Federal Court of Australia

Kapoor v Chief Executive Officer, National Disability Insurance Agency (No 2) [2026] FCA 1684

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

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

REASONS FOR JUDGMENT

STEWART J:

Background

1    The applicant commenced this proceeding by filing a notice of appeal from a decision of the Administrative Review Tribunal. The relevant decision, given on 15 May 2026 at Melbourne, was “to grant the Respondent leave to inspect the Applicant’s private medical records produced under summons”.

2    The reasons for the decision reveal that the applicant, Mr Kapoor, had filed an application with the Tribunal seeking the review of the decision of a delegate of the Chief Executive Officer of the National Disability Insurance Agency approving a statement of participant supports. Mr Kapoor contends before the Tribunal that various forms of support that he requires and should be granted were denied by the Agency. The relief that he seeks in the Tribunal is that he is granted those forms of support.

3    In dealing with the review proceeding before it, the Tribunal, on the application of the Agency, issued summonses to several medical practices, medical centres and hospitals where the applicant had received medical treatment. The summonses were for the production of medical records relating to Mr Kapoor.

4    Then, against the objections of the applicant, the Tribunal granted leave to the Agency to inspect those documents pursuant to s 78 of the Administrative Review Tribunal Act 2024 (Cth). That is the decision of the Tribunal from which the applicant sought to appeal under s 172 of the that Act.

5    I struck out the notice of appeal from an interlocutory decision of the Tribunal as incompetent, but I granted Mr Kapoor leave to file an originating application for judicial review under s 39B of the Judiciary Act 1903 (Cth) and an amended statement of claim or a concise statement: Kapoor v Chief Executive Officer, National Disability Insurance Agency [2026] FCA 1058.

6    Mr Kapoor availed himself of that opportunity. The parties agreed that the matter could be determined on the papers following the exchange of evidence and written submissions. I have considered the originating application and concise statement, Mr Kapoor’s affidavit of 15 June 2026, Ms Pan’s affidavit 13 October 2026, Mr Kapoor’s submissions dated 17 September 2026, the first respondent’s submissions dated 13 October 2026 and Mr Kapoor’s submissions in reply dated 14 October 2026.

The claim

7    Mr Kapoor seeks orders quashing the Tribunal’s decision and a prohibition or injunction restraining the Agency and the Tribunal from giving effect to or relying upon the decision. By his concise statement, Mr Kapoor claims that the decision to grant the Agency access to his medical records is affected by jurisdictional error because:

(1)    he was not afforded procedural fairness as he was “totally medically incapacitated and unable to meaningfully participate”;

(2)    the Tribunal did not properly consider his medical incapacity and serious risk of harm from the disclosure of his medical records – he identifies this harm as “serious and ongoing” including the significant exacerbation of his conditions;

(3)    it was legally unreasonable; and

(4)    the Tribunal failed to take into account relevant considerations, including his “disability, incapacity, privacy rights, and the requirements of the Privacy Act 1988 (Cth) and the Disability Discrimination Act 1992 (Cth)”.

8    I will refer to the grounds in accordance with the above numbering.

Mr Kapoor was afforded procedural fairness

9    Mr Kapoor submits that he was not provided a real opportunity to be heard nor were reasonable adjustments made to allow him to participate in relation to the decision. Mr Kapoor also submits that the Tribunal “faulted the applicant” by granting “immediate, unfettered inspection” of his medical documents. He submits that he was penalised “on the papers for not completing a complex redaction schedule” whilst he was totally medically incapacitated, and this was a denial of a real opportunity to be heard.

10    It is well established that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26].

11    In this case the relevant facts are that Mr Kapoor first objected to the Tribunal issuing the summons and, following a hearing at which he appeared, the summonses were issued. He then sent numerous emails to the Tribunal outlining the reasons why he objected to the Agency inspecting his documents, including on:

(1)    15 April 2026, in which Mr Kapoor complained of “Unauthorised Data Harvesting”, a “fishing expedition”, “high-handed privacy breach” and “Clinical Victimization”;

(2)    20 April 2026, with the heading “submission in support of objection to inspection of summonsed material” in which he identified that he objected to the inspection of all the material on the basis that it lacked forensic relevance, the entities were coerced, and that the process had occurred whilst he was bedbound and pharmacologically impaired;

(3)    29 April 2026, providing further submissions in support of a “motion for permanent blocking of inspection” and attaching a medical certificate following a telephone consultation which stated that Mr Kapoor had fractured ribs from a fall causing pain and preventing him taking deep breaths as well as a toe fracture. The practitioner stated that he did not “feel [Mr Kapoor] will be able to participate in at least 8 weeks of hearing and the subsequent administrative demands”. Following this email, the Tribunal vacated the hearing of his objection; and

(4)    three occasions on 4 May 2026, maintaining his “total and permanent objection to the release of the summonsed material” and providing various submissions in support of that objection.

12    In the first email on 4 May 2026, Mr Kapoor pressed for the Tribunal to make an immediate determination of his application on the papers as “any further delay would result in death” and it had “all necessary evidence” before it. The Agency then wrote to the Tribunal and Mr Kapoor consenting to the matter being determined on the papers, but it pressed for access to Mr Kapoor’s summonsed medical records for that purpose, noting that it may infringe the respondent’s rights to procedural fairness to deny such access.

13    At this point Mr Kapoor was on notice that the Agency still pressed for leave to inspect his medical records and that the resolution of that matter would come before the resolution of his substantive claim. Mr Kapoor responded to that email again insisting on an “immediate determination” and stated that “both parties have now consented to a decision on the papers” and signed off his email “I am unable to engage further. Please Grant the orders” (emphasis in original). Six days later, on 18 May 2026, the Tribunal emailed the parties its decision allowing the Agency to inspect Mr Kapoor’s summonsed medical records.

14    The question then is whether, by that process, Mr Kapoor was denied procedural fairness. In the circumstances, the Tribunal made reasonable adjustments to allow Mr Kapoor to be heard, and indeed he was. This is acknowledged in the Tribunal reasons where the Tribunal makes clear that it took steps to accommodate Mr Kapoor’s claims of medical incapacity (at [17]-[19]) and that it had received and considered his various submissions in support of his objection to the Agency inspecting the summonsed records (at [20], [24]).

15    The evidence demonstrates that the Tribunal gave Mr Kapoor the opportunity to make submissions in relation to his objection to the Agency inspecting the medical records and he did so. When informed of his hospitalisation, the Tribunal took steps to accommodate him and adjourned the hearing of his objection. On multiple occasions he insisted that the Tribunal deal with his matter urgently, as any further delay was a “death sentence”, and asked that the substantive matter be dealt with on the papers. Mr Kapoor was on notice that his objection to the Agency inspecting the medical records was still a live dispute, and he maintained his claims that the matter be dealt with urgently and on the papers.

16    Procedural fairness would require, for both parties, the opportunity to “put forward information and submissions to the decision-maker in support of an outcome that supports his or her interests”: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCAFC 293; 49 FCR 576 at 591-592 per Northrop, Miles and French JJ. To have resolved Mr Kapoor’s substantive claim without first having resolved the Agency’s request to inspect the documents may well have denied the Agency procedural fairness. In circumstances where Mr Kapoor pressed for the urgent resolution of his claim, provided extensive submissions in relation to his objection, and consented to the substantive matter being determined on the papers, he was not denied procedural fairness by the Tribunal deciding his objection on the papers.

17    Relevant to this ground, and ground 3 to which I will come, is Mr Kapoor’s claim that he was “totally incapacitated” and thus unable to adequately or properly participate in the Tribunal’s procedure in relation to the decision in question. I reject that claim. The correspondence traversed above demonstrates that Mr Kapoor was well able to, and did, prepare and submit frequent written submissions to the Tribunal – often on the same day as he received the correspondence or submissions to which he was responding. Further, such medical evidence as he adduced does not support a finding of incapacity to participate in the process.

18    Accordingly, ground 1 fails.

Mr Kapoor’s circumstances were considered

19    By grounds 2 and 4 Mr Kapoor claims that the Tribunal failed to consider his medical incapacity and the serious risk of harm from disclosure of highly sensitive private medical and psychiatric records.

20    The Tribunal appreciated that Mr Kapoor may consider some of his medical records to be private and sensitive and that others reading them may be distressing to him (at [27]). However, the Tribunal also noted that in bringing a claim in the nature of Mr Kapoor’s means that his personal information will sometimes need to be disclosed if the information in those records is relevant to the proceeding and may assist in the resolution of issues in dispute (at [27], [29]).

21    Mr Kapoor submits that he put to the Tribunal that the stress of disclosure directly contributed to his cardiac instability and worsening disabilities. However, that claim fails as he did not make a “clearly articulated” representation (as referred to in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [25]) to the Tribunal that he would suffer some further harm should the material be inspected such that it was necessary for the Tribunal to explicitly consider that claim. The evidence is that Mr Kapoor submitted to the Tribunal that the “harvesting” of the material was a “primary driver of (his) cardiac instability”. That is to say, the harm had already occurred. It is not apparent that Mr Kapoor made any claim that some additional harm would follow from the Agency being granted leave to inspect the medical records. To the extent that Mr Kapoor claimed generally that the inspection of the summonsed material would be bad for his mental health and exacerbate pre-existing issues, the Tribunal broadly considered the impact on Mr Kapoor’s wellbeing should the Agency inspect the documents (at [27]).

22    Accordingly, grounds 2 and 4 fail.

The decision is not unreasonable

23    Mr Kapoor claims that there was no “evident and intelligible justification” to grant the Agency leave to inspect the documents when he was “totally incapacitated, ha(d) objected on that basis, and when substantial relevant evidence is already before the Tribunal”. Mr Kapoor says that because the Tribunal issued directions on 15 May 2026 (ie the day of the decision) excusing him from taking substantive steps until July 2026, there was no evident or intelligible justification to also order immediate unredacted inspection of the medical documents before he was fit to propose redactions.

24    The case law is clear that there is a high bar to establishing legal unreasonableness. It is sufficient to recognise, with reference to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541, that the test for unreasonableness is “necessarily stringent” because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion (at [11] per Kiefel CJ), a decision-maker will be found to have abused their statutory power if their decision “lacks an evident and intelligible justification” including where the decision “is one which no reasonable person could have arrived at” (at [10] per Kiefel CJ), or if their decision “does not fall within the range of possible outcomes which are defensible in respect of the facts and law” (at [82] per Nettle and Gordon JJ). Necessarily, determining whether this has occurred will depend on the facts and statutory context of each individual case (at [84] per Nettle and Gordon JJ). The standard of legal reasonableness can be expressed as “the minimum to be expected of any reasonable repository of the power” in the circumstances of the impugned decision or action (at [52] per Gageler J).

25    The Tribunal’s decision does not rise to the level of legal unreasonableness.

26    Mr Kapoor’s substantive claim before the Tribunal is for the Agency to provide further measures in his approved statement of participant supports. Mr Kapoor’s medical records are plainly relevant to that claim. The Agency is entitled to put relevant evidence before the Tribunal, including in order to test or challenge Mr Kapoor’s claims, and it is not for Mr Kapoor to decide unilaterally what evidence is sufficient to enable the Tribunal to make a decision.

27    On 17 April 2026, the Tribunal made directions granting Mr Kapoor access to the medical records that had been produced under summons. That was to enable him to propose redactions to the records on the basis of lack of relevance. The directions were emailed to him on the same day and included detailed instructions on how to object to the Agency being granted access to the records. Mr Kapoor replied to that email on 20 April 2026, establishing that he had received it, and articulated his objections to the Agency being granted any access to the records. There can be no doubt, however, that he was given the opportunity to propose redactions to the records.

28    Reading Mr Kapoor’s submissions favourably, he may be taken to submit that should the Tribunal have been minded to grant leave to inspect the documents, he should have been given a further opportunity to propose redactions once he was fit to do so. It was open to the Tribunal to proceed in the manner contemplated by Mr Kapoor. However, in circumstances where Mr Kapoor had not put that submission to the Tribunal, had provided extensive submissions opposing any inspection and continually pressed for the matter to be resolved urgently, it was not unreasonable for the Tribunal to have made the decision to grant leave to the Agency to inspect the documents immediately. That is to say, it is not a decision that no reasonable person could have arrived out or one that falls outside the range of possible defensible outcomes.

29    To the extent that Mr Kapoor maintained the documents are irrelevant or for whatever reason should not be given any weight, then, as recognised by the Tribunal (at [30]), he is free to make submissions about those matters in the usual way in the lead up to, and at, the substantive hearing of his application.

30    Accordingly, ground 3 fails.

Disposition

31    The proceeding should be dismissed. The first respondent has not sought a costs order.

Associate:

Dated:    11 November 2026