Ehrenfeld and Australian Securities and Investments Commission

This matter concerned an application for review brought by Mr Ehrenfeld against a decision of the Australian Securities and Investments Commission (ASIC). Following an interlocutory hearing, Mr Ehrenfeld requested that the Senior Member recuse herself from further dealing with his application on the grounds of actual bias. The Senior Member considered the request and provided reasons for declining it.

The legal issues before the Senior Member were whether she had displayed actual bias against Mr Ehrenfeld during the interlocutory hearing, or whether a fair-minded lay observer might reasonably apprehend that she might not bring an impartial mind to the resolution of the questions before the Tribunal. This involved considering the principles of actual bias, which requires a disposition to approach issues otherwise than with an impartial and unprejudiced mind, and apprehended bias, which arises if a fair-minded observer might reasonably apprehend a lack of impartiality.

The Senior Member reasoned that her inability to be persuaded by Mr Ehrenfeld regarding the relevance of documents sought by summonses did not demonstrate actual bias, nor did it indicate a closed mind or unwillingness to be persuaded on the substantive issues. Regarding apprehended bias, the Senior Member concluded that a fair-minded lay observer, having observed the conduct of the interlocutory hearing, would not reasonably apprehend that she did not bring, or would not bring, an impartial mind to the questions before the Tribunal. The Senior Member specifically rejected the assertion that she had not afforded Mr Ehrenfeld a fair opportunity to be heard or that she had displayed disdain for his position, noting that the mere fact of her decision to set aside summonses was not evidence of bias.

Consequently, the Senior Member refused Mr Ehrenfeld's request for recusal.