Pett v National Disability Insurance Agency [2025] FCA 1252

1. The appellant, Mrs Amanda Pett, suffers from significant impairments affecting her physical capacities and enjoyment of life. Because of those impairments, she is eligible for supports under a Scheme established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). She first became a participant in the Scheme in October 2017.
2. Mrs Pett appeals from a decision of the former Administrative Appeals Tribunal relating to her entitlements under the Scheme_._ The Tribunal reviewed a decision of the National Disability Insurance Agency (NDIA) to reduce Mrs Pett's supports because of payments made in the settlement of civil proceedings in the District Court of South Australia. The proceedings related to events occurring in 2008 and 2009 and culminated in agreements recorded in:

(1) a Deed dated 19 December 2016 providing for a payment by the defendant (a physiotherapist) of $115,000.00 (Settlement 1); and

(2) a Deed of Release entered into in early 2017 providing for a payment by three defendants (a hospital and doctors) of $1,300,000.00 (Settlement 2).

1. The reduction in Mrs Pett's supports was reflected in a Varied Plan prepared under the NDIS Act which operated from 17 September 2021, with a review date of 15 September 2024. The Varied Plan was the result of the recalculation of a Compensation Reduction Amount (CRA) for each Settlement under the National Disability Insurance Scheme (Support for Participant - Accounting for Compensation) Rules 2013 (Cth).
2. The Tribunal varied NDIA's decision and the Varied Plan. It concluded that there should be no CRA for Settlement 1, and a CRA for Settlement 2 having the effect of reducing the financial value of the supports Mrs Pett might otherwise have received by $332,894.10: Pett v National Disability Insurance Agency [2024] AATA 2690 (Reasons).

1. The Tribunal's decision is one to which the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) applies, notwithstanding the subsequent abolishment of the Tribunal: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Sch 16 Pt 5. To succeed on the appeal it was necessary for Mrs Pett to show that the decision was affected by an error of law: AAT Act, s 44.
2. The Tribunal made two such errors, each of which was conceded by NDIA before the commencement of the hearing of the appeal. I reject Mrs Pett's submission that the Court can and should make orders finally determining her entitlements under the Scheme, whether for the period to which the Varied Plan related or in respect of any current or future plan.
3. The Court may direct orders on this appeal to the newly created Administrative Review Tribunal (ART): Transitional Provisions, Sch 16 Pt 5 s 25(2); AAT Act, s 44(5).
4. There will be an order setting aside the Tribunal's decision and compelling the conduct of the review by the ART in accordance with these reasons. Neither party suggested that the expiry of the period of the plan to which the review related presented an obstacle to any such remittal.

1. To become a participate in the Scheme, a person must meet the disability requirements in s 24 of the NDIS Act. Those requirements will be met if (relevantly):

(1) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable (s 24(1)(a));

(2) the impairment or impairments are, or likely to be, permanent (s 24(1)(b)) and result in substantially reduced functional capacity to undertake certain activities, including mobility and social interaction, self-care and self-management (s 24(1)(c));

(3) the impairment or impairments affect the person's capacity for social or economic participation (s 24(1)(d)); and

(4) the person is likely to require support under the Scheme for their lifetime (s 24(1)(e)).

1. NDIA assessed Mrs Pett as meeting those requirements. She became a participant in the Scheme in October 2017 by virtue of her multiple disabilities attributable to multiple impairments, although her first plan did not take effect until 2019. As identified by the Tribunal, the qualifying impairments included those described as "Major Medical events" and "Current known medical conditions" (Reasons, [54] - [55]) including (Reasons, [55]):

3. L4/L5 prolapse with unconfirmed Cauda Equina Syndrome symptoms and anterior and posterior fusion.

...

10. Brain injury - ischaemic lacunas right basal gangalia [sic].

11. Permanent peripheral neuropathy of ideopathic [sic] aetology [sic] complicated by nutritional deficiency and prescription drug interactions.

i. Not just hands and feet - all over proximal and distal.

ii. Very high levels of continuous pain (4 times worse than experience of childbirth, very bad even when controlled by medication).

iii. Periodic bolts of extreme pain.

1. The Tribunal said that those conditions were contributors to the relevant impairments for which Mrs Pett was accepted as a participant in the Scheme and that they (at least) substantially reduced her functional capacity (Reasons, [38]). Accordingly, Mrs Pett met the criteria for the provision of "reasonable and necessary supports" in accordance with s 34 of the NDIS Act.
2. Section 33 of the NDIS Act requires that a participant's plan include a statement of participant supports approved by the Chief Executive Officer (CEO). Among other things, the CEO must have regard to the Rules when approving the statement of participant supports: NDIS Act, s 33(5).
3. Part 3 of the Rules is headed "Compensation". It commences with the following:

3.1 This Part applies in relation to a person who is a participant, or who later becomes a participant, if the impairment of the person was caused to any extent by a personal injury, and one of the following cases applies:

(a) the person received compensation under a judgement or settlement in respect of the injury in which:

(i) it is possible to identify the NDIS component of the amount of compensation (NDIS component is defined in paragraph 4.4); and

(ii) the component is either fixed by a non-consent judgement or is objectively identifiable (eg commutation of benefits under a statutory scheme); or

(b) the person received compensation under a judgement or settlement in respect of the injury that:

(i) does not satisfy paragraph (a) and

(ii) fixes an amount of compensation in respect of the injury; or

1. The word "compensation" has the meaning given in s 11 of the NDIS Act, relevantly:

compensation means a payment (with or without admission of liability) in respect of:

(a) compensation or damages in respect of personal injury; or

...

(c) personal injury, in settlement of a claim for damages ...;

that is wholly or partly in respect of the cost of supports that may be provided to a participant (whether or not specifically identified as such). It does not matter whether the payment is made directly to the person who sustained the personal injury or to another person in respect of that person.

1. The expression "NDIS component" is defined in Rule 4.4 to mean:

... the component that relates to the provision of supports of a kind that may be funded or provided under the NDIS after the date of the judgement or settlement ...

1. Rule 3.5 provides that in considering whether or not to approve the statement of participant supports, the CEO must take into account the compensation by reducing funding for reasonable and necessary supports that would otherwise be approved by the appropriate CRA. Rule 3.10 confers a discretion on the CEO to "ignore the whole or part of a [CRA] ... if the CEO thinks it appropriate to do so in the special circumstances ..."
2. The Tribunal concluded that the payments made under each of the Settlements fell within the statutory definition of "compensation" and that Part 3 of the Rules applied by virtue of Rule 3.1(b). That was because it was not possible to identify the "NDIS component" of the payments (such that Rule 3.1(a) did not apply), and because each of the Settlements fixed an amount of compensation in respect of the injury to which the Settlements related. In so concluding, the Tribunal had regard to the terms set out in each of the Deeds recording the Settlements as well as the pleadings in the underlying court proceedings.
3. With respect to Settlement 1, the Tribunal identified that Mrs Pett had made a claim relating to treatment she received on 21 April 2008 from a physiotherapist. The terms required the physiotherapist to pay Mrs Pett the sum of $115,000.00 inclusive of damages, statutory charges, interest, filing and service fees, legal other costs. In consideration for the payment, Mrs Pett agreed to forever discharge the physiotherapist from all claims (broadly defined). The Tribunal concluded that the subject matter of the release included the matters pleaded by Mrs Pett which included allegations that she:

(1) suffered an injury as a result of the physiotherapist's treatment and that following the treatment she suffered chronic and constant back pain and numbness, which condition had since deteriorated;

(2) suffered numbness in her lower limbs as well as constant pain and spasms of the lumbar and thoracic spine for which she took significant medication;

(3) suffered psychological injury including stress, anxiety and depression;

(4) suffered financial loss in the form of lost income;

(5) received voluntary services from her husband; and

(6) would need voluntary and home assistance in the future as well as future medical treatment and medical services from orthopaedic surgeons, rheumatologists, rehabilitation medicine providers and psychiatrists, and related treatment.

1. The Tribunal accepted NDIA's submission that the payment made under Settlement 1 included supports that may be funded by NDIA and identified in her plan, namely voluntary care from her husband and the need for voluntary and home assistance in the future.
2. With respect to Settlement 2, the Tribunal identified that the District Court proceeding had named both Mrs Pett and her husband as plaintiffs (each of whom were "releasors") and a hospital and two medical practitioners as defendants (each of whom were "releasees"). It identified that the defendants had denied liability but had agreed to pay Mrs Pett and her husband $1,300,000.00 inclusive of legal costs and that the sum expressly made no allowance for economic loss, loss of earning capacity or loss of chance. As with Settlement 1, the subject matter of the payment was ascertained by reference to the pleading in the underlying proceeding, the pertinent features of which included allegations that Mrs Pett:

(1) was admitted to hospital on 19 October 2009 for a L4/L5 posterolateral fusion with a pedicle screw fixation;

(2) suffered significant impacts from the treatment, including permanent hypoxic ischaemic neurological damage to her peripheral nervous system causing permanent loss of proprioception to her upper and lower limbs;

(3) suffered peripheral nerve damage to the distal fingers resulting in the requirement for assistance from her husband;

(4) suffered disabilities in the nature of impairment and restriction of bodily and mental functioning; and

(5) suffered economic and non-economic losses which included:

... the need for treatment, equipment and medical services and associated costs in the past and in the future; the need for voluntary and paid services in the past; the need for future care; a need for gardening, washing, household and domestic and maintenance services; past and future milage and travel costs.

1. The Tribunal accepted NDIA's submission that peripheral neuropathy (forming part of the subject matter of Settlement 1) was part of the basis of Mrs Pett's acceptance as a participant in the Scheme and that the services referred to in the pleading were supports that may be provided under the Scheme.
2. The Tribunal had regard to a brief part of the pleading in respect of the claim of Mrs Pett's husband by which he claimed damages for the loss of impairment and consortium of Mrs Pett and "by way of per quad servitium amisit" (services of a servant). As to the apportionment of damages between Mrs Pett and her husband, the Tribunal said (Reasons, [78]):

... No evidence was received from [Mrs Pett] identifying how the settlement sum in the Deed of Release was quantified and the apportionment of the settlement sum between [Mrs Pett] and her husband, despite the Tribunal inviting [Mrs Pett] to provide such evidence and suggesting [Mrs Pett] speak with her solicitor who was involved in the settlement of Claim 2.

1. The Tribunal rejected Mrs Pett's submission that the payments were not in respect of a personal injury because the denial of liability by the defendants in each case meant that the payments were in respect of something other than the injuries referred to in the pleadings (including a motivation to preserve professional reputation). It concluded that the denial of liability did not bring the payments outside of the "compensation" definition because the definition expressly referred to payments made in settlement of a claim for damages, whether or not there had been a liability admission.
2. The Tribunal rejected a further submission to the effect that if the payments in Settlement 1 and Settlement 2 were intended to provide for NDIS type supports, then they would have been expressly identified and paid by the defendants in each case. On that topic, the Tribunal said (Reasons, [30]):

... The settlement of the civil action addresses the claim in negligence and damages pleaded by [Mrs Pett]. If within the terms of the settlement an applicant has been paid compensation which may be for NDIS type supports, then it is the Act and Rules to be applied to determine if there is a CRA and how that CRA is to be calculated. ...

1. The Tribunal also rejected Mrs Pett's submission that there was no "compensation" paid within the meaning of s 11 of the NDIS Act because Mrs Pett had received little or no money in hand after the payment of her legal costs and expenses. However, the amount expended on legal costs was subtracted from the CRA in the Tribunal's discretion under the Rules.
2. The Tribunal rejected a further submission to the effect that the existence of two plaintiffs in the proceeding culminating in Settlement 2 had the consequence that a part of the payment was not "compensation" so as to trigger the operation of Part 3 of the Rules in connection with that payment. However, as explained below, the Tribunal considered the implications of there being two plaintiffs (and hence two releasors) when calculating the CRA amount.
3. The Tribunal otherwise accepted NDIA's submission that the payments made under each of the Settlements met the description of "compensation" as defined in s 11 of the NDIA Act and that the requisite facts for the application of Part 3 of the Rules existed.
4. The Tribunal said that in determining the CRA, it was irrelevant "to consider what portion of the settlement sum may fall within the cost of supports that may be provided" (Reasons, [85]). Rather, the calculation turned on a step-by-step process prescribed by the Rules and that in performing that task each Settlement was to be assessed separately. The Tribunal noted that it had a discretion under Rule 3.7 to amortise the reduction in funding for supports arising from the CRA over a period of time, as the CEO had done in an earlier decision made on internal review.
5. The calculation of the CRA otherwise turned on the application of Rule 3.10 and Rule 3.13, relevantly as follows:

Special circumstances 3.10

For the purposes of paragraph 3.5, the CEO may ignore the whole or part of a compensation reduction amount that would otherwise arise under this Part if the CEO thinks it appropriate to do so in the special circumstances of the case (which may include financial hardship suffered by the participant).

...

Compensation reduction amount - other circumstances

3.13 In the case of a judgement or settlement mentioned in paragraph 3.1(b), the CEO is to identify the compensation reduction amount as follows:

(a) calculate the amount of compensation fixed under the judgement or settlement;

(b) subtract the sum of the amounts (if any) payable in respect of the amount of compensation under the following:

(i) the Health and Other Services (Compensation) Act 1995;

(ii) the Health and Other Services (Compensation) Care Charges Act 1995;

(iii) Part 3.14 of the Social Security Act 1991;

(iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules;

...

(d) if no preclusion period has arisen for the purposes of paragraph (c) and the CEO is satisfied that:

(i) the participant claimed damages in relation to lost earnings or lost capacity to earn; and

(ii) the amount of compensation fixed under the judgement or settlement included an amount in respect of those damages;

subtract 50% of the amount of compensation;

...

(f) subtract an amount that the CEO considers equivalent to the total of the amounts that were paid by the participant for supports, being supports of a kind funded under the Act, after the compensable event and before becoming a participant;

(g) subtract any recoverable amount payable by the participant in respect of the compensation amount pursuant to section 106 or section 107 of the Act;

...

1. For the purpose of its calculations, the Tribunal had regard to a "Draft Decision" provided by NDIA. It had earlier explained that the Draft Decision was in the nature of an aide to understand NDIA's submissions and did not have evidentiary status (Reasons, [42]). The Tribunal largely accepted the calculations urged on it by NDIA by that document (Reasons, [94] - [102], [130]).
2. In relation to Settlement 1, the Tribunal began with a finding that for the purposes of Rule 3.13(a) the compensation amount was $115,000.00.
3. Under Rule 3.13(b), the Tribunal deducted from that amount a payment to Medicare, leaving a balance of $99,807.10.
4. For the purposes of Rule 3.13(d) the Tribunal held that there should be a reduction equivalent to 50% of the compensation amount because of its satisfaction that the payment included compensation for loss of earning or capacity to earn. That left a balance of $42,307.10.
5. The Tribunal concluded that there should be no reduction under Rule 3.13(f), which permits the subtraction of amounts equivalent to the total amounts paid by a participant for supports of the kind funded by the NDIS Act after the compensable event and before becoming a participant. That rule arose for consideration because the payment in each of the Settlements were received before Mrs Pett's acceptance as a participant in 2017 and related to events pleaded to have occurred in 2008 (Settlement 1) and 2009 (Settlement 2). The Tribunal said that deductions under that rule could result in the CRA being substantially reduced, possibly to nil. However, it concluded that there was insufficient evidence to substantiate Mrs Pett's assertion that she had spent money on supports of the kind provided for under the NDIS Act from 2008. The Tribunal said that a five page document submitted by Mrs Pett included a list of itemised expenditure said to have been incurred prior to her participation in the Scheme, including home repairs and alterations, wheelchair expenses and various health therapies. The Tribunal said that Mrs Pett had been asked by NDIA on several occasions to provide evidence to substantiate the claimed expenditure but had not done so. It concluded (Reasons, [97(vi)]):

[Mrs Pett] said she had no records of those expenses having moved house on numerous occasions. There was no evidence before the Tribunal in support of any itemised cost, no receipts, no bank statements, no evidence from the relevant support provider and no basis upon which the Tribunal could be satisfied that any item should be considered within Rule 3.13(f).

1. The Tribunal went on to reduce the CRA by a further $17,736.05 under Rule 3.13(i) to account for a compensation amount that had already been deducted from Mrs Pett's previous plan and was referrable to both Settlements, adding that it made no difference whether the deduction was attributable to one or other of the Settlements.
2. The remaining balance of $24,571.05 was reduced to nil under Rule 3.10 because Mrs Pett had incurred legal costs and expenses in obtaining both Settlements. The Tribunal had earlier inferred that the legal costs incurred for the Settlements jointly amounted to $897,986.70.
3. The CRA in relation to Settlement 2 was calculated by first identifying a compensation sum of $1,300,000.00 for the purposes of Rule 3.13(a). No further reductions were made under Rule 3.13. The Tribunal made no reduction under Rule 3.13(f) for past expenditure on supports for the same reasons given in connection with Settlement 1. However, the Tribunal made two reductions under Rule 3.10, namely:

(1) a reduction of $873,415.65, representing the balance of Mrs Pett's total legal costs and expenses in obtaining both Settlements; and

(2) a reduction of $93,690.25 to account for NDIA's failure to apply Part 3 of the Rules to Mrs Pett's plan at the time when she first became a participant in the Scheme or otherwise in a timely manner.

1. That left a CRA of $332,894.10, some of which was applied to Mrs Pett's then-current plan, the remainder to be amortised against her future plans under Rule 3.7.
2. The Tribunal went on to say (Reasons, [104]):

It begs repeating that if [Mrs Pett] had provided evidence that satisfied the Respondent she incurred out of pocket expenses for supports of the kind funded under the Act after the compensable event the subject of [Settlement 2] and before becoming a participant in the NDIS, the CRA would, on the Respondent's submission, arguably be further ignored.

1. The Tribunal said that it had not been assisted by a spreadsheet relied upon by Mrs Pett (marked Exhibit F) which she said reflected best practice in the calculation method. It said that the outcome of that method depended upon the input of correct information which was subject to different interpretations of the evidence to be used.

1. Mrs Pett's notice of appeal contains 10 grounds of appeal giving rise to several questions of law. The last of those grounds is expressed as a conclusion and need not be separately considered.
2. With leave of the Court, Mrs Pett was represented on the appeal by her husband (a non-lawyer). I will refer to his submissions as though they were made by Mrs Pett personally.
3. At their broadest, the arguments may be summarised as:

(1) Part 3 of the Rules did not apply such that no occasion arose for the assessment or imposition of any CRA (Grounds 1, 2, 4, 6, 7, 8 and 10); and

(2) alternatively, if Part 3 of the Rules applied, the Tribunal erred in applying the Rules in the calculation of the CRA (Grounds 2, 3, 4, 5, 6, 7, 8, 9 and 10).

1. Within those broader topics Mrs Pett relied on multiple overlapping arguments dealt with under the subheadings below.
2. NDIA conceded that the Tribunal erred in limited respects discussed below. I am satisfied that the Tribunal committed two conceded errors of law, although I have not wholly accepted the parties' submissions as to their nature and extent. Whether the Tribunal erred in an additional conceded respect is unnecessary to decide.
3. The effect of those conclusions is that the decision of the Tribunal will be quashed and the application for review will be remitted for determination in accordance with these reasons.
4. Outside of the grounds of appeal, Mrs Pett raised additional arguments to the effect that:

(1) her entitlements to be supported did not arise solely by reference to the NDIS Act but were directly sourced in international law such that she had a legal entitlement to money on account of "missing" supports dating back to 2008 or 2009; and

(2) the Tribunal should have found malfeasance and other deliberate wrongdoing on the part of NDIA, and the Court should find malfeasance or other deliberate wrongdoing on the part of the Tribunal.

1. I have addressed those issues because of the extent to which they infiltrated the other grounds.
2. For reasons that will become apparent, I have not otherwise considered it necessary to address every argument raised by Mrs Pett in the course of the hearing both orally and in her lengthy written submissions. That is either because the issues are subsumed in my findings relating to the key issues, or because they raise procedural complaints that are unnecessary to decide given that the matter will be remitted to the ART.
3. It is convenient to turn first to Mrs Pett's contention that Part 3 of the Rules should have had no application in the preparation of her plan.

Connections between personal injury, impairments and claims for damages

1. Rule 3.1(b)(ii) (which includes the opening words to Rule 3.1) required findings that:

(1) Mrs Pett's qualifying impairments were caused to any extent by a personal injury;

(2) Mrs Pett had received "compensation" (as defined in s 11 of the NDIS Act) under a judgment or settlement "in respect of the injury"; and

(3) fixed an amount of compensation "in respect of the injury".

1. As Mrs Pett correctly submitted, the focus in (2) and (3) is on the particular injury or injuries that caused to any extent her qualifying impairment(s).
2. In addition, the definition in s 11 relevantly required findings that:

(1) there was a payment made to Mrs Pett or any other person;

(2) "in respect of personal injury";

(3) the payment was "in settlement of a claim for damages"; and

(4) the payment was wholly or partly in respect of the costs of supports that may be provided to a participant (whether or not the payment was specifically identified as such).

1. Mrs Pett submitted that the Tribunal failed to make findings that the requisite connections existed, or otherwise made findings on those questions that had no foundation in the evidence.
2. The Tribunal expressly identified that it was necessary to consider whether the impairment for which Mrs Pett was a participant in the Scheme was caused to any extent by a personal injury (Reasons, [53], [62], [116], [128]). The Tribunal found that at the time that she qualified as a participant in the Scheme, Mrs Pett had been identified as suffering from prolapse in the spine, brain injury and permanent peripheral neuropathy (complicated by nutritional deficiency and prescription drug interactions). It noted the NDIA's submission that the conditions were properly characterised as personal injuries (Reasons, [56]). It later accepted that submission (Reasons, [60]).
3. The conclusion that Mrs Pett's impairments were caused by personal injuries had an adequate foundation in the evidence, namely the medical reports relied upon to support Mrs Pett's initial participation in the Scheme. Mrs Pett has not shown those findings to have been affected by an error of law.
4. The Tribunal identified commonality between some of the qualifying impairments and the pleaded injuries forming the subject of each of the Settlements, which it identified by reference to the pleadings.
5. The Tribunal said (correctly) that the question of whether the qualifying impairments were caused to any extent by injuries forming the subject of the Settlements was "different to the question of fault of any physiotherapist, medical practitioner or hospital in causing the injury".
6. The Tribunal concluded that Mrs Pett had, in relation to each Settlement, pursued an action for personal injury. It further concluded that the personal injury sued upon contributed to the impairments for which she was a participant (Reasons, [117]). On a fair reading of its Reasons, the Tribunal's conclusion on that question may be understood as accepting NDIA's submissions relating to the facts Mrs Pett pleaded in the civil proceedings, especially her particulars of injury and loss (Reasons [68], [69], [75], [76]). Read together, those parts of the Reasons involved a comparison of the facts that had been pleaded by Mrs Pett herself, with the list of medical conditions giving rise to her qualifying impairments when she later became a participant in the Scheme.
7. The Tribunal did not err in finding that the personal injuries sued upon were the same as those that caused at least some of her qualifying impairments. That finding was consistent with Mrs Pett's pleaded cases and it was open to the Tribunal to rely on her pleadings as having evidentiary value on the factual questions before it.
8. Mrs Pett further submitted that the Tribunal ought to have found that the civil proceedings had no prospects of success, such that the fact that she had pleaded certain allegations about the existence of personal injuries and associated impairments could not be relied upon as having evidentiary value. Among other things, she submitted that the claims were founded on flawed expert evidence.
9. I reject that submission. The Tribunal's findings were permissibly based on the pleadings as informing the factual question of whether Mrs Pett suffered from personal injuries (howsoever caused), and the different question as to whether the payments were in respect of claims for damages in respect of those injuries. Its findings in that respect were reinforced by the commonality of the pleaded personal injuries and the personal injuries identified at the later time when Mrs Pett qualified as a participant in the Scheme.

The defendants' denial of liability was irrelevant

1. To similar effect, Mrs Pett contended the requisite connection between an injury and qualifying impairment could not be established by reference to the pleadings in circumstances where the defendants in the civil proceedings had not accepted liability and the injuries alleged in the pleadings had not otherwise been proven in a court of law.
2. As I understood it, there were two aspects to that submission. Neither has merit.
3. First, it was submitted that the finding that Mrs Pett suffered an injury that caused the qualifying impairments could not be made by reference to her pleaded case in either of the civil proceedings because the objective fact of each injury had not been admitted. That argument cannot assist Mrs Pett. The Tribunal's finding that there was objective connection between physical injury and the qualifying impairments was not based on the pleadings but on the medical reports before NDIA when Mrs Pett was accepted as a participant in the Scheme.
4. Second, it was submitted that any payment made in accordance with the Settlements could not meet the description of "compensation" under s 11 of the NDIS Act. Mrs Pett submitted that a party to legal proceedings may compromise their position for reasons unrelated to there being an admitted causal connection between the defendants' acts and a personal injury, or any admitted connection between a personal injury or impairment. The Tribunal may be taken to have rejected that submission. It did not err in doing so.
5. On the express words of the definition, a payment may meet the description of "compensation" whether or not it is accompanied by an admission of liability. As NIDA correctly submitted, in its application to Mrs Pettt's case, the definition in s 11 employs the phrase "in respect of" on four occasions. They are words of the "widest possible meaning of any expression intended to convey some connexion or relation": State Government Insurance Office (Qld) v Crittenden [1966] HCA 56; (1966) 117 CLR 412 (at 416).
6. Whether there is a claim for damages "in respect of personal injury" may (indeed must) be ascertained by the subject matter of the claimed facts. Whether there has been a settlement of such a claim must be ascertained by the existence and terms of the agreement compromising the proceedings.
7. As the Tribunal correctly observed, nothing in the NDIS Act or the Rules required a finding as to who was responsible for causing any personal injury resulting in Mrs Pett's impairments. On that topic, the Tribunal said (Reasons, [44]):

... causation of a person's injury is a complex issue, requiring the decider of fact, in this matter a civil court, to hear evidence from appropriately qualified experts including medical practitioners and to reach a required level of satisfaction, having regard to that evidence about negligence and causation of injury. That question of causation is not the function of the Tribunal.

1. The defendants' denials of liability did not otherwise preclude the Tribunal from relying on the pleadings to inform its conclusion that one or more of Mrs Pett's qualifying impairments (for example, limits in mobility and extreme pain) were caused by one or more of the personal impairments sued upon (for example spinal injuries). To the extent that the Tribunal relied upon the allegations in the pleadings to support its findings on those questions it was entitled to do so. If it erred in respect of those factual findings, the errors have not been shown to involve appealable questions of law.

The payments were in respect of fundable supports

1. The compensation definition required that the payments made under the Settlements were wholly or partly in respect of the cost of supports that may be provided to a participant (whether or not specifically identified as such).
2. Mrs Pett argued that the Reasons contain no finding that the payments were for supports of a kind fundable under the Scheme. That is not so.
3. The Tribunal was correct to hold that the subject matter of the payments was informed by the pleadings as well as the terms of each Settlement.
4. The Tribunal's conclusion was in fact supported by that material because in each case a payment was made in consideration for Mrs Pett withdrawing a claim for damages founded on heads of loss that included such things as lack of functional capacity, resulting in the need for at home support (including care voluntarily provided by her husband) and medical treatments.
5. It mattered not that the payments may well have been in respect of additional things: it was sufficient that there be a finding that the payments were wholly or partly "in respect of" supports that could be provided under the NDIS Act.

1. In respect of both Settlements, Mrs Pett submitted that it was for NDIA to "prove a compensable event" with expert evidence capable of satisfying evidentiary standards in a court of law and that, without that evidence, there could be no conclusion that compensation had been paid within the meaning of s 11 of the NDIS Act.
2. Relatedly, Mrs Pett submitted that the Tribunal exceeded its jurisdiction because it purported to quantify compensation for personal injury, a task said to be something that only a civil court could do in the exercise of judicial power on the basis of medical evidence.
3. Those submissions misapprehend the nature of the task performed by the Tribunal. As a decision-maker standing in the shoes of the CEO, its task was to determine Mrs Pett's supports having regard to the NDIS Act and the Rules, properly construed. Whether Rule 3.1(b) was enlivened depended in part on whether Mrs Pett had received "compensation" as that word is defined in s 11 of the NDIS Act. The definition does not require proof of the existence of a judgment of a court of law, nor did it require the Tribunal to exercise judicial power. Rather, it depended on the application of the statute to the facts as found, the rules of evidence having no application and the Tribunal having the power to inform itself in the manner it saw fit: AAT Act, s 33(1)(c).

1. Mrs Pett submitted that, as a matter of logic, it was not possible for there to be two valid claims for damages for personal injury resulting in permanent disablement. Accordingly, she submitted, it was necessary for NDIA (and the Tribunal on review) to consider one or the other of the Settlements, but not both.
2. Once again, that submission ignores the wording of the compensation definition and its focus on the subject matter of a claim for damages. There is nothing in the definition to suggest that a claim (and a payment made in respect of it) must be disregarded if it is one of two claims relating to the same or similar subject matter.

Claims for damages were made notwithstanding the expiration of time

1. Mrs Pett then submitted that the proceeding culminating in Settlement 2 was "not a valid claim for damages" but was "merely an application for an extension of time", and that she has never been found to have had a "valid" claim for damages for that additional reason. Mrs Pett submitted that the Reasons contain no finding that the claim culminating in Settlement 2 was valid or enforceable.
2. NDIA did not suggest that this argument had not been advanced in the proceeding before the Tribunal. Assuming that the argument had been run, I accept that it was a substantive argument necessary for the Tribunal to grapple with and that the Reasons make no mention of it. However, that does not justify the grant of relief on the appeal. If the argument were run on any remittal of the application review, the Tribunal would be bound to reject it.
3. Section 11 of the NDIS Act expressly brings within the concept of "compensation" a payment made in settlement of a claim, which necessarily includes a payment made without a trial of defences relating to the expiration of a limitation period. On the proper construction of s 11, a claim may be in respect of a personal injury, whether or not it is a claim that could be met with a defence that the claim is out of time.
4. Further, on this appeal Mrs Pett did not demonstrate that a claim for damages in respect of personal injury filed outside of a statutory time limit is "invalid" so as not to constitute a "claim" for the purposes of s 11.
5. The circumstance that a claim might have been unsuccessful because of the expiration of a statutory time limit does not deprive it of its status of a "claim for damages" for the purposes of s 11. The NDIS Act is agnostic as to the substantive merits of a claim forming the subject of a settlement.

Legal costs and expenses did not displace the operation of Part 3 of the Rules

1. Mrs Pett submitted that the Tribunal erred in law in finding that a payment meeting the definition of "compensation" had been made, because the payments under the Settlements had been expended wholly (in the case of Settlement 1) or partly (in the case of Settlement 2) in legal costs and expenses. It was submitted that the Tribunal should not have reduced the CRA by the amount of legal costs as a discretionary exercise under Rule 3.10, but rather should have found that no payment was received by Mrs Pett after the deduction of her legal costs.
2. Arithmetically speaking I have some difficulty identifying the utility in this argument. In calculating the CRA the Tribunal deducted the full amount identified in the evidence as expended on legal costs jointly across the Settlements. There is no challenge to the factual finding of the amount in fact expended.
3. The argument should be rejected on its merits in any event.
4. In my view, for the purposes of s 11 of the NDIS Act, a payment may be made "in respect of a claim for damages" whether or not it is inclusive of legal costs associated with bringing the claim. The words "in respect of" are sufficiently wide to accommodate such a payment. The costs of pursuing the civil proceeding and obtaining an agreement comprising the underlying claim may of course be considered in the exercise of the decision-maker's discretion as a special circumstance warranting its subtraction under Rule 3.13(f), as occurred in Mrs Pett's case. Even if that analysis is wrong, the error would not, in and of itself, justify an order setting aside the decision because it has not been shown that the outcome of the decision would have been any different had the Tribunal approached the matter by deducting the legal costs at an earlier stage of the decision-making process.

1. The claim for damages culminating in Settlement 2 was made in proceedings in which both Mrs Pett and her husband were joined as plaintiffs.
2. Before the Tribunal (as on appeal) it was submitted that the payment was not compensation in respect of personal injury causing Mrs Pett's impairments because the underlying claim was in part for damages compensating losses suffered by Mr Pett as a plaintiff in his own name and right. It was submitted that the payment should be inferred to have been shared equally between Mr and Mrs Pett in accordance with what were said to be general law principles concerning the attribution of the benefits and burdens of a contract.
3. NDIA concedes a broader error in the Tribunal's resolution of that issue. Given that the parties agree the nature of the error, it is appropriate to extract it here in its agreed form:

The Respondent also considers that the Tribunal denied [Mrs Pett] procedural fairness in its determination of that amount. That is because [Mrs Pett] had contended to the Tribunal that 'Claim 2' was a claim brought by her and her husband and that the settlement of 'Claim 2' involved a 50:50 split of the settlement amount between [Mrs Pett] and her husband. The Tribunal discussed its determination of the amount of compensation (under both 'Claim 1' and 'Claim 2') at T [105]. However, the Tribunal does not deal with, or resolve, that issue. The Tribunal has thus denied [Mrs Pett] procedural fairness, by failing to consider a substantial, clearly articulated argument. Additionally, even if the Tribunal had considered that issue and determined that it did not affect the calculation of the precise amount of compensation fixed under the settlement of 'Claim 2', an issue would nonetheless squarely arise on the materials as to whether some amount of the CRA should be ignored, pursuant to rule 3.10, given that on [Mrs Pett's] argument she herself did not receive the full amount of compensation, because some was paid to her husband. The Tribunal also failed to consider that possibility. ...

1. To my mind the Tribunal's failure to resolve the articulated argument concerning the "50:50 split", and the failure to consider the issue as one that may affect the discretion under Rule 3.10 are properly characterised as errors of law, whether or not they amount to a breach of the rules of procedural fairness.
2. NDIA conceded that the error was material, at least because if grappled with it might have affected the exercise of the discretion under Rule 3.10 and so have materially affected the outcome.
3. As a question of law, the mere circumstance that a payment was made to both Mrs Pett and Mr Pett does not demand a finding that the payment was not "compensation" within the meaning of s 11 of the NDIS Act. That is because a payment may fall within the definition even if it is made to another person. Moreover, a payment to Mr Pett may fall within the definition if it is a payment in the settlement of a claim for damages "in respect of the relevant personal injury". The pleadings to which the Tribunal referred indicate that the claim for damages brought on Mr Pett's behalf was in respect of losses suffered by him as a consequence of Mrs Pett's pleaded personal injury. I reject Mr Pett's submission that any payment to him under Settlement 2 could not fall within the definition on any view of the facts or law.
4. As NDIA submitted, there was material before the Tribunal capable of informing an apportionment of the payment even if the 50:50 split argument were to be rejected. I am satisfied that the Tribunal erred in concluding that there must necessarily be a nil reduction because Mrs Pett had not called a solicitor or other witness to explain what the proper apportionment should be.
5. To the extent that such a payment falls within the compensation definition on the facts (and otherwise fulfils the other requirements for Part 3 of the Rules to be enlivened), I accept that there would remain a discretion under Rule 3.10 to disregard it. These factual and evaluative tasks are for the ART to perform on the remittal and I express no further view about them.

1. In large part, Mrs Pett's submissions about the calculation of the CRA circled back to the premise that no occasion arose for any calculation at all. I will not repeat those arguments in this portion of my reasons, but identify three additional issues relating to the Tribunal's calculations.

1. Mrs Pett submitted that the Tribunal erred in failing to have regard to a spreadsheet she referred to as NDIA's own "CRA tool", being a spreadsheet with inbuilt formulae. She asserted that if her facts and circumstances were entered into the CRA tool, it yielded a "nil CRA" for both Settlements.
2. The Tribunal did not fail to have regard to the CRA tool. Rather, the Tribunal referred to two spreadsheets before it (Exhibits G and F) by which each party had sought to employ the tool to support their respective cases.
3. As I have mentioned, the Tribunal did not find the spreadsheet helpful because the outcome yielded by it depended on the inputs, which were the subject of interpretation.
4. Mrs Pett has not demonstrated that the Tribunal was legally obliged to use the tool in the performance of the essential task of applying the NDIS Act and the Rules to the facts as found. Among other things, Mrs Pett's submissions about the tool revealed her position that it was appropriate to reduce the CRA by a figure representing the cost of supports after the compensable event and before her participation in the Scheme, by partially amortising the lifetime costs of the required supports over the relevant period. She proceeded on the assumption that such a reduction to the CRA could be made whether or not the required supports had in fact been acquired and paid for by the participant in that period. As explained below, that approach is not mandated by Rule 3.13(f). Nor was it an approach the Tribunal was required to take in the performance of its task under any other provision of the NDIS Act or the Rules.

1. Mrs Pett submitted that she has been denied support for her significant impairments since 2009. She alleged that the Tribunal erred by failing to take into account the monetary value of the supports to which she was entitled from that time. She relied on the report of an occupational therapist who calculated the monetary value of "missed supports" at $599,055.32. She alleged that if Part 3 of the Rules applied, the Tribunal should have deducted that amount from the CRA. As I understood the submission, it was that the Tribunal was obliged to make the deduction either under Rule 3.13(f), or because Mrs Pett was entitled (under international law or otherwise) to be provided with supports from the date of her initial impairment and should be provided with a form of restitution equating to the financial value of that deprivation.
2. Mrs Pett's arguments founded on international law are discussed below.
3. Her submissions on this issue must otherwise be dismissed as contrary to the requirements of Rule 3.13(f) on its proper construction. Contrary to her submission, the word "paid" in Rule 3.13(f) should be given its ordinary meaning. It does not include the value of supports not in fact paid for and provided, nor does it include the economic value of support voluntarily provided by Mrs Pett's husband or any other volunteer.
4. To the extent that it was submitted that the Tribunal should have regard to the monetary value of supports provided to Mrs Pett by her husband, I accept that the circumstance that gratuitous support has been provided may, in an appropriate case, be taken into account in the exercise of the discretion conferred under Rule 3.10. For the resolution of this appeal, it is sufficient to find that the Tribunal was not legally obliged to make the deduction for the specific reasons advanced by Mrs Pett and did not err in law in failing to do so. To the extent that any part of the payments under Settlement 1 or Settlement 2 were attributable to Mr Pett's claim by reason of his assuming carer responsibilities, I have dealt with that argument when discussing the conceded error concerning the asserted 50:50 split.

Conceded error relating to past actual expenses

1. Rule 3.13(f) required the Tribunal to subtract an amount it considered to be equivalent to the to the total amounts paid by Mrs Pett for supports of a kind funded under the NDIS Act after the compensable event (in this case said to be in 2008 and 2009) and before she became a participant under the Scheme. As discussed earlier in these reasons, the Tribunal concluded there should be no deduction under that Rule because it was not satisfied that Mrs Pett's submissions about her past expenses were supported by sufficient evidence. It referred to the lack of evidence in the nature of receipts, bank statements or evidence from service providers. It referred to Mrs Pett's statement that she no longer had written records because of the passage of time and because she had moved house on several occasions.
2. NDIA conceded that the Tribunal erred in law in three respects in reaching its conclusion (each of which fell within the subject matter of the appeal) namely because it:

(1) did not tell Mrs Pett that it would not subtract any amount unless it was substantiated by evidence of the kind later referred to in its reasons (notwithstanding that some of the expenses went back as early as 2008) and so failed to comply with the rules of procedural fairness;

(2) did not address Mrs Pett's assertion that it was not reasonable to expect her to provide such evidence given the passage of time and her numerous relocations; and

(3) did not afford Mrs Pett procedural fairness for the additional reason that the Reasons disclose no consideration of a list of items referred to by Mrs Pett or assess whether expenditure on some of those items could be accepted to have occurred in light of other documentary evidence before it.

1. I am satisfied that the third error occurred, however I do not consider it necessary to categorise the error as a breach of procedural fairness. The error arises because there was material before the Tribunal capable of supporting a finding that there had been actual expenditure in the relevant period on (at least) a wheelchair and motor scooter with a total value of $8,500.00. The Tribunal did not explain why those particular expenses required any further corroboration or substantiation.
2. Having accepted that argument, it is strictly unnecessary to decide this appeal on the basis of the remaining points, given that upon remittal the asserted breaches of the rules of procedural fairness will be cured. For completeness I will explain why I would have invited further submissions relating to the remaining jointly concerned "errors" before upholding the parties' contentions relating to them.
3. I am satisfied that the Tribunal did not expressly grapple with the question implicitly (if not expressly) raised by Mrs Pett about the reasonableness of requiring her to provide receipts for expenditure occurring over such a long period of time. However, it may be reasonably inferred from the outcome that the Tribunal was not satisfied of the quality of the evidence before it. I am not satisfied that the rules of procedural fairness required the Tribunal to foreshadow to Mrs Pett the view it might ultimately form about the quality of her evidentiary case.
4. In addition, extracts from the transcript of the Tribunal's hearing show that NDIA made a positive submission about the nature of the evidence, as follows:

... And then as that officer of the respondent back in February 2021 said, it's likely that the Petts have incurred expenditure on supports but the tribunal needs to be satisfied of the amounts that were paid and in the absence of evidence to support that, the respondent's submission is that the tribunal just can't reach that state of satisfaction.

1. Moreover, the Reasons indicate that there was in fact an exchange with Mrs Pett about the reasons why further evidence could not be provided and her responses are recorded. They included not only Mrs Pett's assertion that no written records exist at all, but also additional objections on her part that such a request should even be made. The Tribunal referred to submissions evidencing an attitude of mistrust on the part of Mrs Pett and her husband affecting the choices made by Mrs Pett in the presentation of her case. The Tribunal referred to Mrs Pett's submission (advanced through her husband) that she considered the requirement for receipts to be part of a malign strategy to force a concession from her about the application of Part 3 of the Rules, tantamount to a bribe.
2. On appeal, Mrs Pett (again through her husband) made submissions of the same kind, typified by the following submissions specifically relating to the provision of receipts:

68.8 [Mrs Pett] wishes to put the Respondent and the Federal Court on notice: the NDIA's repeated demand for receipts is not a neutral evidentiary request. It is a coercive strategy designed to extract an admission that the Respondent cannot lawfully obtain. To fill that evidentiary void, it has sought, repeatedly, to induce [Mrs Pett] to self-incriminate by offering a financial benefit - a reduced CRA - in exchange for documents that they could retroactively manipulate to validate an alleged compensable event.

68.9 This is not procedure. This is institutional coercion dressed as 'administrative process.' The message is as clear as it is unlawful: Prove to us that you spent money on support after the compensable event, and we'll reduce your penalty. [Mrs Pett] sees this for what it is: a financial inducement to validate a legal position the Respondent cannot prove. It is, in legal terms, an attempted bribe. It is scandalous. It is offensive. And it is systemic.

1. That passage squarely indicates that an additional reason for not providing further evidence about the deduction under Rule 3.13(f) was a dogged refusal to participate in a calculation that Mrs Pett asserted must not be performed under Part 3 of the Rules at all because she adhered to the view that there was no "compensation" and the Rules were not otherwise enlivened.
2. In the circumstances I have described, I am not presently satisfied that there is a sufficient foundation on the material before me to support the position, jointly advanced, specifically relating to a breach of procedural fairness on the part of the Tribunal. All indications are that Mrs Pett was afforded the opportunity to address the topic about why receipts or other materials should be provided and that she did in fact take that opportunity. I am not presently persuaded that the Tribunal had the additional responsibility to warn Mrs Pett of the outcome should she stand by her submissions and adduce no further evidence on the topic of past expenses. I have considered whether it is appropriate to invite further submissions from the parties on this question, given their joint position. However, in my view any breach of procedural fairness will be remedied on the remittal given that I have accepted that one of the conceded errors concerning Rule 3.13(f) occurred, namely the failure to identify the asserted expenses provable without receipts or other written records.
3. The list of supports was otherwise of little evidentiary value, because of the inclusion of loss or expense not in the nature of supports, the failure to specify when expenses were paid, and the inclusion of items not in the nature of actual payments.
4. On remittal, the Tribunal's consideration of Rule 3.13(f) will be undertaken afresh.
5. Both parties resisted the Court making a factual finding about an amount that may be deducted under Rule 3.13(f) with a view to finally resolving the question of Mrs Pett's entitlements and the pre-conditions for the Court making a finding of fact under s 44(7) of the AAT Act are not present. Among other things, on the material before me it has not been shown that any such factual finding would have the effect of reducing the CRA to nil in respect of Settlement 2.

1. Mrs Pett submitted that the denial of supports constituted a breach of Australia's obligations under the United Nations Convention on the Rights of Persons with Disabilities ratified by Australia in 2008. That argument cannot assist Mrs Pett on this appeal. The decision appealed from is a decision of NDIA made under the NDIS Act. However, the NDIS Act was enacted to give effect of Australia's obligations under the Convention, the Tribunal had no jurisdiction to provide direct relief under the Convention and the question of whether Australia has fulfilled its obligations as a signatory is not an issue that arises before me. Australia's entry into an international agreement is not a circumstance conferring any personal cause of action on Mrs Pett against NDIA and no such suit could therefore be joined in this proceeding: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, Mason CJ and Deane J (at 214).

1. Mrs Pett's initiating documents, written submissions and oral submissions are replete with assertions of tortious and other wrongdoing on the part of the CEO, NDIA more generally and at times the Tribunal. The allegations of impropriety included assertions that the Tribunal calculated compensation knowing it had no power to do so, and in so doing penalised a vulnerable disabled woman entitled to considerable supports.
2. I accept that a claim alleging deliberate wrongdoing in the exercise of a statutory power may conceivably be joined on an appeal, whether as an asserted legal error or as a separate cause of action agitated in the same proceeding in the Court's original jurisdiction. However, the circumstance that two errors have occurred does not establish deliberate wrongdoing. On this appeal, the allegations of deliberate misconduct were entirely without factual foundation and should not have been made. The making of the allegations has only served to prolong the resolution of the appeal and the final resolution of Mrs Pett's entitlements.

1. At the hearing of the appeal, Mrs Pett tendered a supplementary appeal book containing a number of documents that were not in evidence before the Tribunal. NDIA's objections to the admission of that material are listed in an Aide Memoire taking the form of a table identifying the contentious documents by their page number in the book. The objections are largely based on relevance, including because the documents were not before the Tribunal. For the efficient conduct of the hearing, I deferred rulings on the objections until the delivery of judgment.
2. I uphold NDIA's objections to the documents commencing on pages 105, 125, 128, 129, 131, 171, 175, 203 and 208. The Tribunal did not err in law by failing to have regard to documents not put before it and the relevance of the documents was not adequately explained in Mrs Pett's submissions.
3. The document commencing at page 211 is a 144 page submission and is not in the nature of evidence. My reasons for limiting the use of that document were explained to the parties at the second day of the hearing and need not be repeated here.
4. Mrs Pett also sought to rely on a "Functional Capacity Assessment" dated 18 February 2025 annexed to her affidavit of 30 May 2025, (since marked MFI A4).
5. I uphold NDIA's objection to the tender of that Assessment, principally on the basis that it post-dates the Tribunal's decision. Its relevance may be considered by the ART upon the remitted review, but it does not inform the question of whether the Tribunal erred in law on the material before it upon the making of the decision forming the subject of this appeal.
6. Mrs Pett relied on that document in part to show that she has recently been diagnosed with acquired brain injury as a result of a stroke occurring in 2009. She sought to argue that the injury was not the same as that sued for in either of the proceedings culminating in the Settlements. That is an essentially factual matter for the ART to decide, to the extent that is relevant on the review. It is sufficient to repeat my observation that the Tribunal expressly referred to brain injury as an injury identified as suffered by Mrs Pett when she qualified as a participant in the Scheme, and concluded that that injury was the cause of some of her impairments. There is no error of law affecting those factual findings.

1. Mrs Pett seeks an order setting aside the decision of the Tribunal. That order will be made. There will be a further order remitting the matter to the ART.
2. Other forms of relief sought on the notice of appeal were based on an assumption that the Rules had no application. Those forms of relief will not be granted because I have rejected Mrs Pett's underlying arguments on that topic.
3. Mrs Pett seeks an order for restitution said to be payable because funding owing to her under the NDIS Act has been withheld. Mrs Pett has not established on the appeal that funding has been "withheld" in the relevant sense. I have rejected her argument that there existed a source of obligation to pay her supports outside of the context of the NDIS Act, and her final entitlements under the NDIS Act are yet to be determined.
4. Mrs Pett alleges an entitlement to compensation for the negative impact of incorrect decisions "pending confirmation of legal errors and misapplications". That form of relief was expressed as a reservation of Mrs Pett's rights in relation to compensation. The inclusion of that reservation of rights in the orders sought does not of itself transform this proceeding into a civil claim for compensation and I need not consider it further.
5. Mrs Pett then sought orders for further redress including an order for a review of NDIA's practices, a recommendation for internal investigation and orders imposing "corrective measures" to prevent future errors. The Court's powers on this appeal do not extend to imposing measures of that kind. Even if they did, the claims for relief were founded upon allegations of deliberate wrongdoing for which there was no proper evidentiary foundation. No orders of that kind can or should be made.
6. The question of costs will be decided separately, having regard to these reasons.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.