JWVH and National Disability Insurance Agency

[2022] AATA 989

JWVH and National Disability Insurance Agency [2022] AATA 989 (3 May 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:2020/2296          

Re:JWVH  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

INTERLOCUTORY DECISION

Tribunal:Senior Member K. Parker

Date of Interlocutory Decision:           3 May 2022

Place:Melbourne

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

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

Catchwords

PRACTICE AND PROCEDURE – deemed recusal application – National Disability Insurance Scheme – Applicant asserts Senior Member constituted to hear this application is biased in favour of the NDIA and against her – no actual or apprehended bias – Senior 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

3 May 2022

INTRODUCTION

1. The Applicant, JWVH, is an adult participant of the National Disability Insurance Scheme (NDIS). This application was lodged by JWVH on 17 April 2020 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), in relation to an earlier decision by the NDIA to approve a statement of participant supports (SOPS) forming part of her NDIS plan.

2. On 12 November 2020, the Tribunal (differently constituted) remitted this matter pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). During the remittal, the NDIA made a decision on 17 November 2020 to approve a new SOPS for JWVH, with a review date of 17 November 2021. Pursuant to s 42D(4) of the AAT Act, the remittal decision made on 17 November 2020 is taken to be the reviewable decision in this proceeding (Decision Under Review).

3. This application has been listed for a final hearing on 26 May 2022. The background in relation to complex and protracted procedural matters which have arisen in this application, is set out in the following interlocutory decision made by the Tribunal as presently constituted on 25 January 2022 (Interlocutory Decision): JWVH and National Disability Insurance Agency [2022] AATA 82 (25 January 2022) APPLICATION

4. On 11 March 2022, JWVH informed the Tribunal in writing about her intended voluntary admission to the psychiatric facility for a four-week inpatient stay. In this correspondence, JWVH also informed the Tribunal of her intention not to participate in this proceeding if it was conducted by the Tribunal as presently constituted.

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

6. The Registry of the Tribunal notified the parties in writing that I would hear and decide the Recusal Application at 2pm on 27 April 2022 (Recusal Hearing). JWVH did not attend the hearing of the Recusal Application due to her decision not to participate in this proceeding if I would be conducting it. I proceeded to address JWVH’s Recusal Application at the Recusal Hearing.

7. The NDIA lodged written submissions with the Tribunal on 13 April 2022 stating that its position in relation to the Recusal Application was “neutral”.

8. JWVH lodged further correspondence with the Tribunal on 27 April 2022 reiterating her reasons outlined in her email of 11 March 2022.

9. At the Recusal Hearing, the NDIA did not make any further oral submissions in relation to JWVH’s Recusal Application. The NDIA pressed an application that the Tribunal dismiss this application for review entirely, on account of JWVH’s non-attendance at the Recusal Application. At the Recusal Hearing, the Tribunal informed the NDIA that it does not consider it appropriate to grant its dismissal application in light of JWVH’s disability which includes impairments to her mental health function.

   GENERAL PRINCIPLES

10. 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, in the NDIA’s submissions dated 13 April 2022, as follows:

    RELEVANT PRINCIPLES

    Actual Bias /Apprehended Bias

    12. 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

    13. A decision-maker must not hear a case where he or she is biased against one of the parties.[1] 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.[2]

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

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

    14. 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.[3]

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

    Apprehended Bias

    15. 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.[4] 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.[5]

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

    [5] 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].

    16. 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.[6]

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

    17. 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.[7]

    Obligation to Hear Cases

    18. 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.[8]

    19. 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.[9]

    20. 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.[10]

    Preliminary Views

    21. 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.”[11]

    22. 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.[12]

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

    [8] 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].

    [9] 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.

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

    [11] (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.

    [12] 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

11. Returning to the circumstances of this particular case, the Tribunal notes that in correspondence dated 11 March 2022, JWVH states that the comment I made in paragraph [29] of my Interlocutory Decision, about an assessment of JWVH’s ability to write to the Tribunal and provide a 209-page written submission, was “ignorant and wrong”. Paragraph [29] of my Interlocutory Decision is reproduced below:

    The Tribunal observes that JWVH has prepared a 209-page document and JWVH’s Letter, comprising a further 11-page letter, both sent to the Tribunal by email on 20 January 2022, (referred to collectively as JWVH’s Submissions), comprising complex submissions and other matters including the AHRC Request. The Tribunal considers that the act of JWVH preparing the JWVH’s Submissions demonstrates that she is capable of extensively documenting her thoughts and requests. Importantly, the Tribunal considers that the complexity of the matters addressed by JWVH in her extensive submissions, far exceeds the complexity of the task being requested of JWVH to prepare a list of requested supports, likely to comprise one or two pages. The act of JWVH preparing JWVH’s Submissions also appears to be inconsistent with the medical opinion expressed by Dr J on 17 January 2022 about JWVH’s purported incapacity to participate in proceedings, and JWVH’s assertion that she is unable to independently prepare a list of requested supports.

12. JWVH made the following further statements in her correspondence dated 11 March 2022 (as relevant):[13]

    [13] 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

    …

    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, JWVH and NDIA were invited to lodge written submissions with the Tribunal in relation to the Recusal Application ahead of the recusal hearing on 27 April 2022. I have already referred to submissions that were lodged by the NDIA pursuant to this invitation. JWVH wrote to the Tribunal on 27 April 2022 and stated that she would not be participating in these proceedings if the Tribunal remained presently constituted for the reasons set out in her email of 11 March 2022.

14. The Tribunal does not consider that the above statements made by JWVH 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 JWVH. 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.

15. The findings I made in the previous Interlocutory Hearing in relation to the capacity of JWVH 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.

16. Finally, the “broad overview”, as provided by JWVH 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 JWVH, without any particularisation of the bases for each of those assertions. For that reason and after taking in account the other statements of JWVH 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 JWVH in support of the Recusal Application.

    CONCLUSION

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

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

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

Associate

Dated: 3 May 2022

Date of hearing:	27 April 2022
Advocate for the Applicant:	Self-represented. Applicant did not attend recusal hearing.
Counsel for the Respondent:	Ms Ruth Hamnett
Solicitors for the Respondent:	Ms Peta Heffernan, Australian Government Solicitor