GYFF and The CEO, National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 1234
•5 August 2025
GYFF and The CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 1234 (5 August 2025)
Applicant/s: GYFF
Respondent: The CEO, National Disability Insurance Agency
Tribunal Number: 2023/8294
Tribunal:General Member N Purcell
Place:Sydney
Date:5 August 2025
Interlocutory Decision: The Applicant’s recusal application is refused.
........................[SGD]................................................
General Member N Purcell
Catchwords
PRACTICE and PROCEDURE – National Disability Insurance Scheme – second application for recusal – no actual or apprehended bias – recusal application is refused.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Statement of Reasons
BACKGROUND
The Applicant made an application for me to recuse myself which was heard on 21 March 2025. I decided not to recuse myself in a decision published on 31 March 2025. Additional relevant background is set out in that decision GYFF and The CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 645. The relevant legal principles are set out at [37] to [38] of that decision, which I adopt in this decision.
This decision should be read in conjunction with my previous decision.
The Applicant’s substantive application is set down for a 3-day hearing commencing on Tuesday 5 August 2025. This involves a review of decision by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) on 3 November 2023 which affirmed an earlier decision to approve a Statement of Participant Supports (SoPS) for the Applicant under s 33(2) of the NDIS Act.
The Applicant seeks NDIS funding for the following supports:
(a)MSI Titan 18 HX A14VIG 18” i9 RTX 4090 Black Gaming Laptop 20th Yr Edition Titan 18 HX A14VIG-296AU
(b)Apple iWatch
(c)Apple iPhone 16 Pro Max 1TB (Black Titanium)
(d)Sony PS5 Pro
(e)Mobility scooter
(f)Larger car
(g)Single occupancy specialist disability accommodation (SDA) (with plan management changed from Agency managed to plan managed)
(h)Level 3 support coordination.
SECOND RECUSAL APPLICATION
On 13 June 2025, the Respondent’s representative emailed the Tribunal (copying the Applicant) requesting a 3-day extension until the following Monday (16 June 2025) to file its Statement of Facts, Issues and Contentions.
The Applicant objected to the Respondent’s request for an extension of time the same day. He wrote: “If you grant this ridiculous extension. It confirms my fears your partial on their side. I urge you not to indulge them for their laziness and stupidity. If not I ask u (sic) to withdraw from ur role as u are unable to function impartiality (sic)”.[1]
[1] Applicant’s email to Tribunal dated 13 June 2025.
I granted the extension of time and elected not to respond to the recusal request at that time.
On the 24 July 2025, I was advised that summons material had been returned by one of the Applicant’s treating OTs after the due date. I had previously made an order on 17 April 2025 allowing inspection of other summonsed material by the Respondent. I authorised the Respondent to inspect the remaining documents.
On 24 July 2025, the Applicant’s carer wrote to the Tribunal as follows:
Dear whom it may concern,
I am writing after carefully considering the circumstances. Member Purcell's conduct has induced [the Applicant] to self-harm himself. She has behaved in a manner that is cruel, harsh and unreasonable. I have witnessed from day 1 that member Purcell has been nothing but bullying and throwing her weight around. After having his transportation funding cut for 50th time, I found [the Applicant] attempting to harm himself with a knife that he explained his life is not worth living since Purcell has made his life incredibly difficult and that NDIS is screwing him around.
I ask that the manager above member Purcell be removed and the case gets restarted with fresh eyes and the evidence be struck off based upon fairness, justice and due processes. Member Purcell has been making [the Applicant’s] life difficult from giving bias treatment, disregarding his disabilities and so forth and yet she treats them like royalty that [the Applicant] would not have felt incredibly worthless. When are you going to be satisfied and listen to a disabled person warning about Purcell's conduct? One example is that her behaviour she had one point refuse representation and implied she was qualified to state that since [the Applicant] was able to send emails he therefore should be fine on his own. Refusing Lee Millar to be involved, this is a clear breach of bias rules and code of conduct rule that she made [the Applicant] so traumatised that he wasn't able to cope. When I heard what she did, I was disgusted and I wanted to confront her, she had no right to refuse Lee in the meeting and yet she did. The damage was significant and left [the Applicant] heavily disadvantage and let NDIS to bully their way around with unchecked powers.
I urge you to see this urgently and ask you to separate Member Purcell from this case and from [the Applicant] as she is toxic and dangerous to him. There is no point to contact the police as they are fully aware of the danger and risk involving Member Purcell, the fact that this has been on-going for this long and the evidences is there, member Purcell is intentionally harming [the Applicant] without any care at all. Her double standard is obvious and her abuse of power is a clear breach of code of conduct. Thanks to Member Purcell, she has made my job much harder and more demanding than before and I ask that something be urgently done before its too late. I am disgusted by the standard, no professionalism, no confidentiality and no standards, a little profeesionalism and empathy goes a long way. She has damaged the relationship beyond repairs, [the Applicant] and Lee Millar has no faith in Member Purcell being reasonable and I ask that this dealt wtith urgently before hearing. She cannot be in the hearing as it would be obvious the favour is stack against [the Applicant] and she is meant to be impartial.
I ask you to either contact myself, Lee Millar or Peter Howell. They arer fully aware of the harm that has taken place and you cannot allow this to continue in particular the abuse of power by Purcell. She in particular has breach without a doubt s 13 of the APS code of conduct that highlights the expectation on all employees in public domain. The fact that she has caused harm on a disabled person and not demonstrated honesty, care and integrity is a breach of the APS act the matter must be remedy urgently by the request that the case is suspended and all evidences be struck off by the Purcell's unfair, lack of due processes and integrity. Someone new, with fresh eyes and experience in mental health is urgently needed and Member Purcell be dealt with within the guidelines. Please refer to the diagram of s 13 of the APS guidelines.[2] (Errors in original)
[2] Email from the Applicant’s carer dated 24 July 2025.
On 25 July a Registry staff person contacted the Applicant for the purposes of checking his welfare. The Applicant advised the staff person as follows:
(a)His mental health state has taken a massive hit since his interactions with General Member (GM) Purcell. He expressed concern over her conduct which involved telling him to "get over it" and "just deal with it".
(b)GM Purcell did not allow his representative to attend the previous interlocutory hearing and said words to the effect of "oh you'll be fine" and "you sent an email, so you'll be fine".
(c)GM Purcell implied that she was a qualified mental health expert.
(d)After the previous hearing, he wanted to kill himself. He has been regularly self-harming and at breaking point. His carer supervises him 24/7 to make sure that he doesn't self-harm, even taking him to the toilet. All the knives are locked away.
(e)He self-harmed last week and was in the process of self-harming last night (dissociated) when his carer stopped him. Police are aware of his mental health generally.
(f)He has cancer surgery booked on the day of the hearing and has been told that he cannot reschedule.
(g)He is upset about the release of summons material and the Respondent now have full access to very personal records.
(h)He is terrified of GM Purcell because she abuses her authority. He has done everything that he could possibly think of to raise concerns about her.
(i)GM Purcell treats him how his sexual assault abuser treated him. "GM Purcell basically demanded SA from me". This has caused stress "above and beyond a reasonable level".
(j)GM Purcell makes him feel worthless and tears him apart. "I'm begging you to not make me talk to her anymore. She is so toxic."
On 30 July 2025, the Applicant sent a further 5 page document to the Tribunal titled ‘Motion to suppress evidence and recusal of member’. The relevant parts of the motion include the following claims:
(a)That I refused to allow the Applicant’s disability advocate to attend the previous recusal hearing on 21 March 2025;
(b)That I am biased for allowing material to be summonsed;
(c)The I conducted an ‘ex parte meeting’ with the Respondent’s representatives;
(d)That I have demonstrated bias conduct by refusing the Applicant’s adjournment for cancer treatment but granted a two-week adjournment to the Respondent; and
(e)That I have failed to uphold my oath as a Tribunal Member.
An interlocutory hearing was listed on 31 July 2025. I explained the relevant legal principles regarding actual or apprehended bias to the Applicant and summarised what I understood to be the key grounds for my recusal which include:
(a)That I have been generally unfair and biased, for example, refusing to grant adjournments for the Applicant, not allowing the Applicant’s disability advocate Ms Millar to attend tribunal events and not being respectful the Applicant.
(b)That I privilege the NDIA’s representatives in the proceedings and held an ‘ex parte’ hearing with them.
(c)That I pose a serious risk to the Applicant because I cause him to self-harm, remind him of the person who sexually abused him, bully and intimidate him and disregard the impact of his disability.
The Applicant was invited to identify and/or clarify any further grounds and make oral submissions in support of his application. These are discussed below.
The Respondent did not make any substantive oral submissions at the hearing but observed that many of the general claims were dealt with in the previous decision and it is desirable for the matter to be determined as soon as possible.
CONSIDERATION
I will deal with each claim separately before consideration of whether, collectively, it could be said that I have a closed-mind or predetermined view of the Applicant’s case and/or whether a ‘fair-minded lay observer’ might be concerned that I do not have an impartial or open mind to the questions to be determined in the substantive application.
The claim I am generally unfair and biased to the Applicant
In total, the Tribunal has had 4 direct interactions with the Applicant, all of which are recorded:
·the first telephone directions hearings occurred on 24 October 2024;
·the first recusal hearing was held on 21 March 2025;
·the interlocutory hearing regarding summons was held on 17 April 2025; and
·the second recusal hearing was held on the 1 August 2025.
I have listened to all four recordings in their entirety. I have reviewed relevant correspondence between the Applicant and Registry. The recordings confirm the following:
(a)I have never said words to the effect or implied that the Applicant should “get over it”, “just deal with it” and/or “you’ll be fine”.
(b)I have never said or implied that I am a mental health expert.
(c)I did not prevent the Applicant’s disability advocate Ms Millar from attending tribunal events.
(d)I did not refuse the Applicant’s request for an adjournment for reasons of cancer treatment.
(e)I have not said anything to the Applicant that could be construed by a fair-minded lay observer as mean, harassing, toxic, demeaning, or harsh.
At the first telephone directions hearing on the 21 October 2024, the Applicant and the Respondent’s representative jointed the hearing by video. An associate assisting the Tribunal attempted to call the Applicant’s disability advocate Ms Millar on 3 occasions however the calls went unanswered. The link to join the hearing by video was also sent to the Applicant and Ms Millar prior to the hearing as per standard Registry practice.
The Applicant informed me that he was speaking to Ms Millar two minutes before the hearing commenced. I invited the Applicant to text and/or call her to identify why the Tribunal’s calls were going unanswered. The Applicant briefly left the hearing. When he returned, he informed me that Ms Millar was in an “emergency phone call” and needed to reschedule the hearing.
The Applicant was observed to be calm and able to communicate directly with the Tribunal, which was consistent with his ability at the first telephone directions hearing (with Ms Millar present) and in email correspondence. Noting that Ms Millar is not a legal representative, I elected to proceed with the hearing. The Applicant conducted himself in an appropriate and sufficiently respectful manner throughout the hearing and was able to clearly articulate his concerns with the process.
I find that the Applicant, the Respondent’s representative, and the Tribunal were all courteous to each other during the first recusal hearing which lasted approximately 45 minutes.
The claim that I privilege the Respondent and held an ex parte hearing
The Applicant claims that I granted a two-week extension to the Respondent. I granted a 3-day extension (or one business day) for the Respondent to file its Statement of Facts, Issues and Contentions.
The interlocutory hearing on summons was scheduled to occur on 16 April 2025.
On 15 April 2025, the Applicant emailed the Tribunal stating: “Both myself and [Ms Millar] are unable to attend and request to vacate due to a death and myself being diagnosed with skin cancer. I will be in hospital and [Ms Millar] will be at a funeral”.
Registry staff informed me that Ms Millar had separately informed the Tribunal of the funeral.
Registry sent the following email to parties at approximately 10am on 15 April 2025:
Dear Parties,
Member Purcell requires evidence from the Applicant regarding his diagnosis, details of his medical appointment at hospital tomorrow and an explanation why he can’t attend the hearing (via phone or video) by 4pm today, noting that the current interlocutory hearing is due to commence at 2pm tomorrow.
She will formally deal with the Applicant’s request for an adjournment at the commencement of the hearing and will proceed with the interlocutory hearing in the Applicant’s absence if there is insufficient evidence to support an adjournment.
Later that evening, the Applicant sent an email to the Tribunal attaching a medical certificate from a Dr Lim dated 15 April 2025:
To whom it may concern,
Due to [the Applicant’s] recent diagnosis of localised skin cancer, he is required to attend hospital to undertake treatment on the 16th April 2025 and will be unavailable to attend the hearing due to the treatment he will be receiving and it will impact his functional capacity throughout the day.
The Applicant also sent a separate email the same evening stating he was exhausted from a “long arduous treatment schedule” and was “unable to function let alone handle a matter as a hearing”.
On 16 April 2025, the Respondent’s representative attended the hearing as expected. He had not received a copy of the Applicant’s medical certificate, so I read out the correspondence from Dr Lim. I indicated that I would have preferred more details from Dr Lim about the Applicant’s treatment but was prepared to grant a short adjournment in the circumstances. I briefly discussed with Respondent’s representative mutual availability for the hearing to proceed the following day, noting the Easter holiday period was about to commence and I would be on leave. I also indicated the summons material was not extensive and that I intended to timetable the matter to hearing after deciding what would or would not be released to the Respondent. The interlocutory hearing on summons was adjourned to the 17 April 2025 at 11am. The recording is 7 minutes long.
On the 17 April 2025, both parties attended the hearing. The Applicant claimed that he had commenced chemotherapy and radiotherapy which meant he was unable to comply with my directions dated 1 April 2025 to identify any summons documents that he did not want released to the Respondent. I noted that Dr Lim had said it was a localised skin cancer and had not made any mention of those treatments in his letter. There is no evidence before the Tribunal that the Applicant requires chemotherapy or radiotherapy treatment.
The Applicant was courteous and respectful throughout the hearing. I decided the summons material was relevant to a fact in issue and granted the Respondent access to the material. The Applicant accepted my decision to allow the summons material to be released to the Respondent and engaged in discussions to timetable the matter to hearing.
I find that the Applicant, the Respondent’s representative, and the Tribunal were all courteous and respectful to each other during the interlocutory hearing on summons which lasted approximately 20 minutes. The Applicant engaged in an appropriate manner and communicated clearly.
I find that no fair-minded lay observer could draw the conclusion that anything I said during either the first recusal hearing or interlocutory hearing on summons could be construed as unfair, biased or that I had formed any view on the substantive issues for determination at final hearing.
The claim that I remind him of the person who sexually abused him as a child
While I consider the previous two grounds largely repetitive of claims dealt with in the first recusal decision, the final ground raised an important question about the Applicant’s ability to participate in the substantive hearing should I hear the application.
At the second recusal hearing, the Applicant said that I had “nit picked” and demanded an explanation of his chemotherapy treatment, however he did not provide any further particulars or oral submissions in relation to this ground.
Ms Millar submitted that the Applicant’s diagnosis of Borderline Personality Disorder (BPD) and Post-Traumatic Stress Disorder (PTSD) are relevant to understanding the Applicant’s position and which underpin his perception of bias and unfair treatment. She explained that his history of childhood trauma means that the Applicant is very sensitive to feeling dismissed, misunderstood, or disrespected; all of which she said are consistent with traits of BPD. She noted that standard procedural matters can result in the Applicant feeling as though he has been treated unfairly. Ms Millar emphasised that such feelings are genuinely held and deeply felt. I accept those submissions.
I indicated to the parties that I had read the joint hearing bundle and noted the report from treating psychologist Mr Peter Howell dated 25 August 2023 which states:
[The Applicant] has the cognitive capability to track questions, respond appropriately, and elaborate when necessary. However, there remain distortions in his way of interpreting events around him. This include expecting to be treated poorly by others, inferring malevolent intentions when there are none, and believing that those who have offended or disrespected him deserve to be punished. Thus, [the Applicant] does not trust others easily and thus has only a small number of people he can communicate and interact with at a more personal level. Although I am one of those people, he still reacts aggressively toward me if I present him with a view he does not accept or if I do not act in a way he considers to be in his best interests.[3]
[3] E7 of Joint Hearing Bundle, p974.
Mr Howell also noted:
Although paranoia can be viewed as part of BPD, I diagnosed [the Applicant] with PPD (Paranoid Personality Disorder) in September of 2022 because of the dominance and pervasive nature of his paranoid thoughts and behaviour patterns. He continues to meet the criteria for this condition to the present time. The criteria and PPD symptoms include: suspects (without sufficient basis) that others are exploiting, harming, or deceiving him or will do so in the future; is reluctant to confide in others because of the unwarranted fear that personal information will be maliciously used against him; interprets remarks by others as demeaning or threatening; persistently bears grudges (persistent feelings of ill will and/or resentment resulting from a past hurtful interpersonal experiences); perceives attacks on his character/reputation that are not apparent to others and is quick to react angrily or to counter attack (in some cases pre-emptive attacks); and these symptoms are in the absence of a psychotic condition. Some of the findings from psychometric testing (MMPI-2) also supported this diagnosis. These findings are cited elsewhere in this document.[4]
[4] E7 of Joint Hearing Bundle, p979.
I acknowledged to the Applicant that it is clear from the material that his childhood experiences have had a profound impact on his life. I also accept that as person sitting in a position of authority, my exercise of power or decision-making authority during procedural hearings may have triggered certain feelings for him which remind him of painful past experiences. I also accept that the hearing process will likely be difficult for him because of that dynamic. The Tribunal is mindful of the impact of people’s disability on their ability to participate and takes a flexible approach to the conduct of proceedings in the NDIS jurisdiction for this reason.
However, I am of the view that the Applicant’s feelings and perceptions would likely persist between him and any Tribunal Member who hears his application for review. In this sense, the Applicant’s feelings or perceptions are attributable to my position of authority rather than to something I have personally said or done. I do not accept that I have behaved in a way that a fair-minded lay observer could say replicates, in any way, the dynamics of childhood sexual abuse.
Conclusion
The Applicant’s concerns, individually or collectively, do not establish actual bias, nor could I find that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question(s) I am required to decide at final hearing, based on those concerns. For these reasons, the Applicant’s recusal application is refused.
DECISION
The Applicant’s recusal application is refused.
Date(s) of hearing: 31 July 2025 Applicant: Self-Represented Solicitors for the Respondent: Mr M Henry, Maddocks Lawyers
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