Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 3) [2023] FCA 960

Federal Court of Australia

Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 3) [2023] FCA 960 Review of: Isherwood and National Disability Insurance Agency [2021] AATA 3061

File number: SAD 181 of 2021

Judgment of: COLVIN J

Date of judgment: 14 August 2023

Division: General Division

Registry: South Australia

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 5

Date of hearing: Determined on the papers

Counsel for the Applicant: Dr SC Churches

Solicitor for the Applicant: Wearing & Blairs

Counsel for the Respondent: Mr PH d'Assumpcao

Solicitor for the Respondent: HWL Ebsworth Lawyers

ORDERS SAD 181 of 2021

BETWEEN: THE PUBLIC TRUSTEE OF SOUTH AUSTRALIA AS LITIGATION REPRESENTATIVE FOR FELICITY ISHERWOOD Applicant

AND: NATIONAL DISABILITY INSURANCE AGENCY Respondent

order made by: COLVIN J DATE OF ORDER: 14 August 2023

THE COURT ORDERS THAT:

1. The application to vary the order as to the costs of the proceedings be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J: 1 The Public Trustee of South Australia as litigation representative for Ms Felicity Isherwood sought review of a decision by the Administrative Appeals Tribunal concerning the extent of the reasonable and necessary supports that will be funded under the National Disability Insurance Scheme. One of the grounds raised by the application (being ground 1) concerned whether the Tribunal had afforded natural justice to Ms Isherwood by relying upon additional medical reports without affording Ms Isherwood an opportunity to challenge or respond to the aspects of those reports that were relied upon by the Tribunal in its reasons. It was upheld. A number of other grounds were raised, including a claim that the Tribunal erred by requiring that there be 'independent, objective and current' evidence to support the formation of the required state of satisfaction (being ground 4 in the amended notice of appeal). None of the other grounds were upheld. 2 The submissions as to ground 4, and related grounds concerning the approach by the Tribunal to what was relevant, occupied a considerable amount of the written and oral submissions. They required consideration of legal principles that were entirely separate to those that arose in relation to ground 1. With respect, the formulation of the other grounds paid insufficient regard to the need to identify reviewable error as distinct from a complaint about the Tribunal's factual reasoning. A number of the grounds were found to misunderstand the relevant principle or to be misconceived. 3 I made a provisional determination that the appropriate order as to costs was that the respondent pay 60% of the costs. I reserved liberty to the applicant or the respondent to apply to vary the costs order. The applicant has exercised that liberty and seeks an order that the respondent pay 100% of the costs. 4 It may be accepted that the starting point for assessing costs is that the party who is successful as to the outcome is entitled to costs unless there is good reason for a different form of order. In the present case, for reasons that have been given, there is good reason for a different form of order. 5 For those reasons, I am not persuaded that the order as to costs should be varied. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.