Andrews and National Disability Insurance Agency (Practice and procedure)

[2025] ARTA 473

Andrews and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 473 (28 April 2025)

Applicant:Mr John Andrews

Respondent:  The CEO, National Disability Insurance Agency

Tribunal Number:                2020/6194

Tribunal:Deputy President K Dordevic

Place:Sydney

Date:28 April 2025  

Interlocutory Decision:      The Applicant’s recusal application is refused.

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

Deputy President K Dordevic

Catchwords

PRACTICE and PROCEDURE – National Disability Insurance Scheme – application for recusal – no actual or apprehended bias – recusal application is refused.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
FSWN and National Disability Insurance Agency [2025] ARTA 110

Statement of Reasons

BACKGROUND

1. The Tribunal’s task in the substantive proceeding is to conduct an independent review of the delegate’s 1 December 2020 internal review decision to refuse Mr Andrews’s (the Applicant) application to become a participant of the National Disability Insurance Scheme (the Scheme) to determine if that decision was correct, or alternatively, the preferrable decision.[1]

   [1] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37].

2. The Applicant made an application to the Administrative Appeals Tribunal (AAT) on 8 October 2020. The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[2]

   [2] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth).  The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act. 

3. On 9 June 2022 the AAT issued a stay order. Mr Andrews’s application to have that order set aside was refused by the AAT on 20 December 2022. These AAT orders were quashed by the Federal Court of Australia on 1 April 2025: Andrews v National Disability Insurance Agency [2025] FCA 272.

4. On 17 April 2025 a case management directions hearing was conducted by MS Teams audio. The purpose of the directions hearing was to establish what, if any, further evidence was required and to set the matter down for hearing. In attendance were the Applicant and solicitor for the Respondent, Mr Young.

5. The Applicant advised that he had no further medical evidence to provide and relied on the medical evidence already provided to the Respondent. He confirmed that, apart from consulting his general practitioner every four weeks, he had not attended any other medical practitioner or allied health professional since 2021. However, he had consulted with a counsellor in 2024 in respect to his diagnosis of post-traumatic stress disorder but that this was not a medical condition that he relied upon in seeking access to the Scheme. The Applicant confirmed his long-standing position that he did not consent to an independent medical examination.

   Summons issue

6. The Respondent requested that the Tribunal issue summons to the Applicant’s general practitioner to produce all relevant documents for the period 11 September 2021 to present. The Respondent submitted that there were evidentiary gaps in the medical evidence and that the summoned material may fill those gaps.

7. The Applicant opposed the issuing of the summons, stating that any document not already in evidence is not relevant to the application before the Tribunal. Further, he submitted that it was well established by the medical evidence already in the possession of the Respondent that his health would decline over time.

8. Relevantly, the principles informing the issuing of a summons and inspection of summonsed documents before the Tribunal were considered in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 where Deputy President Forgie stated (emphasis added):

   [19] A summons issued by the Tribunal has many similarities to a subpoena issued by a court. Both compel either a person to give evidence or produce documents or things for the purpose of, in the case of a subpoena, a court and, in the case of a summons issued under the AAT Act, the Tribunal to carry out its functions...

   [20] Whether a subpoena or a summons, it is usually issued without question in the first instance. That assumes that there is no reason from the description of the documents or the identity of the person to be summonsed to question the relevance of the documents to the issues to be decided in the particular court or tribunal proceeding.

   …

   [24] The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.

   [25] What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision.

9. I am satisfied that I heard from both parties on the issue of summons, with the Applicant afforded an opportunity to voice his opposition. I am persuaded that the documents requested appear to have relevance to the determination of the substantive matter before me. It is on this basis that I granted the Respondent’s request to summon additional material in the following terms:

   All documents held by Dr Kristen Gibbes and/or Your Family Doctors at Erina Practice in relation to [the Applicant], including treatment notes, clinical notes, progress reports, test results, and current and past medications, for the period 11 September 2021 to present.

   The hearing date issue

10. The matter was timetabled for hearing. I indicated to both the Applicant and the Respondent that I was available to hear the matter on 30 or 31 July 2025 after it was established that one hearing day would suffice. The Applicant advised that he is not available for hearings on Wednesday or Thursdays for “private reasons”. He confirmed that that this was not for medical reasons. He would not elaborate further. I advised the Applicant that without more information about his lack of availability I would not find his request persuasive and again provided him with an opportunity to provide an explanation as to his lack of availability. He declined, reiterating that it was for “private reasons”. The Respondent indicated that they were available on these days.

11. After considering the Tribunal’s statutory objectives, the age of this particular matter, the likely delays should the hearing not proceed on the proposed hearing days and the absence of a compelling reason why the Applicant was not able to attend the hearing on the proposed hearing days I determined that it was appropriate to set the hearing down on a day that the Applicant stated he was not available for “personal reasons”.

12. Upon my communicating to the Applicant and Respondent my decision to set the matter down for hearing on a weekday that the Applicant stated that he was not available, he sought my recusal.

    RECUSAL APPLICATION

13. The Applicant seeks that I recuse myself on the basis that I was “incompetent” and demonstrated actual and apprehended biased towards him by granting the summons. Though not expressed plainly, I also understand that he alleged that I showed bias by listing the matter for hearing on a day that the Applicant says he is not available for “private reasons”. 

14. The Respondent did not make any oral or written submissions regarding the recusal application.

15. Subsection 37(1) Administrative Review Tribunal Act 2024 (Cth) (the Act) provides that the President may direct that a member or members constitute the Tribunal for the purposes of a proceeding. When so directed, a member has a duty to hear and determine the application for review.[3] Section 46 of the Act allows the President of the Tribunal to reconstitute a matter at any time after the start of the hearing of a proceeding if they are satisfied that a member has a conflict of interest or an actual or apprehended bias in relation to the proceeding. It is evident that this provision promotes the Tribunal’s statutory objectives, including providing a method of review that is fair and just as well as promoting public trust and confidence in the Tribunal.

    [3] Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (Ebner) at [19].

16. It is a fundamental principle that a case must be decided by an independent and impartial Tribunal.[4] A judge, or in this case a member of a Tribunal, will be disqualified from hearing a case if it can be established that they are not independent and impartial. [5] Impartiality is an indispensable aspect of the exercise of the Tribunal’s power.[6] Where there is actual bias or an apprehension of bias there is no impartiality.[7]

    [4] Ebner, [22].

    [5] Ebner, [5] to [6].

    [6] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2023] HCA 5 (QYFM), [26].

    [7] QYFM, ibid.

17. The legal principles relevant to ascertaining actual or apprehended bias were set down in the recent decision of FSWN and National Disability Insurance Agency [2025] ARTA 110. In short, actual bias will be found where a decision maker is so committed to a conclusion as to be incapable of alteration, irrespective of the evidence or arguments presented.[8] The question is whether the decision maker is open to persuasion. The fact that it may be easier to persuade a decision maker of a proposition than it may be to persuade another decision maker does not mean that either is affected by bias.[9] A finding of actual bias is a grave matter[10] and the allegation should therefore not be made lightly.[11] The accuser carries a heavy onus to establish the allegation.[12] The allegation must be distinctly made and clearly proved.[13]

    [8] Minister for Immigration and Multicultural Affairs v Jia Legend (2001) 205 CLR 507; [2001] HCA 17, at [72] (Jia).

    [9] Jia, [71].

    [10] Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J (Sun).

    [11] Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288 at [48].

    [12] South Western Sydney Area Health Service v Edmonds [20087] NSWCA 16 at [97] (Edmonds).

    [13] Jia, [127].

18. An apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question that requires determination.[14] The test is one of possibility (real and not remote) and not probability.[15] The application requires two steps. The first is that the accuser must identify what it is that may lead the decision maker to decide the case other than on its factual and legal merits. The second is that the accuser must articulate the logical connection between the matter and the feared deviation from deciding the case on its merits. A bare assertion, without more, is not sufficient to establish the nature of the interest and the asserted connection with the departure from impartial decision making. It is only after these two steps can the reasonableness of the apprehension of bias be assessed. [16] The observer is taken to be reasonable and the person observed is a professional decision maker whose “training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.[17]

    [14] Ebner, [6].

    [15] Ebner, [7].

    [16] Ebner, [8].

    [17] Johnson v Johnson [2000] HCA 48 (Johnson), [12] quoting from Re JRL; Ex parte CJL [1986] HCA 39 (1986) 161 CLR 342 at [372] per Dawson J.

    CONSIDERATION

19. The Applicant seeks access to the Scheme. The Tribunal requires cogent medical evidence in order to make factual and legal findings to determine whether the Applicant should be granted such access. To ensure that all relevant evidence before it to make the correct or preferable decision, the Tribunal is empowered to give directions to the parties and to make interlocutory decisions to progress the matter to hearing. This includes issuing a summons.

20. This matter has been afoot since 2020. The most contemporary medical reports in evidence are from 2021. The Applicant has made clear that he does not wish to undertake any medical examinations and the Respondent did not press this point. The Applicant declared at hearing that in 2022 his general practitioner opined that his medical conditions will cause a further decline in his functioning over time.  

21. I am satisfied that the Applicant and the Respondent each had an opportunity to present their case with respect to the summons issue during the directions hearing.

22. I am also satisfied that the material requested by the Respondent has apparent relevance to the issues requiring determination; the Respondent must also be afforded an opportunity to present its case at hearing and assist the Tribunal to make the correct or preferable decision by ensuring all relevant information is before it.[18] I am also satisfied that the Applicant has a further opportunity to object to the release of some or all of the documents that will be obtained under summons.

    [18] As per sections 55 and 56 of the ART Act.

23. In my view the Applicant has not established a nexus between the granting the summons and a conclusion of actual bias. There can be no doubt that the Applicant does not want the summons issued and so was unhappy with my decision to grant it. However, the mere assertion of actual bias, and no more, is not sufficient to establish actual bias.  

24. Furthermore, I am not persuaded that a reasonable lay observer would consider that by the issuing the summons there is a real risk that I would bring a closed mind to issues to be determined at the substantive hearing. Indeed, the summoned information may support the Applicant being granted access to the Scheme. Of course, it may not. The question of whether those materials may be helpful or harmful to the Applicant’s case is not relevant to the decision to issue summons.

25. I conclude that no fair-minded lay observer in attendance at the directions hearing could or would draw the conclusion that I had formed any view on the issues requiring determination at the substantive hearing.

26. I conclude that the granting of the summons in the terms outlined above does not establish actual or apprehended bias.

27. I next considered the whether the allegation of actual or apprehended bias are demonstrated by setting the matter down for hearing on a day that the Applicant states he is not available for “personal reasons”.

28. Section 51(1) of the ART Act provides that as far as is practicable, the Tribunal must conduct each proceeding in the Tribunal in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties. In relation to the Tribunal, the term ‘accessible’ is defined in section 4 of the ART Act and means enables persons to apply to the Tribunal and to participate effectively in proceedings.

29. Subsection 55(1) of the ART Act stated that a person must be given reasonable opportunity to present their case, access information or documents that the Tribunal will have regard to in reaching its decision and to make submissions and adduce evidence.

30. The Tribunal’s statutory objectives in section 9 of the ART Act inform and guide the Tribunal’s procedures and the management of proceedings. As already stated, the Applicant lodged his application more than four years ago. The matter was set down for substantive hearing on the first dates that the Respondent and I were available.

31. The Applicant is not engaged in paid employment. He did not suggest that his medical conditions or medical appointments prevented him from attending on proposed hearing days. Instead, he simply stated that he was not available to attend any hearings on a Wednesday or Thursday due to “personal reasons” and would not elaborate further. I note that the directions hearing was held on a Thursday and the Applicant did not seek to have it adjourned and attended the directions hearing at the scheduled time.

32. I set the matter down for hearing on the next available date I can hear the matter, that the Respondent was available, albeit on a day on which the Applicant said he is never available. The Applicant has not adduced any evidence to suggest that his inability to attend a hearing on a Wednesday or Thursday is related to his medical conditions or functional capacity. Therefore, I am satisfied that in setting the matter down on a Thursday does not prevent the Applicant from effectively participating in the proceedings. Moreover, I am not persuaded that an Applicant not make himself available on a day of hearing for “private reasons” establishes that the Applicant is prevented from presenting his case.

33. I am not satisfied that in setting the hearing down on a Thursday actual bias is established. Further, I am also not persuaded that a reasonable fair-minded lay observer might think it possible that I do not have an impartial or open mind to the questions to be determined in the substantive application on the basis of setting the matter down for hearing on a day where an Applicant has not provided sufficient, probative reasons for his inability to attend.

    Conclusion

34. I am satisfied that the manner in which I conducted the directions hearing and the decisions made at that directions hearing were fair and just. The decision to issue a summons and to set the matter down for hearing on 31 July 2025 will ensure that the application is resolved as quickly as proper consideration permits and that the Tribunal is accessible and responsive to the needs of the Applicant and the Respondent. I have considered each contention made by the Applicant individually and cumulatively. I find there is no logical basis to conclude that I may decide his matter other than on its legal and factual merits. The Applicant’s allegations do not establish actual bias, nor do I find that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question of whether the Applicant meets the access requirements to the Scheme.

35. For these reasons, I find that there is no proper basis for the recusal request and so it is refused.

    DECISION

    The Applicant’s recusal application is refused.

Date(s) of hearing:	17 April 2025
Applicant:	Self-Represented
Solicitors for the Respondent:	Mr Young, Mills Oakley