Isherwood and National Disability Insurance Agency

This matter concerned an application by the Public Trustee of South Australia, as litigation representative for Isherwood (the Applicant), against the National Disability Insurance Agency (the Respondent). The dispute arose from the Applicant's request for a remitted hearing before a differently constituted Tribunal, following an earlier Federal Court decision that had remitted the matter due to a failure to afford natural justice. The core of the current application was the Applicant's apprehension of bias on the part of the Tribunal members who had made the original decision, particularly concerning adverse findings about the credibility of a key witness, Mr Wayne Allen, an occupational therapist.

The legal issues before the Tribunal were whether the apprehended bias claim was enlivened, and consequently, whether the Tribunal members should recuse themselves from hearing the remitted matter. This arose because the Applicant intended to rely on Mr Allen's evidence, including further evidence, in the remitted hearing, meaning his credibility would again be a central issue. The Tribunal was required to consider whether the reasonable perception of a possibility of lack of impartiality, rather than actual lack of impartiality, would be determinative of the apprehended bias claim.

The Tribunal acknowledged that apprehended bias does not involve a personal criticism of a decision-maker but rather focuses on the reasonable perception of a possibility of a lack of impartiality. It noted that the Federal Court had previously remitted the matter due to a failure to afford natural justice, and that the original Tribunal had given little weight to Mr Allen's report due to its reliance on the Applicant and her family's observations and a lack of functional capacity assessment. However, the Tribunal recognised that in the remitted hearing, Mr Allen's credibility would be revisited, and further evidence would be presented.

The Tribunal granted the application, finding that the apprehended bias was enlivened. The order was that the Tribunal members recuse themselves from hearing the remitted matter.