GMXV and National Disability Insurance Agency

[2022] AATA 505

GMXV and National Disability Insurance Agency [2022] AATA 505 (17 March 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/2290

Re:GMXV

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member K. Parker

Date of Oral Interlocutory Decision:           17 March 2022

Date of Reasons for Interlocutory Decision:           22 March 2022

Place:Melbourne

The Applicant’s mother’s deemed recusal application is refused. Senior Member K. Parker has decided not to recuse herself and proceeds to hear and decide this application for review.

...................[sgd].....................................................
Senior Member K. Parker

Catchwords

PRACTICE AND PROCEDURE – deemed recusal application – National Disability Insurance Scheme – child participant – mother of participant asserts that the Member constituted to hear this application is biased in favour of the NDIA and against child participant – deemed request by mother that Member recuse herself – Tribunal not satisfied Member has actual or apprehended bias – Member decided not to recuse herself – deemed recusal application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Cases

AJH Layers v Careri (2011) 34 VR 236
Anderson v National Australia Bank [2007] VSCA 172
Clenae v ANZ Banking Group [1999] 2 VR 573
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ex parte Angliss Group (1969) 122 CLR 546
Gascor v Ellicott [1997] 1 VR 332
Hodgson v County Court of Victoria [2004] VSC 501
Honda Australia Motorcycle v Johnstone [2005] VSC 387
Johnson v Johnson (2000) 201 CLR 488
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Re JRL; Ex parte CJL (1986) 161 CLR 342
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Vakauta v Kelly (1989) 167 CLR 568

Webb & Hay v R (1994) 181 CLR 41

REASONS FOR INTERLOCUTORY DECISION

Senior Member K. Parker
22 March 2022

INTRODUCTION

1. The Applicant, GMXV, is a child participant of the National Disability Insurance Scheme (NDIS). He is 17 years old and has been diagnosed with autism spectrum disorder (ASD) and a severe intellectual disability. GMXV currently resides on a full-time basis with his father (F) and according to M, has done so since before he turned 15 years old. This application was lodged by GMXV’s mother (M) approximately two years ago, seeking review of a decision made by a “reviewer” of the National Disability Insurance Agency (NDIA) under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) on 25 March 2020, in relation to an earlier decision by the NDIA to approve a statement of participant supports (SOPS) for the Applicant.

2. On 9 November 2020, the Tribunal (differently constituted) remitted this matter under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Upon remittal, a delegate of the CEO of the NDIA made a decision to approve a new SOPS for GMXV dated 17 November 2020. M, representing GMXV in this proceeding (together with F who the Tribunal invited to be a joint representative of GMXV), informed the Tribunal of her intention to proceed with this application for review. By operation of s 42D(4) of the AAT Act, the decision to approve the new SOPS for the Applicant is now the Decision Under Review in this proceeding.

3. In preparation for the hearing of this matter, the Tribunal provided M with several opportunities to identify what the Applicant was requesting be added to or changed in his SOPS. To date, M has not identified such matters. M is also a participant under the NDIS and has been diagnosed with serious psychiatric medical conditions. On 15 March 2022, M was voluntarily admitted as an in-patient to a private psychiatric facility to participate in an “Emotional Management Program” for a four-week stay.[1]

   [1] Refer letter from a senior psychologist at the psychiatric facility dated 11 March 2022 produced to the Tribunal by M on 13 March 2022.  At the Recusal Hearing, the Tribunal did not refer to these circumstances so as to keep them private from F but at the end of the substantive hearing of this application, in answer to questions from the Tribunal, F released that he was already aware that M has been admitted to a psychiatric facility.

4. Several adjournments were sought by M in relation to this proceeding and they were granted on a number of occasions. Given the passage of time since lodgement of this application and in light of the statutory obligations of the Tribunal under s 2A of the AAT Act, the Tribunal as presently constituted did not grant a recent request by M for another adjournment of this proceeding and instead, referred this application to Registry to be listed for a substantive hearing on 17 March 2022. The background in relation to these procedural matters is set out in the following interlocutory decision made by the Tribunal on 25 January 2022: GMVX and National Disability Insurance Agency [2022] AATA 80 (25 January 2022)

   RECUSAL APPLICATION

5. On 11 March 2022, M informed the Tribunal in writing about her intended voluntary admission to the psychiatric facility for a four-week inpatient stay. The Tribunal inferred from those developments that as from 15 March 2022, for a period of four weeks, M’s personal circumstances had made it unlikely that she would have attended the scheduled substantive hearing in this application on 17 March 2022. In this correspondence, M also informed the Tribunal of her intention not to participate in this proceeding if it was conducted by the Tribunal as presently constituted.

6. The Tribunal decided to treat M’s email dated 11 March 2022 as an application that I recuse myself as the Member constituted to hear this matter (Recusal Application). M contends that I am biased in favour of the NDIA, and against GMXV.

7. The Registry of the Tribunal notified the parties that I would hear and decide the Recusal Application at 9.30am on 17 March 2022, that is, immediately preceding the scheduled substantive hearing of this application listed to take place at 10am on 17 March 2022. M did not attend the hearing of the Recusal Application due to her personal circumstances and her decision not to participate in this proceeding if I was the Member conducting it.

8. The NDIA lodged written submissions with the Tribunal on 16 March 2022 stating that its position in relation to the Recusal Application was “neutral”. F, being the other representative of GMXV with parental responsibility, attended the Recusal Application on 17 March 2022 and indicated that he did not wish to make any comment in relation to the Recusal Application.

   GENERAL PRINCIPLES

9. Dealing first with the general principles to be applied when considering a recusal application, the Tribunal notes and accepts the helpful summary of those principles as provided by Ms Ruth Hamnett, counsel for the NDIA, as follows:

   RELEVANT PRINCIPLES

   Actual Bias /Apprehended Bias

   16. The tests for actual and apprehended bias are well settled, though the decision-maker may vary their application of the tests depending on the particular factual circumstances.

   Actual Bias

   17. A decision-maker must not hear a case where he or she is biased against one of the parties.[2] However, an allegation of actual bias should not be made lightly. A party asserting actual bias carries a heavy onus. The allegation must be distinctly made and clearly proven.[3]

   [2] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

   [3] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16.

   18. A decision maker will only be disqualified for actual bias when a party establishes that the decision maker is so committed to a particular outcome that he or she will not alter that outcome, regardless of what evidence or arguments are presented.[4]

   [4] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

   Apprehended Bias

   19. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue he or she is required to decide.[5] This test requires that there be a real rather than a remote possibility of bias. A party need not establish that it is likely or probable that the decision-maker would not bring an impartial mind to the resolution of the case.[6]

   [5] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

   [6] Gascor v Ellicott [1997] 1 VR 332; Hodgson v County Court of Victoria [2004] VSC 501; Webb & Hay v R (1994) 181 CLR 41; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; AJH Layers v Careri (2011) 34 VR 236, [20].

   20. A bare assertion that a decision maker has an interest in the outcome of the case is not sufficient to establish apprehended bias. A party applying for a decision-maker to recuse himself or herself must identify the cause of an appearance of bias and then show the logical connection between that cause and the appearance of partiality.[7]

   [7] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; AJH Layers v Careri (2011) 34 VR 236, [22].

   21. The apprehension of bias must be reasonable. The test considers the perspective of a hypothetical fair-minded lay observer and is not concerned with fanciful or unreasonable apprehensions of bias.[8]

   [8] Gascor v Ellicott [1997] 1 VR 332.

   Obligation to Hear Cases

   22. The obligation on a decision-maker to disqualify him or herself for apprehended bias is matched by an obligation to hear all cases where he or she is not disqualified. A decision-maker must not disqualify him or herself too readily or allow a party to dictate whether the he or she may sit on the case.[9]

   23. A party is required to positively satisfy the decision-maker that the test for apprehended bias is established. A decision-maker should not disqualify him or herself without good cause and must not reach that conclusion lightly.[10]

   24. In cases of doubt, however, the decision-maker should err in favour of disqualification in order to give effect to the principle that justice must be seen to be done.[11]

   Preliminary Views

   25. A decision-maker may express a tentative view about an issue without creating an apprehension of bias. As the High Court has stated in Minister for Immigration and Multicultural Affairs v Jia Legeng:

   “Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.”[12]

   26. The decision-maker’s expression of his or her tentative views may allow the parties to respond to those issues and seek to persuade the decision maker in light of those responses.[13]

   [9] Re Polites; Ex parte Hoyts Corporation (1991) 173 CLR 78; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; AJH Layers v Careri (2011) 34 VR 236, [19].

   [10] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Honda Australia Motorcycle v Johnstone [2005] VSC 387; Re JRL; Ex parte CJL (1986) 161 CLR 342.

   [11] Clenae v ANZ Banking Group [1999] 2 VR 573; [1999] VSCA 35.

   [12] (2001) 205 CLR 507; [2001] HCA 17; R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.

   [13] Anderson v National Australia Bank [2007] VSCA 172; Vakauta v Kelly (1989) 167 CLR 568; Johnson v Johnson (2000) 201 CLR 488; AJH Layers v Careri (2011) 34 VR 236, [23].

   CONSIDERATION

10. Returning to the circumstances of this particular case, the Tribunal notes that in correspondence dated 11 March 2022, M states that the comment I made in paragraph [41] of my Interlocutory Decision about an assessment of M’s ability to write to the Tribunal and provide a 209-page written submission, was “ignorant and wrong”. Paragraph [41] of my Interlocutory Decision is reproduced below:

    M considers that she is not capable of identifying the requested supports unless she has engaged a service provider who is able to assist her with this process. However, in relation to this application, M informed the Tribunal that GMXV has a support coordinator. The Tribunal also observes that M has prepared a 209-page document and a further 11-page letter both sent by email on 20 January 2022 (referred to collectively as GMXV’s Submissions), comprising complex submissions and other matters including the Summons Request, Section 28(5) Request and AHRC Request. The Tribunal considers that the act of M preparing the GMXV’s Submissions demonstrates that she is capable of documenting her thoughts and requests. Importantly, the Tribunal considers that the complexity of the matters addressed by M in her extensive submissions, far exceeds the complexity of the task being requested of M, on behalf of GMXV, that is, to prepare a list of requested supports, likely to comprise one or two pages. The act of M preparing GMXV’s Submissions also appears to be inconsistent with the medical opinion expressed by Dr J on 17 January 2022 about M’s purported incapacity to participate in proceedings, and M’s assertion that she is unable to independently prepare a list of requested supports.

11. In M’s correspondence dated 11 March 2022, she also states that I trivialise and purposefully disguise “the gravity of the unlawfulness of what occurred by duplicitously narrowing the version of events described” in relation to the Children’s Court proceedings involving M.

12. M made the following further statements in her correspondence dated 11 March 2022 (as relevant):[14]

    [14] As of 17 March 2022, the Member was a “Member” of the Tribunal, and as of 22 March 2022, the Member was a “Senior Member” of the Tribunal.

    The following is a broad overview of what I claim has, and is, occurring. This is not a definitive list:

    • Member Parker is denying me the right of a fair and just review by an independent and impartial decision-maker

    • Member Parker is denying me procedural fairness as a self-represented litigant

    • Member Parker is biased against me and biased in favour of the NDIA

    • Member Parker has discriminated against me because of my disability

    • Member Parker is exercising her power for an improper purpose

    • Member Parker is knowingly constructively failing to exercise jurisdiction

    • Member Parker is knowingly not conducting a hearing according to law in the way she is conducting [GMXV]’s NDIS plan review

    …

    I cannot cope with attending any more hearings conducted by Member Parker. I refuse to attend any more hearings before Member Parker. The Member and the NDIA are working together to use the Tribunal Process as a tool of oppression and injustice”.

13. As noted in directions issued to the parties by the Tribunal on 11 March 2022, M, F and NDIA were invited to lodge written submissions with the Tribunal in relation to the Recusal Application ahead of the recusal hearing on 17 March 2022. I have already referred to submissions that were lodged by the NDIA pursuant to this invitation.

14. Neither M, nor F, lodged any further written submissions in relation to the Recusal Application. No further oral submissions were made by the NDIA or F who were present at the hearing on 17 March 2022.

15. The Tribunal does not consider that the above statements made by M in her correspondence dated 11 March 2022 disclose any reason to support her contention that I am biased in favour of the NDIA and/or against GMXV. The Tribunal has no personal connection whatsoever with any of the parties to this proceeding or their representatives. Nor has there been any suggestion by any party (or their representatives) to this application that I have a general propensity to make decisions in favour of the NDIA and against NDIA participants, in other applications for review before the NDIS Division of this Tribunal.

16. The findings I made in the previous Interlocutory Hearing in relation to the capacity of M to identify the supports in dispute in this application, do not demonstrate any actual or apprehended bias by me. They constitute a reasonable assessment based on objective evidence that I made for the purpose of determining preliminary procedural issues arising in this application.

17. The Tribunal considers that any further concerns raised by M about the previous Children’s Court proceedings do not reveal any basis or bases upon which to conclude that there was actual or apprehended bias on my part. In the Interlocutory Decision, I referred to those proceedings to the extent relevant to the procedural issues at hand. The substantive issue in this application is the review of a decision made about the approval of a SOPS under the NDIS for GMXV. The role of the Tribunal does not involve delving into the matters that transpired during the Children’s Court proceedings or leading up to those proceedings. The factual matters of concern to the Tribunal are where GMXV is residing, the extent of any informal or formal supports he has access to at the current time and in the foreseeable future, and to determine his disability-related needs, so that a decision may be made about whether he should receive transport funding under his NDIS plan (and if so at what level), and how the funding approved under his plan should be managed.

18. Finally, the “broad overview”, as provided by M as reproduced in paragraph [12] above, does not disclose any basis or bases for findings of actual or apprehended bias by me. Instead, this overview comprises a list of several bold assertions made by M, without any particularisation of the bases for each of those assertions. For that reason and after taking in account the other statements of M as dealt with in the above paragraphs, the Tribunal is not satisfied that there is any proper basis upon which I should recuse myself, as no actual or apprehended bias in favour of one party over the other has been established by the matters raised by M in support of the Recusal Application.

    CONCLUSION

19. Accordingly, I have decided not to recuse myself and proceeds to hear and decide upon this application for review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

....................[sgd]....................................................

Associate

Dated: 22 March 2022

Date of hearing:	17 March 2022
Advocate for the Applicant:	F, Applicant's Father
Counsel for the Respondent:	Ms Ruth Hamnett
Solicitors for the Respondent:	Ms Peta Heffernan, Australian Government Solicitors