Extrinsic materials (again)

NDIA v Foster [2023] FCAFC 11

F needed a catheter to urinate – did he meet access rules to become an NDIS ‘participant’14?  He said that ‘effectively or completely’ in the context of his ability to participate in self-care activities took its ordinary meaning without regard to extrinsic materials.

The court (at [31]) rejected this.  The notion these materials ‘cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of HCA authority since 1985’15.  This was put beyond all tolerable doubt in CIC Insurance.  The phrase ‘effectively or completely’ was not to be construed in a vacuum.  Simply because F needed a catheter did not mean he met NDIS access rules.

This principle is from Episode 94 of interpretation NOW!


14 r 5.8(a) of the NDIS (Becoming a Participant) Rules 2016 (Cth).

15 Bay Street Appeal [2020] FCAFC 192 (at [5]).