DPLP and CEO, National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 1848

DPLP and CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1848 (19 September 2025)
Applicant/s:  DPLP
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2024/10655

Tribunal:General Member Robertson
Place:Perth
Date of decision: 19 September 2025
Date of written reasons: 19 September 2025

Decision:The application for recusal is refused.

Statement made on 19 September 2025 at 7:19am
CATCHWORDS
PRACTICE and PROCEDURE – National Disability Insurance Scheme – application for recusal – conduct during hearings – language and tone – fact of separate formal complaint about conduct – no actual or apprehended bias – recusal application refused
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
CASES
AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236
Charisteas v Charisteas (2021) 273 CLR 289
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
GetSwift Ltd v Webb[2021] FCAFC 26; (2021) 283 FCR 328
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 270
Johnson v Johnson (2000) 201 CLR 488
Kumaragamage v Rallis [2001] NSWSC 466
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507
Praljak v State of Queensland [2022] FCA 572
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Polites; Ex parte Hoyts Corporation Ltd [1991] HCA 25; 173 CLR 78
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Smits v Roach (2006) 227 CLR 423
SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Vakauta v Kelly (1989) 167 CLR 568
Vasik and Vasik (2007) 38 Fam LR 262
WXDD and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1067
XKSC and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 362
Statement of Reasons

The applicant is a 12-year-old boy. He has autism spectrum disorder (level 3), sensory processing disorder, cognitive impairment, and attention deficit hyperactivity disorder. Additionally, he is non-verbal and experiences a thermoregulatory disorder associated with his autism.
The present review application was lodged on or around 19 December 2024. The applicant seeks review of the supports included in the plan and the decision to change the plan from being agency-managed, to self-managed. The review application is being conducted on behalf of the applicant by his mother.
The applicant and his mother share a surname. For the purposes of these reasons, to avoid any risk of the applicant being identifiable and to avoid undermining the purpose of the pseudonym assigned to him, I will refer to his mother as ‘the applicant’s mother’ or where it is not practicable to refer in that way, Ms X.
Since the lodgement of the review application, the applicant’s plan has been varied. The most recent plan was approved on 4 September 2025. The Tribunal’s task is to determine whether the decision under review is the correct or preferable decision.[1]
[1] Administrative Review Tribunal Act 2024 (Cth), s 56(1)(a); Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [37].
On 31 July 2025, the review application was constituted to me for hearing and determination. On or around 5 August 2025 the review application was listed for a final hearing over three consecutive days to commence on 3 November 2025.
Following a directions hearing on 19 August 2025, I adjourned the final hearing, at the request of the applicant’s mother and over the objection of the respondent, to a date on or after 5 February 2026.
The applicant’s mother now applies for me to recuse, or disqualify, myself from hearing the review application because of asserted actual or apprehended bias.
For the following reasons, I have concluded that the application for recusal must be refused.
BACKGROUND
Following the matter being listed for a final hearing, the applicant’s mother sent a number of emails to the Tribunal’s registry seeking variations to the orders made in July 2025 and a directions hearing.
On 13 August 2025, the applicant’s mother sent an email to the Tribunal expressing urgent concern about the applicant’s health. She stated that the applicant has a serious thermoregulatory disorder, which can lead to life-threatening seizures if he overheats. She explained that while funding for servicing two air conditioners had been approved by the respondent, the funding was agency-managed. She asserted that no air conditioning company in Perth is registered with the NDIS and that, consequently, the funding needed to be changed to self-managed as soon as possible so she could arrange for the servicing to occur. She stated that the final hearing set for November 2025 could not wait because of the potentially fatal outcomes for her son.
In response to this email, the matter was listed for a directions hearing on 19 August 2025 to deal with what I then understood to be a request that the final hearing be expedited.
The day prior to the directions hearing, in an email dated 18 August 2025, the applicant’s mother then requested that the final hearing be adjourned to early 2026. The reasons provided included the number of witnesses to be called by both parties, the need to obtain pro bono legal advice, which involved significant wait times, and the fact that she was involved in four other legal matters with hearings at the end of the year.
That correspondence also reiterated concerns about the inability of the applicant’s mother to arrange for air conditioning servicing as that aspect of the plan was agency managed and, the applicant’s mother contended, there was no registered NDIS provider available in Western Australia.
The 19 August 2025 directions hearing
The matter was listed for a directions hearing at the first available opportunity which was 19 August 2025 at 9:00 am AWST. It was listed prior to the second day of a final hearing of another review in the National Disability Insurance Scheme jurisdictional area, which was to resume at 10:00 am AWST.
At the commencement of that hearing, I explained the purpose of the directions hearing as follows:
MEMBER: Now I listed this matter for a directions hearing at short notice in response to a number of emails sent on behalf of the applicant on the 13th of August 2025, which at least as I understood it, seemed to indicate that the applicant was seeking that the final hearing be expedited. And there was a pressing issue, as I apprehend it, being the servicing of an air conditioner.
Now I understand Ms [X], and I'll give you an opportunity to address me briefly on this, that you now seek an adjournment of the hearing listed in November until early next year.
So just to be clear, the purpose of this hearing is for directions. It's only listed for a short period because I have a final hearing, resuming in about 50 minutes. And unless the parties consent, I am only going to consider and make procedural orders. I won't be making any substantive decisions today unless they're by consent.
So, Ms [X], can I just hear from you first in relation to your position in about the hearing listed, I think, it's the 3rd of November at this stage.
The applicant’s mother made submissions in support of her adjournment application. She also expressed her hope that the respondent would consent to changing the applicant’s plan to self-managed to allow the air conditioning servicing to occur. The respondent, represented by Ms Flinn of counsel, opposed both the requested change to the plan management and the adjournment of the final hearing.
During an exchange about the applicant’s mother’s intention to obtain pro bono legal assistance, I commented to Ms Flinn that the prospect of the applicant’s mother obtaining assistance and that person having sufficient time to prepare for a November hearing seemed limited.
Ultimately, I determined it was appropriate to grant the adjournment application to ensure the applicant had a fair opportunity to prepare his case. The applicant’s mother then indicated she would be away during January 2026. Consequently, I made a direction that the hearing be listed on or after 2 February 2026. The specific directions were:
The Tribunal DIRECTS:
1.On the application of the Applicant, the final hearing listed to commence on 3 November 2025 be vacated.
2.The final hearing be listed to commence on a date to be fixed [on] or after 2 February 2026, with an estimated hearing time of 3 days.
3.Any requests for the issue of summons to give evidence at the final hearing are to be filed with the Tribunal and provided to the other party by 19 December 2025.
4.The review application be listed for directions on 3 November 2025 at 9:00 AM (AWST) for the purposes of monitoring readiness for the final hearing.
The Tribunal DIRECTS that the Directions dated 8 July 2025 be varied as follows:
5.In direction 4, by changing the date by which the Applicant must give the Tribunal and Respondent:
a. a document setting out the Applicant’s arguments for why the decision under review is wrong; and
b. any further evidence on which the Applicant intends to rely which has not already been given to the Tribunal and the Respondent;
from 'On or before 15 September 2025' to 'On or before 19 December 2025'.
6.In direction 5, by changing the date by which the Respondent may give to the Tribunal and the Applicant a response to the Applicant’s arguments for why the decision under review is wrong, from 'on or before 29 September 2025' to 'On or before 12 January 2026'.
NOTE: If the Respondent does not intend to provide a reply, it must notify the Tribunal and Applicant by the same date.
After I made those directions, the applicant’s mother raised the prospect of a further adjournment if she had not received evidence under a freedom of information request or secured pro bono assistance. In response to that proposition, I stated:
MEMBER: You might seek an extension Ms [X]. You can seek an extension of time and I'll consider the extension of time on the merits of the documents and materials provided at that time. But I'll make clear that there's no entitlement to pro bono legal assistance and there's no entitlement to be represented at a final hearing. You know, I would take some fairly significant persuading to adjourn a hearing because you don't have legal representation when the hearing is around six months from now.
Following the directions hearing on 19 August 2025, the applicant’s mother sent a number of emails to the Tribunal in relation to the management of the applicant’s plan and the non-payment of invoices. On 4 September 2025, the respondent varied the applicant’s plan. That variation included that the part of the plan relating to air conditioning maintenance became self-managed, which the applicant had sought, but the respondent had opposed, at the directions hearing on 19 August 2025.
The recusal application was made by email on 12 September 2025. It was listed for an interlocutory hearing on 17 September 2025 at 9:00 am AWST. The email in which the applicant sought my recusal, indicated, relevantly:
The Applicant would like to request a new member for the following reasons:
·The Child Applicant has serious comorbid complex Diagnoses Including a serious Thermoregulatory Disorder where he experiences Life-threatening seizures that can lead to fatal outcomes and Severe Autism as noted in Developmental Paediatrician letters attached (Exhibits 1 & 13) and Functional Capacity Assessment (Exhibit 2) and supporting Senior Occupational Therapist letter (Exhibit 3). The Child Applicant has a serious medical conditions and his needs are not being met by the current member, the deceptive and liying Ms Flinn and the NDIS are still refusing to release funds for legally approved supports as per below and NDIS Plan attached:
·The Applicant has already sent 2 emails yesterday to the ART and has been asked to send a third.
·The above Screenshot is evidence that the NDIS is still refusing Payment of the Air conditioning.
·The Child Applicant's mother is his legal representative and not a lawyer as they still await pro bono legal assistance which may not be available given extensive wait times. As such the Applicant seeks a member who is a little more understanding and speaks in more layman's terms and this can be done as the mother has experience with the AAT, SAT and magistrates court matters where magistrates and presidents etc do have understanding and do speak in layman terms so this can be done.
·It seems General Member Robertson refsues to do this but speak in overly complex legal jargon that the Applicant simply does not understand whilst keeps getting told to seek a legal rep which she cannot afford. Plenty of Applicants self represent.
·A per SAT Transcript during last directions hearing in August nothing was achieved, the member admitted that the matter was pressing for the Child applicant with a serious Thermoregulatory Disorder nd his approved NDIAS funding shou;ld have been resolved. However, che to listen to Ms Flinn's lies (as per SAT transcroto) where she lied and said there were registered NDIS providers in Perth who air conditioning servicing which is a blatant lie. Please refer to Exht attached from SSC confirming the same.
·I have attended other SAT/AAT/ART/Magistrate Court hearings where the Deputy Presidents/magistrates/members speak in plain English and layman's terms. General Member F Robertson who seemed like a lovely gent however did not seem to speak in Laymans terms which affects the Child Applicant and his mother in an adverse fashion which results in more issues that cause more difficulties that could easily be avoided.
·The Member also stated during the Directions hearing in August as per Transcript that the Tribunal does not need to take into consideration Pro bono wait times for a severely disabled child. Given my sound experiences and legal advice given this is not quite accurate. I mean yes a member could say anything but it does not make it right. Most tribunals and courts including the AAT last year did and do make accommodations for Applicants on a Carer's pension waiting for a pro bono lawyer. This was also confirmed by a Disability Discrimination Lawyer at Sussex St Community Legal this year.
·I have had several accommodating Members/Deputy Presidents (AAT) Magistrates etc who actually do make allowances for Applicants seeking pro bono advice and do speak to them in Layman's terms. It is only respectful, fair and mannerly to do so and they do and I have never heard this before or ex[perinced being left as if I was spoken to in double-dutch and I have a business degree and am well educated.
·The Child Applcaint and his mother seeks an experienced member, one who is quite familiar with the NDIS and tehir sneaky tactics which are quite infamous. One who will not be led astray by blatant lies from Ms Flinn and instead be experienced enough to make the right decision partciaulalry when it comes to my severely disabled child's serious medical conditions as noted in attached medcial reports including a serious Thermoregualtoy Disorder and the deadly conesqueces that brings if he does not have a working Air conditioner.
·As I have been on the phone to the ART all afternoon, 4 hours just to end up writing a third email requesting the same and the ongoing difficulties which I did not experience at the AAT last year I have submitted a formal complaint to the ART.
·I look forward to an Urgent Directions Hearing for my Child's urgent air conditioning and above to be approved via an ART Order.
·As such I request for an experienced Member who can speak to an Applicant in layman's terms and be mindful of how serious a Thermoregulatory Disorder is particualrly as the weather is now heatng up in Perth and hopefully a Member who is experienced with the NDIS and self representing applicants.
·It is Imperative that my son's human and disability rights are met at the ART particularly given the serious denial of the Child Applcaints supports by the NDIA.
(Errors as per the original.)
The hearing on 17 September 2025
I began the hearing by confirming its sole purpose was to determine the recusal application. The applicant’s mother confirmed she sought my recusal and referred to her email. However, she immediately diverted the hearing to the substantive issue of her child’s air conditioning, stating that she had been told by Tribunal staff that the issue would be addressed.
The applicant’s mother resisted discussing the grounds for her recusal application. She insisted that the air conditioning matter was ‘more important than you excusing yourself’ and made detailed submissions about the non-payment of invoices by the respondent. When given the opportunity to explain the basis for her recusal application, she indicated she was content to rely on her email of 12 September 2025. Later in the hearing, the applicant’s mother added that I had been ‘rude and obnoxious’, but when asked to identify what I had said that was rude or obnoxious, she was unable to do so.
During the hearing the applicant’s mother indicated that a formal complaint had been made about my conduct of the review application. As I indicated to the applicant’s mother, I was not aware of the existence of the complaint or the content of that complaint. I also advised the applicant’s mother that she had a right to make a complaint. I raised with the applicant’s mother whether she wished to argue that the fact of her complaint having been made would give rise to an apprehension of bias. The applicant’s mother confirmed that she did make that argument in the circumstances.
The respondent opposed the application that I recuse myself. The respondent submitted that there was no proper basis for recusal identified and the making of a complaint was insufficient to establish a reasonable apprehension of bias because, where it was sufficient, it would encourage ‘member shopping’ by the mere making of complaints, essentially permitting parties to choose who hears their review application
THE ISSUE ARISING
The issue for determination is whether I ought to disqualify, or recuse, myself from hearing and determining the review application on the grounds of actual or apprehended bias.
RELEVANT LAW
A member of the Tribunal has a duty to hear and determine applications to which they are to constitute the Tribunal.[2] The qualification to that duty is the fundamental requirement that a review be heard by an independent and impartial tribunal. Actual or apprehended bias requires a member to recuse themselves.[3] For present purposes, the content of the obligation of impartiality applies to both Tribunal members and judicial officers in a relevantly indistinguishable way.[4]
[2] See, by analogy, Re JRL; Ex parte CJL (1986) 161 CLR 342, 352.
[3] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [5]-[6]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 279 CLR 148, [26].
[4] Re Polites; Ex parte Hoyts Corporation Ltd 173 CLR 78, 87; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; see also SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80.
Bias, whether actual or apprehended, connotes the absence of impartiality.[5]
[5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 348.
Actual bias requires a decision-maker to be so committed to a conclusion already formed as to be incapable of altering that conclusion no matter whatever evidence or arguments may be presented.[6] An allegation of actual bias is very serious and must be distinctly made and clearly proved.[7]
[6] Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507, [72].
[7] Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507, [127].

Apprehended bias is established where a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the question that person is required to decide.[8] This requires the identification of what it is that might lead to a decision being made on a basis other than its legal and factual merits, and the articulation of a logical connection between that matter and the feared deviation from the course of deciding the case impartially.[9]
[8] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]; [83].
[9] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6], [8]; Smits v Roach (2006) 227 CLR 423, [53]-[60]; Charisteas v Charisteas (2021) 273 CLR 289, [11].
The question of whether there is an apprehension of bias is one of possibility, not probability.[10]
[10] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [7]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, [37].
The assessment is made from the perspective of a hypothetical fair-minded lay observer (‘the observer’). This observer is not a lawyer but is not wholly uninformed. The observer is taken to be reasonable and aware of the professional training and obligations of a decision-maker to discard the irrelevant and prejudicial. Such an observer is neither complacent nor unduly sensitive or suspicious.[11] The observer is also someone who is aware that the person who is being observed is a professional decision-maker whose training, tradition, and oath or affirmation require them to discard the irrelevant, the immaterial, and the prejudicial.[12]
[11] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, [197] citing Johnson v Johnson (2000) 201 CLR 488, 508-509 [53]
[12] Johnson v Johnson (2000) 201 CLR 488, [12].
A decision-maker has a duty to sit, and the authorities establish that a decision-maker should not accede too readily to suggestions of an appearance of bias, lest it encourage parties to believe that by seeking the disqualification of a decision-maker they may be able to influence who decides their matter.[13] To do so can be an abdication of the decision-making function and can encourage procedural abuse.[14]
[13] Re JRL; Ex parte CJL (1986) 161 CLR 342, 352; Johnson v Johnson (2000) 201 CLR 488, [45].
[14] Livesey v New South Wales Bar Association (1983) 151 CLR 288, 294.
CONSIDERATION – ACTUAL BIAS
An allegation of actual bias is a very serious matter. The authorities make clear that it must be distinctly made and clearly proved. The test for actual bias requires showing that a decision-maker has a closed mind not open to persuasion or has pre-judged the outcome of the review.
At the interlocutory hearing, the applicant’s mother was given an opportunity to identify the basis for her application. When I sought to clarify whether she was alleging actual bias or apprehended bias, the applicant’s mother indicated that she was not alleging ‘bias’ in the sense that she understood the word, but that I was ‘not a good fit’ to hear the review application and that she wanted a member with more experience. The applicant’s mother did not point to any matter that would suggest, let alone prove, that I have a closed mind or have already formed a conclusion about the merits of the review application.
In circumstances where no distinct allegation of actual bias has been made and where no evidence has been advanced that could possibly meet the high threshold required to establish such an allegation, I am satisfied that there is no basis for me to disqualify, or recuse, myself on the ground actual bias. I will, however, consider the complaints raised by the applicant in the context of apprehended bias, as I must be satisfied that apprehended bias exists to properly recuse myself from the future hearing of the review application.
CONSIDERATION – APPREHENDED BIAS
The resolution of any recusal application involves, essentially, three steps:
(a)first, the identification of the factor which it is said might lead to resolution of the question other than on its merits;
(b)second, articulating the logical connection between that factor and the apprehended deviation from deciding the review application on the merits; and
(c)third, assessment of the reasonableness of that apprehension from the hypothetical perspective of the fair-minded lay observer.
Request for a more experienced member
The first ground is the applicant’s request that I be replaced by a ‘more experienced’ member, such as a Senior Member or a Deputy President. The logical connection appears to be a concern that a General Member, or perhaps myself specifically, may lack the specific experience required to properly understand and determine the complex issues in the review application, leading to a fear that the case will not be decided correctly on its merits.
The observer (from [32]) would be aware that the process for constituting the Tribunal for any given matter is governed by statute and is not a matter for the parties' preferences. Parties are not entitled to choose who hears a review application; the constitution of the Tribunal in any particular case is a matter for the President or their delegate.
Moreover, the observer would understand that all members of the Tribunal are appointed through a publicly advertised, formal, merit-based selection process and that persons who are successful possess the qualifications required by law.[15] The observer would also understand that the President of the Tribunal assigns members to specific jurisdictional areas, like the National Disability Insurance Scheme jurisdictional area, only after being satisfied that the member has the appropriate skills, qualifications, and experience for that work.[16]
[15] Administrative Review Tribunal Act 2024 (Cth), Part 8, Division 3.
[16] Administrative Review Tribunal Act 2024 (Cth), s 199.
Therefore, I do not accept the observer might conclude that a member’s position as a General Member, rather than a Senior Member or Deputy President, is not, of itself, a logical or rational basis for apprehending that the member might not bring an impartial mind to the issues. I am not otherwise satisfied that the observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the review application because of any lack of experience.
The conduct of the 19 August 2025 directions hearing
The applicant’s mother makes several complaints arising from the directions hearing conducted on 19 August 2025.
First, she contends that the hearing was ‘rushed’. This argument is based on my statement at the beginning of the hearing that it was listed for a short period and that I had another hearing to resume in approximately 50 minutes. It would seem that the feared deviation from impartial decision-making is that a rushed hearing suggests a lack of care, attention, or willingness to properly consider the applicant’s case.
I am satisfied that in considering this complaint the observer would view this in its proper context. The hearing was listed urgently, at the applicant’s own request, to address what she had described as an urgent issue. My statement about the time constraint was made at the very outset of the hearing so that both parties were aware of the time constraints that the directions hearing had. The observer would not see this as a sign of impatience, but rather as involving fairness and transparency, ensuring both parties understood the available time from the beginning. This is a feature of prudent case management. The observer would conclude that this transparency does not logically point to, or raise, any apprehension of bias.
Second, the applicant’s mother complains that no decision was made about the air conditioning issue at that directions hearing. The logical connection asserted is that a failure to make a substantive order to resolve an urgent health-related issue demonstrates a disregard for the applicant's welfare, in turn suggesting a lack of impartiality.
An observer would understand the distinct purpose of a directions hearing. As was clearly explained at the start of that hearing, its purpose was to make procedural orders, and no substantive decisions would be made unless the parties were in agreement. There was no agreement.
The observer would also appreciate that during the directions hearing, a clear, factual dispute emerged between the parties regarding the availability of NDIS-registered air conditioning providers in Western Australia. Whilst the applicant’s mother characterises this statement as a lie, the hypothetical observer would appreciate that such a contested issue cannot be fairly determined in a brief directions hearing without the benefit of evidence from both sides as occurs at a final hearing. They would also appreciate that to have made a summary decision would have been unfair to the respondent (in the sense that it would involve a denial of procedural fairness). The observer would conclude that the refusal to make the orders sought by the applicant involved adherence to orthodox and proper procedure which demonstrated impartiality, rather than constituting evidence of an absence of impartiality.
Comments in relation to adjournments and legal representation
The applicant’s mother raises concerns about comments I made regarding her request for an adjournment to seek pro bono legal assistance. The first assertion is that I stated the Tribunal ‘does not need to take into consideration Pro bono wait times’. The second relates to my comment that I would require ‘fairly significant persuading to adjourn a hearing because you don't have legal representation when the hearing is around six months from now’. The suggested and logical connection is that these comments indicate pre-judgment of any future adjournment application and a lack of empathy for her position, giving rise to an apprehension of bias.
It is well established that comments made at a directions hearing must be taken within the context in which they were made.[17] To put the comments into that context, I observe that the following exchanges took place towards the end of the directions hearing:
MEMBER: Now the matter has been listed today for a directions hearing, so I'll consider making procedural directions in relation to the review application. Now issues in relation to the management of the plan are issues for the final hearing.
Now you have a final hearing listed on the 3rd of November. You want that hearing to be adjourned. Do you still want that hearing to be adjourned?
[X], MS: Correct.
…
MEMBER: You can have a hearing commencing on the 3rd of November or I can adjourn the hearing to a date after 5 January.
[X], MS: It has to be January, Member.
[17] Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 270, [27]; XKSC and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 362, [34]. See also Vakauta v Kelly (1989) 167 CLR 568, 572 in relation to the necessity to view comments in the context of later qualification, correction, or clarification.
After announcing my intention to adjourn the hearing to a date in January, the applicant’s mother then explained (for the first time) that she was ‘away’ for all of January. As a result, I indicated that I would make a direction that the hearing date be adjourned to a date on or after 2 February 2026.
After I had made those directions, the applicant’s mother then foreshadowed the prospect of a further adjournment depending on the outcome of her attempts to obtain evidence and/or pro bono assistance. That prompted the following exchange:
[X], MS: If the, if the NDIS FOI area have not provided me with the evidence, then that needs to be extended.
MEMBER: So, well, if that is the position, you can propose an extension at the next directions hearing or subsequently.
[X], MS: And also, it's also pro bono as well. I do need that obviously, if I haven't, if, if I can't get a is the, the, the weights are very significant. So if I can't get a, you know, some meetings before this time, then I will need to extend it as well. Because pro bono legal advice is obviously very important and my son should be given that opportunity that is grounds for an extension.
MEMBER: You might seek an extension Ms [X]. You can seek an extension of time and I'll consider the extension of time on the merits of the documents and materials provided at that time. But I'll make clear that there's no entitlement to pro bono legal assistance and there's no entitlement to be represented at a final hearing. You know, I would take some fairly significant persuading to adjourn a hearing because you don't have legal representation when the hearing is around six months from now.
The observer would assess these comments in the full context of the hearing. They would note that the factual premise of the first assertion is incorrect. That is, I did, in fact, adjourn the final hearing at the request of the applicant’s mother for the specific purpose of allowing her time to seek pro bono legal assistance. I accept that an observer might perceive my comments as indicating that the Tribunal does not need to wait until a party has been successful in obtaining pro bono legal assistance before holding a hearing, however the observer would also understand that proposition is, as a matter of law, correct.[18]
[18] See SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244, [30]-[32].
It is correct to say that I indicated that I would require fairly significant persuading to adjourn the hearing again. However, in relation to this comment, the observer would recognise that it was made only after I had already adjourned the hearing to a date around six months away. The comment made does not foreclose a future application; it simply and transparently sets an expectation that any further request for an adjournment would need to be properly justified. This is consistent with the Tribunal’s statutory obligation to resolve matters in a timely manner and the principles which apply in relation to adjournment applications.[19] The statement made that I would consider any such application on its merits at the time it was made reinforces, rather than undermines, my impartiality.
[19] As I summarised in WXDD and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1067, [13]-[17].
I am not satisfied that the observer would conclude that the statement made, in the context in which it occurred, demonstrated any prejudgment against a further adjournment in what were, at the time, purely hypothetical circumstances alluded to by the applicant’s mother.
The fact of a formal complaint
During the hearing, the applicant’s mother indicated she had made a ‘formal complaint’ about my conduct of the review application and suggested it is ‘ordinary human nature’ for a person in my position to develop a prejudice against her as a result.
I accept the submission insofar as it suggests it is necessary to consider the risk of unconscious bias.[20] I accept that an observer would understand and be mindful of the potential for unconscious bias or, as put by the applicant’s mother, ‘ordinary human nature’. However, an observer is also presumed to know that Tribunal members, like judges, are professionals who are bound by their oath and ethical duties to decide cases impartially, based only on the law and the evidence. The observer would expect a professional decision-maker to be capable of putting aside an irrelevant or extraneous matter, such as the fact a complaint has been made, and continuing to discharge their duty without animosity or favour. To find otherwise would risk creating a situation where a party could disqualify a member simply by lodging a complaint, which would encourage procedural abuse and undermine the finality of the constitution of the Tribunal. It is well established that the mere fact of a complaint alone cannot disqualify a decision maker.[21]
[20] CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 [27]-[28] (Nettle and Grodon JJ); [51], [92], [97] (Edelman J); GetSwift Ltd v Webb (2021) 283 FCR 328 [39].
[21] Kumaragamage v Rallis [2001] NSWSC 466; Vasik and Vasik (2007) 38 Fam LR 262; Praljak v State of Queensland [2022] FCA 572, [22]-[24].
Conduct at the 17 September 2025 hearing
A further aspect of the recusal application is that the applicant's mother alleged during the hearing on 17 September 2025 that I was being, or at least had been, ‘rude and obnoxious’. The logical connection is that such conduct would be evidence of personal animosity, which is incompatible with the impartiality required to decide the case fairly. However, the argument fails because an allegation of this nature requires some specificity or substance.
When I invited the applicant's mother to identify any specific word, action, or exchange that she considered to be rude or obnoxious, she was unable to point to any part of the proceeding. I do not accept that a fair-minded observer might conclude that an apprehension of bias is reasonable based on a generalised and unsupported assertion. In the absence of any specific conduct being identified, this ground for recusal is not made out.
Communication with the applicant’s mother more generally
The applicant’s mother complains that I used overly complex language in legal jargon and that I did not speak to her in terms a lay person would use. She also raises concern about my tone and alleges that I speak in a ‘rigid’ manner.
When I invited the applicant’s mother to identify a specific exchange where I had used overly complex language, she indicated that she was unable to do so she could not recall the details. The one specific example she eventually did raise occurred when I attempted to explain the legal principles relevant to a recusal application. She interrupted me to state that she did not understand and, before I had an opportunity to replace my explanation, she continued to speak over me.
When seeking to ensure that parties can receive a fair hearing it is sometimes necessary to describe, for their benefit, the legal tests that the Tribunal is required to apply. Depending on the legal concepts that are being discussed, it is often necessary to use the correct legal terminology to ensure precision. I recognise that the correct legal terminology can be, in some circumstances, unfamiliar and confusing. When that occurs, and it is brought to my attention that someone does not understand, there is no difficulty in seeking to explain the concepts in more simple terms. However, my efforts in this regard were frustrated by the repeated interruptions of the applicant’s mother. An observer would not apprehend that the use of the correct legal terminology, particularly when coupled with a willingness to explain it, demonstrates a lack of impartiality on the part of the decision-maker.
In relation to the complaints about my tone and my speech being rigid, I am not satisfied that there was anything in my conduct that might cause an observer to have concerns about my impartiality. To the extent that these complaints relate to the several occasions, during both hearings, where I was required to ask the applicant’s mother not to interrupt me or counsel for the respondent, and to allow a question or a sentence to be finished, I am satisfied that an observer would understand that a member has a duty to maintain control of proceedings. I am further satisfied that the observer would appreciate that interventions of this nature are a form of proactive engagement designed to ensure the hearing proceeds in an orderly and efficient manner. I am not satisfied that such conduct involves an apprehension of bias; rather it is simply a member fulfilling their case management obligations to ensure that the review proceedings are conducted fairly for both parties.
Cumulative assessment

I have considered each of the complaints raised by the applicant mother on an individual basis and have found that none of them, when viewed in their proper context, would give rise to reasonable apprehension of bias viewed from the perspective of an observer. However, I consider it is also necessary to consider the cumulative effect of these matters and whether that might lead to a different conclusion.[22]
[22] AJH Lawyers Pty Limited v Careri (2011) 34 VR 236 [67]-[68].
The various complaints raised, when considered together, do not in my view gain any greater force. They can be properly characterised as expressions of dissatisfaction with the necessary and appropriate case management directions and the orderly conduct of the tribunal hearing. The decision to grant a lengthy adjournment at the applicant mother’s requests’, the interventions required to maintain order and focus during hearings, and the refusal to determine the contested substantive issue at a procedural directions or interlocutory hearing are all features of a properly managed proceeding. They are not, individually or collectively, matters that would suggest a lack of impartiality to a reasonable observer.
I am satisfied that an observer, viewing the conduct of the proceeding as a whole, would observe a member taking active steps to ensure the matter progresses towards a final hearing in a manner that is fair to both parties. They would not see evidence of pre-judgement or of personal animosity. They would observe a member attempting to apply the correct legal principles, managing the hearing in an orderly way, and accommodating the needs of a self-represented party where reasonable, possible and appropriate to do so.
Accordingly, having considered all the matters raised by the applicant’s mother both separately and cumulatively, I am not satisfied that an observer might reasonably apprehend that I might not bring an impartial mind to the questions that I must determine in this review.
CONCLUSION
I am not satisfied that a case of actual or apprehended bias has been established. Accordingly, I must discharge my duty to hear and determine the review application.
DECISION
The application for recusal is refused.

69.

70. I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member Robertson

..........................[SGD].........................
Dated: 19 September 2025

Date of hearing: 17 September 2025

Applicant: Self-represented

Counsel for the Respondent:
Ms Jennifer Flinn

Solicitors for the Respondent:
Ms Maddison Dantu-Hann, Moray & Agnew Lawyers

Date of hearing:	17 September 2025
Applicant:	Self-represented
Counsel for the Respondent:	Ms Jennifer Flinn
Solicitors for the Respondent:	Ms Maddison Dantu-Hann, Moray & Agnew Lawyers