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[2025] FCA 628
respondent. The originating application was dismissed, the applicant was ordered to pay the respondent’s costs as agreed or assessed, and the time for filing a notice of appeal was extended to 28 days after...
The Court dismissed the provider's challenge. Putting the provider on manual payment review changed how the NDIA checked its claims, but did not itself decide a legal right. The provider also did not show that the NDIA's January decisions were made unfairly or through an established legal error. Although the remaining claims had taken time to process, the evidence showed a large review workload, limited resources and continuing progress. The Court therefore did not order the NDIA to decide the remaining claims within a court-set time.
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3 cited instruments linked from this judgment.
2,385 words · generated 02/10/2026
Maysan Holdings Pty Ltd traded as Support Services for NDIS, or SSNDIS, and was a registered provider under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). Its application concerned three connected matters: the NDIA's decision to place it on manual payment review, the rejection of thousands of claims, and the time taken to process further claims.
The NDIA placed SSNDIS on manual payment review on 23 July 2024, after the Fraud Fusion Taskforce asked the Review Team to begin reviews of claims submitted by the provider. Under the process described in the evidence, claims normally passed through an electronic risk assessment and claims without identified risk factors were generally paid automatically within two to three days. Manual review instead involved an officer assessing each claim, potentially seeking more information and deciding whether the claim should be paid or rejected.
The NDIA sent SSNDIS a series of requests for information about claims lodged from July 2024 onwards. Earlier proceedings resulted in consent orders on 5 December 2024. Those orders quashed an earlier decision relating to one group of claims because of a failure to afford procedural fairness and required the NDIA to decide identified groups of claims within 28 days.
On 17 December 2024, the NDIA invited SSNDIS to comment on concerns about claims and to provide further information. On 2 January 2025, the NDIA notified SSNDIS that it had decided 6,575 claims: 213 were found payable and 6,362 were found not payable. Some further groups of claims remained under consideration by the time of the hearing. The judgment records determinations and payments in some groups, invitations to comment in others, and claims still being assessed.
SSNDIS sought review under the ADJR Act. It asked the Court to set aside the manual payment review decision and the 2 January decisions, declare that there had been unreasonable delay, and require decisions on outstanding claims. Kennett J dismissed the application. The central distinction was between practical hardship, which the provider had shown, and the legal conditions for the particular forms of judicial review relief it sought.
The manual payment review challenge failed at the threshold. The ADJR Act applies to a decision made under an enactment, and the authorities discussed in the judgment require the decision to have the relevant legal effect. Kennett J treated the manual review decision as an internal preliminary choice about how the NDIA would carry out its assessment task. Neither the NDIS Act nor its rules gave a provider rights concerning the technology used or the depth of analysis applied to individual claims. The review process had significant practical consequences for SSNDIS, but it did not itself determine the legal status of a claim. The Court therefore held it was not a reviewable decision and certiorari could not usefully quash it (paras [36]-[42]).
The Court did not decide whether the 2 January decisions were reviewable under the ADJR Act as a matter of first principle. Kennett J noted that the statutory character of the payability function under s 45 was not straightforward. However, both parties argued on the basis that Northern Disability Services had correctly treated such a determination as reviewable, and the Court proceeded on that agreed footing (para [46]). That point matters when describing the judgment: it accepted the premise for the proceeding, rather than resolving the broader statutory question afresh.
The procedural fairness challenge failed because the Court found no demonstrated issue that the applicant had been unable to address. The letter of 17 December explained the general substance of the tip-offs and identified concerns about whether supports had been provided and whether the submitted material supported payment. It invited SSNDIS to comment and provide any further material it considered relevant. The Court accepted that six days was short, but considered the period in the context of the deadline imposed by consent orders, the applicant's response date and the Christmas-New Year period (paras [50]-[62]).
The Court also distinguished between disclosing the concerns that mattered to a decision and revealing the decision maker's provisional thinking. Relying on Alphaone, Kennett J said the applicant had to be directed to critical issues or factors likely to affect the result, but the NDIA was not required to disclose what it was minded to decide or provide a running commentary on its evaluation of evidence. The outcome letter identified deficiencies such as missing basic documents, missing information about participants or support types, and contradictions in material submitted. The Court was not shown an unanticipated issue or an unheralded conclusion (paras [58]-[59]).
The Court considered the ability to submit a fresh claim with additional material relevant to procedural fairness. On the NDIA's stated understanding of the scheme, rejection did not prevent later resubmission with supporting material. The Court therefore viewed the process as potentially continuing in stages, rather than treating every rejection as the end of all consideration of the claim. It also considered the compressed timetable created by the consent orders (paras [61]-[62]).
The remaining legal-error arguments also failed. The applicant's contention that the decision maker required too much proof was, in one form, a disagreement with the merits. In its legal form, the argument raised the question whether the decision maker had applied a legally impermissible standard of satisfaction. Kennett J explained that administrative satisfaction involves actual persuasion, but ordinary concepts of onus and standards of proof, such as the balance of probabilities, do not govern its formation. The decision maker may assess the material within the bounds of rationality and procedural fairness (paras [64]-[68]).
The evidence did not show that the NDIA had applied an unlawfully high threshold. The outcome letter recorded that 213 claims were accepted and explained why other claims were rejected. It referred to information provided by the applicant, including material sent in December. The Court also found no adequate evidence that the decision maker ignored the material, or that the provider's guidelines contained a promise that specified documents would necessarily secure payment (paras [68]-[76]).
Finally, the Court declined to order decisions on outstanding claims. The governing question was whether the claims had not been decided within a reasonable time. The standard was objective, depended on the statutory scheme and all the circumstances, and included consideration of agency resources. The Court treated mandamus for delay as requiring a high threshold: the delay had to be unjustified or capricious, or associated with neglect, oversight or perversity (paras [78]-[82]). Here, thousands of claims required manual review, the Review Team had limited capacity, and evidence showed progress on some claims. The judgment also recognised both efficient payment and the integrity and financial sustainability of the NDIS as relevant features of the scheme (paras [83]-[88]).
The judgment did not announce a new general rule that manual payment review is always outside judicial review. Its conclusion concerned this manual review decision and the statutory framework before the Court. The reasoning was that the decision altered the NDIA's internal process for assessing claims, rather than determining rights under the NDIS Act. The practical effect on a provider did not, by itself, satisfy the legal-effect requirement associated with review under the ADJR Act.
Nor did Kennett J finally resolve whether all decisions about whether an NDIS claim is payable are reviewable under the ADJR Act. The Court described the legal character of the s 45 function as “nebulous” and said it would otherwise be arguable that the NDIA's assessment did not determine whether an amount was legally payable. But Northern Disability Services had held that s 45 required a substantive determination, and both parties relied on that position. The Court therefore proceeded without questioning it (para [46]). The judgment leaves that issue open in the terms expressly stated by the judge.
For procedural fairness, the judgment applies established, context-specific principles rather than changing them. The decision maker must identify critical issues that the affected person could not reasonably anticipate, but need not disclose a provisional conclusion or narrate its evolving reasoning. The practical ability to provide further material later and the decision timetable were part of the context, not universal rules that every rejection is procedurally fair.
On delay, the judgment applies the Full Court's discussion in Patrick and the approach drawn from Thornton. It emphasises that the reasonableness of delay is assessed in context, including the statutory scheme, resources and progress. It does not establish a fixed permissible processing period for NDIS claims. Nor does it hold that workload alone will always justify delay: the Court considered workload alongside the number of claims, team resources, evidence of progress, scheme integrity and the absence of a claim that the review decision was irrational or capricious.
Manual payment review and legal rights. The Court said the decision to put the applicant under manual payment review was not the kind of decision described by the ADJR Act (para [40]). In plain English, the fact that the review process made it harder and slower for this provider to receive payments did not mean that the process decision itself legally changed the provider's rights.
Procedural fairness. The applicant had to be told about “critical issues or factors on which the decision was likely to turn” (para [58]). In plain English, a decision maker must give a person a meaningful chance to address important adverse matters, but is not generally required to show its working as it goes or disclose a draft decision.
Administrative satisfaction. The Court explained that satisfaction means an actual state of persuasion, but is not formed by applying a conventional legal standard such as the balance of probabilities (para [66]). In plain English, the question is whether the decision maker was actually persuaded on the relevant material, not whether the provider or agency met a courtroom-style burden of proof. The judgment also recognises that the decision maker remains subject to rationality and procedural fairness.
Delay and mandamus. The Court said a party seeking mandamus for delay faces a “high hurdle” where the delay must be shown to be unjustified and not capricious (para [82]). In plain English, slow processing alone will not necessarily justify a court order. The reason for the delay and the surrounding administrative context matter.
The decision is most directly relevant where an NDIS provider challenges a process decision that changes how the NDIA checks claims, rather than a decision that directly determines a claim or a legal right. The key question, on Kennett J's reasoning, is whether the impugned step has legal effect under the statute or is instead an internal preliminary arrangement with practical consequences.
It is also relevant where a provider challenges a large group of claim rejections through broad allegations but does not identify representative claims, categories, or evidence showing how the decision maker erred. Kennett J stressed that the 6,362 rejected claims were individual decisions, and the Court could not be expected to examine thousands of pages of records and construct the applicant's case. The reasoning therefore highlights the evidentiary importance of connecting a claimed legal error to the actual decisions and material.
The procedural fairness analysis may be relevant where an agency has invited a response to identified concerns, the affected person argues that it needed more detail or time, and the process occurs under a compressed statutory or court-imposed timetable. The judgment does not say that short timeframes are automatically fair. It evaluates the invitation, the issues raised, the response, the timetable, and the possibility of further submissions as a whole.
The delay analysis is relevant to applications seeking an order compelling an agency to make decisions where there is no express statutory deadline. It points to factors such as claim volume, available staff, actual progress, the importance of checking public expenditure, and evidence of neglect or capriciousness. The judgment does not establish that any particular number of months is reasonable or unreasonable.
The provided judgment contains no account of later decisions applying or distinguishing Maysan Holdings. It was published on 16 June 2025, and the supplied text discusses authorities that pre-date it. On the material available here, it is not possible to say how subsequent courts have treated the decision.
The judgment itself uses earlier authorities in different ways. It relies on Bond and Tang for the legal-effect and reviewability analysis; on Alphaone, Lam and Kioa for procedural fairness; and on Patrick and Thornton for delay and mandamus. It proceeds on the basis of Northern Disability Services in treating the January claim decisions as reviewable, while reserving the broader question about the statutory character of s 45. These are the precedent relationships the supplied reasons establish; they do not show later treatment of Maysan Holdings.
The judgment leaves expressly unresolved whether an NDIA determination that a claim is not payable under s 45 necessarily constitutes a reviewable decision under the ADJR Act or is otherwise amenable to public law remedies. Kennett J accepted the parties' shared premise based on Northern Disability Services but recorded that the issue was arguable (para [46]).
The Court also did not decide what procedural fairness obligations applied to the manual payment review decision, because it held that decision was not reviewable on the basis advanced (para [44]). A different case, with a different jurisdictional basis or a demonstrated direct effect on legal rights, could raise questions not answered here.
The decision does not determine how much detail an agency must provide when it invites a provider to substantiate thousands of claims, or what period for responding would be fair in a different timetable. The Court's reasoning depends on the contents of the particular invitation, the consent-order deadline, the holiday period, the applicant's response and the possibility of resubmitting claims.
Nor does the judgment determine when an agency's delay becomes unreasonable in other circumstances. The Court identified a high threshold and relevant contextual factors, but did not set a fixed time limit. Different evidence about resources, the cause of delay, progress, statutory priorities or agency conduct could affect the analysis.
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(a) an order setting aside what is described as the NDIA's "purported decision of 19 July 2024 to place the applicant on manual payment review" (the manual payment review decision) (prayer 3);
(b) an order setting aside a decision made by the respondent (the NDIA) on 2 January 2025 concluding that 6,362 claims for payment were not payable under the NDIS Act (the 2 January decision) (prayer 1);
(c) a declaration that there has been unreasonable delay by the NDIA in making decisions to approve or deny a number of claims for payment (prayer 7); and
(d) an order compelling the respondent to make decisions on those claims forthwith or within such reasonable time as the Court deems necessary (prayer 6).
The objects of the NDIS Act include supporting the independence and social and economic participation of people with disability, the provision of reasonable and necessary supports for participants in the NDIS, and enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports: s 3(1)(c), (d) and (e). The objects are to be achieved by, among other things, establishing a national regulatory framework for persons and entities who provide supports and services to people with disability: s 3(2)(c). The general principles guiding actions under the NDIS Act include that people with disability should be supported to receive reasonable and necessary supports, including early intervention supports: s 4(5).
Chapter 2 of the NDIS Act deals with assistance for people with disability. Section 14(2) of the NDIS Act relevantly provides that the Agency may provide assistance in the form of funding for persons or entities to assist one or more participants to receive supports.
Chapter 3 of the NDIS Act deals with participants and their plans. A person becomes a participant in the NDIS when the CEO of the Agency decides that the person meets the access criteria: s 28. If a person becomes a participant, the CEO must facilitate the preparation of the participant's plan: s 32(1). The matters that must be included in a participant's plan include the participant's statement of goals and aspirations and a statement of participant supports: s 33(1) and (2). The statement of participant supports, which is to be prepared with the participant and approved by the CEO, must include a statement that specifies (among other things) the general supports (if any) that will be provided to, or in relation to, the participant, the reasonable and necessary supports (if any) that will be funded under the NDIS, and the management of the funding for supports under the plan: s 33(2)(a), (b) and (d).
Division 3 of Part 2 of Chapter 3 of the NDIS Act is entitled "Managing the funding for supports under participants' plans". For the purposes of the NDIS Act, the phrase "managing the funding for supports" under a participant's plan means doing one or more of purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports), or receiving, managing or acquitting any funding provided by the Agency: s 42(1). In specifying the management of the funding for supports under a participant's plan, the plan must specify that such funding is to be managed wholly, or to a specified extent, by the participant, a registered plan management provider, the Agency or the plan nominee: s 42(2). A participant may request that the funding for supports under his or her plan either be self-managed, or be managed by a nominated registered plan management provider or by the Agency: s 43(1).
45 Payment of amounts payable under the National Disability Insurance Scheme - general
(1) An amount payable under the National Disability Insurance Scheme in respect of a participant's plan is to be paid:
(a) to the person determined by the CEO; and
(b) either:
(i) in accordance with the National Disability Insurance Scheme rules prescribed for the purposes of this subparagraph; or
(ii) if there are no such rules - in the manner determined by the CEO.
(a) whether amounts are to be paid in instalments or as lump sums; and
(b) if amounts are to be paid in instalments - the amounts of those instalments; and
(c) the timing of payments of amounts.
(3) The National Disability Insurance Scheme rules may provide that an amount is not payable to a person until the person nominates a bank account into which the amount is to be paid.
(4) The Agency must not pay an amount under the National Disability Insurance Scheme to any person in respect of a participant's plan if:
(a) the plan is a new framework plan that provides that flexible funding will be provided under the plan and the payment would result in any of the following events occurring:
(i) the total amount of flexible funding provided under the plan exceeding the total funding amount specified in the plan under paragraph 32E(2)(a);
(ii) the total amount of flexible funding provided under the plan during a funding period exceeding the amount of funding that is to be provided under the plan during the funding period; or
(b) the plan is a new framework plan that provides that funding will be provided under the plan for a stated support, or class of stated supports, and the payment would result in any of the following events occurring:
(i) the total amount of funding provided under the plan for the stated support or class of stated supports exceeding any total funding amount specified in the plan under paragraph 32G(2)(a);
(ii) the total amount of funding provided under the plan for the stated support or class of stated supports during a funding period for the support or class of supports exceeding the amount of funding that is to be provided under the plan during the funding period for the support or class of supports; or
(c) the plan is an old framework plan and the payment would result in any of the following events occurring:
(i) the total amount of funding provided under the plan for reasonable and necessary supports exceeding the total funding amount specified in the plan;
(ii) the total amount of funding provided under the plan for reasonable and necessary supports in a group of supports to which a funding component amount relates exceeding that funding component amount;
(iii) if the plan specifies funding periods for all reasonable and necessary supports funded under the plan, taken as a whole - the total amount of funding provided under the plan for such supports during a funding period exceeding the amount of funding for such supports that is to be provided under the plan during the funding period;
(iv) if the plan specifies funding periods for one or more groups of reasonable and necessary supports - the total amount of funding provided under the plan for supports in such a group during a funding period for that group exceeding the amount of funding for supports in that group that is to be provided under the plan during the funding period.
Every claim the Agency receives through the 'myplace' portal is risk-assessed through an electronic process. If a claim is flagged as 'high-risk' by that process it may undergo manual intervention. 'High risk' claims are ones which may to [sic] pose significant risks to participants of the Scheme or to the financial sustainability of the Scheme. If no 'risk' factors are identified against a claim made through the 'myplace' portal, it will be paid automatically. Those payments are generally made within 2-3 days.
A manual payment review means that an officer of the Agency will manually review and assess the claim to determine whether or not it should be paid. One step that will be undertaken during a manual payment review is that the officer reviewing that claim decides to seek more information from the claimant, in order to substantiate the claim. That could be, for example, by the seeking of records about the support provided and the circumstances in which it was provided. The officer will then assess all the available material to determine whether each individual claim should be paid or not.
If a provider can substantiate that their claim is payable, it will be paid. If not, it will not be paid (which is done by a 'cancellation' of the claim, which means it was rejected). In this way, manual payment reviews operate to safeguard participants and their plans, while also educating and leading to corrections in non-compliant claiming behaviour. Also, if a payment claim is "cancelled" or rejected, it remains open for the claimant to re-lodge the payment claim at a later time, with additional material to support the claim. That fresh claim would be then be processed in the ordinary fashion.
(a) Of the claims found by the NDIA not to be payable, 1,076 were said not to have been supported by any documentary material. The remainder were considered not to be supported by sufficient material to allow the decision maker to be satisfied that they were payable.
(b) 203 of the claims found to be payable had been paid by 8 January 2025 (totalling $141,402.25). Funds for the remaining 10 claims (totalling $1,561.07) were released to the applicant on 28 March 2025 and paid shortly thereafter.
i. The respondent failed to put any of the 28 allegations to the applicant;
The Respondent was not afforded an opportunity to respond to any of the allegations;
The respondent was unaware of the allegations until the information was forthcoming in litigation in late November 2024.
Between July 2024 until November 2024 the applicant had made many inquiries as to why the payments had ceased and were subject to scrutiny. No explanation was forthcoming until 29. November 2024 during litigation between the applicant and respondent.
In making the purported decision, the applicant has been denied procedural fairness in:
Not having the particulars of each allegation properly brought to it's [sic] attention;
ii. Not being afforded an opportunity to respond to any of the allegations;
- In making the purported decision, the respondent committed jurisdictional error in failing their duty to inquire.
The decision so required or authorised must be "of an administrative character". This element of the definition casts some light on the force to be given by the phrase "under an enactment". What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
...
The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met.
(Emphasis in original; footnotes omitted.)
a. Failed to apply the correct legal test in coming to it's [sic] conclusion;
b. Took into account irrelevant considerations;
c. Failed to take relevant consideration [sic] into account;
d. Denied the applicant procedural fairness;
e. Failed the respondent's duty to inquire.
Prior to making a decision in relation to SSNDIS's payment claims, we invite you to comment on the information above. We also invite you to submit any information not previously provided to the Agency that SSNDIS considers suggests services claimed for were (i) in fact provided, (ii) appropriately provided in accordance with participants' plans; and (iii) payable pursuant to s 45 of the NDIS Act. You can comment by sending your response to us by email: [address].
To establish that a claim submitted by SSNDIS is payable in accordance with the NDIS Act, I consider I need to be reasonably satisfied the supports the subject of the claims were in fact provided and were payable in accordance with the relevant participants' plans and the NDIS Act (the reasonable satisfaction a claim is payable requirement). In considering SSNDIS's payment claims I have had regard to the matters raised in its response to the Invitation to Comment letter but do not consider those matters suggest the reasonable satisfaction a claim is payable requirement will be met in the absence of credible corroborative information suggesting the supports the subject of the claims were in fact provided and were payable in accordance with the relevant participants' plans and the NDIS Act.
(Emphasis in original.)
In the case of 1,076 payment claims, no documentary material (in addition to SSNDIS's correspondence to the NDIA) was provided by SSNDIS to substantiate them. SSNDIS's letter to the NDIA of 24 December 2024 stated several times that SSNDIS maintained detailed and accurate records to support the claims made and was prepared to provide necessary evidence detailing the work purportedly undertaken (the detailed and accurate records representation). However, such records / evidence have not been provided in relation to these claims.
(Emphasis in original.)
The undetermined decisions: unreasonable delay?
(a) The standard of reasonableness is objective and depends on the statutory scheme.
(b) Whether delay is unreasonable depends on an assessment of all the circumstances.
(c) The level of resources available to the agency responsible for making the decision is not irrelevant.
(d) The issue ultimately posed by their Honours at [71] - whether the delay had occurred because of "capriciousness, negligence or oversight" - reflects the continuing influence of a statement by Fisher J in Thornton v Repatriation Commission [1981] FCA 76; (1981) 52 FLR 285 at 292, which their Honours set out at [37]:
The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.
Maysan Holdings Pty Ltd
National Disability Insurance Agency [2025] FCA 628
Affinity Care Services Pty Ltd as Trustee for the Balmerino Australia Trust v National Disability Insurance Agency [2024] FCA 1314
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Griffith University v Tang [2005] HCA 7; 221 CLR 99
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 220 CLR 430
Northern Disability Services Pty Ltd v National Disability Insurance Agency [2024] FCA 892
Patrick v Australian Information Commissioner [2024] FCAFC 1; 304 FCR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
Sun v Minister for Immigration [2016] FCAFC 52; 243 FCR 220
Thornton v Repatriation Commission [1981] FCA 76; (1981) 52 FLR 285
(1987) 163 CLR 378
(1994) 49 FCR 576
(1990) 170 CLR 321
(1992) 175 CLR 564
(1985) 159 CLR 550
(1981) 52 FLR 285
The originating application was dismissed, the applicant was ordered to pay the respondent’s costs as agreed or assessed, and the time for filing a notice of appeal was extended to 28 days after publication of the reasons.