Abley and Comcare (Compensation)

This matter concerned an application by the Applicant for the recusal of Member Gallagher from hearing substantive applications before the Administrative Appeals Tribunal (AAT). The Applicant alleged apprehended bias due to the Member's conduct during the hearing, including alleged interruptions, inappropriate facial expressions, a missing portion of the transcript, non-disclosure of the Member's qualifications, and an asserted relationship between the Member and the Respondent's counsel. The Respondent opposed the application for recusal.

The legal issue before the Tribunal was whether a fair-minded lay observer would reasonably apprehend that the Member might not bring an impartial mind to the resolution of the issues to be decided, applying the test established in *Ebner v Official Trustee in Bankruptcy*. This required the Tribunal to consider the Applicant's specific allegations of bias against the Member's conduct and the surrounding circumstances.

The Tribunal applied the objective test for apprehended bias, considering whether the Applicant's claims of bias were firmly established and whether there was a logical connection between the alleged conduct and the Member's ability to determine the issues on their merits. The Tribunal found that many of the Applicant's allegations were not supported by the transcript or audio recordings of the hearing, and that the alleged conduct did not demonstrate prejudgment or a lack of impartiality. The Tribunal noted that it is important for justice to be seen to be done, but also for judicial officers to discharge their duty to sit and not encourage parties to seek disqualification to obtain a more favourable outcome.

The application for recusal was refused.