JLXY and National Disability Insurance Agency

The matter before the Administrative Appeals Tribunal (AAT) concerned an application for recusal made by the respondent, the National Disability Insurance Agency (NDIA), against Deputy President B W Rayment OAM QC. The application was made at the commencement of a resumed hearing in the review proceedings.

The legal issue before the Tribunal was whether a fair-minded lay observer might reasonably apprehend that the Deputy President might not bring an impartial mind to the resolution of the questions to be decided in the proceedings. This principle is derived from established case law, including *Ebner v Official Trustee in Bankruptcy* and *Isbester v Knox City Council*, which outline the test for apprehended bias in judicial and administrative contexts.

The Deputy President dismissed the application for recusal. His reasoning was based on an analysis of remarks made during three previous telephone directions hearings. The Deputy President found that the remarks cited by the NDIA, when considered in their proper context, did not give rise to a reasonable apprehension of bias. Specifically, remarks concerning delays related to NSW State authorities and the potential need for further evidence were not indicative of a lack of impartiality regarding the substantive issues of the review. The Deputy President applied the principle that context is crucial in assessing apprehended bias, as established in cases such as *Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd*.

The application for recusal was dismissed.