Kazama and The CEO, National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 645
•31 March 2025
GYFF and The CEO, National Disability Insurance Agency (Practice and procedure) [2025] ARTA 645 (31 March 2025)
Applicant/s: GYFF
Respondent: The CEO, National Disability Insurance Agency
Tribunal Number: 2023/8294
Tribunal:General Member N Purcell
Place:Sydney
Date:31 March 2025
Interlocutory Decision: The Applicant’s recusal application is refused.
........................[SGD]................................................
General Member N Purcell
Catchwords
PRACTICE and PROCEDURE – National Disability Insurance Scheme – application for recusal – no actual or apprehended bias – recusal application is refused.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)National Disability Insurance Scheme Act 2013 (Cth)
Cases
Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565
FSWN and National Disability Insurance Agency [2025] ARTA 110Statement of Reasons
BACKGROUND
The substantive application before the Tribunal is an application by the Applicant pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for administrative review of a decision of the delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) made under s 100(6) of the NDIS Act on 3 November 2023. This affirmed an original decision of another delegate of the CEO made on 19 July 2023 in relation to the approval of a Statement of Participant Supports (SoPS) for the Applicant under s 33(2) of the NDIS Act. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to review this decision because it is designated a reviewable decision by s 99(1) (Item 4) of the NDIS Act. [1]
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
The Tribunal’s task in the substantive proceeding is to conduct an independent review of the delegate’s 3 November 2023 internal review decision in relation to the approval of the SoPS to determine if that decision was correct, or alternatively, the preferrable decision.[2]
[2] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]
The Respondent outlined the factual background in their submission to the Tribunal dated 17 March 2025:
7. The Applicant is 42 years old… and resides in Box Hill, Victoria.
8. The Applicant is a participant in the National Disability Insurance Scheme (NDIS). He met access for his impairments from borderline personality disorder, visual impairment, other psychosocial disorders and Asperger’s syndrome.
9. The Applicant seeks NDIS funding for the following supports (requested supports):
9.1 Consumables supports for the purchase of:
9.1.1 MSI Titan 18 HX A14VIG 18” i9 RTX 4090 Black Gaming Laptop 20th Yr Edition Titan 18 HX A14VIG-296AU
9.1.2 Apple iWatch ‘for falls and health checks;
9.1.3 Apple iPhone 16 Pro Max 1TB (Black Titanium) ‘for falls and health checks’
9.1.4 Sony PS5 Pro
9.1.5 Mobility scooter
9.1.6 Larger car
9.1.7 Single occupancy specialist disability accommodation (SDA)
9.1.8 Level 3 support coordination.
10. The Applicant also requests:
10.1.1 That plan management arrangements for SDA be changed from Agency-managed to plan managed; and
10.1.2 A permanent planner, who is experienced, qualified, trained, willing and able to work with the Applicant.
Summons issue
On 3 October 2024, the Respondent requested the Tribunal issue summons to the Applicant’s treating practitioners to produce documents. This was because the Respondent had previously proposed that targeted questions be issued to the Applicant’s treating General Practitioner and Psychologist. The Respondent had also asked the Applicant to confirm the details of his current treating Orthopaedic Surgeon, Occupational Therapist, and vision specialist. The Applicant did not consent to this process nor provide details of his current treating practitioners. The Applicant said that he did not consent to the Respondent communicating directly with his treating practitioners.[3]
[3] Respondent’s submission dated 17 March 2025 at [11].
On the 17 October 2024, I was requested to hold an interlocutory hearing on the issue after Registry received an email from the Applicant objecting to the proposed summons. In his correspondence to the Tribunal, the Applicant claimed he was at a high risk of harm if the summons were issued and disclosed highly personal and traumatic experiences which I have decided not to repeat here. He proposed:
A solution to this impasse is that [the Respondent] will be given a summary report that will confirm the diagnoses, not the whole folder which is protected by privacy and confidentiality and my wellbeing. I believe this will resolve the impasses and satisfy the interests of the NDIS request…”
The Respondent was not copied into the correspondence with the Tribunal ahead of the proposed interlocutory hearing.
On the 24 October 2024, I conducted a telephone directions hearing in the matter. The correspondence was shared with the Respondent. I heard from both parties on the request for summons. The Respondent submitted that there was insufficient information before the Tribunal regarding the nature of the Applicant’s impairments and the basis for the requested supports. The Respondent was clear that it did not seek any information in relation to the Applicant’s prior experiences of trauma which were unrelated to the impairments, conditions and requested supports that were in dispute.
The Applicant told the Tribunal he is a law graduate and raised several objections and concerns, both in relation to summons and targeted questions to treating practitioners. These matters were discussed in detail and can be summarised as follows:
(a)The time and costs involved for the Applicant’s past or treating practitioners to respond to targeted questions. The Respondent confirmed that they would cover the costs of practitioners responding to questions;
(b)Issues of confidentiality and privacy including a request that the Respondent’s representatives sign formal undertakings. The Respondent outlined its obligations pursuant to section 60 of the NDIS Act regarding the protection of information held by the Agency, the Harman principle,[4] the Australian Public Service Code of Conduct and professional duties. The Tribunal indicated it could restrict the publication or disclosure of certain information;[5]
(c)The potential impact on other legal proceedings;
(d)Media exposure; and
(e)Legal concerns expressed by treating practitioners including reputational damage if they were to share information with the Respondent.
[4] See Harman v Secretary of State for Home Dept 1 AC 280 (UK) and Hearne v Street HCA 36. Refers to an implied undertaking to a Court or Tribunal that documents obtained through compulsory processes (like summons, subpoenas, or disclosure, etc.) can only be used for the purpose for which they were disclosed.
[5] See section 70 of the ART Act.
Noting the Applicant’s disclosure of serious trauma and his suggestion for ensuring relevant information was before the Tribunal, I explored with the parties an alternative pathway to obtain relevant information. It was made clear to the Applicant that the Tribunal requires certain information to make the correct or preferable decision in the substantive application.
The following directions were made:
The Tribunal directs:
1.On or before 1 November 2024, the Applicant must provide to the Tribunal and the Respondent the Applicant’s orthopaedic surgeon and ophthalmologist’s full name, workplace name (clinic or hospital) and email or phone number or advise that he does not intend to provide that information.
2.On or before 11 November 2024, the Respondent must provide to the Tribunal and the Applicant:
a. A draft of all targeted questions for the Applicant’s treating practitioners.
b. A written authority intended for the Applicant to sign, so that the Respondent can send targeted questions to the Applicant’s treating practitioners subject to the following directions.
3.On or before 25 November 2024, the Applicant must provide feedback to the Respondent and the Tribunal about the draft targeted questions or advise that he does not seek to provide feedback.
4.On or before 2 December 2024, the Respondent is to consider the Applicant’s feedback (if any), edit any question if the Respondent considers it is appropriate to do so and provide a copy of final targeted questions to the Applicant and the Tribunal.
5.On or before 6 December 2024, the Applicant must either provide a signed written authority to the Respondent so that the targeted questions can be issued to his treating practitioners or advise he does not intend to sign the authority.
I informed the parties that I expected compliance with my directions because additional information was required before the matter could proceed to hearing. The Applicant was also informed that he did not have a veto over the Respondent’s targeted questions and that the relevant legal threshold was a relatively low one for the purpose of issuing summons.
Relevantly, the principles informing the issuing of a summons and inspection of summonsed documents before the Tribunal were considered in Re Panagiotou and TNT Australia Pty Ltd [2011] AATA 565 (Panagiotou) where Deputy President Forgie stated:
[19] A summons issued by the Tribunal has many similarities to a subpoena issued by a court. Both compel either a person to give evidence or produce documents or things for the purpose of, in the case of a subpoena, a court and, in the case of a summons issued under the AAT Act, the Tribunal to carry out its functions. Failure to comply with either a subpoena or a summons is an offence. Other parties to the action or matter in which a party requests that a subpoena or summons be issued may object to their being issued. Those to whom they are addressed may object to complying with them.
[20] Whether a subpoena or a summons, it is usually issued without question in the first instance. That assumes that there is no reason from the description of the documents or the identity of the person to be summonsed to question the relevance of the documents to the issues to be decided in the particular court or tribunal proceeding.
…
[24] The fact that any applicant must face when applying for review of a decision in the Tribunal is that things that are personal to him or to her must be revealed if they are relevant to the issues raised by his or her application. This case provides a very clear example. Mr Panagiotou may well regard matters relating to his health as personal to him as do most, if not all, people. That does not make them irrelevant to the issues that must be decided on his application. Mr Panagiotou cannot control what the Tribunal regards as relevant and nor can TNT. Only the Tribunal can do that.
[25] What the Tribunal regards as relevant when it is actually reviewing a decision may be different from what it regards as relevant when it issues a summons. When reviewing a decision, it must have regard only to evidence or material that it actually regards as relevant. When it is issuing a summons for documents or material, it requires only that they appear to have relevance to the issues to be decided. That is, it may issue a summons requiring their production if they can reasonably be expected to throw some light on the issues that will have to be decided in reviewing the decision. (Emphasis added).
The Tribunal is satisfied that it heard from both parties on the issue of summons, with the Applicant afforded substantial opportunity to voice his opposition. The Tribunal avoided making a determination on the interlocutory question at the time because the Respondent did not press for the issuing of summons and both parties agreed to an alternative course of action to obtain relevant information.
On the 10 February 2025, the Respondent emailed the Applicant and the Tribunal, requesting that the Tribunal issue 8 summons to produce documents to the Applicant’s current or former treating practitioners. The email provided an outline of procedural steps taken which included:
(a)The provision of draft targeted questions and written authority to the Applicant on 8 November 2024; and
(b)The provision of updated draft targeted questions and updated written authority to the Applicant on 27 November 2024.
The Respondent further stated in their email:
On 27 November 2024, the Respondent provided updated targeted questions and an updated written authority to the Applicant. The Respondent amended the draft targeted questions and written authority following requests from the Applicant to remove Vida Therapies and add his Orthopaedic Surgeon (Sports Orthopaedic Centre) and Mental Health OT (Mental Health OT Online).
On 7 December 2024 the Applicant amended the written authority provided by the Respondent to remove the names of two occupational therapists, and insert conditions that those occupational therapists will be “withdrawn from the list” and “Consumables will be restored back to plan management permanently.”
On 10 December 2024 the Applicant said “hence I ask that the consumable be immediately restored back to plan management and I will sign your agreement”.
As stated in our email dated 12 December 2024, the Applicant has not provided his signed written authority. The Applicant has not complied with the Tribunal’s directions. The Respondent again respectfully requests that the Tribunal considers issuing summons for the production of documents to the Applicant’s practitioners.[6]
[6] Respondent’s submissions dated 17 March 2025.
On 10 February 2025, the Applicant emailed the Tribunal stating:
Vida therapies is not consented, its clear to me English is a difficult language for Ms Sparks and should return to kindergarten and learn a bit of common sense. Secondly we are still dealing with each other and its not resorted to this which is oddly as the previously stated. I strongly decline and request you not to grant them until a further hearing is heard and shown to you. I have emails shown an agreement was made and they have not been forthcoming and honest with their dealings which is why i have been a bit more distance (also due to an infection on my hip replacement i landed back to hospital) plus my mental health issues.
…
On 11 February 2025, noting the Tribunal’s statutory objectives contained in section 9 and the powers conferred by section 74 of the ART Act, as well as the elapse of almost 4 months since the directions were issued, I made the following order:
Order: The Respondent’s request dated 10 February 2025 for the Tribunal to issue 8 summons to the Applicant’s past and present treating practitioners is granted.
Reasons: The Tribunal notes that following a directions hearing on 24 October 2024, the Applicant was offered an alternative pathway to provide relevant information to the Tribunal through the issuing of targeted questions by the Respondent to the Applicant’s treating practitioners. The Tribunal is satisfied from the email correspondence dated 10 February 2025 from the Respondent and Applicant that the Applicant has declined to sign an authority permitting the Respondent to obtain responses to targeted questions from his treating practitioners.
On the 12 February 2025, I approved the issue of summons to the following 8 service providers, with the return of material due on 12 March 2025. The scope of the summons was for a period of just over 3 years:
(a)Access OT Services
(b)AQA Victoria Ltd
(c)Guardian Medical Burwood
(d)Mental Health OT Online
(e)Psychologist Peter Howell
(f)LDS Family Services
(g)Sports Orthopaedic Centre
(h)Vida Therapies
On the 12 February 2025, the Applicant emailed the Tribunal as follows:
There has been no mention of a deadline and whom has been supposedly approach the parties involved. Yet I have been doing it the best i can with my limitation with my mobility issues and all. I plead to the registered not to entertain and indulge with there bullying tactics and bullying way. Thanks to them I attempted to kill myself and that was because nothing or consistency was ever sought. I got a chain of evidence that shows no proper communication but thankfully i have been doing the leg work and nearly completed
I am extremely annoyed and upset with the standard they are playing and a dangerous precedent. As mention previously the last two lawyers has been referred to the disciplinary board for professional misconduct and i am alert to the way this is being handled and request the board to follow and remind them of the standard they are to be following. Pushing a disabled person to attempt suicide is beyond unprofessional.
On 12 February 2025, the Applicant sent a second email to the Tribunal as follows:
Dear Registered and all involved
I need to make it clear this is why my professional had a problem in the first place about the summons. The targerted (sic) questions was agreed upon as it will limit the scope of the questioning and not a fishing expedition. The fact that [the Respondent’s representative] is now demanding a summons when no mention whom, or when the information was to be sent back ever. I spoke to all professionals and they have not received the target questions only till i gave it to them. This is why i am asking for another 2 weeks so i can conclude the professionals answering the questions and includes the invoices with the questions. That is reasonable and fair and agreed upon. NOT THE SUMMONS. Its becoming beyond bullying and i ask that please do not indulge them with their mental gymnastics.
On 12 February, the Applicant sent a third email to the Tribunal:
Dear Registry and member Purcell
I am writing to you in expressing my serious concerns in the approval when we are still in the process of completion of the targeted questions. The requests has various issues that has been stated very clear to… the lawyer representation for NDIS and that certain people aren't available and refuse to get involved but yet he is forcing his weight through. I plead to you to reconsider it and rescind the approval immediately as the targeted questions are being answer and invoices and responses are due to given in due to time. [The Respondent’s representative] is just impatient and just outright wrong to request this. Furthermore they have breached the early parts of the agreement that the consumable has been return back to agency managed when they have been told otherwise. They promise to give a tutorial and all before anything else and yet they punish me without proper justification like this move which i believe is unfair, lack of due process and breach of standard of the tribunal.
…
On 20 February 2025, the application for review was constituted to me due to the need for ongoing case management and to progress the matter towards hearing.
On 21 February 2025, the Respondent updated an address for service and requested the re-issuing of a summons to Mental Health Occupational Therapy Online, which I approved.
On 26 February 2025, the Applicant wrote to the Tribunal:
I am writing to address the current situation involving the granted issues of the summons of documentation. First of all we formally object to this as its broadly written and give rise to potential issues that can be foreseen and highly prejudicial to our cases and gives a highly advantage on the NDIS team.
The fact that they wrote it so broadly suggests they are more in their intention and I cannot trust them. As recently I found out some from [the Respondent’s representative’s] office call my GP clinic and threaten the with jail and being arrested if they don’t hand the records over.
…
Please read below my formal objection to the subpoena and request a hearing to heard their justification when I am half way with the targeted questions. They never gave deadline or who to be doing it. I gave them invoices and reports already and they act like this without notice is unfair and lacks procedural fairness and due process…
On 10 March 2025, Sydney Registry staff informed me that there had been a delay sending out the summons. The return date for material was subsequently changed to the 26 March 2025.
RECUSAL APPLICATION
On 6 March 2025, the Applicant wrote to the Tribunal as follows:
I am writing after careful consideration and reflection I list the following for the reasons for my urgent request for it under truth, integrity, justice and fairness.
1.Member Purcell is biased and constantly abhorrently agrees to the opposition without grounds of justification for their request e.g. the summons: it is way beyond broad and a reasonable member would at least question the legitmacy
2.Member Purcell is heavily influence by their interest with NDIS despite the danger and harm placed on the applicant. Reports have been given to her/him and they have not acted within the professional scope to prevent harm on the applicant. The member has been solely interested to servve the interest of NDIS and [its legal representative] which is not within the scope of judicial fairness, highly prejudicial and just wrong. If member purcell read and understood the documentation given they would have realize the information has been given over substantial times to the opposition and granted the summon just proves she / he have not done their homework or read the report as stated
3.I urgently request the member purcell be removed immediately and a new member be replace with fresh eyes and be non biased. I cannot have a fair trial with member purcell being involved.
4. I can be reached by my usual contact
5.People have raised serious concern about the opposition behaviour and yet Member purcell has not condemned them because bystanders have gotten involved and NDIS refuse to respond. So this is the professional group who looks after disabled people.
6. Lee please add your opinion
Kind Regards
[the Applicant]
On 8 March 2025, an individual by the name Andrew Smith wrote to the Tribunal, seemingly on behalf of the Applicant:
Dear Member Purcell
I am writing to notify you to notify you of the outcome of your action. Despite our efforts and actions to protect [the Applicant]. He had attempted to harm himself because of the stress, mental harm, physical harm and psychological damaging. I hope you are happy of the outcome for not being fair, procedurally accurate, no integrity, and harmful to the disabled people. I personally would like to thank you to setting back disabilities right by 200 years because of you defending NDIS without justification.
…
I am disappointed in you Member Purcell you should have heeded the warning given by [the Applicant] when he told about this. When are you going to listen? Until [the Applicant] dies successfully?
We request that if you are going to continue on your pathway of protecting NDIS, we request you to be removed immediately as you were factor of [the Applicant’s] self harm. Do you realize after you granted them permission they called and threaten professionals staff and professionals to traumatised them. [The Applicant] is so scared to losing his professional’s he has established for over 25 years and no one has done anything against them for professional misconduct. If you were to remain on the case we expect you to act more sternly and fairly against the [Respondent’s representatives] in particularly about how they have been behaving.
…
On top of the OD on Lithium, Metoprolol and Valium. He attempted to slice himself with a knife from the stress of failing. [The Applicant] has worked very hard and does not need a member who is biased, judgemental and outright crude and harsh. I request that you get replaced and find someone with mental health capacity experience and able to read reports properly not just skim it. We need someone with skill resolution in problem solving not judgemental backstabbing behaviour. We have zero confidence in you, and request a replacement urgently. If you do feel after reading the report and see how sensitive and dangerous the game [the Respondent’s representatives] is playing then you would understand why we are so angry and upset with you directly for allowing this to happen. Granting them the subpoena was opening the flood gates to harm [the Applicant’s] mental and physical health.
On 10 March 2025, I listed an interlocutory hearing on 21 March 2025 to determine the recusal application. The parties were directed as follows:
1. On or before 17 March 2025, the Applicant may file any further submissions he seeks to rely on in support of his application for the Member to recuse herself; and
2. On or before 17 March 2025, the Respondent may file any submissions in relation to its position on the recusal application.
The parties were further advised in email correspondence that a separate interlocutory hearing would be listed to hear the Applicant’s objection to summons documents being released to or inspected by the Respondent after the material was returned. The parties were informed a hearing would be heard by either myself, if the recusal application was not successful, or another Member.
On 12 March 2025, Andrew Smith again wrote to the Tribunal. The sections relevant to this application include:
It didn’t help with Member Purcell being biased and unreasonable where I had shown the subpoena she approved was unseen for and not within purview of the rules and guidelines she ought to know. Hence why we want her removed URGENTLY, we have no confidence in her and her role as a member, she remains [the Applicant] will suffer collateral damage because of her, and she is a playing a dangerous game that will cause significant harm to [the Applicant’s] mental and physical well being.
…
I respectfully ask both Member Purcell and the CEO to do their job and prepare to pay the substantial amount owe to use for doing a job that should have been easy… I strongly suggest Member Purcell learn about disabilities and how they are unpredictable. Your treatment to [the Applicant] has been nothing but disgusting and outright shameful and contemptuous.
…
The pressure and constant bullying from [the Respondent’s representatives] has made it unbearable and selfharming himself was the only option after when Member Purcell made it clear she was on their side when you read the notes, they have 4 years worth of notes and reports and yet they are unable to do anything and see for the need for the OT.
…
Member Purcell and CEO I ask you to have some time put aside and read how bad [the Applicant’s] mental health is… The summons could have been avoided if they actually picked up the reports and read it properly but they couldn’t bother and wanted to make it harder for everyone else because they are that sadistic. I warn you both especially you CEO that you have blood on your hands already from [the Applicant’s] suicidal attempts that he tried to slice his throat. This is why we are asking for someone who has a brain cell that understands mental health but clearly beavis and butthead head have zero clue a bout mental health and making it worse for all and including harming [the Applicant] I the process. As we count it has been 42 times now he has attempted to self harm himself because of NDIS.
The Applicant also sent a lengthy email to the Tribunal on the 12 March 2025:
…An impartial member would read all the documentation the NDIS has and see what has been provided…
…
This is why I have serious fears of your impartiality and I ask you to act upon this email and assure the following is at least completed:
1. The targeted questions they never gave a due date or time when expected. They should stick to that and give people the time to answer honestly and openly not pressured and demanded like a spoiled child.
2. The AT needs to be approved urgently…you have a situation that a patience (sic) attempt self harm 47 times, has no family and people contribute so much time and [the Respondent’s representative] is refusing to pay the overdue invoice of 4 years over 2021 hours totaling up to 900k
3. Member Purcell I ask that before you believe the NDIS version you should read all the documentation given to them from day 1. I will show you how misleading they are and cruel, harsh and difficult intentionally.
4. My professional are so freaked out from anyone calling from the NDIS as they are throwing threats of jail if they don’t complied. I am this close to losing my support team and that would kill me if I do lose my support team. [Name redacted], I need you to put a stop with the phone call as its becoming harassment from Maddocks who is representing NDIS. The professional staff are all over 60 years old, they do not need to be threaten to be thrown into jailed by contempt.
5. We need the AT urgently approved, please speak to Lee and she will tell you how far we have gone with them [the Respondent’s representatives] that nothing was achieved. I do not want to be evicted out of University. They are paying my course as a dean list of student excellence.
…
Member Purcell I am not asking you to do the impossible but what is fair and reasonable.
The Applicant emailed the Tribunal on the 15 March 2025. I am satisfied there is nothing in that correspondence that is relevant to the current application for my recusal.
During the interlocutory hearing on 21 March 2025, I explained relevant legal principles regarding actual or apprehended bias to the Applicant and said it was my understanding that he asserted the following key grounds for my recusal:
(a)That I am biased by agreeing to issue the summons requested by the Respondent and permitted a scope that is too wide, namely a 3-year period.
(b)That I serve and defend the interests of the NDIS and have not condemned the behaviour of the Respondent nor its representatives. I have also permitted bullying and intimidation of the Applicant and his past or current treating practitioners by the Respondent and its representatives.
(c)That I am unfair, judgemental, crude, and harsh.
(d)That I have caused harm to disabled people, set back disability rights by 200 years, and need to learn about the impact of disability on peoples’ lives.
(e)That I have harmed the Applicant by causing him to self-harm and my continued involvement in the matter poses a risk of further harm to the Applicant.
(f)That I’m not doing my job.
The Applicant was invited to identify and/or clarify any further grounds and make oral submission in support of his application. He raised several matters including the provision of previous reports and whether the Respondent had sufficient regard to existing evidence. I explained to the Applicant that evidentiary matters will be properly considered at the final hearing.
I am satisfied the matters identified in paragraph 33 encapsulate the identified grounds, noting more general complaints about the Respondent and/or its representatives are not relevant to the question of my recusal. These matters may be considered through regular internal complaint processes and/or at the time of substantive hearing, if sufficiently relevant to a fact in issue.
The Respondent did not make any substantive oral submissions at the hearing.
LEGAL PRINCIPLES
The legal principles relevant to ascertaining if a decision maker is affected by actual bias or if their conduct gives rise to an apprehension of bias were properly distilled in the recent decision of FSWN and National Disability Insurance Agency [2025] ARTA 110, outlined below with citations omitted.
16.The principles that apply in ascertaining if a decision-maker is affected by actual bias may be summarised as follows:
i.Actual bias will be found where it is established that a decision maker has a ‘pre-existing state of mind which disables the decision-maker from any proper evaluation … relevant to the decision to be made,
ii.The question for determination in an actual bias application is whether there is bias in fact,
iii.A finding of actual bias is a grave matter. The ‘wrong’ involved is the failure to decide a case impartially, contrary to the oath of office, and the rule of law,
iv.An allegation of actual bias is therefore serious. It must be distinctly made. It should not be made lightly,
v.The onus of demonstrating actual bias lies on the Applicant, and it is a heavy onus. The allegation must be clearly proven. Cogent evidence is required,
vi.An actual bias claim requires an assessment of my state of mind and actual views, by reference to what I have said or done. Actual bias is not confined to an intentional state of mind. Bias may also be subconscious provided it is real,
vii.Actual bias, like any other conclusion of fact, may be established as an inference from circumstances. For example, an inference of actual bias may be drawn if I have acted with such partisanship or hostility in relation to the Applicant’s case as to show that I have made up my mind against the Applicant and am not open to persuasion in her favour, or, put another way, that my conduct has been quite inconsistent with the fair performance of my duty.
17.The principles that apply in ascertaining if a decision-maker is affected by an apprehension of bias may be summarised as follows:
(i)the proceedings will be affected by an apprehension of bias if a fair-minded lay observer or bystander (the bystander) might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions that the decision-maker is required to decide,
(ii)the test is one of “possibility”, but it must be established that there is a real, rather than remote, possibility that the decision-maker would not bring an impartial mind to the issues to be determined. Nevertheless, it is not necessary to establish that it is likely or probable that the decision-maker would not bring an impartial mind to the issues to be determined,
(iii) in practice, the application of this test involves the following steps:
(a)first, the Applicant must identify what it is that might lead the decision-maker to decide the outcome of the review other than on its factual and legal merits,
(b)second, the Applicant must articulate the logical connection between the matter suggesting bias and the feared deviation from the course of deciding the review on its merits,
(c)then, having regard to the matters identified in step 1 and 2, the Applicant must establish how an apprehension of bias arises from those matters.
(iv)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,
(v)a decision maker should not automatically or too readily accede to an application that he or she is subject to a reasonable apprehension of bias and so recuse himself or herself too readily from hearing a matter. Although it is important that justice must be seen to be done, it is equally important that decision makers discharge their duty to sit and do not, by acceding too readily to suggestions of the appearance of bias, encourage parties to believe that by seeking their disqualification, they will have their case determined by someone thought more likely to decide the case in their favour,
(vi)As the test is objective, it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. In the case of actual bias, the actual state of mind of the decision maker is in issue. In the case of apprehended bias, the focus is on the apprehension of the bystander. The latter test is usually easier to satisfy,
(vii)the actual thought processes of the decision maker need only be enquired into in deciding whether the decision maker has been actuated by actual bias. Application of the apprehended bias test requires no prediction about how the decision maker will in fact approach the matter,
(viii)an oath of office is not an answer to a claim of apprehended bias, although it is a matter which the bystander may consider. As the rule is concerned with appearance of bias, and not the actuality, it is the perception of the bystander that provides the yardstick – it is the public’s perception of neutrality with which the rule is concerned,
(ix)The bystander may have regard to the cumulative effect of factors. Later statements may serve to reinforce an impression created earlier. Similarly, any statement by a decision maker which qualifies, corrects, dispels, or clarifies what has been said on a prior occasion may be considered by the bystander, and may operate against a finding of apprehended bias. However, circumstances may exist where the appearance of bias is ineradicable.
The Respondent also set out the relevant legislative framework under the Administrative Review Tribunal Act 2024 (Cth) (ART Act) in its submissions (footnotes omitted):
35. Section 37(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that the President may direct that a member or members constitute the Tribunal for the purposes of a proceeding in the Tribunal.
36. ‘Proceeding’ is defined in s4 of the ART Act and includes ‘a proceeding in the Tribunal in relation to … (a) an application for review of a reviewable decision’. When so directed, a member has a duty to hear and determine an application for review. That duty is however constrained by a fundamental tenet that a review will be heard and determined by an independent and impartial tribunal.
37. Section 43 of the ART Act allows the President to reconstitute the Tribunal that is, alter the members who will hear the matter, at any time before the proceedings start. This section is equivalent to that of s19D(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
38. Section 46 of the ART Act allows the President of the Tribunal to reconstitute a matter at any time after the start of the hearing of a proceeding if they are satisfied that a member has a conflict of interest or an actual or apprehended bias. This provision was added to promote the objective of the Tribunal, including providing a method of review that is fair and just, and promoting public trust and confidence in the Tribunal.
39. ‘Hearing of a proceeding’ is defined in s4 of the ART Act and does not include a directions hearing in relation to the proceeding.
40. An interlocutory judgement is not one that finally determines the rights of the parties. When a judge presides over interlocutory disputes, they have a positive duty to make findings of fact and reach conclusions based on those findings. This is not the same as final determination of the parties rights.
41. If the President is satisfied that a member has a conflict of interest or actual or apprehended bias before the hearing has commenced, the President may also reconstitute the Tribunal under s43 of the ART Act. A specific power is not required in those circumstances because s43 allows the President to reconstitute the Tribunal at any time before the start of the hearing.
42. Actual bias or an apprehension of bias will require a presiding member to recuse themselves for the purpose of a proceeding.[7]
[7] Respondent’s written submissions re Recusal Application dated 17 March 2025.
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 that I am biased by agreeing to issue the summons requested by the Respondent and permitted a scope that is too wide, namely a 3 year period.
The Respondent was clear that issues of past trauma are not relevant to the current dispute over supports and associated impairments and I accept this to be the case. I do not accept the claim that the scope of the summons is too wide, noting summons requests and issued summons are routinely confined to between 2 to 5 years, depending on the fact in issue.
I am satisfied that each party had an opportunity to present their case with respect to the summons issue during the directions hearing and that the Applicant was on notice that the legal threshold is very low with respect to issuing summons at first instance. I am also satisfied that the Applicant understood that the alternative pathway to obtain relevant information was negotiated to avoid the Tribunal having to make a formal decision on summons at the directions hearing.
The Applicant’s advocate acknowledged during the directions hearings that the Applicant was requesting significant supports, including the purchase of a car, which naturally requires cogent evidence, such that the Tribunal could be satisfied that the relevant criteria under section 34 of the NDIS Act are met with respect to each requested support. The Applicant was afforded a substantial opportunity to avoid the issuing of summons but did not comply with my directions or provide a reasonable explanation for his failure to comply. The Respondent must also be afforded an opportunity to present its case at hearing and assist the Tribunal to make the correct or preferable decision by ensuring all relevant information is before it.[8] I am satisfied that the Respondent complied with my directions and attempted to progress the matter through the issuing of targeted questions to the Applicant’s past and present treating practitioners, as agreed by the parties at the directions hearing.
[8] See sections 55 and 56 of the ART Act.
I consider it was appropriate to issue summons in circumstances where the application had not substantially progressed over a 4-month period, despite discussing various matters at length during the directions hearing and my clear directions to ensure relevant information was before the Tribunal prior to final hearing. I am also satisfied that the Applicant has a further opportunity to object to the release of all or some documents obtained under summons to the Respondent.
There is no apparent nexus between my preparedness to issue summons in the circumstances outlined above and a conclusion of actual or apprehended bias, noting that directions hearings and interlocutory hearings are focused on case management and preparation so that applications for review can be properly and fairly determined at hearing, in accordance with section 9 of the ART Act. I accept that the Applicant does not like my decision to issue the summons to his past or present treating practitioners, and that is understandable given that I have exercised a power which permits access to very personal information. However, that does not mean that I am biased against him or that there is a risk I will bring a closed mind to issues to be determined at final hearing. The hearing to review the decision in relation to the disputed supports will be subject to the available evidence, including attributing weight to different evidence, making finds of fact, and applying the legislative criteria and any relevant rules. It is certainly possible that some of the information obtained under summons will be relevant and therefore assist me with my statutory task. Such relevant information may well support a finding in favour of the Applicant in relation to one or more of the requested supports. Conversely, it may not. The question of whether those materials may be helpful or harmful to the Applicant’s case is irrelevant to the decision to issue summons in the first instance.
I do not accept that my decision to issue summons demonstrates actual bias or causes an apprehension of bias.
The claim that I serve and defend the interests of the NDIS, have not condemned the behaviour of the Respondent nor its representatives and/or permitted bullying and intimidation of the Applicant and his past or current treating practitioners by the Respondent and its representatives.
I have no professional or personal affiliation with the Respondent nor its representatives. Whilst I cannot exclude the possibility that the Respondent’s lawyer may have appeared before me in another matter, to my knowledge, I have not had any substantive interaction with the Respondent’s lawyer beyond the directions hearings on 24 October 2024 and the subsequent recusal hearing.
During the directions hearing, I was courteous to both parties and afforded considerable time for the Applicant to express his concerns about the proposed summons. I adopted a pragmatic and problem-solving approach to ensure relevant information was before the Tribunal whilst being sensitive to the Applicant’s concerns and personal disclosures.
I spent approximately 1 hour and 20 minutes with the Applicant and the Respondent’s representatives during the telephone directions hearing. The Applicant claimed that he had made formal complaints about previous lawyers and case managers. Noting that the Tribunal is not an arbiter of the conduct of the Respondent nor of the parties’ interactions with each other during case conferencing, it would be improper for me to express any view about the behaviour of either party unless there was cogent evidence before me. I make no finding about the behaviour of either party or the interactions between them prior to my involvement, save to say that there was nothing about the behaviour of either party during the directions hearing to cause me any concern.
There was no corroborating evidence filed in relation to the allegation that the Respondent’s lawyers intimidated or threatened treating practitioners with jail time. I am satisfied that treating practitioners and/or their staff can access legal advice through their own professional associations or insurance policies and/or can make a complaint to the Respondent or its representatives if they so wish.
I find that I have been courteous and fair to both parties.
The claim that I am unfair, judgemental, crude, and harsh.
Noting the tenor of the directions hearing mentioned above, this claim is a bare assertion made without evidence.
Having listened to the directions hearing in its entirety, I consider that no fair-minded lay observer could draw the conclusion that anything I said during the directions hearing could be construed as unfair, judgemental, crude, or harsh or that I had formed any view on the substantive issues for determination at final hearing. I was appropriately flexible in my approach to the question of how to ensure relevant information was before the Tribunal. The Applicant’s advocate indicated to the Applicant during the directions hearing that she could see I was trying to be flexible and work with him. I have not had any other interaction with the Applicant outside of the directions hearing and the recusal application hearing.
I find the allegation baseless.
The claim that I have caused harm to disabled people, set back disability rights by 200 years, and need to learn about the impact of disability on peoples’ lives.
I understand this claim to infer that I am generally biased and/or prejudiced towards people with disability and that I am ignorant of the individual challenges and social barriers facing people with disability.
This is a serious allegation which would require detailed particulars and cogent evidence. I am satisfied that there is simply no ground for this assertion in anything I said during the directions hearing or in the decision to issue the summons that could give rise to any misapprehension about a negative or hostile attitude towards people with disability, individually or collectively.
The claim that I have harmed the Applicant by causing him to self-harm and my continued involvement in the matter poses a risk of further harm to the Applicant.
This claim is a bare assertion without evidence, noting that I have had very limited interactions with the Applicant, all of which were recorded and courteous.
I accept that the Applicant does not like my decision to issue summons and this caused him frustration, however I do not accept that this rises to a level of harm, or in the alternative, that I am responsible for any self-harm inflicted by the Applicant. For the same reason, I do not accept that my continued involvement in the substantive matter poses a risk of harm. The Applicant was encouraged to engage with his treating mental health practitioners and to contact emergency services if at any point he felt he wasn’t coping.
The claim that I’m not doing my job.
My job is to conduct independent reviews of administrative decisions. The parties have been afforded an opportunity to resolve the matter between themselves. As they have been unable to resolve the dispute, I am appointed to impartially hear and determine the application for review by making findings of fact and applying the relevant legislative provisions at final hearing.
To ensure I have all the relevant information to make the correct or preferable decision, the Tribunal is empowered to give directions to the parties and to make interlocutory decisions to progress the matter, such that the application for review is ready for hearing. The Tribunal’s statutory objectives in section 9 of the ART Act inform and guide this process. Such pre-hearing processes must be fair, however they do not determine the parties’ rights, which are decided at final hearing.
I am content that I am performing my pre-hearing case management role and that my decision to issue summons may assist me to make the correct or preferable decision at hearing if relevant information is produced.
Conclusion
I find there is no logical connection between those matters raised by the Applicant outlined above, either individually or cumulatively, and the Applicant’s assertion that I may decide his matter otherwise than on its legal and factual merits. The Applicant’s concerns 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: 21 March 2025 Applicant: Self-Represented Solicitors for the Respondent: Mr M Henry, Maddocks Lawyers
1
4
0