National Disability Insurance Agency v McGarrigle [2017] FCAFC 132

FEDERAL COURT OF AUSTRALIA

National Disability Insurance Agency v McGarrigle [2017] FCAFC 132 Appeal from: McGarrigle v National Disability Insurance Agency [2017] FCA 308

File number: VID 388 of 2017

Judges: KENNY, ROBERTSON AND KERR JJ

Date of judgment: 21 August 2017

Legislation: National Disability Insurance Scheme Act 2013 (Cth)

Date of hearing: 21 August 2017

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 8

Counsel for the Appellant: Mr S Lloyd SC with Mr J King

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr C Horan QC with Ms A Wong

Solicitor for the Respondent: Victoria Legal Aid

ORDERS VID 388 of 2017

BETWEEN: NATIONAL DISABILITY INSURANCE AGENCY Appellant

AND: LIAM MCGARRIGLE Respondent

JUDGES: KENNY, ROBERTSON AND KERR JJ DATE OF ORDER: 21 AUGUST 2017

THE COURT ORDERS THAT:

1. Leave be refused to the appellant to amend its notice of appeal. 2. The appeal be dismissed. 3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

THE COURT: 1 In form the present question is whether the appellant should be granted leave to amend its notice of appeal. In substance the appellant wishes to raise for the Full Court's determination an argument that was not argued before the Administrative Appeals Tribunal (the Tribunal) or before the primary judge. 2 It was common ground before this Court that the decision of the Tribunal should be set aside for legal error, as the primary judge ordered. The parties' competing contentions centred on paragraph [95] of the reasons for judgment of the primary judge: see McGarrigle v National Disability Insurance Agency [2017] FCA 308. In particular, the parties' arguments raised the question whether in that paragraph her Honour should be taken to have said that in every case where a support was reasonable and necessary, it must be fully funded. 3 We do not read her Honour as establishing a two stage process to determine whether objectively a support was reasonable and necessary and secondly and consequentially that it must be fully funded. Rather, we consider that her Honour was addressing the particular way in which the argument was formulated before her. This was not, however, an argument supported by either party on this appeal. We do not consider that her Honour was departing from the statutory language in s 33(2)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) that a "participant's plan must include a statement... approved by the CEO" specifying "the reasonable and necessary supports ... that will be funded under the National Disability Insurance Scheme". The same or similar expressions appear elsewhere in Div 2 of Pt 2 of the Act: see for example ss 34 and 35 of the Act. 4 It was also common ground before us that the operation of the Act was particularly fact dependent and that the parties' competing arguments presently sought to be made should be assessed in that context, including with regard to the specific circumstances of an individual participant. 5 To avoid doubt, we note it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded. We express no view on this issue. Its resolution will turn on the Tribunal's assessment of the evidence and materials before it. 6 For these reasons we would make the following orders: 1. Leave be refused to the appellant to amend its notice of appeal. 2. The appeal be dismissed. 3. There be no order as to costs. 7 We note the appellant has agreed to pay the respondent's reasonable costs of, and incidental to, the appeal, whatever its outcome. 8 Given the potential systemic importance of the issues sought to be raised before the Tribunal, the President of the Tribunal may wish to consider constituting a three-person Tribunal, including a Presidential Member. The appellant Agency may also consider it desirable to notify interested representative bodies that might seek leave to be involved in the proceeding. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Robertson and Kerr.