1. I have considered the following material in determining the dismissal question:

(a) The evidence and submissions filed by the parties in relation to the substantive review during the proceedings, except for that material that was filed for the sole purpose of alternative dispute resolution under Part IV, Division 3 of the AAT Act,[4]

(b) The procedural directions made by the Tribunal during the proceeding for the conduct of the substantive review to hearing,

(c) The submissions of the Applicant filed on 5 June 2025 in support of her request for an extension of time in which to comply with the procedural direction I made on 16 May 2025,

(d) A submission filed by the Applicant on 6 June 2025 in response to my decision of 5 June 2025,

(e) The submissions of the Applicant and Agency filed in relation to the dismissal question on 20 June 2025 and 30 June 2025 respectively.

1. Proper consideration of the questions before me requires a sketch of the Participant Planning provisions contained in Part 2 of Chapter 3 of the NDIS Act. The Applicant's Participant Plan is an "old framework plan" within the meaning of Part 2.
2. The planning schema is linear and prospective in design. Upon a person becoming a participant in the NDIS, the CEO must facilitate the preparation of the participant's plan: s 32(1). Section 33 sets out those matters that must be included in the participant's plan. This includes a SoPS which is required to be developed with the participant, and which is approved by the CEO: s 33(2). A SoPS must include the date by which or the circumstances in which the plan must be reassessed under s 48 (an unscheduled reassessment) or s 49 (a scheduled reassessment): s 33(2)(c). Reassessment of a participant plan under ss 48 or 49 will result, relevantly, in either a variation of the plan or in its replacement: s 48(7)(b) and s 49(1)(b) respectively.
3. A participant plan comes into effect, relevantly, when the CEO approves a SoPS: s 37(1). A participant will only ever have one participant plan subsisting. That is because a participant plan ceases to have effect, relevantly, when it is replaced by another plan: s 37(3). A variation to a participant plan takes effect on the date specified by the variation, which must not be earlier than the date the variation is made: s 47A(10).
4. Section 39 provides that the Agency must comply with the SoPS in the participant's plan. In other words, it is obliged to fund or provide the supports that have been approved by the CEO.
5. As I have set out above, this Tribunal's jurisdiction to review the decision made on 22 January 2021 arises under s 103(1) of the NDIS Act. In conducting the review, the Tribunal "stands in the shoes" of the original decision maker and remakes the decision having regard to the scope of power conferred by s 100(6) of the NDIS Act on the internal review delegate and having regard to the scope of power of the original decision maker under s 33(2).[5]
6. Having regard to that, in reviewing the decision of 22 January 2021 the Tribunal has the power to determine what supports were reasonable and necessary for the Applicant, and which ought to be funded and provided prospectively from that date, until the SoPS was replaced on 5 May 2021.
7. It is essential to grasp that the Tribunal is not dealing with a presently operative decision the review of which has the potential to result in the approval of supports that will be funded or provided prospectively from the date the presently operative SoPS decision was made or some earlier or later date within the period determined by the Tribunal (but not earlier than the presently operative plan period). It is dealing with a superseded or spent decision, the review of which can only serve a practical purpose in very limited circumstances.
8. In this respect, tor this review to serve any practical purpose it is necessary for the Applicant to:
   1. identify the supports that she contends should have been approved for inclusion in her SoPS commencing from 22 January 2021, but which were not, and
   2. establish as a matter of fact that these unapproved supports were provided to her within the period of that SoPS, such that an amount has been paid or is owing in respect of those supports, and
   3. establish to the Tribunal's satisfaction these supports were reasonable and necessary supports in accordance with s 34(1) of the Act and the relevant Rules, which it ought to now retrospectively approve for inclusion in that SoPS,

1. pursuant to s 39 of the NDIS Act the Agency must now comply with that SoPS as varied or substituted by the Tribunal by funding those supports retrospectively.

1. With respect to paragraph 22(iv) above, I note that the Tribunal has no power to order the Agency to pay any amount of money to the Applicant in relation to any support that is retrospectively included in her SoPS because of this review. It is the administrative mechanism of s 39 by which such a remedy is obtained by the Applicant.
2. I also consider it appropriate to note that while the pathway to obtaining retrospective approval of funding for supports in relation to which an expense that has been incurred in a prior SoPS period is legally available under the NDIS Act in the limited circumstances I have explained above, it would be foolhardy for anyone to act on the basis that such an outcome is inevitable or even likely. Having regard to the prospective nature of the participant planning provisions in Part 2 of the NDIS Act and the need to ensure the financial sustainability of the NDIS,[6] such an outcome would be limited to an exceptional case in my opinion.
3. I now turn to the Applicant's request for the approval of additional supports in her SoPS.
4. At the time she sought the former AAT's review of the internal review decision, her complaint was that the following requested supports had not been approved for inclusion in her SoPS:
   1. 1:1 care by a support worker for 18 hours per day for assistance with daily activities and social and community participation plus non-active overnight care,
   2. domestic assistance of 2.5hours per week,
   3. weekly exercise physiology sessions,
   4. a dietician,
   5. neuropsychologist intervention,
   6. a further 14 hours of psychology (noting that the internal review decision provided funding for 26 hours),
   7. 5 neuro feedback sessions,
   8. 1 hour per week of nursing care,
   9. a further 26 hours of occupational therapy (noting that the internal review decision provided funding for 26 hours),
   10. 29 hours of occupational therapy assessment,
   11. 1 session per month of podiatry services plus travel,
   12. podiatrist assessment for wearable technology/walking aids,
   13. 30 days short term accommodation (STA), with the hire of required equipment to be used at the STA where such equipment is not easily transportable from the Applicant's home,
   14. exploration of housing options including SDA and support to move into appropriate housing. This was to include $4,000.00 for preparation of a report by SDA Services Pty Ltd and 20 hours with an occupational therapist,
   15. support to keep her tenancy and meet her tenancy obligations,
   16. assistance to find and keep work,
   17. funding to try new activities that are required to be in modified form including but not limited to tennis, surfing, snorkelling, art classes, sewing classes, and dance classes,
   18. 10 sessions with a chiropractor,
   19. deep pressure therapy,
   20. 3 monthly multidisciplinary team meetings at 1.5 hours per therapist plus travel,
   21. an agreement from the Agency to fund materials for DIY projects where a suitable solution to the Applicant's needs cannot be found on the open market, and
   22. an increase in funding for consumables and assistive technology for the following: prescriptive glasses; computer with assistive technology software; electric mobility device as determined by the occupational therapist; motorised bed with appropriate mattress; sit to stand recliner; polar H10 chest strap with replacement strap every 6-9 months; basic gym equipment, such as hand weights, yoga mats, and exercise bands; noise cancelling headphones; falls alarm/apple watch; electric toothbrush and replacement brushes; hire of mobility equipment until trials are completed and equipment delivered; $3,000 for miscellaneous low-risk, low cost items; maintenance for sit to stand electric desk; shower chair with swivel seat; lights that can be remotely switched on and off; modified intercom/doorbell for remote answering; portable table wheelchair; vacuum cleaner; nutritional supplements; ice vests; environmental temperature control device such as a portable air conditioner; compression garments; modified lock house entrance to allow for remote unlocking of door; air filtration system; water filtration system; kitchen stool; modified bike; modified surfboard; maintenance and replacement costs for a 2nd computer screen; window dressings such as blackout curtains or blinds; portable hair wash basin; audio headset for speech to text; audiobook service plus allowance for 52 books per year; kindle; Terri towel bathrobe; and accessible phone apps.
5. Additionally, the Applicant requested "anything else" found in the reports or letters provided with her application that therapists deemed appropriate, and "anything else" mentioned by her advocate or support coordinator that has been identified as beneficial for her.
6. While this case has been before the Tribunal the Applicant has made further requests for funding for meals and other household items. On 12 February 2021 she filed a Statement of Lived Experience in which she requested funding a specialised wheelchair and Specialist Disability Accommodation.
7. The Participant Plan that was approved on 22 January 2021 included a SoPS which was for the period 22 January 2021 to 21 February 2021 (one month). The Tribunal's file does not reveal what happened, if anything, after 21 February 2021 to 5 May 2021 when a new plan was made. The one-month SoPS included funded supports with a total value of $26,816.25 in two categories. In the "Core Supports" category, funding of $20,075.43 was provided for Level 1 and 2 Assistive Technology, 7 hours per day of support worker assistance with self-care activities, 12 hours per week of support worker assistance for access to community, social, and recreational activities, and transport. In the "Capacity Building Supports" category, total funding of $6,740.82 was provided for counselling services, the development of a diet and/or exercise plan, and for Level 3 Support Coordination.
8. While this case has been before the Tribunal 34 Directions Hearings have been conducted. After mid-July 2024 some of those Directions Hearings (four) were focused on the question of the scope of the Tribunal's jurisdiction, rather than on the question of the supports in dispute. However, the remaining Directions Hearings did concern the supports in dispute in one way or another. The procedural directions made at those Directions Hearings have provided the Applicant with multiple opportunities to do the following:
   1. identify the supports that she sought to be included in her SoPS, by reference to their frequency, duration, intensity or other measure where relevant,
   2. where it was claimed that a cost had been incurred in relation to the provision of a support in dispute that was not approved under her SoPS, identify that support and provide evidence of that cost,
   3. provide any further evidence in support of her claims in relation to the disputed supports.
9. The Applicant substantially failed to comply with these directions although it must be acknowledged that some responsive material was filed at various times.
10. Against that backdrop, the case came before the Tribunal, differently constituted, for a Directions Hearing on 12 June 2024. To advance matters, the Tribunal made the following directions:

1. On or before 14 June 2024, the Respondent must file with the Tribunal and give to the Applicant:

(a) a table in a word or PDF document outlining the supports requested by the Applicant ('table of requested supports') contained in her excel spreadsheet dated 30 June 2023; and > > (b) the Respondent's position regarding whether each stated support meets section 34 of the National Disability Insurance Scheme Act 2013 (Cth)('the Act') and any relevant rules.

1. Each support requested is to be numbered and grouped with similar supports or in appropriate categories with any accompanying particulars provided. 2. On or before 28 June 2024, the Applicant must confirm in writing with the Respondent and the Tribunal the following matters: 3. Any supports contained in the table of requested supports that she no longer seeks. Each support that is no longer sought must be identified by the number in the table; 4. A list of any new supports that are sought and details of any reimbursements for supports that have been paid for by the Applicant since filing her application with the Tribunal, noting that any request for reimbursement will be assessed against section 34 of the Act and any relevant rules, and must be accompanied by supporting evidence; 5. An indication of any lay witness (non-expert) proposed to be called at the hearing of this matter, including a brief outline of the relevant evidence they propose to give in relation to the Applicant's impairments, functional capacity and requested supports.
2. The Agency complied with Direction 1, the Applicant did not comply with Direction 2 before the compliance date or at all.

1. Section 100 of the ART Act confers a discretionary power on the Tribunal to dismiss an application if the applicant fails to either proceed with it or comply with the ART Act or an order of the Tribunal in relation to the proceeding.
2. That discretion is to be exercised having regard to the Tribunal's objective, which is found in s 9 of the ART Act, and which provides:

9 Objective > > The Tribunal must pursue the objective of providing an independent mechanism of review that: > > (a) is fair and just; and > > (b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and > > (c) is accessible and responsive to the diverse needs of parties to proceedings; and > > (d) improves the transparency and quality of government decision‑making; and > > (e) promotes public trust and confidence in the Tribunal.

3. The discretionary power contained in s 100 must also be considered in the context of the Tribunal's procedure more generally. The procedural choices adopted for the management of each case before the Tribunal must also give effect to the Tribunal's objective.
4. The general principles of procedure that apply in the management of each review are set out in Part 4, Division 4, Sub-division A of the ART Act. Notable amongst them for present purposes are the following:

(1) As far as practicable, the Tribunal must conduct each proceeding in the Tribunal in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties. > > (2) Subsection (1) is subject to this Act and the rules. > > ... > > 53 Tribunal controls scope of review of decision > > In a proceeding for review of a decision, the Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers. > > 55 Right to present case > > General rule > > (1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to: > > (a) present the party's case; and > > (b) access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and > > (c) make submissions and adduce evidence. > > ... > > 56 Parties and their representatives to assist Tribunal > > Decision‑makers and their representatives > > (1) In a proceeding for review of a decision, the decision‑maker and any person representing the decision‑maker must use their best endeavours to assist the Tribunal to: > > (a) make the correct or preferable decision in relation to the proceeding; and > > (b) achieve the objective in section 9. > > Other parties and their representatives > > (2) A party to a proceeding in the Tribunal (other than the decision‑maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9. > > ...

Should the proceeding be adjourned pending the outcome of the Appeal

1. I will deal first with the Applicant's submission that this review ought to be adjourned indefinitely pending the outcome of her Appeal to the Federal Court. As I have already noted that Appeal concerns a decision of the Tribunal, differently constituted, that it did not have jurisdiction to review various other decisions. Logically, the Appeal does not impugn that Tribunal's decision that it did have jurisdiction to conduct the review of the decision that is before me.
2. In colourful submissions filed on 6 June 2025 in protest of my decision to refuse to extend time for compliance with Direction 1 of the Directions made on 16 May 2025, the Applicant's representative called upon me to "yield" to the Appeal. In my respectful opinion, for the reason I have stated, there is nothing to yield to. I also note in this respect that no stay of this review has been issued by the Federal Court, and the Tribunal has not been advised of any application to the Court of this nature.
3. It is relevant to consider if the issues in the decisions subject to Appeal are so intertwined with the issues in the review that remains before me that a balance of convenience might be served by indefinitely adjourning this proceeding pending the outcome of the Appeal. However, I am satisfied that there is no such balance of convenience.
4. For the reasons I have explained above, it falls to the Applicant in this review to identify and provide evidence of the unfunded supports she was provided with between 22 January 2021 and 4 May 2021. That question is not intertwined with any issue as to whether these unfunded supports were provided to her at any other time. That fact would still fall to be established in respect of the other period. Nor is it connected with any question of what supports should be available to the Applicant in her current operative SoPS on a prospective basis. The questions to be determined in this review would be the same even if the Applicant is wholly successful in her Appeal to the Court. There is therefore no utility in the review being delayed because of the Appeal.

1. The discretionary power contained in s 100 of the ART Act is only enlivened if an applicant fails "within a reasonable time" to proceed with their application, or relevantly, comply with a procedural direction of the Tribunal. In this second respect a procedural direction is an "order" of the Tribunal: s 79(1) of the ART Act. There are therefore two preconditions that must be satisfied before the discretion can be exercised; there must be the relevant failure to proceed, or comply with a direction, and, a reasonable time must have elapsed after that relevant failure.[7]
2. Exercise of the power deprives an applicant of an independent review of an administrative decision they consider is contrary to their interests, in circumstances where the ART's objective is to provide such an independent mechanism of review. For this reason, the power should only be exercised as a matter of last resort. This requires careful consideration of alternative remedies to the applicant's default. Nor should the power be exercised without giving the Applicant an opportunity to explain or justify their default.[8]
3. In Evans,[9] a differently constituted Tribunal opined with respect to the equivalent provision in the former AAT Act that the term "reasonable time" was not a fixed concept, but one which had to be determined in the context of each case, having regard to all relevant circumstances.[10] I agree, and I consider that the same principal applies in relation to the term as it is used in s 100.
4. The Tribunal in Evans then went on to consider the phase in the context of the AAT objective as this was expressed in s 2A of the AAT Act, which provided that "[i]n carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. It expressed the opinion:
   1. ... it should not be assumed that the time in which an applicant is expected to proceed with an application must necessarily be short for it to be 'reasonable'. A proper assessment of relevant circumstances may lead to a different conclusion. In this regard, consideration should be given to the Tribunal's objectives set out in s 2A of the AAT Act ...
   2. As can be seen, quickness is but one objective, coupled with fairness, justice, economy and informality, where considerations of accessibility, proportionality and public trust also arise. [11]
5. I consider these observations equally relevant to the discretionary power conferred by s 100 and the ART's Objective as this is expressed in s 9 of the ART Act.
6. I now turn to apply these principles to the case before me.
7. This case has now been before the Tribunal for 5 years and 6 months. It is among the oldest cases remaining in the NDIS Jurisdictional area. To date, 34 Directions Hearings have been conducted in relation to the case. 30 of those have attempted, in one way or another, to progress the substantive dispute between the parties to a final review hearing. Earlier in the proceeding, six Case Conferences were conducted for the purposes of alternative dispute resolution under Division 3 of Part IV of the AAT Act to resolve the dispute or progress it to hearing.
8. The procedural directions made by the Tribunal in relation to the substantive review have afforded the Applicant multiple opportunities to clarify the requested supports that are in dispute and to file additional evidence in relation to those supports. The Applicant did not comply satisfactorily with those directions, or at all. She has continued to add to the supports in dispute, and to make other claims, while her case has been before the Tribunal, with the result that it has become a rolling dispute.
9. The Tribunal's direction of 12 June 2024 attempted to draw a line on that by shifting the initial onus of identifying the supports that were in dispute to the Agency and requiring the Applicant to indicate if she agreed with the Agency's assessment, and if not, by indicating what the discrepancies were. That was an unusual step given that the practical onus of identifying the issues in dispute lies with an Applicant. However, despite this significant procedural adjustment the Applicant failed to comply with the direction before the compliance date or at all.
10. The reviewable decision that now remains before the Tribunal has a temporal range of less than four months. For the reasons I have explained above, the only practical purpose that this review could serve, or to put it another way, the only benefit it could provide the Applicant, is to approve supports for inclusion in the SoPS that was operative during this short period which the CEO did not approve in the decision made on 22 January 2021, but in relation to which the Applicant incurred an actual expense during that period.
11. Direction 5 of the Directions made on 12 June 2024 required the Applicant to particularise her claim in relation to "reimbursement of expenses" by 28 June 2024, which logically included any expense that had been incurred between 22 January 2021 and 4 May 2021. Direction 1 of the Directions I made on 16 May 2025 must be seen in this context. By operation of the Directions made on 12 June 2024 and 16 May 2025 the Applicant has been required to particularise her claims for "reimbursement" for a period exceeding 12 months but has not done so. That is in addition to the multiple prior directions that the Tribunal had made to progress the review to hearing.
12. Having regard to these matters I am satisfied that the preconditions for the exercise of the discretion conferred by s 100 are met. The Applicant has failed to proceed with her application, and comply with directions of the Tribunal, and she has failed to do so within a reasonable time.
13. I now turn to the question of whether the discretion should be exercised in the circumstances of this case.
14. The first matter that requires consideration is the Applicant's explanation for her default.
15. The procedural directions I made in relation to the conduct of the dismissal question to hearing have provided the Applicant with the opportunity to explain or justify her failure to proceed and to comply with the Tribunal's directions. Various justifications are set out in her submissions filed on 20 June 2025.
16. Those justifications must be considered within the parameters of what remains before me to review, which is, to repeat, to determine if the Applicant has incurred an expense between 22 January 2021 and 4 May 2021 in relation to a reasonable and necessary support that ought to have been included in the SoPS approved on 22 January 2021, but which was not.
17. In her submissions, the Applicant complains that the Tribunal is attributing the delays in the progress of the case to her in circumstances where the Agency was also responsible for delays in some instances. It is also submitted that the Tribunal is partially responsible for the delay in the progress of the case. I am prepared to accept both propositions.
18. Insofar as the Tribunal is criticised, I agree that the AAT ought not to have allowed this case to proceed in the way that it has. It ought to have defined the scope of the review, and determined it, in a timely way. For the reasons I have explained in Southam,[12] in its NDIS Jurisdictional Area, the Tribunal is dealing with subsistence supports about which there is an existential immediacy.[13] This calls for robust case management and timely decisions on review. I note that the ART's case-management processes are designed to avoid any recurrence of what has happened in this case.
19. However, acceptance of the proposition that the Applicant is not solely responsible for the delay does not alter the fact she has been substantially responsible for it by failing to particularise the supports in dispute, file any evidence she wished to be considered in relation to those supports, and by engaging in a rolling dispute.
20. In any event, in relation to the dismissal question and the review that remains before me, the delay arises from matters over which the Applicant has unique control, being the identification of her "claims for reimbursement" of expenses incurred on supports provided between 22 January 2021 and 4 May 2021. There is no way in which the Agency or the Tribunal can progress that issue in the absence of a particularisation of those expenses by the Applicant herself.
21. It is also submitted that the Applicant's delay in proceeding with her case arises from her "profound, multiple disabilities" and "serious illness" which require adjustments to be made, including allowing her additional time to comply with directions.
22. All or most applicants in the NDIS Jurisdictional Area are persons with significant and permanent impairments: that is the nature of the jurisdiction. Having regard to that, it is appropriate for the Tribunal to make procedural adjustments including by allowing an applicant additional time to comply with directions or by allowing adjournments during periods of illness, where circumstances require this. However, in this respect, as I have set out above, the Tribunal has provided the Applicant with multiple extensions of time, adjournments, and opportunities to clarify the supports in dispute and file any evidence she wants considered in relation to those supports over a five-and-a-half-year period. She has not done so. If she has been unable to do within that period, within the premises of her own submission, the question must be confronted: when will she ever be able to do so?
23. In this respect, I note that while the Applicant has been self-represented during most of the period this application has been before the Tribunal, she has been legally represented in proceeding since 25 September 2024. Despite that, in relation to the claim that remains before me to determine, no statement of evidence of the Applicant in relation to expenses claimed to have been incurred on reasonable and necessary supports between 22 January 2021 and 4 May 2021, which were not approved in the SoPS that was extant at that time, has been filed, and nor has any evidence of any such expense.
24. I note that these are matters of very narrow compass. They concern past events. The evidence either exists in relation to those matters or it does not. As I stated in my reasons for refusing the Applicant a further extension of time to comply with my directions of 16 May 2025, consideration of these matters does not involve prospective evidence gathering as to the Applicant's current and future needs. It involves the ascertainment or identification of evidence that must already be in existence. To the extent that the potential evidence is based on the Applicant's recall of those events, common sense would suggest that further delay is likely to exacerbate her difficulties in remembering. To the extent that any such evidence has been lost, no indication has been given as to how it may be retrieved.
25. I further note in relation to the directions made on 12 June 2024 and 16 May 2025, no medical evidence has been submitted to support any claim, if it is made, that the Applicant was prevented by illness from the complying with them.
26. It is submitted that the Applicant's delay arises from the fact that her legal representative has health conditions and impairments which prevent or inhibit him from attending to the Applicant's case, and that in this context, regard should be had to the fact that he is acting for the Applicant pro bono.
27. The Tribunal acknowledges the important contribution members of the legal profession make to access to justice when they act for vulnerable unrepresented parties in proceedings before it. However, the professional obligations of a legal practitioner do not change when they act pro bono. If they are unable to fulfil those obligations, they ought not to accept the brief.
28. In the present context, s 56(2) of the ART Act imposes an obligation on the Applicant's representative to use his best endeavours to assist the Tribunal to achieve the objective in s 9. Within the narrow parameters of this review as it remains before the Tribunal the practical help that the Tribunal requires to achieve its s 9 objective is the identification of the unfunded supports in relation to which the Applicant contends she incurred expenses between 22 January 2021 and 4 May 2021 and the filing of evidence in relation to those supports. As I have already stated, those are tasks of narrow compass. The Tribunal has not been assisted by the Applicant's representative in this respect.
29. I also note that the Applicant's representative has filed no medical or other evidence to support his claims that he is prevented or inhibited from attending to the Applicant's case by health conditions and impairments. That is a bare assertion only.
30. It is submitted that the Tribunal has impeded the Applicant's presentation of her case by failing to respond to multiple requests for a list of documents filed with the Tribunal. I have reviewed the Tribunal's file records as they are available to me and can confirm that several such requests were made on her behalf, both by a support worker and by her legal representative.
31. The management of requests for access to a Tribunal case file is a Tribunal Registry responsibility. Such requests do not ordinarily come to the attention of a Member of the Tribunal. In this case, I was unaware that any such request had been made until reference was made to them in the Applicant's submissions of 5 June 2025. The file available to me does not reveal, what action, if any, was taken by Registry in relation to the Applicant's requests for access to the Tribunal's case file.
32. The issue for me to determine is whether any procedural unfairness arises from Registry's decision, whether actual or constructive, not to provide the Applicant with a list of documents filed. I have reviewed the documents filed by the parties which have been posted to the Tribunal case file during the proceedings. Various additional medical/allied health reports have been filed over the course of the proceeding, and material has been produced by health practitioners in response to summonses issued by the Agency. As noted above, the Applicant also filed Statements of Lived Experience in the proceedings, including on 12 February 2021, which is within the temporal range of the decision under review.
33. However, the only evidence on the Tribunal's file of an expense claimed by the Applicant for a support not approved in her SoPS is an invoice filed on 23 September 2021 in relation to a meal preparation and delivery service supplied to the Applicant on 22 September 2021 by an entity trading as Hippocrates Healthy Eatery. That expense was not accrued in the period of the SoPS that is before me for review, so is irrelevant. The Applicant's Statement of Lived Experience dated 12 February 2021 does not refer to any expense having been incurred in relation to an unapproved support.
34. I note that on 21 October 2024 the Applicant's representatives filed an application for a summons, and a proposed summons, to be issued to the Applicant's NDIS plan manager, My Plan Manager, to produce invoices the Applicant had reportedly supplied to that entity. That summons was not proceeded with. The Tribunal file does not indicate why.
35. In summary, there is nothing on the Tribunal's case file that evidences any expense incurred by the Applicant in relation to an unfunded support during the period of the SoPS under review. Therefore, access to the Tribunal's case file could not have advanced her case even to the first and second threshold for her to have a viable claim (identification of the unfunded support, and evidence of an expense having been incurred in relation to that support during the temporal range of the SoPS under review). If those thresholds had been crossed it may be arguable that not having access to the medical and allied health reports and other documents filed in the proceedings disadvantaged the Applicant in the context of her impairment related disorganisation. But that issue is not reached.
36. Having regard to that, I am not satisfied that the Applicant has suffered any practical injustice[14] in not having been provided with access to a list of documents on the case file.
37. For these reasons the Applicant's explanation and justification of her default is not satisfactory.
38. The next step is to consider if there are remedial options available to the Tribunal in relation to that default which provide a viable alternative to dismissal of the application under s 100. I am not satisfied that there is any viable alternative option, noting the steps outlined above that the Tribunal has already taken in an effort to progress this case.
39. Having regard to what I have set out above, I do not consider there is any real prospect that allowing further time for compliance with the Directions made on 12 June 2024 and 16 May 2025 would enable the Applicant to remedy her default. It is now 3 years and 2 months since the SoPS that is the subject of this review was replaced by the SoPS in the participant plan that commenced on 5 May 2021. If the unfunded supports in relation to which an expense was incurred between 22 January 2021 and 4 May 2021 have not been identified and established with appropriate evidence by now, I consider it most unlikely that they ever will be.
40. Having regard to the duty imposed by s 55 of the ART Act, the Tribunal has afforded the Applicant multiple opportunities to present her case and make submissions and adduce evidence in support of it. Any further opportunity to do so would exacerbate the serious disproportionality that pertains between the public costs that have been expended by the Tribunal and the Agency on the conduct of this case to date and the benefit the Applicant could potentially obtain from this independent review insofar as it remains before the Tribunal. Objective 9(b) of the ART Act requires the Tribunal to be proportionate in its procedure for conducting reviews. Allowing any further time would be contrary to that principle in my opinion. Having regard to the public resources that this case has already absorbed, doing so would also be likely to undermine public trust and confidence in the Tribunal, rather than promote it, contrary to Objective 9(e).
41. The Tribunal has a power under s 53 of the ART Act to determine the scope of a review. It also has a power under s 106(4) of that Act to reach a decision on the papers without conducting a hearing. These avenues will sometimes provide an alternative to dismissal in circumstances of an applicant's default. However, neither provide a way forward in this case.
42. That is because, insofar as s 53 is concerned, the scope of this review is already manifest. It is to determine if any unfunded support provided to the Applicant between 22 January 2021 and 4 May 2021 was reasonable and necessary. A review cannot proceed on the papers within that scope without the Applicant first identifying what those unfunded supports were, and by her providing evidence of their provision. As I have said above, those are matters that are uniquely in the Applicant's knowledge and under her control.
43. The Applicant also submits that referral of the case for "mediation" is an appropriate alternative to dismissal. I disagree. The case has already had the benefit of 6 Case Conferences for the purposes of alternative dispute. These Case Conferences have not led to resolution of the dispute. The case has been before the Tribunal for 5 years and 6 months. It must now be brought to finality. As I have said above, failure to do so will increase the public costs that have been disproportionately incurred in the case and has the potential to undermine public trust and confidence in the Tribunal. In any event, I cannot see what there is to mediate if the Applicant cannot identify and provide evidence of the unfunded supports she claims were provided to her during the period of the SoPS under review. Mediation is likely to be a futility in those circumstances.
44. I thus reach the conclusion that there is no viable alternative to the exercise of the discretion conferred by s 100(a) and (b) of the ART Act to dismiss the substantive application insofar as it remains before the Tribunal on the basis that the Applicant has failed to proceed with it within a reasonable time and has failed to comply with the Tribunal's procedural directions made in respect of it.

(1) The Applicant's application for a stay of the proceeding is dismissed pursuant to s 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) on the ground that it is misconceived.

(2) Insofar as the Applicant applies for an indefinite adjournment of the proceeding, that application is refused.

(3) Substantive application no. 2020/0198 insofar as it remains before the Tribunal is dismissed pursuant to s 100(a) and (b) of the Administrative Review Tribunal Act 2024 (Cth) on the grounds that the Applicant has failed to proceed with the application and comply with an order of the Tribunal within a reasonable time.

[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.

[2] PRLT and CEO, National Disability Insurance Agency [2025] ARTA 549

[3] NSD908/2025 [PRLT] v National Disability Insurance Agency, filed 6 June 2025.

[4] s 88 of the ART Act provides that such material is not admissible in a proceeding before the Tribunal unless the parties consent to its admission.

[5] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7] and [8].

[6] Ss 3(3)(b) and 4(17) of the NDIS Act

[7] Charara v Commissioner of Taxation [2016] FCA 451 at [78] (a case concerning the equivalent provision in the former AAT Act, s 42A(5))

[9] Evans and Australian Capital Territory [2019] AATA 799

[12] Southam and National Disability Insurance Agency (Practice and Procedure) 2024 ARTA 198

[14] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37]; (2003) 214 CLR 1 at 14