Background
The NDIS Quality and Safeguards Commissioner brought civil-penalty proceedings against Irabina Autism Services (in liquidation), its former chief executive, Debra Goldfinch, and its former General Manager Specialist Services and Authorised Program Officer, Rebecca Goldfinch. The Commissioner alleged that Irabina used prohibited restrictive practices on people with disability, trained staff in prohibited techniques, and continued doing so despite concerns being raised.
On the third day of trial, the Commissioner sought leave to amend the originating application. The proposed amendments included corrections and narrower date ranges, but also sought to make clear that Debra’s alleged failures under the Code of Conduct were separate contraventions on every occasion Irabina used a prohibited restrictive practice. The Commissioner also sought to allege equivalent per-use contraventions of the duty to act on safety concerns against all respondents.
The Court’s Holding
Justice Horan granted leave in part. The Court permitted uncontroversial corrections to the Code of Conduct citations and date ranges, and allowed the amendment alleging that Debra committed a separate contravention of rule 6(c) and s 73V of the National Disability Insurance Scheme Act 2013 on each relevant use of prohibited restrictive techniques or practices by Irabina.
The Court held that, despite the late application, the Commissioner’s case against Debra had sufficiently indicated since early 2025 that separate rule 6(c) contraventions were alleged for each use. The amendment raised no need for further evidence, and Debra could seek to amend her response or recall witnesses if necessary. But the Court refused amendments that would characterize the alleged failures to act on concerns under rule 6(e) as separate contraventions on each use. That was a material substantive change first clearly articulated in the Commissioner’s opening outline and made too late after trial had started. Costs were reserved.
Key Takeaways
- A regulator may obtain a late amendment where the litigation record has already made the real case sufficiently clear.
- Separate alleged contraventions tied to each use of a prohibited restrictive practice may be pleaded against an individual under rule 6(c).
- The Court would not allow a late reframing of rule 6(e) failures to act on concerns as per-use contraventions.
Why It Matters
The decision underscores the need for precision in civil-penalty proceedings, particularly when the number of alleged contraventions affects potential penalties. Concise statements do not relieve regulators of clearly identifying the case respondents must meet.
It also distinguishes between alleged unsafe service delivery and an alleged failure to respond to safety concerns: although both may arise from the same events, they need not be pleaded or treated as identical per-incident contraventions.