions.

…

If you start or defend a case based on real law and evidence, you can use AI programs to help explain your case to the Court. If you use AI programs to help explain your case, you will have to tell the Court that is what you have done if the Court asks you about it. You must check everything you get from AI programs. You must check that all the facts are correct and complete. You must also check that the law is correct. Asking a lawyer is usually the best way to check. If you cannot get help from a lawyer, you can use a legal research database to check the law. You will find a list of free legal research databases in Attachment D. You can be in serious trouble if you give the Court false information about the facts or the law.

23    Of course, the Court will continue to seek to explain the nature of its procedures to litigants in person. However, ultimately a litigant in person will be bound by the way in which their case is conducted including the content of submissions prepared with the assistance of an artificial intelligence agent. It remains the responsibility of the litigant in person to indicate to the Court the extent to which those submissions are relied upon and to bear the responsibility for the consequences of what they contain.

24    In the present case, as has been mentioned, the grounds upon which review was sought alleged jurisdictional error by the Tribunal. No basis was evident from the grounds upon which review was sought in this Court of the decision by the CEO concerning the September Plan and the October Plan. Nor were any grounds evident from the written submissions advanced in support of those grounds.

25    However, the entire focus of the oral submissions presented by Mr Hryniewiecki concerned the alleged unreasonableness of the decisions by the CEO that resulted in the September Plan and the October Plan. The thrust of those submissions was to point to aspects of the way those plans applied that were said to be unreasonable having regard to the funding that had previously been approved and the consequences for Amal of a sudden reduction in funded supports, especially those for his daily supervision, for speech therapy and for physiotherapy. In essence those submissions were to the effect that due to their own disabilities neither Mr Hryniewiecki (as Amal's father) nor Amal's mother (with whom Amal resides) were able to provide the daily close one on one supervision that he was said to need. This was said to be known to the CEO and to be a matter referred to in relevant documents sent from the NDIA. Nor did Amal's parents have the financial resources to privately fund the required supports pending the outcome of the decision by the Tribunal. This was said to give rise to risks to the safety of Amal because of the reduction in the supports allegedly needed to ensure his safe supervision.

26    The documents issued by the CEO set out the extent to which supports had been approved as part of the plans. However, there were no documents in the materials explaining in detail the reasoning for the changes to the levels of supports. It appears that in part the changes are said to be the consequences of amendments to the relevant statutory provisions. In part they are said to reflect assessments as to the effectiveness of the supports. To some limited extent these matters are indicated in the documents. Otherwise, they emerged in the submissions from Mr Hryniewiecki and general submissions for the CEO.

27    The way the case was presented orally by Mr Hryniewiecki and the statement in his written submissions that he did not seek relief against the Tribunal, prompted an inquiry as to whether he maintained the claims in the written submissions as to alleged error by the Tribunal as prepared by the artificial intelligence agent. In response, Mr Hryniewiecki stated that it was the claim as presented orally that he relied upon.

28    Accordingly, these reasons address the claim of alleged unreasonableness by the Tribunal as the basis for the interlocutory injunctions sought by Amal.

29    However, it should be said that there were difficulties with the claim advanced in the written submissions based upon alleged jurisdictional error by the Tribunal. A major foundation for the claim there expressed was the view that the Tribunal had power not only to stay the operation of the September Plan, but could also require the CEO to provide supports that were not included in the August Plan. That is to say, the claim was premised on the view that the Tribunal could exercise the CEO's power to vary the plan and provide for additional supports. The power to require the provision of further supports was said to be conferred by s 54 of the Administrative Review Tribunal Act.

30    Section 54 of the Administrative Review Tribunal Act confers a general power on the Tribunal to exercise the powers of the decision-maker whose decision is under review by the Tribunal. However, s 54 is conferred for the purposes of reviewing a reviewable decision, that is for the purposes of making the dispositive decision on the review. The predecessor provision that applied to the Administrative Appeals Tribunal (being s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth)) was considered in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33; (2025) 281 CLR 327. It was there referred to as a provision to be applied at the time of the Tribunal's decision on the review to the powers and discretions conferred at that time: at [15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). It is not a power that allows the Tribunal to become the CEO at some point before the making of the decision on the review and exercise the statutory powers of the CEO to make some other interim decision such as a decision to vary the 'baseline plan' until the dispositive decision is subsequently made by the Tribunal. Where the decision-maker has a power to make some other decision, then the appropriate course is to apply to the decision-maker to exercise that decision-making authority. This is the course that was followed in the present case and resulted in the October Plan.

31    Therefore, the bringing of an application for review in the Tribunal does not transfer the ongoing statutory power of the decision-maker under review to the Tribunal. That decision-maker remains responsible for administering the legislation insofar as it applies to the person concerned. Section 54 confers limited power that can be exercised for the purposes of remaking the decision under review. It allows the Tribunal to make a different dispositive decision exercising a different power that is available to a decision-maker making a dispositive decision of the kind under review. If the Tribunal decides that the appropriate decision to be made involves the exercise of that power then the Tribunal can take that course in making a dispositive decision on the merits.

32    Therefore, the application to the Tribunal for a form of interim order pursuant to s 54 pending the making of the decisive decision was misconceived. The failure by the Tribunal to specifically address that aspect of the application could not amount to some form of procedural error or failure to exercise jurisdiction. The claims of jurisdictional error by the Tribunal made on that basis could not be sustained.

33    It follows that on the application to this Court for review of the Tribunal's decision there was no basis to support injunctive relief that was premised on the Tribunal having a power to require the CEO to provide supports that had not been the subject of an approved plan. The Tribunal's power was confined to making 'an order staying or otherwise affecting the operation or implementation of the decision': s 32(2). As has been explained, the making of such an order (being an order requiring the CEO to provide additional supports pending the making of the decisive decision) was at the heart of the injunctive relief sought.

34    It follows that there was a fundamental difficulty with pursuing the application insofar as it might have sought review of the Tribunal's decision to fail to make a form of 'transitional order'.

The confined nature of review for alleged jurisdictional error

35    In considering whether there has been jurisdictional error by a decision-maker, the Court exercises a confined jurisdiction. It does not evaluate whether the decision under review was one that the Court itself would make. Rather, as was explained in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [17] (Allsop CJ, Besanko and O'Callaghan JJ): 'an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it'. As is often said, this Court cannot usurp the power of the decision-maker. Rather, it considers whether the decision-maker has exceeded the extent of their power or authority (or has failed to exercise that power or authority in circumstances where there is an obligation to do so).

General principles as to interlocutory injunctive relief

36    In order to obtain interlocutory injunctive relief, the applicant for that relief must be able to demonstrate sufficient colour of right to the final relief in aid of which interlocutory relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [11] (Gleeson CJ) as approved in Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [23] (Gageler CJ, Gordon, Gleeson and Jagot JJ). This Court has power to protect the integrity of its own processes by granting interlocutory injunctive relief, including making orders to preserve the subject-matter of the proceeding and orders to preserve the utility of the final relief that is sought based upon the identified right to final relief claimed by the applicant: MZAPC at [24]-[29].

37    The principles governing when to grant interlocutory injunctive relief were explained in Samsung Electronics Company Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74] (Dowsett, Foster and Yates JJ). An applicant for injunctive relief must demonstrate a sufficient likelihood of success to justify the preservation of the status quo pending the trial. The success to be demonstrated is as to the probability of demonstrating at trial an entitlement to relief according to law. The injunction must be protective of the claim to that relief. An applicant for injunctive relief must also demonstrate that the balance of convenience favours relief. 'The assessment of harm to the plaintiff, if there is no injunction, and the assessment of prejudice or harm to the defendant, if an injunction is granted, is at the heart of the basket of discretionary considerations which must be addressed and weighed as part of the Court’s consideration of the balance of convenience and justice': Samsung at [62], see also [66]. The assessment of the adequacy of damages will always be important: at [63]. The apparent strength of the applicant's case will often be an important consideration to be weighed in the balance: at [67]. It may also be necessary to consider and evaluate the impact on third persons and the public generally: at [68].

38    Where, as here, an interlocutory injunction is sought pending the grant of administrative law relief as to the invalidity of a decision based on a claim of alleged jurisdictional error, the Court may grant an injunction to preserve its ability to grant that relief. So, in an appropriate case, it may restrain the carrying into effect of a decision that may have harmful consequences for the party concerned pending the adjudication of a claim that the decision is invalid by reason of jurisdictional error.

The substantive issues on the application for interlocutory injunctive relief

39    Accordingly, the following substantive issues arise (continuing the numbering concerning the procedural issues):

(1)    Is there a serious question to be tried as to the validity of a decision of the CEO?

(2)    If yes to (4), is the balance of convenience in favour of granting injunctive relief?

(3)    If yes to (5), in what terms should the injunction be expressed?

Issue (1): Should Mr Hryniewiecki be appointed as a litigation representative for Amal?

40    On the evidence, Amal is under a legal incapacity. Mr Hryniewiecki consents to being appointed as his litigation representative for the purposes of proceedings under s 39B of the Judiciary Act of the kind I have explained. Mr Hryniewiecki's interest in the proceedings is as a father to Amal. I do not regard the indirect financial interest he has in obtaining funding for supports for Amal to be a reason why he should not be appointed as litigation representative. The Court has explained to Mr Hryniewiecki that he may be liable for the costs of the proceedings if costs orders are made against the applicant. He has filed a submission in which he acknowledges that possibility. After further explanation at the hearing, it was clear that he understood the nature of the liability that may arise.

41    Rule 9.66(3) of the Federal Court Rules provides that a litigation representative who is not a lawyer must be represented by a lawyer. As Mr Hryniewiecki seeks to bring the application as a litigant in person, he must obtain an order dispensing with the requirements of r 9.66(3) in order to do so.

42    There are good reasons why the courts are reluctant to appoint a litigation representative who proposes to act without a lawyer. The court has a concern for ensuring that the interests of the party are properly presented to the Court: Wang v State of New South Wales [2014] NSWSC 909 at [63] (Harrison J), affirmed in Wang v State of New South Wales [2014] NSWCA 373 (Emmett and Gleeson JJA). However, there are instances where there will be injustice to the party because they are otherwise unable to seek relief: Slaveski v Victoria [2009] VSC 596; (2009) 25 VR 160 at [44] (Kyrou J).

43    Given (a) the fact that Mr Hryniewiecki is the appointed nominee for Amal's NDIS plan; (b) the urgency with which the interlocutory relief is sought; and (c) the likelihood that any claim could not be pursued unless Mr Hryniewiecki is allowed to act as a litigant in person in undertaking his role as a litigation representative, and also having informed Mr Hryniewiecki of his liability for costs, I am persuaded that there should be an order appointing him as litigation representative and dispensing with r 9.66(3) for the purposes of the interlocutory application.

Issue (2): Should an order be made that the proceedings continue as an application pursuant to s 39B of the Judiciary Act?

44    In the circumstances I have described, I am persuaded that it is in the interests of justice for orders to be made that would enable the application to proceed as an application pursuant to s 39B of the Judiciary Act for relief against the CEO in respect of the September Plan and the October Plan.

Issue (3): If yes to (2), should the Tribunal be joined as a party to the proceedings?

45    As Mr Hryniewiecki has clarified that no relief is sought against the Tribunal and the complaints he raises concern the conduct of the CEO in relation to the decisions by which the September Plan and the October Plan came into effect, the Tribunal is not a necessary party to the proceedings.

Issue (4): Is there a serious question to be tried as to the validity of a decision by the CEO?

46    As has been explained, the contentions advanced by Mr Hryniewiecki concern the decisions in respect of the September Plan and the October Plan.

47    The October Plan was made under s 48(2) of the National Disability Insurance Scheme Act 2013 (Cth). It is a provision that allows for the reassessment of a participant's plan on the initiative of the CEO or the request of the participant. It is common ground that there was a request made on behalf of Amal. The National Disability Insurance Scheme Rules may set out matters to which the CEO must have regard in deciding whether to reassess and in conducting any reassessment.

48    The October Plan was provided to Mr Hryniewiecki under cover of the following email:

Following the review of Amal's circumstances and verification of proof of identity, a plan reassessment was undertaken to support Amal's transition from school while awaiting formal clinical evidence.

Given the identified change in circumstances, there is a reasonable risk of informal care breakdown. To mitigate this risk while further information clinical evidence is gathered by a new Functional Capacity Assessment, a targeted and time-limited level of support has been included as an interim measure. As a placeholder, this is 30 hours per week on a 1:2 basis for a period of six months.

However, the supports currently being requested are considered excessive and are not proportionate to, nor adequately supported by, the evidence and claims presented. Therefore, only a limited, interim level of funding is considered justified at this stage while further evidence is obtained and assessed by the next approving delegate.

Please engage with the Occupational Therapist to provide a detailed and up to date functional assessment.

49    Plainly, Mr Hryniewiecki disagrees with these assessments. He has deep concerns as to the consequences for Amal. He considers the decision made to be unreasonable. However, in order to demonstrate that the decision exceeds the authority of the CEO, it is necessary to demonstrate a basis for legal unreasonableness. It is a difficult burden, not easily met: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [135] (Edelman J) and Vo v Minister for Home Affairs [2019] FCAFC 108; (2019) 269 FCR 566 at [42]-[43] (Derrington, Banks-Smith and Colvin JJ).

50    Mr Hryiewiecki's contentions failed to demonstrate the basis for a claim of legal unreasonableness. They did not rise above expressing his own disagreement with the CEO's decision. They did not explain why the decision to put in place the October Plan was outside the bounds of the discretionary power entrusted to the CEO. At its highest, the case advanced was to the effect that the CEO had recognised the risk of informal care breakdown and yet had not provided Amal with the same level of support that had been available whilst he attended High School. However, the limited reasons provided indicated that the CEO had considered that risk but had formed the view that the level of supports was 'excessive and are not proportionate to, nor adequately supported by, the evidence and claims presented'. Support that was described as 'targeted' was to be provided pending further assessment.

51    The supports that were to be provided under the October Plan included:

Community, social and civic activities

• Access Community Social and Rec Activ - Standard - Weekday Daytime total $26,488.80

This may include: 30 hours per week for 24 weeks, delivered as a 1:2 support at the rate $36.79

52    Mr Hryniewiecki disputed the claim that the level of support to be funded will enable 30 hours of support to be obtained. He pointed to the rate of funding, the fact that it is not for one on one support and the fact that the overall support is subject to an overall reduction. He says the funding is insufficient to provide the Workpower Support or other one on one support. However, this is to dispute the merits of the CEO's decision. These are not matters which show that the decision is so unreasonable as to be outside the bounds of the CEO's authority. Further, the decision itself contemplates that there will be a further assessment of Amal's needs.

53    As the October Plan replaced the September Plan, no issue could arise as to the legal unreasonableness of the decision concerning the September Plan unless there was some arguable basis for claiming that the October Plan was unlawful.

54    It follows that no arguable basis for relief of the kind alleged had been demonstrated.

55    Even if there was a basis for a claim of legal unreasonableness, it would still have been necessary for Mr Hryniewiecki to demonstrate that relief would not have been refused on discretionary grounds in any event. In the present case there is an avenue for merits review before the Tribunal, an avenue that is being pursued. There is also a statutory regime as to the extent to which the Tribunal can stay a decision pending the merits review. Usually, the availability of merits review would count strongly against the grant of relief on the basis of alleged jurisdictional error. Therefore, had there been a basis for a claim of legal unreasonableness it would have been necessary to consider that aspect in reaching a conclusion as to whether there was an arguable basis for a claim for the purposes of the application for interlocutory injunctive relief.

Issue (5): If yes to (4), is the balance of convenience in favour of granting injunctive relief?

56    As I have concluded that there is no arguable basis for the claim made against the CEO, strictly speaking it is not necessary to consider the balance of convenience. However, I will briefly address the matters raised.

57    Mr Hryniewiecki submitted that Amal may not be safe because there was insufficient funding for him to be adequately supervised. It may be accepted that with the ending of his schooling and the limited funding for the Workpower Support, the hours for which Amal will need to be supervised by one of his parents each week will increase considerably. That will continue at least for the next 6 weeks until the matter is considered by the Tribunal. It may continue for some time after that while the Tribunal considers its decision. The Tribunal may decide that this is appropriate on the merits or it may accept the claims made on Amal's behalf. No doubt the additional burden in the meantime will be keenly felt.

58    The decision of the Tribunal will replace the decision of the CEO as the legally operative decision. Any complaint about the October Plan as being enforced by authority of a decision by the CEO will fall away. The real issue from a balance of convenience standpoint is whether, until then, there is a real risk that the support will not be forthcoming thereby endangering the safety of Amal.

59    The reason advanced as to why the support cannot be provided by Amal's parents is their own disabilities. Reliance was placed on the statement by the CEO in the covering email to the October Plan. It identified 'a reasonable risk of informal care breakdown'. The submissions advanced indicated that the supports approved by the October Plan were insufficient to cover the period when Amal has been supervised whilst at High School. Further, there is a shortfall that will require supervision of Amal by his parents.

60    The position of the CEO was that issues as to the safety of Amal have been evaluated and any claim that his safety will be put at risk is disputed.

61    However, in circumstances where the risk of informal care breakdown has been recognised by the CEO, I am persuaded that the level of funding now being provided exposes Amal to a risk that he will not be provided with adequate care by reason of the disabilities of his parents. I make that finding only for interlocutory purposes and in circumstances where the evidence as to these matters is in dispute and has not been tested. I also do so in circumstances where there is a dispute as to whether the funding that has been approved will enable care to be arranged for Amal for up to 30 hours per week.

62    Separately, it was alleged that the reduced level of funding 'will cause irreversible [behavioural] and functional regression'. The basis for this submission was not developed. Some submissions were advanced concerning the importance of speech therapy for Amal's ability to communicate his needs using an Augmentative and Alternative Communication Device or AAC device. No doubt Mr Hryniewiecki has concerns about the consequences for Amal's communication if the supports are not continued. However, in the absence of any evidence of a professional to support the submission, I am unable to reach any conclusion as to whether such consequences are likely in the time until the Tribunal's decision (or a decision by this Court).

63    Mr Hryniewiecki submitted separately that the reduction in funding for speech therapy and the removal of funding for physiotherapy on the basis that these services were not having demonstrated effect was not soundly based and that Amal's care would be compromised if he could not access these services pending any decision by the Tribunal. He also explained how it was difficult to establish access to these services. Having regard to the limited period of time until a decision will be made by the Tribunal on the merits of these claims, I am not persuaded that these particular alleged consequences weigh significantly when it comes to assessing the balance of convenience.

64    On the other side of the balance is the fact that orders requiring the provision of supports of the kind sought would result in cost to the NDIS that might not be able to be recovered in the event that the Tribunal does not uphold the claims being made on the merits review application. By reason of the public nature of the source of funding and the legislated need to maintain the financial viability of the NDIS these consequences must be evaluated on the basis that they might be multiplied to a considerable extent by the precedent they may set for such circumstances.

65    Nevertheless, had there been an arguable basis for relief, on the basis of the evidence as at the time of the hearing I would have been persuaded that the risk of informal care breakdown and the consequences for Amal meant that the balance of convenience was in favour of the grant of injunctive relief.

Issue (6): If yes to (5), in what terms should the injunction be expressed?

66    Again, having regard to the conclusion I have reached as to the legal basis for the claim, this issue does not arise. However, I will address the issue briefly.

67    On the final hearing of an application for review of the decisions as to the October Plan and the September Plan for alleged jurisdictional error, the Court may reach the conclusion that those decisions are invalid and therefore must not be given effect. However, a decision of that kind would not mean that the Court could require the provision of the New Supports. Rather, it would mean that the CEO would be required to consider and make a new decision on the application that had been made in October 2026 to vary the terms of Amal's plan. In the meantime, it may be that an earlier plan would apply. However, as has been explained, the August Plan had been approved on the basis that Amal was attending High School and did not provide for the New Supports.

68    Ultimately, the authority to decide the nature and extent of the supports to be provided to a participant in the NDIS is a matter for the CEO. Statutory discretions as to the extent of those supports are entrusted to the CEO. It is not for this Court to usurp that authority and make a decision as to the extent of those supports. Unless it could be demonstrated that, on a proper construction of the statutory provisions to be applied by the CEO, particular supports were required to be provided or that no reasonable decision could be made that would decline to provide those supports, then relief requiring their provision could not be granted. No claim of that kind was made. Therefore, even if I had been persuaded that there was an arguable basis for the claim of alleged legal unreasonableness, I would not have been persuaded that it was appropriate to grant interlocutory injunctions in the terms sought. That is because injunctions in those terms could not be justified on the basis of the nature of the final relief that was available nor on the basis of the preservation of the subject matter of the litigation.

Conclusion and orders

69    For the reasons given, the procedural orders I have indicated should be made but the application for interlocutory injunctive relief must be dismissed. In the course of the hearing, I indicated to the parties that I would give them an opportunity to make submissions as to costs. I will make orders for short written submissions and for the issue of costs to be determined on the papers, unless otherwise ordered.

Associate:

Dated:    2 November 2026