Decision: The Tribunal refuses the Applicant's application to extend the time for the making of an application for review of the decision of the Respondent dated 1 December 2025.

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PRACTICE AND PROCEDURE - extension of time - factors relevant to exercise of discretion whether to extend time - whether adequate explanation of delay - merits of the case - availability of alternative pathway - whether reasonable in all the circumstances - extension of time not granted

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11

Administrative Review Tribunal Act 2024 (Cth) ss 18, 19

Administrative Review Tribunal Rules 2024 r 5(3)

National Disability Insurance Scheme Act 2013 (Cth) ss 73ZO, 100

Care 4 You Disability Services Pty Ltd and Commissioner of the NDIS Quality and Safeguards Commission [2026] ARTA 15

Comcare v A'Hearn (1993) FCA 498; 45 FCR 441; 119 ALR 85

Crick and Prosegur Australia Pty Ltd [2016] AATA 313

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176

Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27

Re Queensland and Australian National Parks and Wildlife Service [1986] AATA 224; (1986) 13 ALD 158; 5 AAR 328

1. On 28 February 2026, the Applicant (Mr Moaz) filed an application for review seeking review of the decision of a delegate of the Respondent (Commissioner) dated 1 December 2025 (Reviewable Decision). As Mr Moaz was then approximately 62 days behind the statutory time limit for filing the application for review, he also made an application for an extension of time (EOT application) to enable the application for review to proceed.
2. The Reviewable Decision was made under section 73ZN(2)(a)(i), (iii) and (iv) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), after an internal review of the Respondent's original decision made on 29 August 2025.
3. The effect of both the original decision and then the Reviewable Decision was to impose a permanent banning order on Mr Moaz, which prohibited him from directly or indirectly engaging in, providing, or being involved in the provision of specified activities, supports or services in the NDIS market.
4. On 20 March 2026, the Commissioner filed a Notice of Opposing Application for Extension of Time.
5. The background leading up to the Reviewable Decision is that after the original decision, Mr Moaz sought internal review of that decision under section 100 of the NDIS Act. In the period from late September 2025 until 30 October 2025, Mr Moaz provided further information and documents for consideration as part of the internal review process.
6. The Reviewable Decision was made on 1 December 2025, and Mr Moaz lodged his application for review (and the current application) on 28 February 2026.
7. Subsection 18(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that an application for review must be made within the period prescribed by the Rules. Sub-rule 5(3) of the Administrative Review Tribunal Rules 2024 (Cth) provides for a 28-day period in which to file an application for review starting from the date that an applicant is given notice in writing of the decision under review.
8. Subsection 19(1) of the ART Act provides that an applicant can apply to the Tribunal to extend the 28-day application period, and, under subsection (2), the Tribunal may extend the application period if it considers "that it is reasonable in all the circumstances to do so."
9. The question for the Tribunal in determining Mr Moaz's EOT Application is whether in all the circumstances it is reasonable to provide an extension of time for the filing of the application for review.
10. On 25 March 2026, Mr Moaz filed and served submissions in reply to the Commissioner's Notice of Opposing Application for Extension of Time (Applicant's Submissions).
11. On 13 April 2026, the Commissioner filed and served an outline of submissions opposing Mr Moaz's EOT application (Respondent's Submissions).

THE PRINCIPLES GUIDING THE DISCRETION TO GRANT AN EXTENSION OF TIME

1. The general approach to be adopted by a court or tribunal in considering an application for an extension of time was stated by the NSW Court of Appeal in Outboard Marine Australia Pty Ltd v Byrnes[1], where the Court said: "... where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time."[2]
2. That benign view towards extension of time applications was cited by the Tribunal in Re Queensland and Australian National Parks and Wildlife Service[3], and represents the general approach to be taken by the Tribunal. Notwithstanding that benign view, the prima facie position is that proceedings will not be entertained if they are instituted out of time, so an applicant must positively satisfy the Tribunal that it is proper for the Tribunal to exercise its discretion to extend time.
3. Decisions of the Federal Court in the context of applications for an extension of time under section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) were influential in shaping the Administrative Appeals Tribunal's attitude to applications under section 29 of the Administrative Appeals Tribunal Act 1975 (Cth). The decision of Wilcox J. in Hunter Valley Developments Pty Ltd v Minister of Home Affairs and Environment[4] (Hunter Valley Developments) is the starting point of most Tribunal decisions which have considered applications for an extension of time.
4. The Federal Court's non-exhaustive statement of the relevant principles in Hunter Valley Developments was usefully summarised by the Tribunal in Crick and Prosegur[5] (Crick) as follows:

"(a) it is the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, and an applicant must show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time;

(b) a distinction is to be made between an applicant who has "rested on his rights", allowing the decision maker to believe that the matter was finally concluded, and one who has continued to make the decision-maker aware that he or she contests the finality of the decision;

(c) any prejudice to the respondent caused by the delay is a material factor militating against granting an extension;

(d) the mere absence of prejudice is not enough to justify an extension; the "unsettling of other people" or of established practices is "likely to prove fatal to the application";

(e) the merits of the substantial application are properly to be taken into account;

(f) "considerations of fairness as between the applicant and other persons" in a similar position are relevant."[6]

1. The Tribunal in Crick went on to say that these principles were not to be applied "mechanically'.[7] The Tribunal noted that an "acceptable explanation for the delay", although normally expected to be given, is not an essential precondition to the exercise of the discretion to grant an extension of time.[8] The Tribunal concluded:

"All of the circumstances of the case must be considered, the overriding consideration being whether it is reasonable in all of the circumstances to grant the extension."[9]

1. The Tribunal considers that the Commissioner's list of the factors to be considered and balanced in the exercise of the discretion around whether to grant the extension of time fairly summarises the relevant factors canvassed by the case law. The Tribunal notes that Mr Moaz has joined issue with and addressed each of those factors in the Applicant's Submissions. Those factors include:

(b) explanation for the delay, including action taken by the applicant;

(c) prejudice to the respondent and any other affected persons;

(e) merits of the substantive application for review."[10]

1. Mr Moaz's explanation for his failure to act in the period between early January 2026 (after the expiry of the 28-day period for filing the application for review and 28 February 2026 (when the application for review was filed) was that he was "crushed by the order on 1 December 2025" and "did not know how to take care of everything."
2. In that context, Mr Moaz referred to the personal and professional demands on him including in respect of his university studies, looking for a job and completing and dealing with aspects of the liquidation process for the provider entity company Crescent Respite Facility Pty Ltd (Crescent).
3. However, it emerged from his cross examination that during the months of January and February 2026, Mr Moaz was not actively engaged in any university studies. He also gave evidence that he had been able to submit some job applications and he had been able to engage (albeit through his accountant) with court proceedings involving the Australian Taxation Office, and related matters, in this period.
4. In the Applicant's Submissions, Mr Moaz:

(a) did not contest the fact that he had "clear notice" of the 28-day time limit.

(b) accepted that the delay is relevant and that "numerically" the delay can be characterised as substantial.[11]

(c) accepted that "an earlier protective application could ideally have been filed."[12]

1. The Commissioner submits that no clear or coherent reasons have been provided by Mr Moaz to explain the delay. No specific circumstances have been identified in the evidence which suggest that it was not possible for Mr Moaz to have communicated with the Tribunal and/or the Commissioner within the time limit the fact that he intended to lodge an application for review, or to have lodged an application for review in that period.[13]
2. The Commissioner submits that although the Tribunal and the courts have not required there to be an acceptable explanation for the delay as a pre-condition of granting an extension, it is ordinarily expected. The absence of an adequate explanation for delay is a relevant consideration in the exercise of the discretion.[14] It is further noted that the length of the delay is not itself determinative of the issue but is an aspect of the delay to be considered.
3. Here, as in Care 4 You Disability Services, the explanation provided by the applicant for the delay is not supported by probative evidence and is unsatisfactory. The Tribunal considers that this factor weighs against granting an extension of time.

Prejudice to the Respondent and any other affected persons

1. The Commissioner accepts that the prejudice to the respondent in having to defend proceedings brought two months out of time is limited.
2. More important are the public interest considerations for the wider community, which the Commissioner describes in the following terms:

"There is a broader interest to both the Respondent, and the public at large, that statutory time limits are observed, as this provides finality to disputes, and ensures that the administrative system is conducted efficiently. Such an interest is magnified with regard to the public's interest in having regulatory certainty, when the matters concern people with disability, and therefore significant vulnerability."[15]

1. Reference is made to the Tribunal's statement in Care 4 You Disability Services, where it said:

"The Tribunal ... accepts the Respondent's submission that there is a strong public interest in regulatory certainty and in applications for review being brought promptly. It finds that people with disability, and those who interact with the NDIS, are entitled to rely on the stability, integrity, and predictability of the regulatory framework."[16]

1. The Tribunal considers that this factor weighs somewhat against granting an extension of time.

1. Not unexpectedly, the parties differ as to the likely prospects of the substantive application for review.
2. Mr Moaz contends that his substantive case is "reasonably arguable" on several grounds, including that:

(a) he did not receive the Commissioner's notice dated 6 August 2025 because he lacked access to Crescent's email system at the relevant time, with the outcome being that he was not accorded procedural fairness in advance of the original decision imposing a banning order on him.[17]

(b) he has not had an opportunity to test the Commissioner's allegations before the Tribunal or a court.[18]

(c) the Reviewable Decision was not in identical terms to the original decision which suggests that the decision-making process ought to be reviewed.[19] and

(d) the evidence available to him materially bears on the Commissioners findings leading to the Reviewable Decision and he should be given the opportunity to present his case on review.[20]

1. The Commissioner submits that Mr Moaz has "low prospects of success" on his substantive application for review.
2. The Commissioner says first that Mr Moaz has already had two opportunities to provide relevant evidence in response to the allegations (in the process which preceded the making of the original decision and the Reviewable Decision respectively).[21]
3. Second, the Commissioner contends that the evidence will show that Mr Moaz was a key personnel member of Crescent and was accordingly able to make or influence the executive decisions of Crescent "including investigation and discipline of staff, outstanding payment of services received, and use of information technologies."[22]
4. Third, the Commissioner contends that Mr Moaz, through the actions of Crescent, has caused multiple breaches of the NDIS Code of Conduct (and the NDIS Act), which breaches are made out on the evidence.[23]
5. Further, the Commissioner says that there is an alternative pathway available under the NDIS Act itself which Mr Moaz can take to challenge the banning order. Section 73ZO of the NDIS Act provides:

"s 73ZO Variation or revocation of banning orders

(1) The Commissioner may vary or revoke a banning order, by giving written notice to the person against whom the order was made, if the Commissioner is satisfied that it is appropriate to do so.

(b) on application by the person against whom the order was made.

(2A) Without limiting subsection (1), a variation of a banning order may involve imposing new conditions on the order or varying or removing existing conditions.

(b) be in a form (if any) approved in writing by the Commissioner; and

(c) include any information, and be accompanied by any documents, required by the Commissioner.

(4) If the Commissioner varies a banning order made against a person, the Commissioner must, on request by the person, give the person a statement of reasons for the variation.

(5) If the Commissioner proposes not to vary or revoke a banning order in accordance with an application lodged by a person under paragraph 2(b), the Commissioner must give the person an opportunity to make submissions to the Commissioner on the matter.

(a) include in the written notice a statement of reasons for the variation or revocation of the order; and

(b) if the variation or revocation relates to a person who is employed or otherwise engaged by an NDIS provider or is a member of the key personnel of the NDIS provider - notify the NDIS provider of the variation or revocation as soon as possible. ... "

1. The section 73ZO regime is said by the Commissioner to be a "more relevant and appropriate pathway" for Mr Moaz because it would provide him with procedural fairness, and, additionally, has no time limit for making an application or limit as to the number of applications for revocation or variation which he can make.
2. Mr Moaz is correct in his submission that the Tribunal is not required to determine the ultimate merits of the application for review in the current application. Whilst the Tribunal is persuaded that Mr Moaz's case on the application is not hopeless, it equally cannot be said to be more than reasonably arguable (to use Mr Moaz's own description of his prospects).

1. As earlier noted, there have already been two merits decisions on the then available evidence, each of them unfavourable to Mr Moaz. The merits of the case are not sufficiently strong to tip the balance in favour of allowing the application for review to progress in circumstances where:

(a) the reasons given by Mr Moaz for the delay in filing the application for review out of time are not adequate.

(b) the public interest favours there being regulatory certainty that time limits will be observed.

(c) the merits of the application for review are correctly assessed as being no better than "reasonably arguable". and

(d) refusal of Mr Moaz's application for an extension of time does not leave him with no further avenue of redress, as the section 73ZO NDIS Act regime is open to him.

1. The Tribunal is further reinforced in its view by the consideration of fairness to other applicants in ensuring that similar circumstances coming before the Tribunal are treated consistently.
2. As the Tribunal in Care 4 You Disability Services stated:

"The Tribunal considers that it would be unfair to permit out-of-time applicants to make use of the Tribunal's limited resources in circumstances where no unusual or exceptional circumstances justify an extension of time, particularly where an alternative mechanism exists by which registration may be obtained." [24]

1. There are no unusual or exceptional circumstances justifying the Tribunal granting an extension of time in the present case, and Mr Moaz has an alternative mechanism by which he can seek the variation or revocation of the banning order.
2. It follows that the Tribunal does not believe that is reasonable in all the circumstances to grant an extension of time for the filing of the application for review and the EOT Application is refused.
3. The Tribunal makes an order which reflects that decision as follows:

"The Tribunal refuses the Applicant's application to extend the time for the making of an application for review of the decision of the Respondent dated 1 December 2025."

Representative for the Applicant: Mr I Moaz, self-represented Applicant

[3] [1986] AATA 224; (1986) 5 AAR 328, 329.

[4] [1984] FCA 176; 3 FCR 344.

[5] [2016] AATA 313.

[6] [2016] AATA 313, [11].

[7] [2016] AATA 313, [12].

[8] Citing the Full Federal Court decision in Comcare v A'Hearn (1993) FCA 498; 45 FCR 441.

[9] [2016] AATA 313, [14].

[13] Care 4 You Disability Services Pty Ltd and Commissioner of the NDIS Quality and Safeguards Commission [2026] ARTA 15, [22] - [23]. (Care 4 You Disability Services)

[16] [2026] ARTA 15, [35].

[17] Applicant's Submissions, [29], [31].

[24] [2026] ARTA 15, [37].