DQKZ and National Disability Insurance Agency

[2024] AATA 2271

DQKZ and National Disability Insurance Agency [2024] AATA 2271 (5 July 2024)

Division:National Disability Insurance Agency Division 

File Number(s):       2021/4331

Re: DQKZ

APPLICANT

National Disability Insurance AgencyAnd  

RESPONDENT

DECISION

Tribunal:Member P French 

Date:5 July 2024

Place:Sydney

The Applicant’s application that I recuse myself from conducting this administrative review on the ground of actual basis, or in the alternative, apprehended bias, is refused.

..........................[SGD]...........................
Member P French

CATCHWORDS       

PRACTICE AND PROCEDURE – recusal application – actual bias – apprehended bias – application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth); ss 2A, 10B, 19A, 25, 34E, Schedule 2

National Disability Insurance Scheme Act 2013 (Cth); ss 21, 24, 25, 99, 100, 103

CASES

AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236

Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51
Beezley v Repatriation Commission [2015] FCAFC 165
Bilgrin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) CLR 283
Brookfield v Real Estate Now Pty Ltd & Anor [2023] QCA 259
Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Department of Planning, Industry and Environment v Blacktown City Council [2012] NSWCA 145
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gascor v Ellicott [1997] 1 VR 332
Gaudie v Local Court of New South Wales and Anor [2013] NSWSC 1425
GMXV and National Disability Insurance Agency [2022] AATA 505
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
JWVH and National Disability Insurance Agency [2022] 989
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Michael Wilson & Partners Ltd v Nicolls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia Legend [2001] HCA 17; (2001) CLR 507
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) FCR 201
QLYQ and National Disability Insurance Agency [2022] AATA 4384
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Shi v Migration Agents Regulation Authority [2008] HCA 31; (2008) 248 ALR 390
South Western Sydney Area Health Service v Edmons [2008] NSWCA 16
Spencer v Bamber [2012] NSWCA 274
Sun v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 81 FCR 71
Waind and Hill v National Employers’ Mutual General Association Ltd [1978] NSWLR 327

Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568

REASONS FOR DECISION

Member P French

5 July 2024

Substantive application

1. The substantive application before the Tribunal is an application by DQKZ (the Applicant) pursuant to s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for administrative review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) on 25 June 2021 which affirmed an original decision of the CEO made on 29 April 2021 that he did not meet the access criteria for the NDIS.

2. This Tribunal has jurisdiction under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 1) of the NDIS Act.

3. The application was filed in the AAT’s Melbourne Registry on 29 June 2021 (the proceeding).

4. The Tribunal’s task in the substantive proceeding is to undertake an independent assessment of the material before it to determine if the Applicant meets the access criteria for the NDIS. This is, in essence, to do again what the original decision maker did.[1]

   [1] Shi v Migration Agents Regulation Authority [2008] HCA 31 at [141]; (2008) 248 ALR 390

   Recusal application

5. However, these reasons concern an interlocutory application made by the Applicant for my recusal from conducting this review on the ground of actual bias, or in the alternative, apprehended bias (the recusal application). This application was made under cover of email to the Registry copied to the Agency on 26 April 2024 shortly in advance of the final hearing which was set down for 8 and 9 May 2024.

6. Upon its receipt, I issued directions to the parties that set the recusal application down for hearing on 8 May 2024 as a preliminary issue to the review hearing, and which provided the parties with the opportunity to file and exchange evidence and submissions in relation to the application. It was necessary that this issue be determined as a preliminary issue because it raised the question of whether I was qualified to conduct the review in accordance with my oath of office.[2]

   [2] s 10B and Schedule 2 of the AAT Act. The oath of office requires me to ‘…faithfully and impartially perform the duties of …office’; see Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Gaudron J at [83]

7. My directions indicated to the parties that if the recusal application was not successful the review hearing would then proceed in the usual way. The parties were advised to attend the hearing prepared for the possibility that the review would proceed.

8. The Applicant filed submissions and evidence in support of the recusal application on 3 May 2024. I note that the submissions ran to 162 paragraphs and that 138 pages of documentary material were annexed. The Agency filed a submission on 6 May 2024 taking a ‘neutral’ position in relation to the recusal application, but outlining what it submitted were the relevant legal principles to be applied in consideration of it.

9. I commenced hearing the recusal application at 10am on 8 May 2024. The Applicant had the opportunity to make oral submissions in support of it. The Agency elected to play no part in the hearing other than to rely upon its written submissions. Upon completion of the Applicant’s oral submissions, I adjourned until 2pm, indicating to the parties that I anticipated being able to announce my decision at that time.

10. Upon the resumption of the hearing at 2pm, I refused the recusal application, stating in short summary that I was not satisfied that the Applicant had established that my conduct of the proceeding was affected by actual bias, or an apprehension of bias. I indicated that I would publish detailed reasons for my decision in due course. These are those reasons.

11. Having regard to that outcome, I proceeded with the substantive hearing. My decision in the substantive proceeding will be the subject of a separate decision.

    Background to the recusal application

12. Upon receipt of the Applicant’s application for review on 29 June 2021, it was referred for alternative dispute resolution in accordance with Division 3 of Part IV of the AAT Act.

13. On 7 September 2021 HWL Ebsworth Lawyers filed notice of its appearance in the proceedings on behalf of the Agency.

14. On or about 28 April 2023 HWL Ebsworth Lawyers experienced a cyber ransomware attack from a Russian-linked hacking group which resulted in the theft of client and employee data. This was widely reported by various media outlets at the time.[3] The applicant contends that his personal information contained in documents obtained by HWL Ebsworth Lawyers while acting for the Agency in this proceeding was included in this data-breach (the alleged data breach).

    [3] See for example, LSJ Online, “How the HWL Ebsworth hack unfolded, as another Medibank class action is launched”, 9 May 2023.

15. Between 11 October 2021 and 19 January 2024, the Applicant was represented by AED Legal Centre (the Applicant’s legal representative). The Applicant informed me that AED Legal Centre ceased to act for him because he terminated its retainer.

16. Between 13 September 2021 and 31 January 2024, the proceeding was listed before a Conference Registrar for a Case Conference on 12 occasions. Not all case conferences proceeded. The Applicant informed me that he only attended one Case Conference, which was the Case Conference conducted on 31 January 2024, after AED Legal Centre had ceased to act for him.

17. On or about 1 June 2022 the Agency applied to the Registrar to issue summonses to treating professionals that had been identified by the Applicant in his application for access to the NDIS or in the proceeding up to that point. The Registrar granted such leave and provided sealed summonses to the Agency’s representatives for issue on 7 June 2022. Those summonses were returnable at a Return of Summons Hearing on 22 June 2024. At that hearing (which was done on the papers), the Tribunal, differently constituted, made orders for the parties’ access to the material produced under summons. The Applicant was provided with first access to this material for a 14-day period from 23 June 2022. The Agency was given access to the material from 7 July 2022.

18. The alternative dispute resolution process did not lead to any resolution of the issues in dispute.

19. On 23 February 2024, the Deputy President responsible for the AAT’s National Disability Insurance Scheme Division constituted the proceeding to me for hearing in accordance with the President’s Directions made under s 19A of the AAT. I am in the Tribunal’s Sydney Registry. This constitution therefore caused the transfer of the proceeding to the Sydney Registry.

20. Prior to the constitution of the proceeding to me, on 1 February 2024, a Conference Registrar in the Melbourne Registry made the following directions in the proceedings as an outcome of a Case Conference that had been conducted on 31 January 2024:

    The Tribunal DIRECTS:

    1.    On or before 15 March 2024 the Applicant may give to the Tribunal and the Respondent:

    (a)  a witness statement from any witness proposed to be called at the hearing;

    (b)  all reports, records and any other documents on which the Applicant intends to rely at the hearing;

    (c)  a statement of Facts, Issues and Contentions.

    2.    On or before 19^th April 2024 the Respondent must give to the Tribunal and the Applicant:

    (a) a witness statement from any witnesses proposed to be called at the hearing;

    (b) all reports, records and any other documents on which the Respondent intends to rely at the hearing.

21. On 1 March 2024, after the constitution of the proceeding to me, I caused the following additional directions to be issued to the parties:

    The Tribunal DIRECTS that:

    1.    On or before 4pm on 8 March 2024, the Applicant and the Agency must give to the Tribunal and the other party:

    a)Hearing Certificates for the period 1 to 31 May 2024;

    b)A list of witnesses required for the final hearing and their availability (having regard to the Hearing Certificates); and

    c)Their best estimates of the time required for the final hearing.

    2.    On or before 4pm on 26 April 2024, the parties are to give to the Tribunal a paginated Joint Bundle of documents to be relied upon at the hearing, or if a Joint Bundle cannot be agreed, separate bundles.

22. A “Hearing Certificate” is an AAT pro-forma document which requires parties to set out the details of witnesses they intend to call and require to be available at the final hearing, and the party’s and their witnesses’ available dates for the final hearing, among other things. It requires the signatory to certify before signing the Hearing Certificate:

    This case is ready for hearing or will be ready for hearing in accordance with the timetable or other arrangements that are in place.

23. The Applicant filed a Hearing Certificate on 4 March 2024. In ‘Section 2 Witnesses’ the Applicant directs the Tribunal to refer to the email to which the Hearing Certificate was attached. In ‘Section 3 Other Matters’ the Applicant records in relation to his availability:

    I’ll take the soonest available dates and reschedule what I need as to prioritize the AAT. But please note that my availability may change due to medical issues.

24. In the covering email, the Applicant states the following:

    …

    I’ve been in discussion with [the Agency’s legal representative] to try to come to an agreement regarding the Occupational Therapist Report before it goes to a hearing. This is to protect my privacy and ensure I’m given a fair hearing. My concerns over the report are warranted and all parties have agreed on this.

    We’re still trying to resolve the issue, so I can’t provide a list of witnesses for the final hearing at this time. However, if we come to agreement regarding this OT report, it is unlikely I will call any witnesses.

    If we don’t come to agreement, I request the AAT still allow me the right to call witnesses in the future. In that circumstance I will be requesting a directions hearing to raise my concerns and seek orders on the matter.

25. The Agency filed its Hearing Certificate on 8 March 2024.

26. After perusing the Hearing Certificates and the Applicant’s covering email, I caused the following directions to be issued to the parties on 12 March 2024:

    The Tribunal DIRECTS:

    1.    The Applicant MUST give to the Agency and the Tribunal any further witness evidence he intends to rely on at the final hearing by 4pm on 29 March 2024.

    NOTE 1. Any witness evidence must be in writing in the form of a Statement, Affidavit, Statutory Declaration or Expert Report (as appropriate).

    NOTE 2. Leave to file witness evidence after 29 March 2024 will only be granted in exceptional circumstances.

    2.    The Agency MUST give to the Applicant and the Tribunal any updated Statement of Facts, Issues and Contentions by 4pm on 12 April 2024.

    3.    The parties are to confer and the Agency is to give to the Applicant and the Tribunal a Joint Tender Bundle by 4pm on 12 April 2024.

    4.    The parties are to confer and the Agency is to give the Applicant and the Tribunal a Joint Schedule of Witnesses indicating the times they are available to give evidence on 8 and 9 May 2024 by 4pm on 26 April 2024

27. I also set the proceeding down for hearing on 8 and 9 May 2024 in accordance with the availability of the parties and their witnesses set out in the Hearing Certificates. The Registry issued Notices of Hearing to the parties for those dates later 12 March 2024. As I am in the Sydney Registry, and the Applicant and the Agency’s representatives are in Victoria, the proceeding was listed for hearing by Microsoft Teams (MS Teams).

28. By email to the Registry on 12 March 2024 the Agency’s legal representative asked for clarification as to whether the directions made on 12 March 2024 were in addition to, or replaced, the directions made on 1 February 2024. The email foreshadowed an application by the Applicant for an extension of time in which to file evidence and for a live hearing, and indicated that the Agency would not oppose either request provided it was also given additional time to comply with directions for the filing of evidence and submissions. I note that this email was not referred to me for my consideration.

29. On 14 March 2024, by email to the Registry, the Applicant requested an extension of time in which to comply with Direction 1(c) of the directions made on 1 February 2024 (the filing of a Statement of Facts, Issues and Contentions (SFIC)). No period of extension was specified in the request. The grounds specified in support of the request were time taken up in responding to: (i) the alleged data-breach by HWL Ebsworth Lawyers; (ii) information obtained by the Agency under summons in these proceedings ‘without consent’ and ‘unlawfully’; and (iii) an expert report of an Occupational Therapist filed by the Agency in the proceeding which contained information to which the Applicant objected, and which in part was provided in response to ‘targeted questions’ which the Applicant ‘did not consent to’.

30. The email also goes on to state that the hearing ‘must be done in person’ because the Applicant’s telephone and computer router had been compromised by a ‘hostile foreign government’ and other ‘hackers and scammers’. At the end of the email, the Applicant states:

    it might be a good idea to have a Directions Hearing before any evidence is filed to address the matters which have been preventing me from being able to comply with the AAT Orders.

31. On or about 18 March 2024 a Registry officer referred the Applicant’s request for an extension of time to the Agency’s legal representative for any response. By email to the Registry later that day, the Agency’s legal representative advised that she had been unable to reach the Registry by telephone, that the Agency did not object to an extension of time being granted provided it was given consequential extensions to file its evidence and submissions, and that the Agency was awaiting a response to the matters raised in its email of 12 March 2024.

32. Neither the Applicant’s email of 14 March 2024 nor the Agency’s email of 18 March 2024 was referred to me for my consideration.

33. On 28 March 2024 the Agency’s legal representative emailed the Registry. In that email the representative refers to having ‘received a phone call from the Tribunal, in which [they] were told that the Directions dated 12 March 2024 replaced all previous Directions made in this matter’ but noting in relation to this ‘we have not received any correspondence confirming this’.

34. The email goes on to state that if it was intended that the Directions of 12 March 2024 replaced all previous directions then several issues needed to be clarified in relation to the opportunity of the parties to file material, and in relation to filing compliance dates. Specifically, an extension of time to 19 April 2024 was requested for the Agency to file its SFIC. The representative otherwise proposed there be a Directions Hearing to address these matters.

35. I note that this email was not referred to me for my consideration. Nor did I direct any Registry officer to advise the parties that my Directions of 12 March 2024 replaced all previous directions, assuming for present purposes that such advise was given. It was my intention that the Directions made on 1 March 2024 were additional to, and completed, the prehearing directions for the conduct of the review to hearing. The 12 March 2024 Directions were intended to address the issues the Applicant had raised in connection with his Hearing Certificate in relation to the filing and exchange of his witness evidence.

36. On 2 April 2024 the Applicant emailed the Registry again. At the top of the email the following appears: ‘[r]equest for directions hearing’. The email states as grounds for this request: (i) an objection to the summonses the Agency had issued to the Applicant’s treating professionals on the basis that this was done without his consent, ‘was not needed’ and ‘were a direct violation of the AAT orders of confidentiality’; (ii) an objection to the targeted questions the Agency had provided to its expert Occupational Therapist, again on the basis that these questions were put without consent, and were a violation of the Tribunal’s confidentiality orders; (iii) the Agency’s refusal to direct its expert Occupational Therapist to amend his report in accordance with requests for amendment made by the Applicant; (iv) the Applicant’s involvement with the assessment conducted by the Occupational Therapist occurred under ‘false pretences’ based on ‘misleading information, which raises an issue as to the ‘legality’ of his report; (v) the transfer of the proceedings from the Melbourne to Sydney Registry which, it was alleged, was done to avoid jurisdiction of Victoria’s Independent, Broad-based, Anti-corruption Commission, and to prevent his fair cross-examination of the Agency’s Occupational Therapist; and (vi) the Applicant’s case has been compromised by the ‘HWL Ebsworth data breach’ which the NDIA had failed to confirm, despite it occurring almost a year ago.

37. The Applicant sought the following orders with respect to the summonses and targeted questions:

    (1)  Orders that all summons material and targeted questions not to be included as evidence, stating I did not provide my consent and so it can not be included.

    If the summons material and targeted questions have been included at the time of reading this: I seek orders to have all the summons material and targeted questions struck out, stating I did not provide consent, that it is unlawful to allow this to be included, further with the NDIA being reprimanded for including this information as evidence.

    (2)  Orders to compel all parties, including third parties no longer part of the proceedings, to delete and destroy all copies of this information and confirm this action has been taken. (Permanent deletion, not de-identification.)

    (3)  Orders for the NDIA to repair the damage this has done, such as orders for the NDIA to contact all those summoned and apologise, emphasising I did not know about this, and I would not have agreed to it. They must acknowledge that not only was this a violation of my rights, but it was unlawful and its caused me harm and effected (sic) my relationships with those who’ve provided me treatment. I must be cc to all those correspondence.

    (4)  Orders for all parties, including third parties no longer part of proceedings, to provide a list of all entities the summons material and targeted questions were sent to, or might have a copy.

    and with respect to the Occupational Therapist report:

    (1)  Orders that the independent OT report is not to be included as evidence, and include a statement that it relied on information for which I did not provide my consent, and that it was unlawful, and the report contained what the NDIA knew to be false or misleading information.

    If the report has been included at the time of reading this, I seek orders to strike out the OT report, and including a statement that it relied on information for which I did not provide my consent, that it was unlawful, and the report contained what the NDIA knew to be false or misleading information. With the NDIA being reprimanded by the AAT for wilfully including this as evidence.

    (2)  Orders for all parties, including third parties who are no longer part of these proceedings, to delete and destroy all copies of the OT report and confirm this action has been taken. (Permanent deletion, not de-identification.)

    (3)  Orders for all parties, including third parties who are no longer part of proceedings, to provide a list of all entities this OT report was sent to.

    (4)  Orders that the OT report is not to be part of the AAT case file, or retained in any other way by any party, even those no longer part of the proceedings.

1. I note that the Applicant’s email of 2 April 2024 was not referred to me for my consideration.

2. On 11 April 2024, HWL Ebsworth Lawyers notified the Registry that it no longer retained carriage of the proceeding, and that the Agency was in the process of appointing a new legal representative. Later that day, Sparke Helmore Lawyers notified the Registry that it had been retained by the Agency to act for it in the proceeding.

3. Also on 11 April 2024, the Agency’s (new) legal representative emailed the Registry noting that the current directions required the Agency to file its SFIC by 12 April 2024, that a request for an extension of time to 19 April 2024 had been made by the Agency’s previous representative, but no response had been received. A further request was made for this extension of time. This email was not referred to me for my consideration.

4. On 12 April 2024 the Applicant emailed the Tribunal to complain that he had not received any response to his emails of 14 March 2024 and 2 April 2024. He again requested a Directions Hearing to address these issues. The Applicant goes on to complain about the Agency’s change of legal representative stating that this was done ‘to deliberatively obfuscate the issues’ in relation to the issue of the summonses and targeted questions, his requests for amendment to the Occupational Therapist report, and the HWL Ebsworth Lawyers data-breach. This email was not referred to me for my consideration.

5. On 19 April 2024 the Agency filed and served a SFIC. In the covering email the Agency’s legal representative notes that the Agency had received no response to its request for an extension of time in which to file the SFIC. The representative also requests the Tribunal to advise if the proceeding would be listed for directions ahead of the hearing set down for 8 to 10 May 2024 (sic).

6. On 20 April 2024 the Applicant emailed the Registry in response to the Agency’s filing of its SFIC to complain that the SFIC contained references to material obtained under summons which he objected to and wanted ‘struck out’. He refers to the previous objections he had raised in relation to this material and alleged that the Agency was acting corruptly by failing to address his concerns. He again requested the Tribunal to convene a Directions Hearing to address the issues ‘previously raised’. He goes on to state:

   The AAT must provide a directions hearing and follow through with the orders I’ve requested. If not, then I will now be able to prove the AAT have allowed the NDIA to commit perjury in attempt to coverup the abuse of proceedings. If the AAT address the issues I’ve previously requested, I’ll be happy to allow the NDIA to submit a new statement of issues, and I won’t add perjury to the list of reasons I’ll be appealing the case, or suing the NDIA.

   Every time someone abuses procedure to try cover up the problems their prior abuses caused, they’ve only dug the NDIA and AAT into a deeper hole. Stop trying to game the system, and just take the option I’ve given you to resolve the issue.

   If I have not received notification of a directions hearing by the 26 April 2024, I will be escalating matters.

7. The Agency’s email of (Friday) 19 April 2024 and the Applicant’s email of (Saturday) 20 April 2024 were referred for my attention on (Tuesday) 23 April 2024, by an Associate who had very recently been assigned administrative carriage of the proceeding, and who had taken a telephone call from the Applicant on 23 April 2024 inquiring about a response to his email.

8. After reviewing this material and its antecedents, I issued the following orders and reasons later that day:

   Orders

   1.    The Applicant’s application for a further directions hearing is refused.

   2.    The Applicant may give to the Tribunal and the Agency any further evidence and submissions by 12:00pm (mid-day) on 3 May 2024.

   3.    If the Agency is unable to comply with direction 3 of the directions made on 12 March 2024, it is to give to the Applicant and the Tribunal an Agency Tender Bundle by 4pm on 26 April 2024.

   4.    If the Agency is unable to comply with direction 4 of the directions made on 12 March 2024 it is to give to the Applicant and the Tribunal a schedule for the witnesses it will call by 4pm on 26 April 2024.

   5.    The Applicant must also give to the Agency and the Tribunal a schedule for any additional witnesses he intends to call to give evidence by 4pm on 26 April 2024.

   Reasons

   1.    There are no reasonable grounds for a Directions Hearing to be conducted in relation to the matters referred to by the Applicant in his application for a Directions Hearing.

   The issue of the summonses:

   2.    The Tribunal notes that the Applicant was represented in this proceeding by AED Legal Centre between 11 October 2021 and 19 January 2024 (the Applicant’s legal representative).

   3.    The Agency did not require the Applicant’s permission to apply to the Tribunal for leave to issue summonses to his treating professionals.

   4.    The Registry notified the Applicant’s legal representative that the Agency had made applications to issue these summonses on or about 7 June 2022. The Applicant’s legal representative did not object to the issue of the summonses at that time.

   5.    The material sought under the summonses was subsequently produced to the Tribunal on or before 22 June 2022, and the Tribunal then made directions in relation to the parties’ access to this material.

   6.    The Applicant’s legal representative was provided with first access to this material for a 14-day period from 23 June 2022, and did not object to the Agency having access to it. The Agency was therefore given access to this material from 7 July 2022.

   7.    In these circumstances there is no reasonable basis for the Applicant to now object to the issue of the summonses or to the Agency’s access to the material produced in response to them.

   The Agency’s reliance upon material produced under the summonses:

   8.    The Agency does not require the Applicant’s consent to include or rely on evidence obtained under the summonses issued to the Applicant’s treating professionals. It is not open to either party to dictate to the other what their case or evidence will be.

   9.    The Applicant may raise any objections to the admissibility of the evidence relied upon by the Agency and make submissions in relation to the relevance of that material, and weight to be given to it if it is admitted, at the hearing.

   The Agency’s expert evidence:

   10.  The Agency does not require the Applicant’s consent to tender its expert evidence.

   11.  The Applicant cannot direct the Agency or the Agency’s expert what may or may not be included in the expert’s report. It is not open to either party to dictate to the other what their case or evidence will be.

   12.  The Applicant will be given the opportunity to ask the Agency’s expert questions, and to give or call evidence to challenge the Agency’s expert evidence at the hearing (subject to the procedural directions made on 12 March 2024 (order 1, Note 1) and order 2 of today’s date).

   Request for extension of time in which to file evidence:

   13.  The procedural directions made on 1 February 2024 and 12 March 2024 have provided the Applicant with a substantial opportunity to place evidence and submissions before the Tribunal in relation to this review.

   14.  The Applicant has not provided a satisfactory explanation for his failure to avail himself of those opportunities to date. In this respect the grounds cited for the delay insofar as they concern the summonses and the Agency’s expert evidence are misconceived for the reasons stated above. Nor is there any logical connection between the alleged ‘data breach’ by the Agency’s legal representative and the duty and ability of the Applicant to comply with the Tribunal’s procedural directions for the filing and exchange of his evidence and submissions.

   15.  Nevertheless, the Applicant is allowed further time until mid-day on 3 May 2024 to give to the Tribunal and the Agency any further evidence and submissions he intends to rely on at the hearing.

   16.  If the parties are unable to agree on a Joint Tender Bundle and witness schedule they are to file separate materials and witness schedules to avoid any further delay.

   17.  The hearing in this review is confirmed for 8 and 9 May 2024.

   18.  No reasonable basis has been set out for the hearing modality to be converted to a live hearing.

   19.  This application has been before the Tribunal since 29 June 2021 (2 years and 10 months). It is in the public interest that it be brought to finality.

9. By email to the Registry later 23 April 2024 the Applicant took issue with these Orders and Reasons. One issue raised concerned the modality of hearing. In this respect the Applicant stated:

   As for why I need the hearing to be in person, I have also explained that’s because all my devices are compromised, That is a direct result of the data-breach.

   I’ll adhere to the orders, but I must insist this hearing be done in person.

10. By email to the Registry on 24 April 2024, the Agency’s representative sought an extension of time to provide the Agency’s tender bundle until 1 May 2024. The grounds cited for the extension of time were: (i) 25 April 2024 was a public holiday (Anzac Day); (ii) Sparke Helmore Lawyers had only recently been instructed in the matter; and (iii) the Agency had been awaiting the Tribunal’s directions in relation to the progress of the matter, which had been given on 23 April 2024.

11. After considering the contents of these emails, and ascertaining the availability of a hearing room in the Melbourne Registry, I issued the following orders and reasons on 24 April 2024:

    Order

    1.    The Applicant’s further request for a live hearing is refused.

    2.    The Applicant is to notify the Tribunal Registry by 12 mid-day on 3 May 2024 if he will attend the Tribunal’s Melbourne Registry (Hearing Room 5.05) to participate in the hearing from that venue.

    3.    Time for the Agency’s compliance with orders 3 and 4 of the orders made on 12 March 2024 (as amended by the orders made on 23 April 2024) is extended to 1 May 2024.

    Reasons

    1.    There are insufficient grounds for the hearing modality to be changed to a live hearing.

    2.    The Applicant has not identified any disability-related accessibility issue that is indicative that a live hearing is required.

    3.    If the Applicant is concerned that his communication devices are compromised, he may attend the AVL hearing via a hearing room which has been reserved for his use in the Melbourne Registry on the days of the hearing (Hearing Room 5.05) provided he notifies the Tribunal Registry of his intention to do so by 12 mid-day on 3 May 2024.

    4.    The Agency has provided a satisfactory explanation for its expected delay in complying with orders 3 and 4 of the orders made on 12 March 2024 (as amended 23 April 2024). No practical injustice for the Applicant will be created by this extension as he has had the materials to be constituted in the Joint or Agency Tender Bundle for an extended period and so cannot be taken by surprise by anything contained in it. Nor will the Applicant be taken by surprise by the Agency’s witness or his report for the same reason.

12. On 24 April 2024 the Applicant responded to these orders by email to the Registry, stating:

    1. I did not make a further request for a live hearing. I do not know why this order

    was made.

    2. I have made arrangements to use a friend’s laptop for the hearing, I will not be

    attending the Tribunal’s Melbourne Registry.

    3. That is unfair. I have not received any Joint or Agency Tender Bundle. I do not have this information.

    The only information I have is that which was sent to me by HWLE, in Feb 2024. This is a denial of Justice.

    I further note that no one from the AAT ever contacted me to discuss my preferences for a hearing, as I was told would happen at the case conference.

13. As noted above, by email to the Registry, copied to the Agency’s representative, on 26 April 2024, the Applicant asked that I recuse myself from this review on the basis that I was not impartial. I will set out the grounds upon which this application is based following.

14. On (Friday) 26 April 2024 the Applicant also made applications to issue two summonses which were referred to me for consideration on (Tuesday) 30 April 2024.

15. The Applicant’s first application to issue a summons was directed to the National Disability Insurance Agency and sought production of:

    1.    All compromised data relating to 2021/4331.

    2.    All notes, emails, correspondence or other document relating to 2021/4331 and any compromised information.

    3.    All emails from [an NDIS officer email address] between any parties that relate to 2021/4331.

16. In the associated application form, the Applicant stated as his ‘reasons for the request’:

    My reasons are clearly outlined in my email dated 14 March 2024, I have attached it as my supporting reason. In response to this email [name of NDIA officer] from the NDIA did send me an email through the Services Australia secure email on 25 March 2024 and named the documents. He told me he tried to send the information to my email but was unable to, due to the size of files, and that they would work out another method of sending it. But I have yet to receive anything further.

    The email through Services Australia was insufficient for my needs, didn’t give me access to the information, and for some reason I could not print or save that email. But I did take a screenshot.

    I have a right to know what documents where compromised. It has been over a year since that data-breach occurred, at this point in time, not providing this official confirmation is unlawful. Please refer to the OAIC for further details.

    The Tribunal Member denied making orders to compel the NDIA to provide me this information, and wrote directions falsely claiming there is no logical link between the data-breach and my ability to meet AAT directions, which weren’t even in place. So I’m requesting this information by summons.

    This also means that information should be placed on the AAT case file for when this matter is likely either appealed, or investigated.

17. On 30 April 2024 I refused the Applicant leave to issue this summons giving as my reason:

    The documents sought from the Agency by the summons are of no apparent relevance to any issue in the proceedings. The subject matter of this administrative review is whether the Agency’s decision that the Applicant does not meet the disability or early intervention requirements for access to the National Disability Insurance Scheme is the correct decision. The review does not involve any investigation of an alleged ‘data breach’ by the Agency and or its legal representatives.

18. The Applicant’s second application to issue a summons was directed towards the AAT and sought production of the following:

    All written requests that explain why the AAT should issue a summons in relation to AAT case ref: 2021/4331

    The AAT form called “Request for Summons” or any other written requests to explain the reasons.

19. In the associated application form, the Applicant stated as his ‘reasons for the request’:

    To determine why medical records that were not needed for the review were summoned. The applicant had already obtained the evidence the NDIA had requested, but due to an error by the NDIA which close the case (sic), it had to go to the AAT so the applicant could have that evidence reviewed. The error was confirmed by the NDIA, the evidence of that was provided to the AAT.

    Not once during proceedings did either the respondent or the AAT ask for the information the NDIA had previously requested, despite the applicant making it clear at the time of making the AAT application, was ready to be provided.

    The summons which was not needed for the review, then became part of the HWL Ebsworth data-breach, and that information was then used by criminals to commit fraud in the applicant’s name. They have been targeting the applicant, harassing them, and trying to blackmail them.

    The effected person (the applicant) did not know about the summons or provide consent, if they had been aware of the summons they would have objected. The applicant only learned of the extent of the summons after 9 February 2024.

    The effected person would like to know the reason these summons were requested, instead of the information the NDIA had previously stated they needed.

    The applicant has an inalienable right to know the reason why their information was requested and used in this way.

20. Upon consideration of the second summons application, it was apparent to me that the Applicant sought copies of the ‘request to issue summons’ and the ‘summons to produce documents’ the Agency had filed with the Tribunal on or about 1 June 2022 and the material that had been produced to the Tribunal by the summons recipients in response to these summonses.

21. The ‘request to issue summons’ and the ‘summons to produce documents’ were served on the Applicant’s legal representative on or about 1 June 2022, and the Applicant’s legal representative was granted access to the material produced in response to the summonses from 23 June 2024. Having regard to that, and although irregular,[4] after consulting the Registry, I determined that the Applicant could be provided with copies of each of the Agency’s requests to issue summons and the summons to produce documents as well as the documents that had been produced in response without it being necessary to process the second summons application. These documents were provided to the Applicant later 30 April 2024 by email and post.

    [4] The Applicant had already been given access to this material by the orders made on 22 June 2022.

    The Applicant’s contentions

22. In his recusal application, and in his submissions of 3 May 2024, the Applicant contends that it is the orders I made on 23 April 2024 and 24 April 2024, and the reasons I gave for those orders, which demonstrate actual bias, or alternatively, which give rise to an apprehension of bias. In his submissions of 3 May 2024, he further contends that the decision I made on 30 April 2024 in relation to his request for leave to issue a summons on the NDIA and Tribunal demonstrates actual bias, or alternatively, gives rise to an apprehension of bias (together, the impugned decisions).

23. The Applicant’s submissions are discursive and prolix. They also refer to various matters that can have no bearing on the recusal application (for example, the quality of his legal representation, the Agency’s decision to change its legal representative). Doing the best that I can to summarise the Applicant contentions, he submits that the impugned decisions:

    (i)demonstrate that I have a ‘clear bias in favour’ or ‘predisposition in favour’ of the Agency, because they:

    -    involved no proper consideration of the issues raised in his correspondence of 14 March 2024, 2 April 2024 and 20 April 2024 as is evident from the fact that he spoke to my Associate at 3:20pm on 23 April 2024 before (he assumes) his last email had been referred to me, and then received my orders and reasons at 4:01pm, a mere 41 minutes later,

    -    compel him to meet deadlines for the filing of his evidence and submissions, while allowing the Agency additional time to file its evidence and submissions over his stated objection (order 3 of the Orders made on 24 April 2024),

    (ii)are intended to ‘steer the case towards a specific outcome’, which I understand to mean a predetermined outcome, ‘irrespective of the evidence or facts’. As I understand it that is because:

    -    I did not make orders that would ‘strike out’ the medical information obtained by the Agency under summonses issued to his treating professionals, and from targeted questions the Agency had issued to his treating professionals and the Agency’s independent expert,

    -    I did not make the orders he sought, or grant leave for the issue of a summons to the Agency, in relation to the HWL Ebsworth Lawyers ‘data breach’,

    (iii)deny him procedural fairness, and the right to a fair hearing, and are ‘punitive’ because:

    -    they do not allow him sufficient time to provide evidence in support of his case,

    -    are intended to ‘obscure relevant matters’, ‘cloud pertinent issues’ and ‘prevent him from raising important matters at the hearing’,

    -    I ‘gaslight’ him when I state that there is ‘no logical connection between the data breach issue and his ability to comply with the procedural directions’,

    -    I make ‘multiple, unfounded claims and assertions about him and the facts of the case,’

    -    I failed to respond to his earlier requests for a Directions Hearing which was a ‘neglect of my responsibilities’, and a deliberate ploy to ‘disadvantage’ and ‘undermine’ him,

    -    I falsely stated that he already had the material to be contained in the Agency Tender Bundle and could not be taken by surprise by it as an excuse for extending time for it to be filed,

    -    I set the review hearing down for 2 days, whereas he had indicated a 3 day hearing was necessary in his Hearing Certificate,

    -    on 24 April 2024 I refused his request for a live hearing a second time, when he had not made a second request,

    -    he did not consent to the transfer of his case from the Melbourne to the Sydney Registry,

    -    I did not contact him to discuss his preferences for the hearing prior to setting the proceeding down for hearing, which is what a Conference Registrar said would happen,

    (iv)are an abuse of my power and authority for the benefit of the Agency and are designed ‘to facilitate a cover-up’ or ‘concealment’ by the Agency and the Tribunal. I understand that this alleged ‘cover-up’ consists of:

    -    the Tribunal attempting to conceal that it improperly and unlawfully allowed the Agency to obtain information from his treating professionals under summonses which he did not consent to,

    -    the Tribunal attempting to conceal that it is allowing the Agency to rely upon evidence obtained in response to targeted questions issued to health professionals that he did not consent to,

    -    the Tribunal and the Agency attempting to conceal that his medical information held by HWL Ebsworth Lawyers was stolen in a cyber ransomware attack in April 2023,

    -    the Tribunal attempting to conceal its ‘flawed administration’ in relation to his and the Agency’s requests for a Telephone Directions Hearing which were ignored, and

    -    me trying to prevent or mislead any future investigation or appeal in relation to the above matters.

    I note that the Applicant also describes these matters as the cover-up of ‘procedural abuses’, ‘procedural violations’, ‘corruption’ and ‘perjury’.

    (v)present a deliberate ‘significant risk of harm if not death’ to the Applicant because:

    - the medical information which is alleged to have been stolen from HWL Ebsworth Lawyers has or will be used for the purpose of identity theft which has or will put the Applicant’s financial security at risk,

    -the medical information which is alleged to have been stolen from HWL Ebsworth Lawyers will be used by malevolent persons to obtain his address information so that they can locate him and cause him physical harm,

    -the summonses and targeted questions issued by the Agency have caused a breakdown in his therapeutic relationships with his treating professionals which means that he no longer receives treatment and care,

    -the disclosure of his medical information in response to the Agency’s summonses and targeted questions and the HWL Ebsworth data breach has caused him acute anxiety and reversed gains achieved in ‘years of therapy’.

1. With respect to my decision of 30 April 2024 in relation to his application to issue a summons to the NDIA, the applicant contends that my reason for refusing leave is clear evidence of bias in favour of the Agency, because ‘it involves commenting on evidence prior to proceedings’ and is in contradiction to a reason I stated for my orders on 23 April 2024 which was that ‘it was not open to either party to dictate to the other what their case or evidence will be’. It is also said that my dealing with those summons applications is further evidence of bias (in the sense of me seeking to disadvantage the Applicant) because he had asked the Registrar to have these applications decided by someone else.

2. The Applicant also submits that I am biased against him on the basis that I have some form of ‘affiliation’ to an unnamed person who instructed another lawyer to threaten him, and who has engaged in fishing expeditions for his personal information in other legal proceedings. The Applicant believes it is likely that I have this affiliation because I went to the same law school at the same time as the lawyer.

   Legal principles

3. The legal principles that apply in ascertaining if a decision-maker is affected by actual bias may be summarised as follows:

   i.The question for determination in an actual bias application is whether there is bias in fact,

   ii.A finding of actual bias is a grave matter.[5] The ‘wrong’ involved is the failure to decide a case impartially,[6] contrary to the oath of office, and the rule of law,

   iii.An allegation of actual bias is therefore serious. It must be distinctly made.[7] It should not be made lightly,[8]

   iv.The onus of demonstrating actual bias lies on the Applicant, and it is a heavy onus.[9] The allegation must be clearly proven.[10] Cogent evidence is required,[11]

   v.The claim in this case is prejudgment. It therefore falls to the Applicant to show that I am so committed to a conclusion already formed as to the outcome of this review, that I am incapable of persuasion otherwise, whatever evidence or arguments may be presented; in other words, he must establish that I have a closed mind,[12]

   vi.This requires an assessment of my state of mind and actual views, by reference to what I have said or done.[13] Actual bias is not confined to an intentional state of mind. Bias may also be subconscious provided it is real,[14]

   vii.It is not enough for the Applicant to show that I may have expressed preliminary views in relation to the issues for decision. The question is not whether my mind is blank, it is whether it is open to persuasion,[15]

   viii.Actual bias, like any other conclusion of fact, may be established as an inference from circumstances.[16] For example, an inference of actual bias may be drawn if I have acted with such partisanship or hostility in relation to the Applicant’s case as to show that I have made up my mind against the Applicant and am not open to persuasion in his favour,[17] or, put another way, that my conduct has been quite inconsistent with the fair performance of my duty.[18]

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

   [6] Bilgrin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at [290] per Finkelstein J

   [7] South Western Sydney Area Health Service v Edmons [2008] NSWCA 16 at [97] (Edmons)

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

   [9]; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68] – [74]

   [10] Edmons at [97]

   [11] Sun at 123 per Wilcox J

   [12] Minister for Immigration and Multicultural Affairs v Jia Legend [2001] HCA 17; (2001) 205 CLR 507, at [72]; 531-2 per Glesson CJ and Gummow J with whom Hayne J agreed at [176]; 561 (Jia)

   [13] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [33]’; (2011) 244 CLR 427; Brookfield v Real Estate Now Pty Ltd & Anor [2023] QCA 259 at [53]

   [14] Sun at [73]

   [15] Jia at [71]; 531 per Gleeson CJ and Gummow J

   [16] Sun at 127 per Burchett J

   [17] Sun at XX per North J

   [18] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116

4. The legal principles that apply in ascertaining if a decision-maker is affected by an apprehension of bias may be summarised as follows.

   (i)the proceedings will be affected by an apprehension of bias if a fair-minded lay observer or bystander (the bystander) might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions that the decision-maker is required to decide[19],

   [19]Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 334 [6] (Ebner); British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) CLR 283 at 331 [139], 333-335 [146]-[152]

   (ii)the test is one of “possibility”, but it must be established that there is a real, rather than remote, possibility that the decision-maker would not bring an impartial mind to the issues to be determined. Nevertheless, it is not necessary to establish that it is likely or probable that the decision-maker would not bring an impartial mind to the issues to be determined,[20]

   [20] Ebner at 345 [7]

   (iii)in practice, the application of this test involves the following steps:

   (a)first, the Applicant must identify what it is that might lead the decision-maker to decide the outcome of the review other than on its factual and legal merits,[21]

   [21] Ebner at 345 [8]

   (b)second, the Applicant must articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the review on its merits,[22]

   [22] Ebner at 345 [8]

   (c)then, having regard to the matters identified in step 1 and 2, the Applicant must establish how an apprehension of bias arises from those matters.

   (iv)The apprehension of bias must be reasonable.[23] The test considers the perspective of a hypothetical fair-minded lay observer, and is not concerned with fanciful or unreasonable apprehensions of bias,[24]

   (v)a decision maker should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself of herself too readily from hearing a matter.[25] Although it is important that justice must be seen to be done, it is equally important that decision makers discharge their duty to sit and do not, by acceding too readily to suggestions of the appearance of bias, encourage parties to believe that by seeking their disqualification, they will have their case determined by someone thought more likely to decide the case in their favour,[26]

   (v)where it is prejudgement that is alleged, what must be firmly established is a reasonable fear on the part of the bystander that the decision-maker’s mind is prejudiced in favour of a conclusion already framed, so that he or she will not alter that conclusion irrespective of the evidence or arguments presented,[27]

   (vi)As the test is objective, it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias.[28] In the case of actual bias, the actual state of mind of the decision maker is in issue. In the case of apprehended bias, the focus is on the apprehension of the bystander. The latter test is usually easier to satisfy,[29]

   (vii)the actual thought processes of the decision maker need only be enquired into in deciding whether the decision maker has been actuated by actual bias.[30] Application of the apprehended bias test requires no prediction about how the decision maker will in fact approach the matter,[31]

   (viii)an oath of office is not an answer to a claim of apprehended bias, although it is a matter which the bystander may consider.[32] As the rule is concerned with appearance of bias, and not the actuality, it is the perception of the bystander that provides the yardstick – it is the public’s perception of neutrality with which the rule is concerned,[33]

   (ix)The bystander may have regard to the cumulative effect of factors.[34] Later statements may serve to reinforce an impression created earlier.[35] Similarly, any statement by a decision maker which qualifies, corrects, dispels, or clarifies what has been said on a prior occasion may be considered by the bystander, and may operate against a finding of apprehended bias [36]. However, circumstances may exist where the appearance of bias is ineradicable.[37]

   Consideration

   [23] Ebner at 345 [8]

   [24] Gascor v Ellicott [1997] 1 VR 332, 342.

   [25] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 504 [45]

   [26] Re JRL; Ex parte CJL [1986] HCA 39 (1986) 161 CLR 342 at 352

   [27] Gaudie v Local Court of New South Wales and Anor [2013] NSWSC 1425 at [82].

   [28] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at 437 [33].

   [29] Spencer v Bamber [2012] NSWCA 274 at [16] (Spencer)

   [30] Ebner at345 [7]; Spencer at [107]

   [31] Ebner at345 [7]

   [32] Gaudie at [86]

   [33] British American Tobacco Australia Services Limited v Laurie at 331 [139]

   [34] AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236 at 254-255 [67]-[68]

   [35] Antoun v The Queen [2006] HCA 2; (2006) 224 ALL 51 at 52 [2].

   [36] Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572, 587; Johnson v Johnson at 494 [14], 495 [18]

   [37] Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 372

   Actual bias

5. I do not accept the Applicant’s contention that the impugned decisions give rise to a reasonable inference that I have prejudged the outcome of the review, or that they demonstrate partisanship, or hostility towards the Applicant’s case. Nor do I accept the Applicant’s contentions that there are other circumstances that demonstrate that my conduct of the proceeding to date is affected by actual bias.

6. The issues for determination in the review are whether the Applicant meets the criteria specified in s 21 of the NDIS Act for access to the NDIS, and more specifically, whether he meets the ‘disability requirements’ specified in s 24 or the ‘early intervention requirements’ specified in s 25 of that Act. There is nothing in the impugned decisions, objectively read, that is indicative that I have reached any conclusion as to those issues.

7. This proceeding does not involve an administrative review of the cyber ransomware attack on HWL Ebsworth Lawyers in April 2023, and the alleged theft of the Applicant’s medical records held by HWL Ebsworth Lawyers because of it being retained by the Agency to act for it in these proceedings. I use the word “alleged” here and in my reasons of 23 April 2024 not because I doubt that the cyber-attack occurred, but because I do not know if it involved any theft of the Applicant’s medical information. That is not a fact to be found by me in this proceeding. It is a matter entirely external to the proceeding, which is not to say that it is not an important concern.

8. My indicating to the parties those matters that are for decision and those that are not doesn’t reasonably indicate partisanship or hostility towards the Applicant’s case. Nor, logically, can it indicate prejudgment of the issues to be determined, because no issue in relation to the cyber-attack is before me for decision.

9. The impugned decision of 23 April 2024 was to refuse the Applicant’s request of 20 April 2024 to convene a Telephone Directions Hearing. The principal reason I recorded for this decision was that the Applicant had not established reasonable grounds for a Directions Hearing to be convened. My reasons then explained why that was the case by detailed reference to the matters the Applicant had raised in his correspondence. In summary, I was satisfied that those matters involved fundamental misunderstandings of legal principle in relation to summonses and expert evidence which could be adequately identified on the papers and dispelled without hearing oral argument. Given the obviously misconceived nature of the Applicant’s complaints about these matters, a Telephone Directions Hearing could not have led to any different outcome.

10. Failure to deal with these issues immediately upon referral of the Applicant’s correspondence to me had the potential to put in jeopardy the final hearing fixture which was then 15 days away. As my reasons state, I attached significant weight to that consideration having regard to the protracted period this proceeding had been before the Tribunal.

11. The Applicant was dissatisfied by the statements of legal principle in relation to the issue of summonses, the use of summonsed material, and expert evidence, contained in my reasons of 23 April 2024. However, I regard these to be objectively uncontroversial statements of established principle. No reasonable inference of impartiality or hostility to the Applicant’s case can arise from the mere statement and application of established legal principle to the facts of a particular case.

12. Nor do my reasons of 23 April 2024 indicate prejudgement in relation to the admissibility, and if admitted, the weight that would ultimately be given to any evidence relied by the Agency that had been obtained under summons, or to the Agency’s expert evidence. My reasons expressly indicate to the Applicant that he could make submissions as to the admissibility, and if admitted, the weight to be given to this evidence at the hearing. They also refer to the Applicant’s ability to cross-examine the Agency’s expert at the hearing.

13. The Applicant takes umbrage at my statements to the effect that the directions made on 1 February 2024 and 12 March 2024 had provided him with a substantial opportunity to place evidence and submissions before the Tribunal in relation to the review, and that he had not provided a satisfactory explanation for his failure to do so. He contends that these statements clearly indicate a lack of impartiality and a hostility towards him, specifically because they fail to consider the time that had been absorbed by him responding to the data breach, the summonses, and the Agency’s expert report.

14. As of 23 April 2024, this application, lodged on 29 June 2021, had been before the Tribunal for 2 years and 10 months. This is an access application in which the Applicant bears a practical onus[38] of ensuring that there is material before the Tribunal that can satisfy it with precision[39] that he meets the access requirements for the NDIS. He contends that the delegate’s original decision in relation to his access application, and the delegate’ internal review decision, are both wrong. He therefore bears the practical onus of establishing why that is the case. As set out above, he has been on notice as to those decisions since 28 April 2021 and 25 June 2021.

    [38] Beezley v Repatriation Commission [2015] FCAFC 165 at [67] – [68]

    [39] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [55]; (2015) 233 FCR 201 at 213

15. As a matter of general principle, the alternative dispute resolution process in the proceeding between 13 September 2021 and 31 January 2024, also provided the parties with the opportunity to identify the type of evidence that the Applicant would need to place before the Tribunal for his access application to be successful.[40] The orders made by the Conference Registrar on 1 February 2024 for the filing and exchange of the parties’ evidence and submissions must be considered against this backdrop. The Applicant was required by those directions to file and exchange his evidence and submissions by 15 March 2024.

    [40] I say ‘as a matter of general principle’ because by operation of s 34E of the AAT Act anything done or said in the alternative dispute resolution process is not admissible in this proceeding before me. I therefore do not know specifically what transpired in alternative dispute resolution in this case.

16. When he filed his Hearing Certificate on 4 March 2024, the Applicant certified that the proceeding was ready for hearing in accordance with the timetable that was in place, and he also stated that he wanted “the soonest available dates” for the hearing and that he would “prioritise the AAT” over other commitments to facilitate the earliest possible hearing.

17. The Applicant’s Hearing Certificate did indicate some equivocation in relation to witness evidence, which is why, on 12 March 2024, I directed that he must file and exchange any further witness evidence by 4pm on 29 March 2024, in effect, providing him with a two-week extension of time from the orders made on 1 February 2024.

18. It was not until 14 March 2024, one day before he was required to file a Statement of Facts, Issues and Contentions, and all reports, records, and any other documents on which he intended to rely at the hearing, that the Applicant wrote to the Tribunal advising that he was not ready to do so and seeking an unspecified extension of time in which to do so. His email states that he had somehow been ‘prevented’ from complying with the Tribunal’s orders by the alleged data breach, and by his objections to the Agency’s summonses and the material produced in response to those summonses, and to the Agency’s expert report.

19. For the reasons stated above, no issue in relation to the cyber ransomware attack on HWL Ebsworth Lawyers is before the Tribunal for decision in this administrative review. That event occurred in April 2023, 12 months earlier. The Applicant contends that he did not come to appreciate that his medical information may have been subject to theft in that event until 9 February 2024 when the Agency former legal representative provided him with a copy of all the material that had previously been provided to his legal representatives. This included medical information the Agency had obtained under summons. If that was the case, this was still more than one month before the Applicant filed his Hearing Certificate certifying that the proceeding was ready for hearing in accordance with the procedural directions that were in place at that time.

20. Against this backdrop, my statement that there is ‘no logical connection between the alleged ‘data breach by the Agency’s legal representative and the duty and ability of the Applicant to comply with the Tribunal’s procedural directions for the filing and exchange of his evidence and submissions’ is objectively a reasonable one, which in my view does not reasonably give rise to an inference of prejudgement, lack of impartiality, or hostility towards the Applicant’s case.

21. As I have already stated, the Applicant’s objections in relation to the Agency’s summonses, its intention to rely upon material produced in response to those summonses, and his objection to the Agency’s expert evidence are misconceived. Moreover, they relate to evidence that the Agency intended to file in response to the Tribunal’s procedural directions, not to the Applicant’s own evidence. I was thus not satisfied that the Applicant’s misconceived pursuit of objections to the Agency’s evidence provided a satisfactory explanation for his failure to file his own evidence and submissions. In my view that conclusion is an objectively reasonable one that does not reasonably give rise to an inference of prejudgement, lack of impartiality, or hostility towards the Applicant’s case.

22. In any event, I granted the Applicant additional time to mid-day 3 May 2024 to file his evidence and submissions. With the extension granted on 12 March 2024 this amounted to an additional 50 days for the Applicant to file and exchange his evidence and submissions from his original compliance date (15 March 2024). In all these circumstances, in my view no reasonable inference of lack of impartiality or hostility towards the Applicant’s case could reasonably be drawn from the scepticism I expressed about the reasons he gave for his failure to comply with the Tribunal’s procedural directions for the conduct of the review to hearing.

1. The Applicant complains that he was not contacted about arrangements for the final hearing which indicates I am biased against him. But he is clearly mistaken. I did direct the parties to file and exchange Hearing Certificates. The Applicant indicated several of his preferences for the hearing in his Hearing Certificate.

2. The Applicant further complains that the fact I did not adopt his preference for a 3-day hearing indicates bias against him. In my view no reasonable inference of bias could arise from my decision to allow 2 days for the hearing. The Applicant’s, and the Agency’s, estimate of the time required for the hearing was informative, but not binding upon me. Ultimately, I was required to make my own assessment of the hearing time required having regard to the Tribunal’s objective, which includes providing a mechanism for review which is ‘fair, just, economical, informal and quick’ and ‘proportionate to the importance and complexity of the matter.’[41] A 2 day fixture provided substantial time for the hearing, bearing in mind that this is an access dispute of relatively narrow compass.

   [41] s 2A(b) and (c) of the AAT Act.

3. The Applicant contends that the orders I made on 24 April 2024 demonstrate bias because I gratuitously refused a purported second request for a live hearing when no such request had been made. That contention cannot be accepted. I have set out the Applicant’s email to the Tribunal of 23 April 2024 at paragraph 46 above. In that email the Applicant states “I must insist this hearing be done in person”. On any reasonable view, that statement clearly constitutes a further request for a live hearing.

4. In response to that request, I also arranged for a hearing room in the Tribunal’s Melbourne Registry to be made available to the Applicant to participate in the hearing via MSTeams. I did so in response to the Applicant’s assertion that his communication devices were compromised. He did not take up that offer, which is a matter for him. However, my attempt to accommodate the Applicant’s request as far as possible is inconsistent with any inference being drawn that I was not approaching the review on an impartial basis or was acting with hostility to the Applicant and his case.

5. I should also note at this juncture that I played no part in the Tribunal’s decision to constitute this review to me for hearing, which resulted in the transfer of the proceeding from the Tribunal’s Melbourne Registry to the Sydney Registry. The Tribunal’s National Disability Insurance Scheme Division (NDISD) conducts a national listing model broadly in accordance with the so-called ‘cab-rank rule’, which means that matters ready to progress to hearing are generally constituted to the first available and appropriately qualified member. Consistent with that national listing model, the conduct of hearings by video (MS Teams) is commonplace, because it allows participants who may be widely dispersed geographically to participate in the hearing from their location. This typically has other advantages for the parties in terms of their costs of participation and convenience.

6. While the President has discretion to authorise a Member constituted to a proceeding to conduct a live hearing other than from their home Registry, the exercise of that discretion necessitates consideration of the public cost involved, which must be justifiable in the circumstances. In this case, the Applicant advanced no disability-related accessibility concern that would justify the cost of a live hearing, and I took the view that the concerns that he had advanced about his compromised communication technology could be accommodated by the making of a Melbourne hearing room available for his use. Having regard to that, I took the view that there was an insufficient basis for me to request the President to exercise his discretion to list the matter for a live hearing in the Melbourne Registry. In my view, that decision is objectively reasonable and could not reasonably give rise to an inference that I lack impartiality or am hostile to the Applicant and his case.

7. The Applicant takes umbrage at the extension of time I granted to the Agency for the filing of the Agency Tender Bundle. He contends that contrary to the reasons I gave for granting that extension he was taken by surprise by the material contained in the Agency Bundle (which was ultimately not filed and served until 6 May 2024), and this extension created procedural unfairness to him. He submits that an inference can be drawn from my willingness to grant the Agency this extension that I am biased in favour of the Agency and seek to disadvantage the Applicant in the proceeding.

8. I do not accept that submission. First, I note that both parties were granted extensions of time to comply with the procedural directions. The extensions of time granted to the Applicant (50 days) far exceeded the extension of time granted to the Agency. Second, the Agency had complied with the orders made on 1 February 2024 and 12 March 2024 for the filing of its evidence, submissions, and Statement of Facts Issues and Contentions by 19 April 2024. It is also the Applicant’s own case that he had received a copy of all the material filed in the proceedings before 31 January 2024 from the Agency’s former legal representative on 9 February 2024. The Agency Tender Bundle was simply a re-presentation of the material the Agency considered relevant to its case from that material. My conclusion that the Applicant could not, therefore, be taken by surprise by the material contained in the Agency Bundle is, in my view, an objectively reasonable one, from which no inference of bias could arise.

9. I turn now to the decisions I made on 30 April 2024 in relation to the Applicant’s applications to issue two summonses. The Applicant submits that my refusal to issue these summonses is clear evidence that I am biased against him, particularly because the Tribunal had granted the Agency leave to issue summonses to his treating professionals in June 2022 without his consent.

10. I do not accept this submission. First, the Tribunal’s decisions in relation to the Agency’s and Applicant’s summons applications cannot be indicative of differential treatment of the parties by me because I did not determine the Agency’s June 2022 summons applications.

11. Second, consideration of an application for a summons requires the delegate of the Tribunal to determine if the summons has a legitimate forensic purpose. In this respect the delegate must be satisfied that the material called for by the summons could reasonably be expected to throw light on to some of the issues in the proceeding,[42] or put another way, ‘that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case’.[43] This is a relatively low ‘bar’ or ‘threshold’.[44]

    [42] Department of Planning, Industry and Environment v Blacktown City Council [2012] NSWCA 145 at [89] (Blacktown City Council); QLYQ and National Disability Insurance Agency [2022] AATA 4384 at [38]

    [43] Waind and Hill v National Employers’ Mutual General Association Ltd [1978] NSWLR 327 at 381 (Waind) at 384; cited with approval in Blacktown City Council at [89] per Brereton J

    [44] Blacktown City Council at [71] per Bell P

12. As I have noted above, the issue to be determined in this proceeding is whether the Applicant meets the access requirements for the NDIS, specifically, whether he meets the disability or early intervention requirements. The proceeding does not involve an administrative review of any matter concerning the cyber ransomware attack on HWL Ebsworth Lawyers. The summons the Applicant sought to have issued to the Agency concerned the latter, not the former. It therefore did not serve a legitimate forensic purpose. My decision to refuse leave to issue the summons was therefore an orthodox application of well-established legal principle. It could not, in my view, reasonably give rise to an inference that I had prejudged or was hostile to the Applicant’s case, or that I was not impartial.

13. With respect to the summons the Applicant sought to issue to the Tribunal, it was clear to me that the information sought (which related to information about the Applicant’s conditions and treatment sought by the Agency from his treating professionals) was of apparent relevance to the issues for determination in the proceedings. Having regard to that I arranged with Registry to immediately provide to the Applicant the material sought by that summons without the summons being issued. I did that to ensure the Applicant would have this material as far as possible in advance of the hearing. This was a decision for his benefit that could not reasonably give rise to any inference of actual bias against him.

14. Finally with respect to the Applicant’s summons applications, the Applicant contends that the fact that I dealt with these applications indicates bias against him because, when he filed them, he had requested Registry to ensure that they were dealt with by someone else. I understand the Applicant to suggest that an inference should be drawn that I somehow improperly intercepted these applications to determine them in a way that was averse to him.

15. This contention should be rejected for two reasons. First, parties to proceedings are not entitled to pick and choose which Member of the Tribunal (or other delegated Tribunal officer) determines applications made by them. The Tribunal is independent of the parties. Second, and relatedly, I am the Member of the Tribunal constituted to conduct this review. It is therefore appropriate that I determine any post-constitution interlocutory applications made by the parties. One important reason for this is that I am responsible for managing the conduct of the proceeding to final hearing. The implication of any interlocutory application for the pre-hearing timetable must be considered. In these circumstances, in my view, no reasonable inference of bias could arise from my determining the Applicant’s summons applications. The way they were dealt with is consistent with established Tribunal practice.

16. I now turn to other matters which the Applicant contends indicate that I am biased against him.

17. It is unfortunate that the Applicant’s and the Agency’s communications with the Sydney Registry between 12 March 2024 and 12 April 2024, in which several requests were made for a directions hearing, were not referred to me for consideration. This was an administrative oversight. However, that circumstance can not reasonably give to rise to an inference that I have prejudged the outcome of the review, that I am not impartial, or that I am hostile to the Applicant’s case.

18. Members of the Tribunal have no role in receipting, registering, and filing correspondence received from parties. In relation to the pre-hearing case-management of reviews, Members deal with applications by parties which are referred to them by Registry for decision, usually by an Associate who is assigned to the review file. That did not occur in this case until the appointment of a new Associate to the review file. As I have set out above, the Associate referred the Applicant’s email of Saturday 20 April 2024 for my consideration on Tuesday 23 April 2024, and I dealt with it immediately.

19. In these circumstances no reasonable inference can be drawn that I failed to deal with the parties’ earlier requests in a timely way to somehow disadvantage the Applicant deliberately. I had no knowledge of these earlier requests until 23 April 2024. I also note that this unfortunate oversight involved requests made by both parties, not just the Applicant. It did not involve any differential negative treatment of the Applicant.

20. The Applicant also contends that the rapidity with which I dealt with the matters raised in his communication of 20 April 2024 when it was brought to my attention on 23 April 2024 indicates bias against him because it gives rise to an inference that I did not properly consider the matters he raised. I do not accept that this is the case. The Orders and Reasons I issued on 23 April 2024 identify each of the issues raised by the Applicant in his email and in relation to each of those issues I made orders and gave written reasons for those orders. In my view, this is indicative that the Applicant’s applications were given proper consideration. It was appropriate that the matters raised by the Applicant be given immediate and decisive attention given his and the Agency’s earlier emails had been overlooked.

21. The Applicant contends that I am acting under some form of malevolent influence in this proceeding from two people who are motivated to cause him harm, including a person I attended law school with. At the hearing I asked the Applicant for better particulars of this allegation. He nominated the law school he believed I and that person attended. I do not know and have never heard of the two people the Applicant identifies as influencing me. I did not take my law degree from the university nominated by the Applicant. This allegation is therefore without any foundation.

    Apprehended bias

22. The Applicant’s apprehended bias claim involves reconsideration of the matters identified above through a different lens. I must ask the question whether there is a real possibility that a hypothetical fair-minded lay observer, being aware of those matters, might reasonably apprehend that I might not bring an impartial mind to the resolution of the issues I am required to decide in the substantive proceeding. In essence, what is at issue is the public perception of my neutrality.

23. With respect to my decision of 23 April 2023 I am not satisfied that there is a real possibility that a fair-minded lay observer would reasonably apprehend from my refusal of the Applicant’s request for a Directions Hearing, and the reasons I gave, that I had prejudged the ultimate issues in the proceeding, which is whether the Applicant meets the access criteria for the NDIS. My decision does not even refer to the ultimate issues to be determined.

24. The applicant had sought a Directions Hearing to agitate complaints about summonses that had been issued, and which were returned, in June 2023, and about the Agency’s expert evidence. My orders and reasons would indicate to a fair-minded lay observer that I concluded those complaints were misconceived. However, I am satisfied that such a person would accept that it is the Tribunal’s role to quell controversies that arise in a proceeding, including to demarcate the matters that are before the Tribunal for decision from those that are not. The mere fact that the outcome of that process was contrary to the Applicant’s expectations would not lead a fair-minded lay observer to reasonably apprehend that I lacked impartiality, in my view.

25. With respect the Agency’s use of the material obtained by the summonses, and the Agency’s expert evidence, I am not satisfied that there is a real possibility that a fair-minded lay observer would reasonably apprehend from my decision and reasons that I had predetermined the probative value of that material. That is because my reasons make clear to the Applicant that it remained open to him at the hearing to object to the admission of these documents and to make submissions as to the weight that should be given to them if they were admitted into evidence. My decision also refers to the fact that the Applicant would have the opportunity to cross-examine the Agency’s expert at the hearing. In my view, a fair-minded lay observer would conclude from those statements that I retained an open mind with respect to the use and probative value of this material.

26. The Applicant also sought an extension of time in which to file and exchange his evidence and submissions. A fair-minded lay observer would observe from my orders and reasons that I was sceptical of the explanation given by the Applicant for his delay, but that I nevertheless granted him a further 10-day extension of time in which to file.

27. In dealing with the Applicant’s extension of time request I expressed the view that his complaints about the Agency’s summonses and expert evidence were misconceived. I also expressed the view that there was no logical connection between the alleged theft of the Applicant’s medical information in the HWL Ebsworth Lawyer’s cyber ransomware attack and his ability and duty to comply with the Tribunal’s procedural directions for the filing and exchange of his evidence and submissions. In my view a fair-minded lay observer would conclude from those comments that I had formed a view that the Applicant’s attention was misdirected to those matters at the expense of the opportunity that had been afforded him to place his own evidence and submissions before the Tribunal in relation to whether he meets the access criteria for the NDIS. However, I do not believe there is a real possibility that such an observer might reasonably apprehend from this that I had prejudged that ultimate issue.

28. Nor do I consider there to be a real possibility that a fair-minded lay observer would reasonably apprehend that the Applicant was treated unfairly in relation to the opportunity I had provided to him to file and exchange his evidence and submissions, assuming that such person was generally aware of the procedural history of the matter.

29. With respect to my decision concerning the hearing mode (MS Teams), in my view there is no real possibility that a fair-minded lay observer who was generally aware of the NDIS Division’s national listing model would reasonably apprehend from my refusal of the Applicant’s request for a live hearing that I lacked impartiality. I am satisfied that such a person would accept that the Tribunal controls its own procedure and that it would be necessary to show good reason why the additional costs associated with a live hearing were justified. Such a person would also consider the efforts I made to accommodate the Applicant’s underlying concern by making available for his use a hearing room in the Melbourne Registry.

30. A similar point can be made in relation to my decision not to adopt the Applicant’s proposal for a 3-day hearing. A fair-minded lay observer would accept that it is ultimately for the Tribunal to determine the allocation of its resources having regard to the Tribunal’s objective, which is to provide a mechanism of review that is, among other things, ‘economical’ and ‘proportionate to the importance and complexity of the matter’.[45] Such a person would also accept that a 2-day hearing allowed substantial time for proper consideration of the issues in the review. They would not reasonably apprehend from the time allocated for the hearing that these issues had been prejudged, in my view.

    [45] s 2A of the AAT Act

31. With respect to my decision to grant the Agency an extension of time in which to file its Tender Bundle, I am not satisfied that a fair-minded observer would reasonably apprehend from this that I was not impartial. Such a person, if they had a general knowledge of the procedural history of the review, would apprehend that I had granted both parties extensions of time to file and exchange their evidence and submissions, and that the Applicant had been the primary beneficiary of those extensions of time. Such a person, if they had a general knowledge of the nature of a final Tender Bundle, would also apprehend that this was a re-presentation of material that had already been exchanged between the parties and therefore could not take the Applicant by surprise by its contents. I am satisfied that they would apprehend in these circumstances that the extension of time was only capable of causing the Applicant minor inconvenience and that his unfairness complaint was exaggerated.

32. I turn now to the decisions I made on 30 April 2024 in response to the Applicant’s application to issue summonses. With respect to my decision to refuse the Applicant leave to issue the summons on the Agency, I am satisfied that a fair-minded lay observer would accept that my decision-making role involves the quasi-judicial task of determining such applications according to law. The mere fact that I determined the issue for decision contrary to the Applicant’s application would not lead a fair-minded lay observer to apprehend I am not impartial, in my view.

1. With respect to my decision to arrange for the Applicant to have immediate access to the material that he identified in his application to issue the summons on the Tribunal, without processing that application, I am satisfied that a fair-minded lay observer would apprehend that I took that action for the Applicant’s benefit. They would not reasonably apprehend from that action that I was biased against the Applicant.

2. With respect to the fact that I dealt with the Applicant’s summons applications, despite the Applicant requesting they be dealt with by someone else, I am satisfied that a fair-minded lay observer would apprehend that the Tribunal is independent of the parties and that it is not for a party to select who will determine matters they have before it.

3. I turn now to the other matters the Applicant contends give rise to a perception that I am biased against him.

4. As I have stated above, the fact that the parties’ various requests for a Directions hearing between 12 March 2024 and 12 April 2024 were not referred to me by Registry for my consideration is unfortunate. However, a fair-minded lay observer who knew that these requests had not been brought to my attention would not reasonably apprehend from my failure to deal with them that I was biased against the Applicant. Such a person might reasonably be concerned about shortcomings in the Tribunal’s administrative processes, but that would not be a concern related to my personal neutrality.

5. I am also satisfied that a fair-minded lay observer would reasonably expect me to deal immediately and decisively with the Applicant’s third request for a Directions Hearing when it was brought to my attention. The fact that I did so could not reasonably give rise to an apprehension of bias. Having regard to the relatively detailed orders and reasons I published on 23 April 2024 such a person would not reasonably apprehend that I failed to properly consider the Applicant’s requests and submissions. They would apprehend that each of the issues raised by the Applicant are identified and dealt with in my decision.

6. The Applicant has not established that I have any connection to, or knowledge of, the person and other lawyer he claims I have some form of ‘affiliation with’. In my view, a fair-minded lay observer would accept my assurance that no such ‘affiliation’ exists. Such a person would not reasonably apprehend that I might not bring an impartial mind to determining the issues in this review because of the existence of the persons referred to by the Applicant.

   Conclusion

7. For the foregoing reasons, I determined that the Applicant’s application that I recuse myself from conducting the substantive review proceeding on the ground of actual bias, or in the alternative, apprehended bias, should be refused.

I certify that the preceding 121 (one hundred and twenty - one) paragraphs are a true copy of the reasons for the decision herein of

........................................................................

Associate

Dated: 5 July 2024

Date(s) of hearing:
Applicant:	In person
Counsel for the Respondent:	Ms Hoffmann