National Disability Insurance Agency v McGarrigle

1. Leave be refused to the appellant to amend its notice of appeal.
2. The appeal be dismissed.
3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 In form the present question is whether the appellant should be granted leave to amend its notice of appeal. In substance the appellant wishes to raise for the Full Court's determination an argument that was not argued before the Administrative Appeals Tribunal (the Tribunal) or before the primary judge. 2 It was common ground before this Court that the decision of the Tribunal should be set aside for legal error, as the primary judge ordered. The parties' competing contentions centred on paragraph [95] of the reasons for judgment of the primary judge: see McGarrigle v National Disability Insurance Agency [2017] FCA 308. In particular, the parties' arguments raised the question whether in that paragraph her Honour should be taken to have said that in every case where a support was reasonable and necessary, it must be fully funded. 3 We do not read her Honour as establishing a two stage process to determine whether objectively a support was reasonable and necessary and secondly and consequentially that it must be fully funded. Rather, we consider that her Honour was addressing the particular way in which the argument was formulated before her. This was not, however, an argument supported by either party on this appeal. We do not consider that her Honour was departing from the statutory language in s 33(2)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) that a "participant's plan must include a statement... approved by the CEO" specifying "the reasonable and necessary supports ... that will be funded under the National Disability Insurance Scheme". The same or similar expressions appear elsewhere in Div 2 of Pt 2 of the Act: see for example ss 34 and 35 of the Act. 4 It was also common ground before us that the operation of the Act was particularly fact dependent and that the parties' competing arguments presently sought to be made should be assessed in that context, including with regard to the specific circumstances of an individual participant. 5 To avoid doubt, we note it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded. We express no view on this issue. Its resolution will turn on the Tribunal's assessment of the evidence and materials before it. 6 For these reasons we would make the following orders: