Khadem v Barbour

The applicant, Mr. Khadem, sought a prohibition order from the Federal Court restraining Mr. Barbour, a Senior Member of the Administrative Appeals Tribunal, from continuing to hear a review of objection decisions made by the Commissioner of Taxation. The basis for the application was that Mr. Barbour had displayed an "ostensible bias" in the hearing of the review. The proceedings before Mr. Barbour arose out of four amended assessments made by the Commissioner, which proceeded on the basis that Mr. Khadem had omitted certain amounts of income from returns of income filed for the years in question. The undisclosed interest, a small amount on an overseas bank account, was not in dispute. The primary concern was whether the comments made by Mr. Barbour, in the context in which they were made, were such to give rise to an appearance of bias. The Court found that a reasonable and fair-minded observer would, on hearing the remarks of Mr. Barbour in the context in which they were made, form the view that he had made his mind up. The suggestion that counsel should confer with Mr. Khadem was made not just once but three times in succession despite counsel indicating that he had discussed the matter with his client. The Court found that an objective observer would find it difficult in the present case to accept, after the comments which Mr. Barbour made, that he would or could change his mind after hearing further evidence from Mr. Khadem or his family. The Court ordered that Mr. Barbour cease hearing the review and that the matter be heard again by a tribunal differently constituted. The Commissioner should pay the applicant's costs of these proceedings.