JLXY and National Disability Insurance Agency

[2020] AATA 6143

JLXY and National Disability Insurance Agency [2020] AATA 6143 (28 September 2020)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2018/6785

Re:JLXY

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:28 September 2020

Date of written reasons:        26 October 2020

Place:Sydney

The Respondent’s application for recusal is dismissed.

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

Deputy President B W Rayment OAM QC

CATCHWORDS

PRACTICE AND PROCEDURE – request for recusal - whether a fair-minded observer might reasonably apprehend a lack of impartiality – application for recusal dismissed

CASES

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; (2006) 81 ALJR 352

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Isbester v Knox City Council (2015) 255 CLR 135

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

26 October 2020

1. This application was made by the respondent at the outset of a resumed hearing in the matter. It is founded on the principle that justice must be seen to be done. The principles are well established: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (‘Ebner’), decided in the context of a judicial proceeding. As was said in Ebner at [6]:

   a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge must decide.

   A similar question arises in the context of administrative proceedings such as the present: see Isbester v Knox City Council (2015) 255 CLR 135.

2. I heard the application on 28 September 2020 at the outset of a resumed hearing in this matter. The proceedings are now taken to be dismissed and a then envisaged further hearing will now not occur. Having heard the recusal application, I dismissed it, indicating that I would give my reasons later. These are my reasons.

3. In the first of three telephone directions hearings said to be relevant, in which the Tribunal was informed by the applicant’s solicitor of delays  arising out of an application being made to NSW State authorities and which led to a delay in the hearing of this review, the respondent referred to remarks made by me at page 8, lines 15-20 of the transcript of 18 May 2020. Those remarks related not to these proceedings but to the applicant’s then pending application to the NSW State authorities. They did not relate to the future of these proceedings, as was clear from the context. Any view to the contrary would not be a reasonable apprehension of that of a fair-minded hypothetical observer. Context must be considered in relation to such a question, as was made clear, for example in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; (2006) 81 ALJR 352. Otherwise the principle will cause judges to be disqualified by reason of misunderstood remarks.

4. In the second of those telephone directions hearings, Ms Graycar, for the respondent referred to the transcript of 13 August 2020 at pages 5 and 7 when I indicated that if, when the hearing resumed, it turned out that further evidence was required, then it could be adjourned for that purpose, and expressed the expectation that such a course would probably not be necessary. A hypothetical lay observer could not reasonably apprehend anything from that remark about the independence of the Tribunal.

5. In the third telephone directions hearing, Ms Graycar referred to other remarks about whether evidence needed to be called, in the light of the fact that the NSW State authority approval had then been obtained. Ms Graycar said that she needed to call the evidence, and there was no suggestion that she could not do so. None of that suggested any lack of partiality about any issue which would arise to be determined in the proceedings.

6. None of the matters to which the respondent refers seemed to me to fall within the principles referred to in the authorities, and I therefore dismissed the recusal application.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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

Associate

Dated: 26 October 2020

Date(s) of hearing:	28 September 2020
Advocate for the Applicant:	Mr B JLXY and Ms D JLXY Side by Side Advocacy
Counsel for the Respondent:	Ms R Graycar
Solicitors for the Respondent:	Sparke Helmore Lawyers