FSWN and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 110

FSWN and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 110 (6 February 2025)
Applicant/s:  FSWN
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2023/7802

Tribunal:Senior Member French
Place:Perth
Date:6 February 2025

Decision:The Applicant’s application for me to recuse myself from conducting this administrative review on the ground of actual bias, or in the alternative, apprehended bias, is refused.

.........................[SGD]...............................................
Senior Member French
Catchwords
PRACTICE AND PROCEDURE – recusal application – actual bias – apprehended bias – application refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth); s 25
Administrative Review Tribunal Act 2024 (Cth); s 9, 12, 43, 49. 50, 5, 52, 53, 55, 81
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth); Schedule 16, Item 24
National Disability Insurance Scheme Act 2013 (Cth); ss 10, 34, 99, 100, 103
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (Cth)
Cases
AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236
Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51
Applicant A165 v Minister for Immigration and Multicultural Affairs [2004] FCA 877
Beezley v Repatriation Commission [2015] FCAFC 165
Bilgrin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281
Bobolas v Waverley Council [2016] NSWCA 139
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
Collier v Country Women’s Association of NSW [2018] NSWCA 36
Department of Planning, Industry and Environment v Blacktown City Council [2012] NSWCA 145
DQKZ and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 2271
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
FSWN and National Disability Insurance Agency [2024] AATA 2379
FSWN v CEO National Disability Insurance Agency (No.2) [2025] ARTA
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
Shi v Migration Agents Regulation Authority [2008] HCA 31; (2008) 235 CLR 286
Secondary Materials
Administrative Review Tribunal (Common Procedures) Practice Direction, 2024
Administrative Review Tribunal Code of Conduct for Non-Judicial Members, 2024
Pacific Judicial Strengthening Initiative, Checklist 5, When people with disabilities come to court, Federal Court of Australia, 2022
Statement of Reasons
Substantive application

The substantive application before the Tribunal is an application by FSWN (the Applicant) pursuant to s 103 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) of the NDIS Act on 28 September 2023 which affirmed an original decision of another delegate of the CEO made on 18 May 2023 in relation to the approval of a Statement of Participant Supports (SoPS) for the Applicant under s 33(2) of the NDIS Act. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 4) of the NDIS Act. [1]
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
The Tribunal’s task in the substantive proceeding is to conduct an independent review of the delegate’s 28 September 2023 internal review decision in relation to the approval of the SoPS to determine if that decision was correct, or alternatively, the preferrable decision.[2]
[2] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]
Recusal application
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). The recusal application was made by email to the Registry on Sunday 26 January 2025, shortly in advance of the final review hearing which was fixed for 6 and 7 February 2025.
On 28 January 2025 (being the first working day after 26 January 2025) I instructed Registry to list the recusal application for an interlocutory hearing on 6 February 2025 prior to the commencement of the substantive hearing. It was necessary to determine the recusal application prior to embarking on the substantive hearing because it brought into dispute my competency to conduct the substantive hearing in accordance with my oath of office.[3]
[3] s 213(2) of the ART Act; Minister for Immigration and Multicultural Affairs v Jia Legend (2001) 205 CLR 507; [2001] HCA 17, at [35] and [82] per Gleeson CJ and Gummow J, at [176] per Hayne, and at [284] per Callinan (Jia Legend); Applicant A165 v Minister for Immigration and Multicultural Affairs [2004] FCA 877 at [86] – [89].
I issued the following direction in relation to the conduct of that application to hearing:
The Tribunal directs that:
1.By 4pm 3 February 2025 (Perth time) the Applicant is to give to the Tribunal and the Respondent any further evidence or submission she wishes to make in relation to her recusal application.
2.By 4pm on 5 February 2025 the Respondent may give to the Tribunal and the Applicant any submission it wishes to make in response to the recusal application or indicate that it does not propose to make a submission in response.
If the Applicant’s recusal application is successful, the proceeding will be referred for reconstitution and directions. The substantive hearing will not proceed on 6 and 7 February 2025 as listed.
If the Applicant’s recusal application is not successful, Senior Member French will continue to conduct the substantive hearing as listed on 6 and 7 February 2025.
The parties are to attend the Tribunal on 6 February 2025 fully prepared for either eventuation.
The hearing modality for both the interlocutory and substantive hearings was by video conference on the MS Teams platform. Listing Notices for the interlocutory hearing were issued to the parties on 28 January 2025. The Notices included the electronic link to be used to join the hearing along with instructions on how to activate the link. The Notices were sent to the email addresses nominated by the parties for the receipt of communications from the Tribunal.
The hearing
The hearing was listed for 9:30am 6 February 2025 AWST (12:30pm AEDT). At the appointed time, the Respondent’s representatives were in attendance, but the Applicant was not. Further time was allowed for her to appear. At approximately 9:40am AWST the Respondent’s legal representative, Mr Young, informed the Tribunal that his firm had received an email from the Applicant which stated that she was in the MS Teams Lobby waiting to be admitted to the hearing. That was not the case. In response to this information my Associate checked the email containing the MS Teams link that had been sent to the Applicant and he confirmed that this was correct. Additionally, he arranged for Registry to immediately send an email marked urgent to the Applicant which contained a fresh MS Teams link with an instruction to the Applicant to join the hearing using that link. I then waited a further 20 minutes for the Applicant to join the hearing. However, she did not.
At 10:00am AWST I instructed my Associate to call the case. After taking the Agency’s appearance and noting on the record the circumstances in which the Applicant was not present, I determined that I would proceed with the interlocutory hearing in the absence of the Applicant in accordance with s 81 of the ART Act. I determined that it was appropriate to do so for the following reasons:
i.I was satisfied, as required by s 81, that the Applicant had received appropriate notice of the date, time, and place of the hearing,
ii.I was satisfied that the issue for determination was of narrow compass and could be adequately dealt with on the material before me,
iii.The Applicant had been provided an opportunity to file submissions and evidence in relation to the issue for determination and had done so,
iv.The Applicant’s failure to appear at the hearing was not satisfactorily explained. She had received the same MS Teams link as had the Agency’s 3 representatives each of whom joined from a separate location using that link without experiencing any difficulty. Additionally, the Applicant had been issued a fresh link and allowed a further 20 minutes to appear using that new link but had failed to do so.
v.The Applicant had previously attempted to disrupt a Tribunal case event by failing to appear. Having regard to the Tribunal’s objective, set out in s 9 of the ART Act, which includes amongst other important values, the quickest and least expensive resolution of an application that proper consideration of it permits, I considered in that context that the following matters weighed heavily in favour of the hearing proceeding:
a.The Agency’s representatives were present at the hearing. The Agency’s costs of their appearance would be thrown away if the hearing were to be adjourned. These are public costs,
b.The conduct of hearings by the Tribunal also involves substantial public costs which would be thrown away if the hearing did not proceed,
c.Additionally, the Tribunal’s NDIS Jurisdictional Area has a high-volume caseload. Delays in applications being finalised arising from case events having to be repeated due to parties failing to appear without satisfactory excuse have a detrimental impact on the Tribunal’s capacity to deal with other applications in a timely way,
d.A failure to determine the Applicant’s recusal application would significantly delay the substantive review hearing because that hearing could not proceed until my ability or otherwise to conduct it was resolved,
e.While these public cost and case-management considerations are subordinate to what is required in the interests of justice, I was not satisfied that there was any overriding interest of justice that should displace these considerations in this case.
Material considered
I considered the following material in relation to the recusal application:
i. The Applicant’s email of 26 January 2025 which contained her recusal application and an outline of the grounds upon which that application was made.
ii.The Applicant’s submissions in support of her recusal application dated 4 February 2025 together with the documents and other evidence referred to in those submissions.
iii.Oral submissions made by the Agency’s legal representative, Mr Young, at the hearing. I note that these oral submissions referred to written submissions filed by the Agency on 5 February 2025 as directed, which had not made their way to me prior to the hearing, and which could not be found by my Associate. These submissions were subsequently processed by Registry and referred to me after the hearing. I am satisfied that Mr Young was able to do justice to these written submissions in his oral submissions.
iv.Agency Tender Bundle, Exhibit 1 in the substantial proceeding.
Disposition
After considering the Applicant’s recusal application, written submissions and evidence, and hearing oral submissions made by Mr Young on behalf of the Agency, I determined to refuse the application. I announced my decision on the record and indicated that I would provide written reasons for my decision in due course. These are those reasons.
Having regard to this outcome, I then instructed my Associate to call the hearing in the substantive review, and I proceeded with that hearing. My decision in the substantive case is the subject of a separate decision.[4]
[4] FSWN v CEO National Disability Insurance Agency (No.2) [2025] ARTA.
The recusal application
The Applicant asked me to recuse myself from further conducting this proceeding on the following grounds (as initially set out in her recusal application and elaborated upon in her submissions):
i.I did not believe that she had COVID-19 and was too unwell to attend a Directions Hearing I conducted in this proceeding on 27 November 2024, despite her sending to the Tribunal a photograph of a positive RAT test. In this respect, I have “insulted [her] credibility” in such a way that I am “unlikely to remain impartial, either consciously or subconsciously” [5], (ground (i))
ii.I made procedural directions in her absence at the Directions Hearing I conducted on 27 November 2024 which were against the principles of natural justice and in breach of her rights under Article 13 of the Convention on the Rights of Persons with Disabilities, and s 9 of the ART Act, because they specifically limited her to one week to provide final submissions and all further evidence she wanted to rely on in the substantive proceeding, (ground (ii))
iii.by virtue of orders I made on 9 December 2024, she was denied an extension of time to make submissions and provide evidence for the final review hearing which I had fixed for 6 and 7 February 2025. At the same time, I ‘introduc[ed] a new and expanded scope of the review application when the hearing was almost two months’ away’, (ground (iii))
iv.I ‘erroneously expanded [her review application] under s 53 of the ART Act without consultation and solely based on NDIA submissions’, which she was not given the opportunity to challenge, and in circumstances where s 53 ‘is intended to limit the scope of the review’, (ground (iv))
v.I denied her accommodations for her impairment and disability during the final hearing, ‘which were only addressed after [she] made an application to the ART’s Guidance and Appeals Panel (GAP) to hear her review application on a first instance basis’, (ground (v))
vi.Her GAP referral application was rejected by the President with the result that her substantive review application was ‘relegated’ back to being heard by me, ‘despite the clear evidence of my misconduct’, (ground (vi))
vii.The President of the Tribunal refused her application to him referencing s 37 of the ART Act to exercise his power to reconstitute her substantive application to another Senior Member of the Tribunal to determine, (ground (vii))
viii.I am a person who has, earlier in my career, held roles in named disability rights organisations and given public addresses and published extensively in the field of disability rights. Given that, my conduct towards her is “so out of character that it can only be as a result of [me] developing ill will towards [her] for an unknown reason” contrary to my oath of office. (ground (viii))
[5] Applicant’s submissions filed 4 February 2025 at [10].
The Applicant presses her recusal application on the basis that the conduct set out above discloses both actual and apprehended bias. Insofar as apprehended bias is raised, she submits this is a ‘conduct’ case in that the conduct outlined above demonstrates “excessive, prolonged and particularly harsh interventions” by me which have caused her “personal harm and prejudice in presenting [her] case” [6].
[6] Applicant’s submissions filed 4 February 2025 at [6] – [7].
Procedural history
It will assist consideration of the Applicant’s complaints if they are viewed in the context of the procedural history of this case, which is set out following:
i.By an application filed with the AAT on 21 October 2023, the Applicant sought review of an internal review decision made by the delegate of the CEO on 28 September 2023. The internal review decision concerned a request by the Applicant for a review the original delegate’s decision to change the occupational therapy and psychology supports that were incorporated into the ‘Capacity Building’ component of the SoPS in her Participant Plan from being “unstated supports” to “stated supports”. The effect of that decision was to restrict the Applicant’s use of the funding associated with those supports to those designated supports rather than to enable her to use that funding flexibly to purchase alternative supports such as natural therapies and art therapy which she had been doing. Some further context is provided in the following extract from the internal review decision:
Psychology and occupational therapy budget has been STATED in your current plan to provide safeguards to ensure you access the appropriate supports and required assessments (incl. 10 hours Functional Capacity Assessment).
In making my decision, I considered s 42 of the NDIS Act. Specifically, I have determined the following circumstances prevent flexible funding for capacity building support (occupational therapy and psychology) in your current plan. It is determined that portion of your capacity building budget in your plan will remain stated supports. Which means this funding can only be used as specified. On reviewing your previous interactions with NDIS it is evident that there is no assessment or progress reports provided by your allied health professionals to determine if this (sic) supports are effective and beneficial to achieve your NDIS goals.
It is noted that capacity building supports in your previous plan was (sic) utilised to access supports for naturopath services. NDIS funding cannot be used for alternative therapies, such as a naturopath, chiropractor or hypnotist, etc. Funding can only be utilised for evidence-based allied health therapies, such as occupational therapies, physiotherapy, exercise physiology or psychology.[7]
[7] Agency Hearing Bundle, Tab T1B, page 14.
ii.After it was filed, the case was referred for alternative dispute resolution (ADR) in accordance with Division 3 of Part IV of the AAT Act. Case Conferences were conducted on 20 December 2023 and 21 February 2024. At the conclusion of the Case Conference conducted on 20 December 2023 the Conference Registrar issued directions to the parties which included a direction to the Applicant to give to the Respondent and the Tribunal any further evidence in support of her application by 19 January 2024. At the conclusion of the Case Conference conducted on 21 February 2024 the Conference Registrar issued directions to the parties which required the Respondent to give to the Applicant and the Tribunal a Statement of Facts, Issues and Contentions by 15 April 2024, and the Applicant to give to the Respondent and the Tribunal any submissions and evidence that she intended to rely on for the final hearing by 22 July 2024,
iii.Because the dispute could not be resolved by ADR, the case was referred for constitution to a Member of the Tribunal for hearing and determination in accordance with Part III, Division 3 and Part IV, Division 4 of the AAT Act. Originally, the case was constituted to another Member of the Tribunal to hear and determine (the original member). That occurred on 25 February 2024,
iv.the original member listed the case for a pre-hearing Case Management Directions Hearing on 23 April 2024. Listing Notices were issued to parties in respect of that hearing on 27 March 2024. Later that day the Applicant lodged an application with the Registry for the original Member to recuse himself from the proceeding (the original Member recusal application) because he held medical qualifications and she apprehended that he would not be able to deal impartially with a case concerning natural therapies. That resulted in the original Member vacating the case management directions hearing set down for 23 April 2023 and instead listing the case for an interlocutory hearing to determine the recusal application,
v.the original Member recusal application was heard by the original Member on 28 May 2024. On 10 July 2024, after deliberation, the original Member refused the application and published reasons for his decision,[8]
[8] FSWN and National Disability Insurance Agency [2024] AATA 2379.
vion 28 May 2024 the original Member issued further pre-hearing directions for the conduct of the case to hearing. Whether he ought to have done so prior to determining the recusal application is now a moot point. Relevantly, these directions included a direction for the Respondent to file a Statement of Facts, Issues and Contentions (SoFIC) by 12 August 2024, and a direction for the Applicant to make any submission in response or advise that she did not intend to do so, by 24 September 2024. The parties were also directed to file Hearing Certificates by 24 September 2024 setting out their unavailability for hearing in the period October to December 2024. On 21 June 2024, in response to a request made by the Applicant on 19 June 2024, the direction concerning Hearing Certificates was amended to require the parties to notify the Tribunal of their unavailability for a hearing in the period January to March 2025,
viion 3 October 2024 the amendments to the NDIS Act introduced by the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 came into force along with associated subordinate legislation (the Getting the NDIS Back on Track amendments). On 7 October 2024 the original Member made a further direction that required the Respondent to file and serve a submission setting out the implications, if any, for this proceeding of the amendments and accompanying subordinate legislation by 4 November 2024. As will be made clear in my decision in the substantive case, the Getting the NDIS Back on Track amendments are of significance in this case,
viii.the Applicant did not comply with direction 4 of the directions made on 28 May 2024 that she file any submission in response to the Agency’s SoFIC, or indicate that she did not intend to do so by 24 September 2024. That resulted in the initiation of Registry non-compliance action in response to which the Applicant advised that she wanted the opportunity to make her final submission after she had received the Agency’s submission regarding the implications, if any, of the ‘Getting the NDIS Back on Track’ amendments,
ix.on 8 October 2024, the firm of solicitors that had acted for the Agency up to that point filed a Notice that it had ceased to act for the Agency, copied to the Applicant.
x.on 10 October 2024 the Applicant wrote to the Registry to complain about the status of her case. Her email stated in part:
Neither the Tribunal nor myself have had any response from the NDIA since [name] advised that her law firm no longer had carriage of this matter.
This is extremely concerning to me, particularly as I am now finding that the new legislation is significantly impacting my ability to purchase appropriate supports while my CB Daily Living remains stated for psychology and occupational therapy, with $2500 only as self-managed and unstated.
In particular, instead of psychology for my psychological disabilities, I see an art therapist, which is a recognised allied health profession and on the accepted supports list. However, I only have unstated funds to pay for a few more sessions. After that I will have no psychosocial therapy support, which is critical considering what I am going through at the moment.
I request that either the NDIA agree to change the stated psychology to stated art therapy until the appeal is determined or unstate that portion of my funds.
I should not suffer any harm as a result of the legislative changes or being involved in a lengthy and heavily contested appeal.
Unfortunately I am and it is reducing my functional capacity rapidly.
xi.on 16 October 2024 the Applicant wrote to the Registry again, attaching an invoice that had been rendered on her for services provided by an Art Therapist. She requested the Tribunal to make orders in relation to that invoice as follows:
…
I now request orders from the Tribunal to allow my plan manager, [named], to be able to accept invoices from [named Art Therapist] and be claimed against my stated psychology support budget.
Art Therapy is an allied health profession and accepted by the NDIA as a claimable therapy.
I have attached a recent invoice for the Tribunal’s information about my art therapist including her qualifications in her post nominals.
xii.also on 16 October 2024, the Agency’s present legal representatives filed a Notice of Appearance which was copied to the Applicant.
xiii.on 23 October 2024 the Agency’s new representatives wrote to the Tribunal and the Applicant to propose a new timetable for the procedural directions for the conduct of the case to hearing. Relevantly, it was proposed that the Applicant be given until 25 November 2024 to comply with direction 4 of the directions made on 28 May 2024, and that it be directed that the parties file Hearing Certificates for the period January to March 2025 by 9 December 2024.
xiv.in response to that communication, the Applicant wrote to the Tribunal and the Agency on 28 October 2024, stating in part:
Firstly, I have not had any reply to my email requesting urgent orders to enable me to use my stated supports for art therapy on 10 October 2024.
I am now out of self managed Capacity Building funding.
I also need to see my naturopath weekly and can no longer fund that either. I have been seeing him weekly for over three years, except for a short period after the WA borders were opened during the acute COVID-19 pandemic phase.
I am truly desperate.
This is threatening my safety, as I am borderline suicidal again because of a horrendous legal case [elsewhere]….
My art therapist and naturopath are the two most important people in my therapy team. They keep me functioning. My naturopath keeps me being able to move as well as assisting with my mental problems by letting me talk to him and vent everything and also knowing exactly what to say.
Stopping me from seeing these practitioners was not lawful at the time, which is why we are having this appeal, but now it is not prohibited at all in the new lists to see a naturopath and an Art Therapist is an allied health professional.
…
I am a disability support pensioner. I have no money and a credit card close to maxed out. I am seeing specialists privately and trying to pay for them because public waiting lists are years otherwise.
I am truly begging the NDIA to allow me to access my CB Daily living funds while this matter is being decided. If not I will have no functional capacity left at all to try to deal with the massive stress I am facing.
In relation to the timeline below, all I can commit to now is to receive the NDIA’s submissions of 5 November 2024 (sic) and then consider a future timeline …
The NDIA and NDIS should not cause any harm to participants, so I am hoping some common sense prevails in my case.
…
xv.on 30 October 2024 the original Member’s Associate wrote to the parties as follows:
I have brought Member’s attention to the email from the Respondent dated 23 October 2024 and the email from the Applicant dated 28 October 2024.
The Member is sympathetic to the Applicant’s current stressors and her concerns about the accessibility to her NDIS funding. The Tribunal is unable to make any decision regarding the Applicant’s plan until the matter has been heard at the substantive hearing into this matter. The Member strongly encourages both parties to continue negotiations to resolve any matters in dispute that they are able to.
The Member’s position is that the matter must be listed for a substantive hearing and as such has issued the attached Direction that hearing certificates must be exchanged between the parties and filed with the Tribunal by no later than 25 November 2024 to include the months of January, February, March and April 2025. If a party fails to provide the hearing certificate within the time specified, the Tribunal may set the hearing date without further consultation.
While appreciative of the Applicant’s other legal matter, the Member would like to ensure there are no delays to this application being heard. The Member is willing to afford some flexibility to the timetable for the Applicant’s leave to file any submission in response to the Respondent’s Statement of Facts, Issues and Contentions, provided the timetable does not hinder the substantive hearing date to be listed. As such, a case management telephone directions hearing will be listed for Wednesday 27 November 2024 at 10am AWST to set final programming directions.
As indicated, Listing Notices and directions were issued to the parties with this communication. The directions revoked order 4 of the directions made on 28 May 2024 pending further directions.
xvi.on 17 November 2024 the Applicant responded to this communication, relevantly, as follows:
Sorry for my late response. I have been overwhelmed by [other legal matters] which have severely impacted my already severe impairments.
Please let [the original Member] know that I don’t need sympathy. I need consideration, accommodation for my disabilities and appropriate support for my impairments. None of these have been forthcoming.
I believe that [the original Member] has now shown a conflict of interest in this matter.
As a psychiatrist who is registered, he has a duty to uphold the values and ethics of his profession as a medical practitioner, and generally ‘do no harm’. As a Tribunal Member he is bound by legislation, regulation and rules that govern his conduct in proceedings which, in my case, is causing me harm.
There is a conflict between the former and the latter, where I expressed severe distress in addition to lack of capacity, mentally and physically, yet I have now been ordered to comply with directions that have absolutely no regard for the submissions I made in my email of 28 October 2024 of how I am totally overwhelmed right now.
Please advise which legislation, regulation or rules preclude the ART from making interlocutory orders to compel the NDIA to do something relating to plan funding to ensure that a participant doesn’t suffer any harm while waiting on a final hearing.
I have already contacted [the Agency’s solicitor] with a view to settlement negotiations. Unfortunately that was unsuccessful and the NDIA is standing by its fundamentally flawed arguments.
In the full knowledge that I have no therapy funding left for the therapy I need to ensure that I do not suffer any harm, and that I have informed both ART and the NDIA of my precarious mental health including being traumatised by legal processes, both the ART and the NDIA are breaching the most fundamental of their obligations to ensure that as a person with disability I do not suffer any harm, especially harm by government agencies and tribunals.
That takes precedence over anything else. I am protected by the UN Convention on the Rights of People with Disability, which is enshrined in the NDIS Act. I expect my human rights to be properly upheld and implemented. To that effect, I again attach the Federal Court guidelines on how to manage the human rights of people with disability when they come to court. This would of course also apply to tribunals.
Too many people with disability have suffered unnecessarily, or even lost their lives due to inaction, or improper actions, by ART or the NDIA.
The matter is going to be highly technical. The amendments to the NDIS Act remain untested to date in any Tribunal or Court. I do not think a psychiatrist with no qualifications in law is an appropriate Tribunal Member to determine this matter in light of the untested amendments to the NDIA Act (sic) and the new Transitional Rules. It needs a Senior Member. [The original Member] should voluntarily stand aside in the interests of justice and a fair hearing. If not, this could all be a waste of time and see me having to appeal any adverse decisions to the Federal Court of Australia.
[The Agency’s solicitor] even advised me to get legal advice about my interpretation of the Transitional Rules. The rhetoric was that they would make it much clearer for participants about what they can and can’t claim as supports. It has done the complete opposite. So now participants need legal advice before they purchase supports that might be contested by the NDIA. If that is the case then this matter is going to get into some serious legal territory.
With respect to the orders of 30 October 2024, I note that the Hearing Certificate requires a signature that testifies “This case is ready for hearing or will be ready for hearing in accordance with the timetable or other arrangements that are in place”.
There are no arrangements in place other than a directions hearing on 27 November 2024. This matter is very sadly nowhere near ready for hearing.
I do not feel I can sign the hearing certificate in good faith when I have not even replied to the SFIC and further submissions of the Respondent. I don’t know what witnesses I will need to call yet. I don’t know what witnesses, other than [named person] that the NDIA will call. It has been hard enough to get my head around the amendments and I have not had time to properly consider them all in relation to my appeal.
Given my declining functional capacity, I will also be making an application to Legal Aid for representation. I reiterate my earlier statements that it is manifestly unjust that the NDIA can automatically have legal representation and be funded by the Commonwealth to do so, yet severely impaired people with disability are left to fend for themselves, particularly if they are impecunious and in light of Commonwealth funded legal supports being overstretched already rejecting most applications.
I am not available at 10am on 27 November 2024. I have a medical appointment. I can be available at 11:30am on that day. I am also not available on 28 or 29 November or 3 December 2024 as I have other hearings.
I request that Direction 2 [in relation to the filing of Hearing Certificates] be revoked pending a directions hearing.
I want this matter resolved as quickly as possible as I am suffering. Unfortunately the legislative changes have thrown a large spanner in the works.
But it also can’t be resolved quickly while the NDIA refuses to budge one centimetre and continues to rely on flawed documentation and assumptions in spite of what they say was a review of this matter.
xvii.on 19 November 2024, for reasons unrelated to this case, the original Member became unavailable to continue with it. The case was constituted to me to hear and determine.
xviii.on 21 November 2024, I instructed my Associate to write to the parties as follows:
[the original Member] has become unavailable to hear this case. As such, the matter has been reconstituted to Senior Member French to hear.
The Tribunal notes the contents of the Applicant’s email dated 17 November 2024.
If the Applicant wishes to make an application for an interlocutory order (or orders), she should do so by setting out the order(s) sought, and indicate her understanding of how the NDIS Act (Cth) or the ART Act 2024 (Cth) enable the Tribunal to make such an order(s).
Additionally, if the Applicant wishes to make an application to adjourn the Telephone Directions Hearing set down for 27 November 2024 at 10:00am (Perth Time) (Sydney Time 1:00pm), the Applicant must provide an explanation of why she is unable to attend that hearing and any supporting evidence (such as evidence of the medical appointment and the date it was made). The explanation should indicate why the medical appointment could not be re-arranged to enable the Applicant’s attendance at the Telephone Directions Hearing.
xix.     on Friday 22 November 2024, the Applicant responded to my Associate as follows:
1.You did not respond to my request to revoke Order 2 as the parties are not ready to sign a hearing certificate. I don’t want to be accused of not complying with orders so at a minimum can it be deferred until the Directions Hearing so we can review that order in context to further directions.
2.I find it curious that the Tribunal doesn’t know what orders it can make. Then asks a severely impaired and time deficient person with disability that is not a lawyer to do unpaid legal research to provide it with a legal opinion.
3.The appointment is a specialist appointment with a psychiatrist. I am having an appointment today with a cardiologist to get advice on the medication that is proposed and other disorders. I will then know if I can cancel or move the appointment next Wednesday. I waited around 18 months for the psychiatrist appointment and this one was squeezed in specially for me.
xx.on Monday 25 November 2024, before I had reviewed her email of Friday 22 November 2024, the Applicant wrote again to my Associate stating, relevantly, as follows:
Firstly my appointment has been cancelled for Wednesday so there is no issue with my attendance.
I note that the Directions Hearing is listed for 10am AWST. Is this the case?
I have not been contacted by the Respondent regarding the hearing certificate, or the issues I have raised.
I have found that I can apply for a stay of the decision under review under section 32 of the ART Act, which is intended to have the same effect as section 41 of the former AAT Act according to the Explanatory Memorandum.
…
Having regard to this communication, I took no action in relation to the Applicant’s communication of 22 November 2024, electing to deal with the issue of final hearing arrangements at the directions hearing.
xxi.on 26 November 2024 the Applicant wrote to the Tribunal stating that she had ‘contracted COVID’ and ‘was very unwell’. As evidence of that she attached a photograph of a Rapid Antigen Self-Test device (RAT) which appeared to depict a positive result. There was nothing in the photograph that indicated when it was taken or which associated it with the Applicant (other than her assertion). After considering the Applicant’s email and the photograph, I instructed my Associate to issue the following order:
Order
The Applicant’s further request for an adjournment of the directions hearing is refused.
Reason
The evidence offered in support of the request is not satisfactory. There is nothing that links the COVID test to the Applicant. The hearing is for the purpose of establishing a program of the application to final hearing, and to progress any interlocutory application the Applicant may wish to make. It will be brief.
xxii.the Telephone Directions Hearing proceeded as listed on 27 November 2024. My Associate’s several attempts to reach the Applicant on her nominated telephone number to participate in that hearing went unanswered. That being the case, I determined to proceed with the Directions Hearing in the absence of the Applicant in accordance with s 81 of the ART Act. After hearing from the Agency’s representatives in relation to several matters I made the following directions which were issued to the parties by Registry on 29 November 2024:
The Tribunal directs:
1.By 4pm 6 December 2024 the applicant must give to the Respondent and the Tribunal:
(a)a written list of requested supports that are in dispute which specifies the frequency, duration, and intensity of the support where relevant
(b)       All further evidence, if any, in support of her review application.
2.By 4pm on 20 December 2024 the Respondent must give to the Applicant and the Tribunal, if required by the applicant’s response direction 1, an amended Statement of Facts, Issues and Contentions.
3.By 4pm on 31 January 2025 the parties are to confer and the Agency is to give to the Tribunal:
(a)       A Joint Tender Bundle
(b)       A witness schedule
4.        The final hearing in the review is fixed for 6 and 7 February 2025 by MS    Teams 10am to 4pm AWST.
Notations
(a)After the compliance date for direction 1 the Tribunal will make an order pursuant to s 53 of the Administrative Review Tribunal Act 2024 (Cth) determining the scope of the review.
(b)If the parties are unable to agree in relation to direction 3 they may comply with that direction by filing and exchanging separate bundles and witness schedules.
(c)The Tribunal notes that in her email dated 25 November 2024 the applicant states an intention to make a stay application. No such application has been received and it is not apparent how such an application would be maintainable in this proceeding in any event. The Tribunal therefore declines to entertain the issue in its present form.
xxiii.after her receipt of those directions, on 29 November 2024 the Applicant wrote to my Associate as follows:
So I take it you had a directions hearing in my absence knowing I have COVID. Then the Tribunal Member gives me only one week to comply with extensive requests while I still have COVID.
This is in no way procedurally fair or in fact achievable. Neither are two full days of hearing in February. There has been a complete disregard of my rights and needs as a person with severe disability who has been severely impacted by a serious illness.
I wish to have this decision reviewed.
Please advise how I do that.
xxiv.I reviewed this correspondence and instructed my Associate to respond to the Applicant later 29 November 2024, relevantly, as follows:
… The Tribunal is unable to give legal advice to a party to a proceeding. Please find, for your reference, links to the following organisations that may be able to assist you with your legal inquiry.
[weblinks to Legal Aid Western Australia and Department of Social Services NDIS Appeals disability advocacy services were set out].
Please note that the directions issued on 29 November 2024 remain in effect and the hearing dates remain confirmed.
xxv.later on 29 November 2024, in response to my Associate’s email of that date, the Applicant stated:
I am asking a procedural question not for legal advice.
I know that decisions can be appealed and I intend to do so as this is an absolutely appalling decision when I am so ill and so severely impaired.
I would like a link to information on how to appeal an ART decision and the form to do so.
Is Member French the same person who gave the attached speech? If so he should practice what he preaches.
Enclosed was the text of a speech I had given at a conference some years ago [undated].
xxvi.    on 2 December 2024 the Applicant wrote again to the Registry stating as follows:
Please respond ASAP
… I am informing the ART that I am still unwell with COVID and incapable of complying with Direction 1. Compliance would have been impossible even if I was well. This is the first time I have had enough energy to sit on my computer and type a comprehensive email. You have yet to respond to my previous email on the procedure to have Senior Member French’s directions reviewed.
I have attached the Federal Court guidelines on how to address the human rights of people with disabilities in a judicial setting. This would apply to a Tribunal as well. I really should (sic) have to make the ART aware of their responsibilities since they have carriage of NDIS reviews, which necessarily involve people with severe disabilities. But it seems I do, subsequent to the 29 November directions. I have also attached a pamphlet on ME/CFS. Along with the cPTSD and the spinal impairments that is what debilitates me the most.
I have some questions.
1.Was there a Directions Hearing on 27 November in my absence? I was called twice but too sick to answer. Did it go ahead anyway?
2.Was and is Senior Member French aware that I have COVID? Did he receive my email of 26 November prior to the directions hearing, or at least prior to making the directions on 29 November?
If Senior Member French was not aware I have COVID, is he willing to revoke the directions of 29 November and hold another directions hearing when I can attend? To make decisions in my absence is not in any way in line with the ART Act or even just common sense when engaging with a person with severe disabilities.
So we are all on the same page, I am going to list my medical conditions/impairments. This is not an exhaustive list and it is not a submission. It is to make you and the NDIA representatives aware of what my actual impairments are, not just the limited psychosocial impairments that they claim are the only impairments on file for access, which is in fact not true. I found that out under FOI. The Tribunal has those documents.
I did try to get access for all of the “conditions” which were present in 2018-2020 but was improperly rejected twice. Based on my extensive evidence I should have been accepted. The NDIA accepted that I had the disabilities but not permanency, which is odd since I have had some of the impairments for over 30 years. They pulled the ‘not all the treatments tried’ trick, which was absurd given what I listed and that my GP said I have tried all reasonable treatments. Also, many of my conditions have no cure, such as ME/CFS, Fibro, autoimmune diseases and my spinal and bone disorders for example, so they must be permanent or likely to be permanent.
I made an application to the AAT but withdraw (sic) when it just got too much. Sadly this is how the NDIA are artificially keeping their participant numbers down, still to this day. I reapplied and was accepted on a more limited set of impairments. Unfortunately, due to the recent amendments to the Act, I need to have ALL of my impairments recognised for access. I am trying to get legal advice as to whether it is appropriate to do that as part of my appeal or whether I need to jump through those hoops, get rejected most likely and end up at the ART yet again for years. I would prefer to get everything sorted out in one go so I can get on with my life.
Biopsychosocial
cPTSD
Depression
Anxiety
ADHD
Vicarious Trauma
Physical
ME/CFS
Fibromyalgia
Degenerative Disc Disease
Spinal stenosis
Scoliosis with tilted pelvis
Spinal
Peripheral neuropathy
Advanced Osteoporosis (with two spinal fractures to date)
Osteoarthritis
Asthma
GORD
Gastritis
Hashimoti’s Thyroidis
MTHFR C667T mutation
Coeliac disease
POTS (being assessed)
Urinary incontinence and irritable bladder
Main Impairments
Only 2-3 functional hours a day due to fatigue – mental, cognitive and physical
Brain fog
Memory impairment
Post exertional malaise (PEM)
Digestion problems
IBS
Body wide muscle and joint pain
Muscle spasms
Limited mobility and range movement
Pins and needs and numbness in hands, feet, legs, arms and tongue
Emotional dysregulation
Severe trauma responses when triggered (particularly in legal hearings)
Heart palpitations
Dizziness
Temperature dysregulation
Sleep disturbance and unrefreshed sleep
Difficulty concentrating
Difficulty completing tasks
Unable to work in employment
Heightened stress response
Urinary frequency and leakage
Hoarseness and loss of voice
Shortness of breath
High risk of heart disease, heart attack or stroke (which stress increases)
Now I hope you have some small understanding of how difficult my life is. What makes it all the more difficult is that all of these impairments are invisible. As I am high functioning intellectually, there is often an assumption that this mitigates all the impairments. It does not. In fact it makes it even worse as I know what my rights are and how they are being repeatedly breached. I also never look unwell, so that can and has led to assumptions as well.
And with all of this, the NDIA want to deny me the therapies of my choice, that I have used for years and even decades and that work for me.
I have not had time to even wrap my head around the new NDIS amendments, the Transitional Rules or the ART Act, let alone get all my evidence together and obtain expert reports and an expert for the final hearing.
I got part way through an application for Legal Aid but then got sick. I will get back onto that this week. I need representation. I have a right to access to justice, which includes legal representation, but that right is in no way attainable or enforceable it seems. I was rejected for Legal Aid for my first appeal but am trying again regardless.
I hope the above information assists both the Tribunal and the NDIA to understand my position and needs going forward in this review.
I remain open to the NDIA negotiating with me, rather than spending unnecessary funds on legal obstructionism. I would be far better for all parties, but particularly me.
…
xxvii.on 3 December 2024 the Applicant filed an application to refer my decision of 27 November 2024 to the ART’s Guidance and Appeals Panel (GAP). I instructed my Associate to immediately refer this application to the GAP Registrar for processing which he did. My Associate also communicated the following to the Applicant in relation to that referral:
The Tribunal acknowledges receipt of your application to the Guidance and Appeals Panel for this matter on 3 December 2024. I am unable to provide you with any further information in relation to that application.
Please be advised that the Tribunal directions issued on 29 November 2024 remain in effect. If you would like to have an extension of time to comply with those directions, please make a formal request including the grounds on which the application is being made and provide any evidence in support of that application. Otherwise, in the absence of such a request, you will be required to comply by the due date.
xxviii.   On 5 December 2024 the Applicant responded to my Associate as follows:
… You haven’t answered my previous questions.
So despite my evidence of having COVID, and despite my extensive list of impairments, Senior Member French is digging his heels in and refusing to give me the proper opportunity to attend a directions hearing and be consulted on the path forward to the final hearing.
What have I done to be treated so punitively?
I take this opportunity to refer Senior Member French section 9 of the Administrative Review Tribunal Act 2024 (Cth), particularly subsection (c). His decisions to date have not been in compliance, not being accessible or responsive to my needs at all. There is nothing fair to me about these directions and the decision to hold a hearing in my absence when I was seriously ill.
I make a formal request for additional time to comply with Direction 1 of 29 November 2024 and accommodations for the final hearing, whatever date that happens. I actually want a stay until my GAP appeal is decided, or the orders revoked and the entire timeline reset, as it was set without consultation with me, which should never have happened in the circumstances. Clearly revocation is not going to happen unless I am successful with my appeal.
The reasons are as follows:
1.I still have COVID-19 and am still very unwell. As I am COVID positive, I can’t see my doctor yet to get any medical certificate. I have attached yesterday’s positive RT test.
2.Direction 1 does not bear any direct relevance to the original issues in dispute. Senior Member French appears to have made an assumption of my review/appeal from the NDIA decision, rather than actually reading my submissions.   The NDIA wrongly reframed my complaint in such a way that it was easier to defend, in effect a ‘straw man’. They have in effect misled the Tribunal repeatedly. Even when I have corrected their errors they have belligerently ignored those corrections.
3.Since the amendments to the NDIS Act, the scope of this review/appeal must change unfortunately, due to the new Transitional Rules and that supports are only available to impairments meeting the access criteria. I need legal advice to work out what I need to do, and what I can do under the NDIS Act as amended as well as the new ART Act.
4.I am in the process of applying for Legal Aid representation. As a matter of procedural fairness and in compliance with my human rights I should be given adequate time to make the application, find out the result and if successful, for my legal representative to be properly briefed.
5.The Tribunal has all of my current and historical medical reports on file evidencing the extensive list of impairments I suffer from. Just living is difficult enough without being treated so appallingly by this Tribunal [and two other named Courts]. My rights are consistently trampled on, which makes my life close to unbearable at times. I have previously been suicidal. The stress and trauma also worsen my already poor health and on some occasions could have a lethal impact, as I have a predisposition to adverse cardio vascular events. I am currently under the care of a cardiologist for assessment.
6.I only received the NDIA’s submission on how the amendments to the NDIS Act will affect these proceedings on 4 November 2024. I was tied up complying with orders [in another case] until 22 November 202. See attached orders. I was travelling on 23 November 2024 from a medical appointment in Perth back to [her home town] some [several hundred kms]. I got sick on 25 November 2024. Therefore I have had no time to attend to such an important aspect of the review.
7.Due to my impairments, particularly ME/CFS and cPTSD, I have limited functional capacity and just writing this email is exhausting, stressful and traumatising. My medical reports are on file.
What actually needs to happen going forward.
1.I provide a response to the SFIC, [a named doctor’s] report and submissions on how the new Act affects the review. I also submit any expert reports. I will need at least until the end of January 2025.
2.The Respondent provide a response.
3.I provide a reply.
4.The matter is listed for a final hearing, WA mornings only, and not earlier than 9:30am AWST for no more than three hours.
I know for a fact that what needs to be done cannot be achieved by me in a short period of time, especially not by 6 December 2024. That is an absolute absurdity. I need representation. Without it I do not have proper access to justice, as is my right. I need to brief experts and get reports. I am also not available at all in March 2025 due to prior and long-term commitments.
I should also have the same right as everyone else to have a proper break over the Christmas period. This year has been relentless in terms of legal proceedings for me.
If you require anything else, please advise ASAP.
Attached to this correspondence was a photograph of a RAT device which appeared to depict a positive result. There was nothing in the photograph that indicated when it was taken or that associated the photograph with the Applicant. Also attached was a Court document which indicated that the Applicant was involved in legal proceedings in another place.
xxix.after considering the Applicant’s requests and submissions, and the directions I made on 29 November 2024, I issued the following orders on 9 December 2024, and provided my reasons for doing so:
The Tribunal orders:
1.The applicant’s request for an extension of time to comply with direction 1 of the directions made on 29 November 2024 is refused.
2.The applicant’s request to adjourn the hearing fixed for 6 and 7 February 2025 is refused.
3.Pursuant to s 53 of the Administrative Review Tribunal Act 2024 (Cth) the Tribunal determines that the scope of this review is limited to:
(a)       The following requested supports:
(i)Funding for 1.5 hours per week of naturopathy for 48 weeks per year
(ii)Funding for professional naturopathic prescription herbal tonics
(iii)Funding for professional naturopathic prescription supplements
(iv)      Funding for 2 hours per week of one-to-one yoga sessions
(v)       Funding for 1.5 hours per week of art therapy.
(b)       The evidence filed by the parties up to 4pm on 6 December 2024.
Reasons:
The applicant has been given several opportunities to give the Tribunal and the Respondent any further evidence in support of her review application (including by the directions made on 20 December 2023, 21 February 2024, and 28 May 2024). The direction for the filing of any further evidence made on 29 November 2024 must be seen in that context.   A party to a proceeding is entitled to a reasonable opportunity to present evidence in support of their case, but that opportunity is not unlimited, having regard to the Tribunal’s objective which includes a requirement that applications are resolved as quickly as proper consideration of the matters before the Tribunal permits.
The evidence the applicant has submitted in support of her claim that she has been affected by COVID-19 is not satisfactory. There is nothing to associate the positive test result with the Applicant. In any event, between 29 November 2024 when the directions were made and 6 December 2024 (the Applicant’s compliance date for direction 1) the Applicant has engaged in substantial communications with the Tribunal which indicates that she had capacity during this period to comply with direction 1.
The applicant has been directed three times to file a Hearing Certificate that would assist the Tribunal to fix the hearing dates (the directions made on 28 May 2024, 21 June 2024, and 30 October 2024). She has failed to respond to those directions. The applicant failed to attend the Directions Hearing on 27 November 2024 at which the hearing dates were fixed, despite knowing that her request for an adjournment of that hearing had been refused. In those circumstances the hearing dates have been fixed without further reference to the Applicant to enable this case to be finalised within a reasonable timeframe.   No satisfactory evidence of the applicant’s asserted unavailability for the hearing on 6 and 7 February 2024 has been provided.
The orderly conduct of this case to hearing requires the Tribunal and the Respondent to have certainty as to the scope of the review. The Applicant has been given several opportunities to clarify the scope of her appeal, including by the directions made on 20 December 2023, 21 February 2024, and 28 May 2024. Direction 1(a) made on 29 November 2024 must be seen in that context.   On 19 September 2024 the Applicant notified the Agency in writing what additional supports she sought to be approved in her participant plan. This review will therefore be limited to supports identified there, and to the evidence filed by the parties up to 4pm on 6 December 2024 (being the compliance date specified by Direction 1 of the Directions made on 29 November 2024).
The issues before the Tribunal in this review are of narrow compass. Two days have been set aside for the hearing. There will be ample time across those two days for any breaks that the Applicant may need as a disability related procedural adjustment.
This application has been before the Tribunal since 21 October 2023, almost 14 months. Having regard to the Tribunal’s objective (see s 9 of the Administrative Review Tribunal Act 2024 (Cth)) it is in the public interest that it now be brought to finality.
xxx.following receipt of my decision and reasons, on 9 November 2024, the Applicant to my Associate as follows:
This is an appalling decision and shows yet again that Senior Member French has no understanding of the complexity of my impairments, the complexity of this review and the barriers I have to overcome.
It is in my own best interests to have this matter dealt with expeditiously. There is no conceivable reason to think I have purposefully delayed the proceedings. As I have previously submitted and showed evidence, I have had a substantive matter in [another place] that has literally taken every moment of my functional capacity this year. This is not the Tribunal's problem, but it is mine and it needs to be listened to as part of being responsive to my needs as per section 9 of the Art Act.
I have not had "substantial communications" with the Tribunal.
There is a significant difference between writing an email on my phone in bed, to writing submissions and getting expert reports IN ONE WEEK!!!
And now I am told I cannot file any evidence for a two day hearing that I don't have the functional capacity to attend. That is patently unfair, especially when the hearing is almost two months hence and there would be no prejudice to the Respondent or inconvenience to the Tribunal.
As for the hearing certificate, I gave very valid reasons why I shouldn't sign it. It would have been dishonest for starters. I only received a copy from the NDIA to review just prior to close of business on the deadline day, that didn't list their expert witness for cross examination.
I will of course be making a complaint about this conduct, as it is in breach of section 9 of the ART Act and the Tribunal Members' Code of Conduct.
I will also be strenuously arguing my case to have this matter heard by GAP or another Tribunal member, as Senior Member French has clearly shown ill will towards me and is blatantly biased against me for an unknown reason.
He has effectively accused me of lying about having COVID. That is truly unbelievable conduct, to infer an applicant is lying about being seriously ill, as well as having significant impairments that have exacerbated the illness. I only just test negative yesterday, after 14 days. I am still suffering from symptoms such as extreme fatigue, coughing, continuous headache, hearing loss and tinnitus. I will be seeing my doctor this week, now that I can leave isolation. Inferring that I am lying has had a seriously detrimental impact on my very fragile mental health. Being honest is one of my fundamental and core values. To be regarded as dishonest and lacking credibility for no valid reason is manifestly unjust.
And there is data linking the photo of the test to me. You should all know by now that a phone photo has meta data, usually including GPS coordinates. I have attached this GPS data showing that the photo was taken by me at my house. I have attached photos of me today holding up all the tests I took, plus photos of the actual tests and screen shots showing GPS data. I hope Senior Member French is ashamed of himself for preferring to think that I was lying rather than applying the precautionary principle, as well as the Art Act.
Unfortunately I found two emails from the Tribunal from 26 and 27 November in my junk mail a couple of days ago. Ironic really that my mail program sorted it into the place where it probably rightly belonged, being absolute rubbish. Twenty minutes notice before the hearing I am told there will be no adjournment? I am not given any opportunity to provide the evidence Senior Member French wants to prove the test was mine? When I am so sick I can barely move and just managed to do the test, take the photo and email it to the Tribunal before collapsing in bed again. I was so sick I should have been in hospital but didn't have anyone to care for my dog and cat. So I suffered alone at home.
[The Court] and the Defendants in another legal matter were very accommodating in adjourning three hearings, listed for 28 and 29 November, until next year. They believed me, even when the Defendants have done everything in their power to make my life as difficult as possible in these proceedings.
Truly disgusting conduct by Senior Member French that won't go unanswered.
xxxi.after reviewing the contents of the Applicant’s communication, I instructed my Associate to respond as follows:
I confirm receipt of your email dated 9 December 2024 the contents of which are noted.
If you wish to make a complaint, your attention is drawn to the following information [ a link was provided to the ART’s complaints procedure]
If you wish to make an application for SM French to recuse himself from further dealing with your case, you should make that application in clear terms, setting out the grounds upon which the application is made. Directions will then be made for the conduct of that application to hearing and a hearing will be fixed. You should be aware that such an application would proceed before SM French.
xxxii.    on 16 December 2024, the Applicant responded to my Associate as follows:
… A particularly relevant meme appeared on my Facebook wall over the weekend, which I thought I would share with Senior Member French. See attached
I will be making a complaint.
I will not expend wasted precious functional time on a recusal application, knowing full well that Senior Member French is highly likely to dismiss that application, just like the others.
I will be making a request through the complaints process for my case to be reassigned. I have also requested that my case be heard by the GAP and have provided the requested additional information for their consideration.
The attachment was an online poster which stated as follows: “If a person in your life knows that you are coping with a death, serious health issues, crisis, tragedy or any form of major stress or loss that has nothing to do with them … and still has the capacity to be cruel to you … that surpasses abuse. That’s evil”,
xxxiii.on 23 January 2025 the Registry for the GAP notified the parties that the President had refused the Applicant’s application for the referral of my 29 November 2024 decision (directions) or the case more generally (I am not privy to the GAP application materials) to the GAP,
xxxiv.on 26 January 2025 the Applicant made an Application to the President to reconstitute this case to another Senior Member referencing s 43 of the ART Act,
xxxv.on 29 January 2025 the GAP Registrar advised the parties that the President had refused that request, advising that any application for recusal ought to be heard by me in the usual way,
xxxvi.I have set out above the details of the Applicant’s recusal application. On 3 February 2025 the Applicant requested an extension of time within which to file any evidence and submissions in relation to the recusal application to the end of the day 4 February 2025, which I granted,
xxxvii.On 4 February 2025 the Applicant requested an adjournment of the substantive hearing fixed for 6 and 7 February 2025, stating as follows:
I am making an urgent application for the adjournment of the substantive hearing commencing at 10am Thursday 6 February 2025.
The NDIA have not even provided a draft joint tender bundle for review as yet, in breach of order 3 of 29 November 2024.
This is highly prejudicial, as less than two days from the commencement of the hearing I have no idea what will be in the joint hearing bundle.
xxxiii.later on 4 February 2025 I refused the Applicant’s request, giving as my reasons for doing so:
Reason:
Insufficient reasons have been given to justify the adjournment.
With respect to the dispute between the parties about a Joint Tender Bundle, the parties’ attention is drawn to notation (b) to the procedural directions made on 29 November 2024. That is, if they are unable to agree on a Joint Tender Bundle they are to comply with that direction by filing and exchanging separate bundles of documents.
The filing of final tender bundles of evidence is not an opportunity to introduce new evidence. It is an opportunity to reduce the documents already before the Tribunal to those that the parties consider material to the review. If the Applicant is unable to perform this task the hearing will proceed on the basis of the documentary evidence contained in the T-Documents and filed by the parties during the proceeding.
Applicable law

I have summarised the legal principles that apply in ascertaining if a decision maker is affected by actual bias or if their conduct gives rise to an apprehension of bias in DQKZ and Chief Executive Officer, National Disability Insurance Agency [2024] AATA 2271 at [63] – [64]. I repeat and add to those principles here to the extent that they apply in the circumstances of this case.
The principles that apply in ascertaining if a decision-maker is affected by actual bias may be summarised as follows:
i.Actual bias will be found where it is established that a decision maker has a ‘pre-existing state of mind which disables the decision-maker from any proper evaluation … relevant to the decision to be made,[9]
ii.The question for determination in an actual bias application is whether there is bias in fact,[10]
iii.A finding of actual bias is a grave matter.[11] The ‘wrong’ involved is the failure to decide a case impartially,[12] contrary to the oath of office, and the rule of law,[13]
iv.An allegation of actual bias is therefore serious. It must be distinctly made.[14] It should not be made lightly,[15]
v.The onus of demonstrating actual bias lies on the Applicant, and it is a heavy onus.[16] The allegation must be clearly proven.[17] Cogent evidence is required,[18]
vi.An actual bias claim requires an assessment of my state of mind and actual views, by reference to what I have said or done.[19] Actual bias is not confined to an intentional state of mind. Bias may also be subconscious provided it is real,[20]
vii.Actual bias, like any other conclusion of fact, may be established as an inference from circumstances.[21] 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 her favour,[22] or, put another way, that my conduct has been quite inconsistent with the fair performance of my duty.[23]
[9] Jia Legend op.cit.
[10] Collier v Country Women’s Association of NSW [2018] NSWCA 36 at [17] – [46].
[11] Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. (Sun)
[12] Bilgrin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at [290] per Finkelstein J
[13] Jia Legend op.cit.
[14] South Western Sydney Area Health Service v Edmons [2008] NSWCA 16 at [97] (Edmons)
[15] Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288 at [48]
[16] Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68] – [74]
[17] Edmons at [97]
[18] Sun at 123 per Wilcox J
[19] 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]
[20] Sun at [73]
[21] Sun at 127 per Burchett J
[22] Sun at XX per North J
[23] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116
The 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[24],
[24]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,[25]
[25] 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,[26]
(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,[27]
(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.[28] The test considers the perspective of a hypothetical fair-minded lay observer, and is not concerned with fanciful or unreasonable apprehensions of bias,[29]
(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 or herself too readily from hearing a matter.[30] 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,[31]
(vi)As the test is objective, it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias.[32] 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,[33]
(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.[34] Application of the apprehended bias test requires no prediction about how the decision maker will in fact approach the matter,[35]
(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.[36] 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,[37]
(ix)The bystander may have regard to the cumulative effect of factors.[38] Later statements may serve to reinforce an impression created earlier.[39] 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. [40] However, circumstances may exist where the appearance of bias is ineradicable.[41]
[26] Ebner at 345 [8]
[27] Ebner at 345 [8]
[28] Ebner at 345 [8]
[29] Gascor v Ellicott [1997] 1 VR 332, 342.
[30] 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]
[31] Re JRL; Ex parte CJL [1986] HCA 39 (1986) 161 CLR 342 at 352
[32] Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at 437 [33].
[33] Spencer v Bamber [2012] NSWCA 274 at [16] (Spencer)
[34] Ebner at345 [7]; Spencer at [107]
[35] Ebner at345 [7]
[36] Gaudie at [86]
[37] British American Tobacco Australia Services Limited v Laurie at 331 [139]
[38] AJH Lawyers Pty Limited v Careri [2011] VSCA 425; 34 VR 236 at 254-255 [67]-[68]
[39] Antoun v The Queen [2006] HCA 2; (2006) 224 ALL 51 at 52 [2].
[40] Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572, 587; Johnson v Johnson at 494 [14], 495 [18]
[41] Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 372
Consideration
The salient features of the procedural history set out above may be summarised as follows:
i.as at 27 November 2024, the Applicant’s substantive application had been before the Tribunal for more than 13 months,
ii.alternative dispute resolution had been attempted but was unsuccessful in resolving the dispute,
iii.as at 27 November 2024, the substantive case had been constituted to a Member to hear and determine, and had been awaiting listing, for 9 months,
iv.as at 27 November 2024, the Applicant had been directed three times to give to the Tribunal and the Agency any further evidence in support of her case (by the Directions made 20 December 2023, 21 February 2024 and 28 May 2024). The Applicant had filed some additional evidence in response to the 20 December 2023 direction,
v.as at 27 November 2024, the Applicant had also been directed three times to give to the Tribunal and the Agency Hearing Certificates that would assist the Tribunal to fix a hearing date. She had not done so,
vi.on 10, 16, and 28 October and 17 November 2024 the Applicant complained about the delay in resolving the controversy concerning her requested supports, claiming to be ‘suffering harm’ and a ‘rapid reduction in functional capacity’ due to her inability to obtain these supports. She claimed to be ‘truly desperate’ and ‘truly begging’ to have her access to these supports reinstated. She claimed to be suffering harm from government agencies, being the ART and the NDIA, because of the delay in resolving the controversy concerning her access to these supports,
vii.on 16 and 28 October 2024 the Applicant requested the Tribunal to make interim orders that would enable her to continue to obtain the disputed supports while this review remained on foot. The Tribunal has no power of that kind. The only relevant power the Tribunal is capable of exercising in relation to this controversy is it substantive review power,
viii.On 2 December 2024, after the 27 November 2024 Telephone Directions Hearing, and before the 6 December 2024 compliance date for direction 1 of the directions made on that date, the Applicant drafted and sent to the Tribunal several emails including a 1038-word email, and an 850-word email. On 3 December 2024 the Applicant completed and filed with the Tribunal a first instance referral application to the GAP.
Ground 1 – I did not believe the Applicant had COVID
The purpose of the Directions Hearing on 27 November 2024 was to establish a final pre-hearing program and to fix dates for the final hearing. Having regard to the length of time the case had been before the Tribunal and the Applicant’s complaints about the delay and the impact this delay was having on her well-being, I considered it important that the hearing proceed.
After initially informing the Tribunal that she was not available to attend the hearing due to a medical appointment, on 25 November 2024 the Applicant informed the Tribunal that she now could attend because her medical appointment had been cancelled. She did not, at that time, indicate she was unwell. The next day (26 November 2024) the Applicant wrote to the Tribunal stating that she had COVID and was ‘very unwell’ offering the photograph of the RAT test with an apparent positive result as evidence. I dealt with this request as a further request for an adjournment of the hearing and refused it for the short reasons I stated. The Registry sent my decision to the Applicant on 26 November 2024. There can therefore be no issue that my decision was available to the Applicant to read prior to the Directions Hearing on 27 November 2024.
I am not clear from the Applicant’s subsequent communications whether she claims to have read or not read my decision refusing her adjournment request prior to the Directions Hearing. In her email of 9 December 2024, she claims that the Registry email containing it went to her ‘junk’ mailbox and was only discovered after the hearing, but she also says she had read it ‘twenty minutes’ before the hearing and that this was inadequate notice that her adjournment request had been refused.
Whatever the position was, it is not to the point. A party who makes a request for an adjournment is not entitled to expect that this request will be resolved in their favour, even if that request is supported by the other party (which it was not in this case).[42] They must remain ready to attend the case event, unless and until their attendance is excused. As I have said above, the unnecessary repetition of case events due to adjournments has case-management and public cost implications which the Tribunal must consider.
[42] Administrative Review Tribunal (Common Procedures) Practice Direction 2024, paragraph 5.12
The Applicant’s complaint that I refused to adjourn the hearing despite her advising the Tribunal that she had COVID-19 appears to be founded upon a belief that an adjournment would and should be automatically granted in those circumstances. That is a misconception. The mere assertion of a medical condition is not sufficient to justify an adjournment. It is necessary that the applicant for the adjournment establish with satisfactory evidence the particulars of a medical condition and how or why that condition would prevent them from effectively participating in the Tribunal case event.[43]
[43] Bobolas v Waverley Council [2016] NSWCA 139 at [221]
In this respect I note that the Directions Hearing was to be (and was) conducted by telephone. It did not involve the Applicant leaving her home, so no issue in relation to possible infection of others arose. I indicated in my reasons for refusing to adjourn that the Directions Hearing had the limited purpose of establishing final pre-hearing directions and to progress any interlocutory application the Applicant wanted to make. I indicated that I expected it to be brief. In her email of 2 December 2024, the Applicant acknowledged that she received two telephone calls from the Tribunal attempting to connect her to the hearing. The Applicant claims she declined to accept these calls ‘because she was too sick to answer’.
The Applicant contends that my decision to proceed with the Directions Hearing was punitive and motivated by animus towards her for an unknown reason. This is an allegation of actual bias. The Applicant has offered no evidence in support of that allegation. I had never met, or heard of, the Applicant before this case was constituted to me for hearing. My decision to proceed with the Directions Hearing in the circumstances set out above was in accordance with orthodox case management principles. I also note that there is nothing in my decision to proceed with the Directions Hearing, or in the directions that I made, that indicates pre-judgement of the issues in dispute between the parties. For these reasons the claim of actual bias is not made out.
I turn now to the separate question of whether my decision to proceed with the Directions Hearing gives rise to an apprehension of bias against the Applicant. The essence of this test is the public’s perception of my impartiality.
Applying the principles in Ebner, on the first step, as I understand it, the Applicant contends I impugned her credibility by not accepting the evidence she offered in support of her contention that she had COVID-19. I think it is fair to say that a fair-minded lay observer may conclude that I was at least sceptical about the Applicant being so seriously ill she could not participate in a Hearing by telephone. I accept that this a matter going to the Applicant’s credit.
However, the claim of apprehended bias fails at the second step because this is not a case where the Applicant’s credit is in issue or will be determinative of the outcome of the review. The principal issue to be determined is whether the supports identified in paragraph (a), (i) to (iv) of the s 53 order I made on 9 December 2024 are NDIS Supports within the meaning of s 10 of the Act and the National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024. That is a mixed question of fact and law in which the Applicant’s credit plays no part.
The residual issue to be determined is whether the support identified at paragraph (a) (v) of the s 53 order is reasonable and necessary. That is a question of fact and law which is is to be determined based on evidence probative of the matters contained in s 34(1)(aa) to (d) of the NDIS Act. The Applicant’s own evidence as to the benefit she obtains from this support, and how it would assist her to pursue her Participant Plan goals, objectives and aspirations would play a part in that, but her credibility or otherwise would not be determinative of the question. Before this support could be approved for inclusion in her SoPS each of the s 34(1) requirements must be met. Proof of the matters set out in s 34(1)(aa), (c) and (d) require more than the mere assertion of benefit.
There is therefore no logical connection between the matter the Applicant claims suggests bias and the feared deviation of deciding this case on its merits. A fair-minded lay observer would therefore not apprehend any real possibility of me not bringing an impartial mind to the issues to be determined.
More generally, I am satisfied that a fair-minded lay observer would not apprehend bias from my decision to proceed with the Directions Hearing in the absence of the Applicant. Such a person would accept that the Applicant had appropriate Notice of the time, date, and place of the hearing, and that at least two attempts were made to reach her to participate in it. They would also consider it important that the case be progressed to resolution given the urgency and the impact of the delay on her wellbeing that was being asserted by the Applicant. Such a person may also be taken to be cognisant of the ART’s s 9 objective and the consequent need to progress cases to finalisation in a manner which is both fair and firm.
Grounds ii and iii – unfair procedural directions and refusal of extension of time
The Applicant’s second ground of alleged bias is that direction 1 of the directions I made on 29 November 2024 only provided her with 1 week to comply with that direction. Her third ground of alleged bias is that by the order I made on 9 December 2024 I refused to grant her an extension of time to comply with that direction. As I understand it, the essence of this aspect of the complaint is that bias is evident from my failure accord the Applicant a fair opportunity to present her case.
I note that this allegation engages s 55 of the ART Act, which contains the General Rule concerning a party’s right to present a case:
55 Right to present case
General rule
(1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:
(a) present the party’s case; and
(b) access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and
(c) make submissions and adduce evidence.
Three observations should be made about direction 1.
First, confirmation of the requested supports in dispute was a simple task necessary to define the scope of the review. The Applicant had already filed and served a document containing her requested supports on 19 September 2024. Had she attended the Directions Hearing she could have advised orally if that remained final, or if anything had changed. As she did not attend, she was provided with a short interval of time in which to do so. Until the scope of the review was confirmed, it was difficult for the Agency to prepare its SoFIC, which was an essential next pre-hearing step. Direction 1 read together with Notation (a) sought to avoid any unnecessary delay arising from uncertainty about the scope of the review.
Second, the direction to file all further evidence in support of the review application was not the first direction to file evidence in support of the application, it was the fourth. As of 27 November 2024, the Applicant had already been given three opportunities to file evidence in support of her case over almost 1 year. The opportunity being offered was a final one which assumed that the Applicant’s case in support of her requested supports was substantially settled. As stated, the direction was to facilitate the Applicant closing her case, so that the Agency could move forward to develop its SoFIC.

Third, direction 1 referenced the case that was then before the Tribunal, which was whether naturopathic, yoga and art therapy supports should be approved for inclusion in the Applicant’s SoPS. In her email of 5 December 2024 the Applicant refers to an intention to ‘change the scope of this review’ because of the Getting the NDIS Back on Track amendments, and her need to obtain legal advice before doing so. The directions issued on 29 November 2024 sought to progress the actual dispute that was before the Tribunal for determination at that time, not provide an opportunity for the Applicant to formulate some other unarticulated case.
Additionally, in relation to her ability to comply with direction 1, contrary to the Applicant’s assertion that she did not have functional capacity to do so, her other activity between 27 November 2024 and 6 December 2024 demonstrates that she could do far more than the relatively simple tasks required of her by that direction. In this respect, she filed two lengthy contentious emails (totalling more than 2000 words) and an application for a first instance referral to the GAP during this period.
Having regard to these matters, the allegation of actual bias, being that direction 1 was punitive and motivated by malice towards the Applicant, is not made out. Direction 1 represents no more than a simple and final prehearing procedural step with which the Applicant was required to comply so that the actual case that was before the Tribunal could progress to hearing with a certain scope.
In relation to the separate question of whether direction 1 gives rise to an apprehension of bias, I am satisfied for the same reasons that it would not. Applying the test in Ebner, the matter the Applicant contends suggests bias is being compelled to file all her evidence within 7 days which she contends deprived her of a reasonable opportunity to present her case and gives rise to a perception that it would not be decided on its merits.
I am satisfied that a fair-minded lay observer would conclude that this allegation proceeds from a false premise. They would consider that the Applicant had been given three prior opportunities to file evidence in support of her case spanning over an almost 1 year period. They would consider that the purpose of the direction was merely to provide the applicant with an opportunity to close her case, so that the review could proceed to hearing in an orderly and efficient way. They would not apprehend bias in these circumstances.
Grounds iii and iv – scope of the review
Grounds iii and iv of the Applicant’s bias allegations concern the s 53 order I made on 9 December 2024 determining the scope of the review by reference to the requested supports that were in issue as I had ascertained this from the material before me. The Applicant contends that I ‘introduced a new and expanded scope of the review’ and that I ‘erroneously expanded’ her review application by that order in circumstances where she was deprived of the opportunity to challenge that expanded scope.
I am unable to grasp the basis of the Applicant’s complaint.
Direction 1 of the directions issued on 29 November 2024 directed the Applicant to identify the requested supports that were in dispute in the review. She did not comply with that direction, which as I have set out above, involved a simple task. The Applicant cannot be heard to reasonably complain that she was not provided with the opportunity to confirm the disputed supports for herself. Notation (a) of the directions issued on 29 November 2024 warned the Applicant that I would make an order under s 53 of the ART Act determining the scope of the review after the compliance date for direction 1. As I have said above, this was necessary to ensure that the review could progress to hearing in an orderly way with reasonable certainty as to its scope. The Applicant was therefore on Notice that if she failed to confirm the supports that were in dispute the Tribunal would do so.
In ascertaining the supports that were in dispute I relied upon the list of disputed supports filed and served by the Applicant in a document dated 19 September 2024. I did not add or subtract from that list. That list is consistent with the dispute as it stood at the time of the internal review decision which is the subject of this independent review, and it is consistent with the Applicant’s complaints about being deprived of necessary supports filed with the Tribunal during October and November 2024.
Having regard to the above, there is no basis for any allegation of actual bias, if that is made. Nor would a fair-minded lay observer apprehend bias in these circumstances. With reference to the test in Ebner the matter the Applicant contends suggests bias did not occur.
Grounds v and viii – denial of procedural accommodations for disability and impairments at the final hearing
I do not grasp the basis on which the Applicant contends that I denied her procedural accommodations during the final hearing of the review.
The final hearing was fixed for 6 and 7 February 2025 which was after the recusal application was made, and the Applicant did not attend that hearing. This complaint therefore cannot relate to anything that happened at that hearing.
To the extent that the Applicant contends it was the pre-hearing arrangements that would prospectively result in the denial of disability related adjustments necessary for her participation, I am aware of only two requests she made for procedural adjustments.
First, she requested that the hearing not commence before 9:30am. The final hearing was fixed at 10am AWST each day. That is the typical time of commencement of Tribunal hearing days and to that extent did not involve any specific adjustment for the Applicant. I have noted in the Tribunal’s file an interaction between a Tribunal officer and the Applicant in which it was clarified that the 10am start was AWST (the location of the Applicant) and not AEDT (my location). This suggests that the Applicant may have been under a misapprehension at one point that the hearing would start before 10am AWST. However, that was never the case. The hearing was always fixed to commence at 10am AWST and that was clarified for the Applicant upon her inquiry. This may be the issue referred to by the Applicant in her ground of appeal as only having been rectified after she made her GAP application. If it is not, then I do not know what issue she is referring to.
Second, the Applicant requested that the hearing be limited to 3 hours per day, preferably in the mornings. I allowed 2 full days for the hearing 10am to 4pm AWST. Given the relatively narrow scope of the review that provided ample time for extended rest breaks and truncated hearing days if required. I am unable to know how long it may have taken for the Applicant to present her case because she did not attend the hearing. The Agency’s presentation of its case took approximately 30 minutes and did not involve the evidence of any witness. If the Applicant had attended, I consider it likely the hearing would not have taken more than three hours and would have concluded on the first day.
Since this case has been constituted to me the Applicant has twice submitted a publication of the Pacific Judicial Strengthening Initiative being Checklist 5: When people with disabilities come to court, Federal Court of Australia, 2020. She has asserted that the ART, like the Federal Courts, is bound to follow the guidance provided in that document. That document has no formal status as a guide to ART practice, but I am nevertheless very familiar with its contents. I am not aware of any way in which my case management and hearing of the Applicant’s case represents a departure from the guidance provided in that document. The Applicant’s references to that document have been rhetorical only. Other than what I have discussed above, she has not particularised any specific way in which she has requested the ART to make a disability related adjustment to accommodate her participation, and it has not been accommodated.
In note in this respect that the ART’s obligation to make reasonable disability related adjustments to its procedure to accommodate the participation needs of users with disability is not equivalent to it being obliged to agree to every dictate made by a user, however unreasonable. The Tribunal is an independent body that controls its own procedure to achieve its statutory objective.[44] A Tribunal user with disability may expect to be treated the same as any other litigant in this respect, albeit that they may require procedural adjustments to meet their disability related participation needs.
[44] ss 9, 49 - 53 of the ART Act.
The Applicant has drawn attention to work I carried out, speeches I have made, and publications I have written earlier in my career that deal with justice system accessibility for people with disability. She claims that my treatment of her is in such contrast to the values contained in this body of work that it can only be explained by malice. For the reasons I have given above I do not accept that there has been anything unreasonable or unfair about my case management of the Applicant’s case to hearing. It is the ART legislation, practice directions, and Member Code of Conduct[45] which provide the framework and standard to which my conduct must adhere, rather than anything done, said, or written earlier in my career. Nevertheless, I do not perceive any inconsistency between the values and practices I espoused then, and to which the Applicant has drawn attention, and my case management and disposition of her application for review. The Applicant obviously disagrees with my case management decisions, but that does not mean that they have been objectively unfair to her.
[45] Administrative Review Tribunal Code of Conduct for Non-Judicial Members, 2024.
Having regard to these matters I have discussed above there are no grounds upon which it could be reasonably contended that the arrangements I made for the final hearing reflect ‘malice’ towards the Applicant, or actual bias in any other way. Nor in my view would a fair-minded lay observer apprehend bias from my conduct in relation to arranging and conducting the final hearing. Those arrangements accommodated the Applicant’s requests and were otherwise unremarkable. With respect to the test in Eber the matter the Applicant says suggests bias did not occur.
Grounds vi and vii – President’s refusal of GAP referral application and refusal to reconstitute case to another Senior Member
I am unable to grasp the basis upon which it is claimed that the President’s decision of 23 January 2025 to refuse the Applicant’s application for the referral of my interlocutory decision (directions) of 29 November 2024, or her case generally, to the GAP, is evidence of actual or apprehended bias by me. Nor am I able to grasp the basis upon which it is claimed that the President’s decision of 29 January 2025 to refuse the Applicant’s request to reconstitute the case to another Member of the Tribunal is evidence of actual or apprehended bias by me. Both decisions were made by the President, not me. I was not involved in them.
If it is the Applicant’s intention to suggest that I somehow influenced the President to make those decisions motivated by some form of malice towards her, she is making a grave allegation of actual bias. Such an allegation should be distinctly made, and cogent evidence should be offered in support of it. The Applicant has not offered any such evidence. The allegation must be rejected. It ought not to have been made.
Order
For the foregoing reasons:
(1)the Applicant’s application for me to recuse myself from conducting this administrative review on the ground of actual bias, or in the alternative, apprehended bias, is refused.