FOI 24/25-2051
Acknowledgment of Country
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FOI 24/25-2051
It’s the vibe…..
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The model litigant obligation
• Appendix B of the
Legal Services
Directions 2017
• Overseen by the Attorney General
through the Office of Legal services
Directions (OLSC)
• NDIA MLO guidelines are on the web
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FOI 24/25-2051
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the
objective of providing a mechanism of review that:
(a)
is
accessible; and
(b)
is
fair,
just,
economical,
informal and
quick; and
(c)
is
proportionate to the importance and complexity of
the matter; and
(d)
promotes
public trust and
confidence in the
decision-making of the Tribunal.
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National Disability Insurance
Agency v Davis [2022] FCA 1002
The Agency has no ‘stake’ in the
outcome of an AAT application
other than assisting the Tribunal to
reach the correct or preferable
decision.
(Mortimer J as she then was at [44])
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Complaints investigated
• More than 80 complaints have been
investigated and recommendations made
• Of these, the number of actual determined
breaches has been low – 5
• However, there have been multiple areas
of concern and ‘near misses’
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What is an adversarial
approach?
Based upon complaints made, an adversarial approach is one
where:
• NDIA is relying on legal technicalities or communicating in
legally technical language
• There is a power imbalance between a legally represented
NDIA and a self-represented applicant
• NDIA delegates do not attend conferences and/or do not
participate in the conference
• Counsel has been engaged, instructed by a lawyer, to appear
at a hearing, particularly an interlocutory hearing
• The scope of the issues before the Tribunal ‘creeps’ on the
initiative of the NDIA
• Perception that lawyers are acting unethically
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Evidence and IME’s
• Complaints about evidence tended to focus on:
– NDIA requiring more evidence to be filed when the
participant feels all the evidence requested has been
filed but it is ‘never enough’
– Summonses that are late or intrusive
• Complaints about IME’s tended to focus on:
– Briefing issues – what evidence was included or not
included in the brief
– Unnecessary IME
– Late IME
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Tribunal/Court commentary
GXFS and NDIA [2020] AATA 4555
• The NDIA sought consent to a release from the implied
undertaking in circumstances where a participant may have
felt that agreement on the substantive application was
dependant on the agreement to the release of the implied
undertaking.
NDIA v Davis [2022] FCA 1002
• The NDIA ‘deluged’ the Tribunal with submission in contrast to
the ‘more manageable’ submissions by the participant
NJDF and NDIA [2022] AATA 2138
• The NDIA did not comply with directions of the AAT due to the
“complex supports needs team” within the Agency in
circumstances where the challenging but achievable agreed
timetable had been set in the best interests of the child
participant
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Please note – pages 15 to 26 of this document bundle have been removed pursuant to
section 47C (deliberative processes) and section 47F (personal privacy) of the FOI Act
(1982).
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Conclusion
• NDIA has an obligation to :
– assist the Tribunal to make its decision (LSD)
– Assist the Tribunal to fulfill its s 2A objectives (AAT
Act)
• Assisting the Tribunal goes much further than just
assisting it to make a correct or preferable decision on
the material before it – this is only one of the obligations
on the NDIA
• We are also required to assist the Tribunal to be
accessible, fair, just, economical, informal and quick.
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