Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852

Federal Court of Australia

Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 Review of: Isherwood and National Disability Insurance Agency [2021] AATA 3061

File number: SAD 181 of 2021

Judgment of: COLVIN J

Date of judgment: 28 July 2023

Catchwords: ADMINISTRATIVE LAW - appeal under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) for judicial review of decision of the Administrative Appeals Tribunal - where the Tribunal affirmed the challenged decisions of the National Disability Insurance Agency - where various grounds alleged - where ground one alleged a failure to afford natural justice - where reports considered by Tribunal after oral hearing without any ability for the applicant to make submissions in relation to them - consideration of materiality when lack of procedural fairness - consideration of meaning of reasonable and necessary support - consideration of decision making process in s 34 of the National Disability Insurance Scheme Act 2013 (Cth) required by the Act - ground one upheld - other grounds dismissed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 39, 44 National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 6, 13, 32, 33, 34, 36, 99, 100, 103, 202, 209 National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) r 3.2

Cases cited: Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 213 FCR 345 Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335 Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Nathanson v Minister for Home Affairs [2022] HCA 26 National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181 National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 241 CLR 320 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Repatriation Commission v O'Brien (1985) 155 CLR 422 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15