Decision: The Tribunal DIRECTS the Direction dated 25 November 2025, as varied by the Direction dated 4 February 2026 and as further varied by the Direction dated 18 February 2026, be varied as follows:

1. On or before 26 February 2026[1] the Respondent must give the Applicant and the Tribunal a Statement of Facts, Issues and Contentions.

1. If, by 5pm (WAST) on 26 February 2026, the respondent:

(a) has not sought and obtained an order extending time for compliance with the order that I have made today; and

(b) has not given to the applicant, and the other party, a Statement of Facts, Issues and Contentions**;**

then pursuant to s 83(3) of the Administrative Review Tribunal Act 2024 (Cth), the respondent will cease to be a party to the review application.

PRACTICE AND PROCEDURE - non-compliance with directions - extension of time - failure to file Statement of Facts, Issues and Contentions - inadequate explanation for delay - effect of settlement offers on procedural orders - Tribunal case management obligations - extension granted, but springing order made that respondent cease to be a party if further non-compliance - Administrative Review Tribunal Act 2024 (Cth), s 83(3)

Administrative Review Tribunal Act 2024 (Cth)

Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42

ZJXQ and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1751

1. These reasons explain why, when granting the respondent a further extension of time to provide a Statement of Facts, Issues and Contentions, I also made a springing order removing the respondent from the proceedings if they fail to comply with their own nominated deadline.
2. The substantive review application before the Tribunal involves the review of a decision by the respondent not to grant the applicant access, as a participant, to the National Disability Insurance Scheme. The substantive review application is listed for hearing over three days to commence on 23 March 2026.
3. The history of the review application can be briefly stated as follows. The review application was lodged in November 2024. On 25 November 2025, the Tribunal made directions with a view to listing the review application for substantive hearing. Those directions included a direction that the respondent to provide a Statement of Facts, Issues and Contentions by 30 January 2026.
4. On 30 January 2026, the final date for compliance, the respondent sought an extension of time. The Tribunal granted an extension until 18 February 2026. On that date, the respondent advised that the hearing required an additional one or two days and sought a further extension of time until 20 February 2026.
5. The Tribunal accommodated the request for additional hearing days. The Tribunal also granted the extension of time for the provision of the Statement of Facts, Issues and Contentions until 20 February 2026. This was the exact date the respondent nominated for compliance. Being only two days after the date on which compliance was originally to occur, it conveyed the implicit representation that compliance was imminent.
6. The respondent failed to comply with that date. It did not proactively seek a further extension. Instead, on this occasion, the Tribunal was required to communicate with the respondent's solicitors to ascertain the reasons for the non-compliance. On 23 February 2026, the respondent sought a further extension, with the applicant's consent, to 26 February 2026 for the provision of the Statement of Facts, Issues and Contentions.

1. The objectives of the Tribunal are contained in s 9 of the Administrative Review Tribunal Act 2024 (Cth). That section is in the following terms:

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.

2. The ART Act provides the Tribunal with a number of powers to support this objective. Those powers include, but are not limited to the Tribunal having:

(a) discretion in relation to procedure;[2] > > (b) power to control the scope of the review of the decision;[3] > > (c) power to hold a directions hearing[4] and make directions;[5] and > > (d) power to dismiss an application where an applicant fails to proceed with the application[6], comply with the ART Act or comply with an order of the Tribunal within a reasonable time;[7] and > > (e) power to order that a party, including the decision-maker, cease to be a party to the review application if they fail to comply with the ART Act or comply with an order of the Tribunal within a reasonable time.[8]

3. The ART Act also imposes obligations on parties directed towards achieving the statutory objective of the Tribunal. Section 56 of the ART Act requires the parties and their representatives in Tribunal proceedings to use their best endeavours to assist the Tribunal to achieve the Tribunal's statutory objectives as set out in s 9 of the ART Act. Section 56 of the ART Act also requires that the decision-maker and their representative to use their best endeavours to assist the Tribunal to make the correct or preferable decision in relation to the proceeding.
4. As was observed by the President, Justice Kyrou, in Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, the Tribunal has a responsibility to manage its cases, from lodgement until final resolution, expeditiously and must retain control of the progress of its cases rather than allowing the parties to determine the pace at which a case proceeds.[9]
5. As further emphasised by the President, parties are expected to comply with Tribunal directions in the same way that they would directions made by a court, requests for additional time in which to provide material will not be necessarily granted, even if all parties agree, and requests for extensions of time or adjournments will only be granted if there is good reason for doing so, and they will not necessarily be granted even if all parties agree.[10]

1. The explanation provided for the failure to comply is opaque. On 23 February 2026, in response to the Tribunal's enquiry, the respondent initially stated that there was a 'miscommunication' regarding 'instructions', apologising and promising a more substantive communication later that day.
2. The subsequent communication, also on 23 February 2026, did nothing to properly, and candidly, explain why the respondent had failed to comply with its own self-nominated deadline. Rather, the communication appeared to intimate that non-compliance was justified or ought to be excused because terms of agreement had been offered by the respondent to the applicant.
3. To avoid doubt, the offering of terms of agreement does not suspend the operation of Tribunal orders without the express consent of the Tribunal. The respondent has provided no satisfactory explanation for the failure to comply.
4. The applicant consents to an extension of time. Had the applicant not consented, I would likely have refused to extend time in these circumstances. That said, as was made clear by the President in Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, extensions of time will not necessarily be granted even if both parties agree. The Tribunal will grant a further extension of time on this occasion.
5. However, the Tribunal has an obligation to manage its caseload efficiently. The respondent has repeatedly failed to comply with directions, including a deadline it specifically nominated, and has failed to provide a satisfactory explanation for its default.
6. As I observed in ZJXQ and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1751, at [28]-[34]:

[28] The Tribunal has finite public resources, and every procedural step, including the processing of multiple extension requests and the issuing of amended directions, consumes the time of the Tribunal's members and staff. That time is a publicly funded resource. Moreover, delay in one matter has a very real potential to indirectly impact on other applicants who are waiting for their matters to be heard and resolved. > > ... > > [32] On the one hand, a single request for a short extension of only a few days may appear somewhat trivial and unlikely to cause prejudice. However, when a party seeks an extension of time, they represent that, absent exceptional circumstances or circumstances beyond their control, they will be able to comply with the new deadline. The seeking of a short extension of time reinforces this representation, as it suggests not only that compliance is well-advanced, but that compliance is imminent. > > [33] On the other hand, when a party repeatedly seeks such extensions, it may suggest a failure to properly assess the additional time required to complete the task. When a party repeatedly fails to meet these self-nominated deadlines, as the respondent has done here, the Tribunal is entitled to question whether the party has been frank and candid about the true state of its preparedness and expected compliance. Parties should expect future requests for extensions after a deadline has already been extended will be scrutinised far more closely and such extensions will not be granted without a full and frank explanation, likely supported by evidence, detailing why the previous deadline was not met and what has been done to ensure compliance with the new one.

7. In these circumstances, I consider it necessary and appropriate to make an order managing the consequences of any further default. This matter is listed for final hearing over three days, less than a month from now. Despite that, neither party has filed a Statement of Facts, Issues and Contentions that they propose to rely on at that hearing. Whilst the parties might be content to be in that position less than a month out from the hearing, I am not.
8. There can be no more delay in this matter. As such, whilst I will extend time as sought by the respondent, I propose to make a springing order that:

If, by 5pm (WAST) on 26 February 2026, the respondent:

(a) has not sought and obtained an order extending time for compliance with the order that I have made today; and

(b) has not given to the applicant, and the other party, a Statement of Facts, Issues and Contentions;

then pursuant to s 83(3) of the Administrative Review Tribunal Act 2024 (Cth), the respondent will cease to be a party to the review application.

1. The Tribunal DIRECTS the Direction dated 25 November 2025, as varied by the Direction dated 4 February 2026 and as further varied by the Direction dated 18 February 2026, be varied as follows:

1. On or before 26 February 2026 the Respondent must give the Applicant and the Tribunal a Statement of Facts, Issues and Contentions; 2. If, by 5pm (WAST) on 26 February 2026, the respondent:

(a) has not sought and obtained an order extending time for compliance with the order that I have made today; and > > (b) has not given to the applicant, and the other party, a Statement of Facts, Issues and Contentions;

then pursuant to s 83(3) of the Administrative Review Tribunal Act 2024 (Cth), the respondent will cease to be a party to the review application.

1. I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for the decision herein of General Member F Robertson

..........................[SGD].........................

[1] On 24 February 2026, this date was amended to correct an obvious error.

[2] Administrative Review Tribunal Act 2024 (Cth), s 49.

[3] Administrative Review Tribunal Act 2024 (Cth), s 53.

[4] Administrative Review Tribunal Act 2024 (Cth), s 80.

[5] Administrative Review Tribunal Act 2024 (Cth), s 79.

[6] Administrative Review Tribunal Act 2024 (Cth), s 100(a).

[7] Administrative Review Tribunal Act 2024 (Cth), s 100(b).

[8] Administrative Review Tribunal Act 2024 (Cth), s 83(3).

[9] Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, [7].

[10] Re Bunnings Group Limited and Privacy Commissioner (Guidance and Appeals Panel) [2024] ARTA 42, [8].