NDIS - access - failure to appear - application dismissed under s 99 Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

1. This is an application for a review of a decision made by a delegate on 6 December 2023 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), confirming a decision made on 29 August 2023 to refuse the Applicant's access to the National Disability Insurance Scheme (NDIS).
2. On 12 December 2023 the Applicant lodged the application for review with the Administrative Appeals Tribunal (AAT).
3. On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
4. The Applicant was born on 21 June 1960 and is now 65 years of age.

1. On 11 October 2024 and on 16 January 2025 the parties appeared at directions hearings before the Tribunal.
2. On 11 February 2025, the Tribunal notified the parties that a hearing was listed on 11 and 12 June 2025. The listing notice was sent to the Applicant's then representative.
3. On 18 March 2025, the Applicant's then representative notified the Tribunal that he had ceased representing the Applicant.
4. On 29 May 2025, the Respondent informed the Tribunal Registry that unsuccessful attempts had been made to contact the Applicant for hearing preparation.
5. On 30 May 2025 the Tribunal was informed that a Tribunal Officer had contacted the Applicant on his mobile telephone and that the Applicant indicated that he did not wish to proceed with his application due to his inability to obtain legal representation.
6. On 2 June 2025, the Tribunal notified the parties that a directions hearing was listed on 5 June 2025. The Tribunal was informed that a Tribunal Officer had spoken to a person who answered the Applicant's mobile telephone number and identified themselves as the Applicant's friend and said that the Applicant was in hospital.
7. On 5 June 2025, the Applicant failed to appear at the telephone directions hearing. A Tribunal Officer attempted to call the Applicant on his mobile telephone number before and during the hearing. The Tribunal vacated the hearing listed on 11 and 12 June 2025.
8. On 6 June 2025, the Tribunal notified the parties that a directions hearing was listed on 26 June 2025.
9. On 11 June 2025, the Tribunal Registry wrote to the Applicant with information about the hearing process, supports available and the withdrawal process.
10. On 20 June 2025, the Tribunal was informed that a Tribunal Officer had spoken to a person who answered the Applicant's mobile telephone and identified themselves as the Applicant's friend and said that the Applicant was still in hospital.
11. On 26 June 2025, the Applicant failed to appear at the telephone directions hearing. A Tribunal Officer attempted to contact the Applicant by calling his mobile telephone number.
12. On 27 June 2025, the Tribunal notified the parties that a dismissal hearing was listed on 28 August 2025. The Tribunal sent the listing notice by regular post to the Applicant's home address.
13. On 18 August 2025, the Tribunal was informed that a Tribunal Officer has spoken to the Applicant who indicated that he thought that he had withdrawn his application and said that he would attend the hearing to explain his situation to the Tribunal.
14. The Applicant failed to appear at the dismissal hearing on 26 August 2025. A Tribunal Officer attempted to contact the Applicant by calling his mobile telephone number before and during the hearing.

1. Counsel for the Respondent, Mr Schatz, submitted that the Respondent did not seek dismissal of the application, but did not object to the Tribunal's dismissal of the application.
2. Mr Schatz submitted that

(a) the Respondent had attempted to contact the Applicant on 28 July 2025, 6 August 2025 and on 13 August 2025, without success > > (b) the Applicant has recently turned 65 years of age so it may be that he is able to access aged care services > > (c) if the application is dismissed, the Applicant may seek reinstatement under s 102(7) of the ART Act.

1. Section 99 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) states:

If: > > (a) the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and > > (b) the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event; > > the Tribunal may dismiss the application. > > Note 1: Tribunal case events include hearings, direction hearings and dispute resolution processes (see the definition of Tribunal case event in section 4) > > Note 2: For how to appear at a Tribunal case event, see section 73_._

2. Section 4 of the ART Act defines 'Tribunal case event', in relation to a proceeding before the Tribunal, to mean, amongst other things: 'the hearing, or part of the hearing, of the proceeding' and 'a directions hearing...in relation to the proceeding'.

1. I am satisfied that the Applicant failed to appear at a Tribunal case event that related to a proceeding in relation to an application for the purposes of s 99(a) of the ART Act, because the Applicant failed to appear at the hearing on 28 August 2025.
2. I am satisfied that the Applicant received appropriate notice of the date, time and place of the Tribunal case event for the purposes of s 99(b) of the ART Act because:

(a) the Tribunal Registry sent a listing notice to the Applicant by email and by regular post. > > (b) a Tribunal Officer telephoned and spoke to the Applicant on 18 August 2025 confirming the date and time of the hearing and informed him that the Tribunal would contact him on his mobile telephone for the hearing.

3. In these circumstances, I dismiss the application under s 99 of the ART Act.
4. The Applicant may apply to the Tribunal for reinstatement of the application within 28 days after receiving notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows): s 102(7) of the ART Act.
5. If the Tribunal considers it appropriate, the Tribunal may reinstate the application and make such order as appear to the Tribunal to be appropriate in the circumstances: s 102(9) of the ART Act.

1. The Tribunal dismisses the application for review under s 99 of the ART Act.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for the decision herein of Senior Member C Shepherd.

Mr Andrew Schatz, instructed by Moray & Agnew Lawyers