Kollias and National Disability Insurance Agency
[2023] AATA 1470
•31 May 2023
Kollias and National Disability Insurance Agency [2023] AATA 1470 (31 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/9291
Re:George Kollias
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member P Smith
Date of written reasons: 31 May 2023
Place:Sydney
The application made to the Tribunal requesting that Member Smith who constitutes the Tribunal for the purpose of this proceeding recuse himself from hearing and deciding the Applicant’s case on the basis of actual or apprehended bias is refused.
................................[SGD]........................................
Member P Smith
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Application to the Tribunal requesting that the member who constitutes the Tribunal for the purpose of the proceeding recuse himself on the basis of actual or apprehended bias – whether the member is biased against the Applicant and his representative at Tribunal hearings – whether the member is biased against the Applicant and his representatives for allowing the Respondent and/or their legal representatives to file a functional capacity assessment report the Applicant alleges is corrupt or has been changed illegally either by the Respondent’s Occupational Therapist or by the Respondent’s legal representatives without first obtaining the consent of the Applicant – whether the member is biased against the Applicant and his representative for allowing the Respondent’s barrister to rely on the functional capacity assessment report in the proceeding and for allowing the barrister to refer to the contents of that report at the hearing while cross-examining the Applicant – whether the member is biased against the Applicant and his representative for not disciplining or reprimanding the Respondent and/or their legal representatives for lodging with the Tribunal the functional capacity assessment report of the Respondent’s Occupational Therapist - whether the member is biased against the Applicant and his representative for not calling one of the Applicant’s witnesses back – whether the member is biased against the Applicant and his representative for making a comment in response to a request from the Respondent’s solicitor calling for discipline regarding the Applicant’s representative – whether the member is biased against the Applicant and his representative for asking the Respondent if they objected to the Applicant’s request to issue summonses but not asking the Applicant the same when the Respondent wanted to issue summonses - recusal principles – application refused
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth), ss 33, 33(2), 34, 100(6)(a)
Administrative Appeals Tribunal Act 1975 (Cth), s 37CASES
GMXV and National Disability Insurance Agency [2022] AATA 505
JWVH and National Disability Insurance Agency [2022] AATA 989
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gascor v Ellicott [1997] 1 VR 332
Hodgson v County Court of Victoria [2004] VSC 501
Webb & Hay v R (1994) 181 CLR 41
Johnson v Johnson (2000) 201 CLR 488
AJH Layers v Careri (2011) 34 VR 236
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
Honda Australia Motorcycle v Johnstone [2005] VSC 387
Clenae v ANZ Banking Group [1999] 2 VR 573; [1999] VSCA 35
R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Anderson v National Australia Bank [2007] VSCA 172
Vakauta v Kelly (1989) 167 CLR 568
SECONDARY MATERIALS
National Disability Insurance Scheme (Supports for Participants) Rules 2013, Part 5
REASONS FOR DECISION
Member P Smith
31 May 2023
INTRODUCTION
George Kollias (the Applicant) is a 47-year-old participant of the National Disability Insurance Scheme (the NDIS). He has a diagnosis of relapse remitting multiple sclerosis (MS)[1] for which he receives supports funded under the NDIS. The Applicant received his MS diagnosis in July of 2010[2].
[1] See page 9 of the NDIS OCCUPATIONAL THERAPY REPORT of Melinda Coffey, Occupational Therapist, dated 4 May 2021.This report is located at T1A of the Tribunal documents (T-documents) the Respondent lodged with the Tribunal on 5 January 2022 as required under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
[2] See page 8 of the NDIS OCCUPATIONAL THERAPY REPORT of Melinda Coffey, Occupational Therapist, dated 4 May 2021 at T1A of the T-documents.
The Applicant, with the assistance of his partner and, for the purpose of this proceeding, his nominated representative, Marouly Kollias (Ms Kollias), made an application to the Tribunal on 30 November 2021[3] to review a decision[4] made by the National Disability Insurance Agency (the Respondent) to confirm[5] a decision made by a delegate of the Chief Executive Officer of the Respondent on 23 November 2021 to approve a statement of participant supports in the Applicant’s Plan on 4 November 2021 under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth)[6] (the NDIS Act).
[3] For a copy of the application the Applicant made to the Tribunal on 30 November 2021, see T1 of the T-documents.
[4] For a copy of the Respondent’s Internal Review Decision dated 23 November 2021, see T1C of the T-documents.
[5] See subsection 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[6] For a copy of the statement of participant supports approved in the Applicant’s Plan by the Respondent on 4 November 2021 under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth), see T7 of the T-documents.
For the purpose of his application to the Tribunal, the Applicant is seeking the approval of nine supports he and Ms Kollias argue are reasonable and necessary and thus should be included in the Applicant’s Plan and funded under the NDIS. The Applicant and Ms Kollias are of the view that the nine supports sought by the Applicant will help him to meet his current disability support needs. The nine supports sought by the Applicant include:
Meal preparation and delivery totalling $24,570.00 (support one);
Exercise physiology (weekly) totalling $10,631.61 (support two);
Physiotherapy (twice weekly) including report writing totalling $15,401.97 (support three);
Personal training (weekly) totalling $5,200.00 (support four);
Handrails at a price of $4,400.00 (support five);
Additional funding for core supports to a total sum of $58,010.00 (support six);
Additional funding for capacity building to a total sum of $38,000.00 (support seven);
House cleaning and domestic duties (3 hours a week) totalling $7,831.20 (support eight); and
House and yard maintenance (3 hours a week) totalling $7,690.80 (support nine).
Despite the best endeavours of the Parties and their representatives, through the Alternative Dispute Resolution process of the Tribunal, and outside of that process, the parties have been unable to resolve the issues in dispute. Therefore, it is for the Tribunal to determine the application by considering whether, on the evidence, the nine supports sought by the Applicant are reasonable and necessary within the meaning of sections 33 and 34 of the NDIS Act and Part 5 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013. This is the substantive issue the Tribunal is yet to determine.
A substantive hearing of the Applicant’s application has commenced but it has not concluded. For reasons set out below, the Applicant’s application is at present, part heard.
THE RECUSAL APPLICATION
In emails to the Tribunal dated 27 April 2023, 1 and 2 and 9 May 2023 (the emails), Ms Kollias makes a number of statements in which she submits that I am biased against the Applicant, and in favour of the Respondent. Ms Kollias submits that if I am not taken off the case or do not recuse myself from hearing and deciding the Applicant’s case, both she and the Applicant will not get a fair hearing. The statements that I am biased against the Applicant and Ms Kollias as set out in the emails include:
(1) Member Smith is biased against the Applicant and Ms Kollias at hearings because he:
(a)does not let the Applicant and Ms Kollias speak or talk;
(b)does not let the Applicant and Ms Kollias say their ‘bit’;
(c)does not allow the Applicant and Ms Kollias to be heard;
(d)always shuts the Applicant and Ms Kollias down when they speak or try to speak;
(e)is very dismissive of the Applicant and Ms Kollias;
(f)dismisses the Applicant and Ms Kollias when they try to raise their concerns about the report of Rebecca Beileiter (Ms Beileiter), the Respondent’s Occupational Therapist;
(g)is very impatient with the Applicant and Ms Kollias;
(h)treats the Applicant and Ms Kollias unfairly;
(i)is one-sided and does whatever the Respondent wants and says at all times and always favours the Respondent;
(j)let’s the Respondent and their legal representatives get away with everything; and
(k)rudely hangs up on the Applicant and Ms Kollias.
(2) Member Smith is also biased against the Applicant and Ms Kollias because he:
(a) allowed the Respondent and/or their legal representatives to file a functional capacity assessment report of Ms Beileiter without first obtaining the consent of the Applicant; and
(b) allowed the Respondent’s barrister to refer to the report of Ms Beileiter at the hearing on 17 March 2023 when he was cross-examining the Applicant.
(Ms Kollias has alleged in emails to the Tribunal and at hearings that the report of Ms Beileiter has been illegally changed either by Ms Beileiter or the Respondent’s legal representatives. Ms Kollias has also alleged in emails to the Tribunal and at hearings that the report of Ms Beileiter is corrupt).
(3) Member Smith is also biased against the Applicant and Ms Kollias because he has not disciplined or reprimanded the Respondent and/or their legal representatives for filing the report of Ms Beileiter and referring to it at hearings and relying on it in the proceeding.
(4) With reference to the hearing that the Tribunal held on 27 September 2022, Member Smith also demonstrated bias against the Applicant and Ms Kollias. This was due to the change in the hearing schedule that resulted in there being less time for one of the Applicant’s witnesses to give their evidence to the Tribunal and for the Applicant or Ms Kollias to ask further questions, an opportunity Ms Kollias submits that the Applicant was denied due to a change to the hearing schedule. Ms Kollias also submits that Member Smith was not concerned at all because he did not call the witness back so that the Applicant and Ms Kollias could ask the witness further questions of him.
(5) Member Smith also demonstrated bias at a previous hearing when he made a comment in response to conduct Ms Sangha raised at that hearing. For example asking the Tribunal to discipline Ms Kollias for her disruptive conduct. My response was that I knew what Ms Sangha was referring to and I indicated at the Directions Hearing that I would deal with this issue at the resumed hearing in March 2023.
(6) With reference to the Applicant’s request made on 9 May 2023 to issue two Summonses to Ms Beileiter and Kerry Riley, physiotherapist to Produce Documents, Member Smith is also biased against the Applicant and Ms Kollias because the Applicant was not provided with the email from the Respondent dated 5 July 2022 which attached the Respondent’s request to issue the summonses to the Applicant’s neurologist, personal trainer and physiotherapist, and that the Applicant was not asked whether the Applicant had any objection to the issuing of these summonses.
INTERLOCUTORY HEARING
On 24 May 2023, this matter was listed before me for an Interlocutory Hearing to consider whether I, as the member who constitutes the Tribunal for the purpose of this proceeding, should recuse myself from hearing and deciding the Applicant’s case on the basis of actual or apprehended bias.
Both the Applicant and Ms Kollias appeared at the Interlocutory Hearing by telephone. Ms Kollias appeared as the Applicant’s representative. Mark Cleary of Counsel (Mr Cleary) appeared at the Interlocutory Hearing, also by telephone, instructed by Stephanie Wright. A Case Officer from the Agency also appeared at the Interlocutory Hearing. As was expected, no submissions on the question of my recusal were made by or on behalf of the Respondent at the Interlocutory Hearing.
At the Interlocutory Hearing, Ms Kollias was invited, as the Applicant’s representative, to make submissions addressing me on the question of my recusal by reference to her emails. She responded by questioning what a recusal application was. I explained to Ms Kollias in simple clear language what a recusal application consists of. I once again invited Ms Kollias, as the Applicant’s representative, to make submissions addressing me on the question of my recusal by reference to her emails. However, Ms Kollias appeared to become distressed, and her ability to engage meaningfully with the Tribunal deteriorated. In turn, during the proceeding Ms Kollias began making comments which I perceived to be aggressive in nature. These comments included threats of disciplinary and legal proceedings against the Respondent’s legal representatives and witnesses. Mrs Kollias’ behaviour did not appear to improve and became progressively worse. I made several attempts to diffuse the situation and engage with the Applicant on the question of my recusal, but I was unsuccessful. I determined it was appropriate to adjourn the hearing and, in the circumstances, to determine the question of my recusal on the papers.
FACTS
Before I deal with the immediate issue, it is necessary that I set out some facts I consider to be relevant to the determination of whether I, as the member who constitutes the Tribunal for the purpose of this proceeding, should recuse myself from hearing and deciding the Applicant’s case on the basis of actual or apprehended bias, as submitted by Ms Kollias in her emails.
On 7 June 2022, the Head of the National Disability Insurance Scheme Division, gave a written direction in relation to the constitution of this matter. The direction specified that I am to constitute the Tribunal for the purpose of this proceeding and to conduct a substantive hearing of the Applicant’s application.
On 1 July 2022, I held a Directions Hearing so that I could discuss the future conduct of the matter with the parties and/or their representatives. At this hearing, both the Applicant and Ms Kollias appeared by telephone. Ms Kollias appeared at this hearing as the Applicant’s representative, and for the most part, spoke for the Applicant addressing the Tribunal on the matters that were raised and discussed, either by me or by the parties’ representatives. Sharon Sangha (Ms Sangha) appeared on behalf of the Respondent, also by telephone with a Case Officer from the Agency.
At the Directions Hearing, the Tribunal and the parties’ representatives discussed a number of matters related to the proceeding. This included whether a substantive hearing of the Applicant’s application would be heard by me in July or August of 2022 as specified in the directions given by Conference Registrar Shepherd on 15 May 2022. This also included timetabling the matter to hearing and for the parties to lodge their Statements of Facts, Issues and Contentions (SFIC) and any further evidence or information upon which they intended to rely on in the proceeding. This also included the functional capacity assessment of the Applicant scheduled to be conducted in the home of the Applicant and Ms Kollias by Ms Beileiter on 6 July 2022, and the date by which Ms Beileiter’s report would be provided to the Applicant and the Tribunal.
The final matter discussed at the Directions Hearing between the Tribunal and the parties representatives was the request Ms Sangha made to the Tribunal at the Directions Hearing to issue summonses to the Proper Officer of St Vincent’s Clinic and to Dr Ian Sutton (Dr Sutton), the Applicant’s Neurologist who practices as a Consultant Neurologist at St Vincent’s Hospital, Jack Rayment (Mr Rayment), the Applicant’s Physiotherapist, BounceREHAB, and Isabel Lorenzi (Ms Lorenzi), the Applicant’s Personal Trainer, Uplift by Iz.
On 5 July 2022, the Tribunal received an email from Ms Sangha in relation to this matter insofar as it related to the directions given by me on 1 July 2022. In her email, Ms Sangha stated that on 1 July 2022, I directed that the Respondent’s request for summonses that they wanted issued. Ms Sangha stated further in her email that pursuant to those directions, the Respondent had now attached the completed summons forms to be issued to Mr Rayment at BounceRehab, Ms Lorenzi at Uplift by Iz and Dr Sutton and the St Vincent’s Clinic to produce documents to the Tribunal. These were the Summonses I approved on 1 July 2022. On review of the file, it appears that the Applicant did not receive the email from Ms Sangha dated 5 July 2022.
On 6 July 2022, Ms Beileiter attended the home of the Applicant and Ms Kollias and conducted a functional capacity assessment of the Applicant.
On 18 July 2022, the Tribunal formally issued the Summonses that I approved on 1 July 2022 to the Proper Officer of the St Vincent’s Clinic and to Dr Sutton, Mr Rayment and Ms Lorenzi requiring each of them to produce documents to the Tribunal by 3 August 2022.
On 22 July 2022, Ms Beileiter sent an email to Ms Sangha attaching her report regarding the functional capacity assessment of the Applicant that she conducted at the home of the Applicant and Ms Kollias on 6 July 2022. The Applicant and Ms Kollias were copied into this email.
In August 2022, the Tribunal gave leave to each party to inspect documents that were produced under summons from the Proper Officer of the St Vincent’s Clinic and Dr Sutton, Mr Rayment and Ms Lorenzi. The Applicant was asked to lodge any objection to the Respondent being granted leave to inspect the documents. No objection was lodged by or on behalf of the Applicant.
On 9 September 2022, Ms Kollias sent an email to Ms Sangha referring to the report of Ms Beileiter that they both received by email on 22 July 2022. In her email, Ms Kollias stated this to be the only Occupational Therapist report relevant to the Applicant that they had received from Ms Beileiter by way of email on 22 July 2022. Ms Kollias stated further in her email that she wanted Ms Sangha to place the report on the Applicant’s file and that she considered the report was helpful evidence to the Applicant’s case, and moreover that the Applicant intended to rely on the report at the hearing.
On 13 September 2022, the Respondent filed their Amended SFIC and their Tender Bundle which included the report of Ms Beileiter which was dated 26 August 2022. This is the report Ms Kollias alleges has been changed illegally either by Ms Beileiter and/or the Respondent’s legal representatives.
A substantive hearing of the Applicant’s application commenced on 27 September 2022. Both the Applicant and Ms Kollias appeared at the hearing via video link. Ms Kollias appeared at the hearing as the Applicant’s representative. Mr Cleary appeared for the Respondent, instructed by Ada Wong. A Case Officer from the Agency also appeared at this hearing.
At the hearing, the Tribunal heard oral evidence from the Applicant’s Exercise Physiologist, Jason Wong (Mr Wong) and Mr Rayment. Due to time restrictions, the Tribunal was not able to take evidence from the Applicant’s Occupational Therapist, Jenny Armas. This was as a result of a change the Tribunal made to the hearing timetable at the start of the hearing. The Tribunal attempted to also take evidence from Dr Sutton who the Applicant had listed on his updated Hearing Certificate as a person the Applicant intended to call at the hearing to give evidence to the Tribunal. However, when the Tribunal called Dr Sutton’s rooms, the Tribunal was informed that he was not aware that he was required to give evidence to the Tribunal that day. The Tribunal was later advised that Dr Sutton was not available to give his evidence to the Tribunal until March of 2023 and that he required a summons to appear before the Tribunal to give evidence.
Also at the hearing, it was noted that the Applicant was not listed on his Hearing Certificate to give evidence. I raised my concerns with the Applicant, and advised him, as a matter of fairness, that it was in his interests to provide oral evidence to the Tribunal, including evidence of his daily experiences living with MS. Furthermore, the Applicant was advised that he could give oral evidence to the Tribunal when the hearing of his application resumed in March of 2023 and after he had prepared and lodged with the Tribunal a Statement of Lived Experience.
Accordingly, the Tribunal adjourned the hearing part-heard to resume in March of 2023 via video link.
On 14 December 2022, I held a further Directions Hearing in this matter. This was because the parties were unable to agree on a proposed witness schedule for the resumed hearing in March 2023. Both the Applicant and Ms Kollias appeared at this Directions Hearing by telephone. Ms Kollias appeared at the hearing as the Applicant’s representative. Ms Sangha appeared for the Respondent also by telephone with a Case Officer from the Agency. At this hearing, Ms Kollias again raised concerns about the integrity of Ms Beileiter’s report alleging that the report had been changed illegally either by Ms Beileiter or the Respondent’s representatives sometime after she and the Applicant first received it via email on 22 July 2022. Noting her concerns, I informed Ms Kollias that the Applicant would have the opportunity at the resumed hearing in March 2023 to ask questions of Ms Beileiter regarding her report under cross-examination. Ms Sangha, referring to the behaviours of Ms Kollias at previous hearings, called for discipline regarding Ms Kollias in future proceedings. I commented that I knew what Ms Sangha was referring to and that I will manage it at the resumed hearing.
The Applicant’s application resumed on 17 March 2023. It was listed also for a further two days on 20 and 21 March 2023. Both the Applicant and Ms Kollias appeared at the resumed hearing via video link. Ms Kollias appeared at the hearing as the Applicant’s representative. Mr Cleary appeared for the Respondent instructed by Ms Sangha. A Case Officer from the Agency also appeared at this hearing.
At the resumed hearing on 17 March 2023, the Applicant was invited to give evidence to the Tribunal regarding his experiences of living with MS. Mr Cleary commenced cross-examination of the Applicant. Following this, Ms Kollias made frequent interruptions and outbursts, whilst the Applicant was being asked questions and giving his evidence. This was not appropriate behaviour that is expected of persons involved in proceedings before the Tribunal. Ms Kollias continued to interrupt the hearing and would not listen to any directions I gave to refrain from engaging in this inappropriate behaviour.
I observed that Ms Kollias made frequent inappropriate interruptions during the hearing. Ms Kollias interrupted the hearing in response to Mr Cleary asking the Applicant in cross-examination about his request for meal preparation allowance. I advised Ms Kollias that she was not giving evidence. Mr Cleary asked the Applicant some questions regarding the preparation of snacks. In response, Ms Kollias interrupted and said, ‘it’s easier’. The Applicant subsequently repeated this answer and said, ‘it’s easier’. While the Applicant was speaking, Ms Kollias again interrupted and said words to the effect ‘but you haven’t given us one cent’.
Ms Kollias was advised that she needed to remove herself from the room as it was impacting the Tribunal’s ability to hear and understand the Applicant’s evidence. Ms Kollias began yelling in what appeared to be an aggressive manner saying that she was not leaving and that she intended to commence legal proceedings against those involved in the Applicant’s case. Ms Kollias continued yelling in an aggressive manner, referring to the NDIS representatives as ‘disgraceful people’.
The Applicant requested that Ms Kollias calm down. The Applicant appeared to be concerned that the Tribunal would terminate the phone call if Ms Kollias did not stop her behaviour. The Applicant said words to the effect that Ms Kollias needed to calm down or the Tribunal would hang up on them. In response to the Applicant, Ms Kollias stated ‘I don’t care’. I advised the Applicant that I could not conduct a hearing under these circumstances. The Applicant advised the Tribunal that Ms Kollias would no longer interrupt the hearing. The Applicant advised the Tribunal that Ms Kollias was outside in a different room. I advised the parties that the proceedings would continue on the basis that Ms Kollias had left the room.
Shortly after the Tribunal was advised that Ms Kollias was located in a different room, Ms Kollias was heard on the recording when the Applicant continued to give his evidence. As I could hear Ms Kollias, I asked the Applicant to tell me where Ms Kollias was located. The Applicant stated that Ms Kollias was outside in a different room. I advised the Applicant that I could still hear her. I advised the parties that I did not think the hearing could continue as scheduled under these circumstances. Ms Kollias then became aggressive and yelled at the Applicant to place the Tribunal on hold. The Tribunal was then placed on hold and music could be heard. While on hold, the proceeding was unable to continue. However, the visual footage continued. The Applicant appeared to be telling Ms Kollias to ‘shut up’. The Applicant appeared frustrated.
The hearing resumed and I advised the Applicant that the Tribunal needed to decide whether or not the proceeding should continue today because of the continuous interjections. I advised the Applicant that I did not want to adjourn the proceeding but that I needed to consider whether it was the most appropriate course of action under the circumstances. I decided that if there was another inappropriate interruption from Ms Kollias then the matter would have to be adjourned and be heard in-person at a later date. I apologised to the Applicant but stated that I could not conduct a hearing if Ms Kollias’ behaviour continued.
The Applicant again stated that Ms Kollias had left the room. The proceeding resumed. Ms Kollias could still be heard speaking during the continuance of the Applicant’s evidence. The Applicant repeatedly made a ‘shushing gesture’, presumably at Ms Kollias.
Later in the hearing, Ms Kollias could still be heard. Mr Cleary stated that he thought Ms Kollias had left the room. The Applicant informed the Tribunal that Ms Kollias had left the room. I once again stated that Ms Kollias could still be heard. Ms Kollias stated in an aggressive manner that she was getting paperwork for the Applicant. I then directed my Associate to adjourn the hearing. Ms Kollias began yelling and my Associate stopped the recording. Ms Kollias subsequently emailed the Tribunal and stated that she would commence legal proceedings against those involved in the Applicant’s case if we did not reconvene. The parties were advised that the matter would be listed for an in-person hearing on a date and time to be fixed.
During this hearing, Ms Kollias made allegations against Ms Beileiter and the Respondent’s legal representatives of engaging in corrupt conduct regarding the report of Ms Beileiter.
In the circumstances, I formed the view that the resumed hearing of the Applicant’s application could not continue, and if it did, there was a risk that the:
(a)integrity of the hearing would be compromised;
(b)Applicant’s right to be heard at his own hearing would be compromised;
(c)independence of the Applicant’s evidence and his credibility would be compromised given that Ms Kollias appeared to be coaching the Applicant to give specific evidence in response to the questions proposed by Mr Cleary in cross-examination.
(d)Respondent’s right to be afforded procedural fairness as the opposing party by being given the opportunity to present their case in reply and to test the Applicant’s evidence would be compromised. The Tribunal notes that the Applicant also has a right to be afforded procedural fairness in this proceeding by being given the opportunity to present their case and to test the evidence of the Respondent.
On 9 May 2023, Ms Kollias sent an email to the Tribunal requesting that the Tribunal issue Summonses to Ms Beileiter and Kerry O’Riley (Ms O’Riley), the Respondent’s Physiotherapist. The Tribunal referred this email to the Respondent, in order, to ascertain whether or not they objected to the Tribunal issuing Summonses to Produce Documents to Ms Beileiter and Ms O’Riley. The Respondent objects to the Summonses being issued. That issue will be determined by the Tribunal in due course.
PRINCIPLES
The principles to be applied by decision-makers upon the making of a recusal application on the basis of actual or apprehended bias are well established. Those principles were comprehensively set out by Senior Member Parker (SM Parker) at paragraph [9] of her decision in GMXV and National Disability Insurance Agency[7] (GMXV) and at paragraph [10] of her other decision in JWVH and National Disability Insurance Agency[8] (JWVH). The applicable principles that have been established as summarised by SM Parker in GMXV and JWVH include:
[7] [2022] AATA 505.
[8] [2022] AATA 989.
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.[9] 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.[10]
[9] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
[10] 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.[11]
[11] 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.[12] 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.[13]
[12] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
[13] 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.
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.[14]
[14] 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.[15]
[15] Gascor v Ellicott [1997] 1 VR 332.
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.[16]
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.[17]
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.[18]
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.”[19]
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.[20]
[16] 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].
[17] 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.
[18] Clenae v ANZ Banking Group [1999] 2 VR 573; [1999] VSCA 35.
[19] (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.
[20] 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].
DISCUSSION
I have identified at paragraph [6], six grounds of bias from the emails Ms Kollias submits I am biased against her and the Applicant, in favour of the Respondent. I now propose to consider each of those statements, and for the reasons given above at paragraph [9], the question regarding my recusal is being determined on the papers, without the benefit of me being able to engage with Ms Kollias at the Interlocutory Hearing.
Firstly, in her emails, Ms Kollias submits that I am biased against her and the Applicant at hearings, in favour of the Respondent. Her submission that I am biased against her and the Applicant at hearings are as follows:
·I do not let the Applicant and Ms Kollias speak or talk;
·I do not let the Applicant and Ms Kollias say their ‘bit’;
·I do not allow the Applicant and Ms Kollias to be heard;
·I always shut the Applicant and Ms Kollias down when they speak or try to speak;
·I am very dismissive of the Applicant and Ms Kollias;
·I dismiss the Applicant and Ms Kollias when they try to raise their concerns about the report of Ms Beileiter;
·I am very impatient with the Applicant and Ms Kollias;
·I treat the Applicant and Ms Kollias unfairly;
·I am one-sided and do whatever the Respondent wants and says at all times and always favours the Respondent;
·I let the Respondent and their legal representatives get away with everything; and
·I rudely hung up on the Applicant and Ms Kollias.
As can be seen from the facts set out above, in this matter, I have held two Directions Hearings, a substantive hearing on 27 September 2022, and in the period of March 2023, I attempted to resume hearing the Applicant’s application on the substantive issues over the course of three days commencing on 17 March 2023. The hearing of the Applicant’s application will resume part heard in-person over the course of three days commencing on 16 June 2023.
I do not accept, as Ms Kollias submits in her emails, that at hearings, I have engaged in the behaviours that are set out above at paragraphs [6] and [41]. Ms Kollias, acting as the Applicant’s representative, has been given many opportunities at hearings to address the Tribunal on matters relating to the proceeding that are raised and discussed at those hearings either by myself or the parties and/or their representatives. This includes the concerns that the Applicant and Ms Kollias have with the report for Ms Beileiter.
I accept that there have been occasions at hearings where I have asked Ms Kollias to refrain from behaviours, I consider to be inappropriate for a party representative to engage in when appearing at hearings before the Tribunal. The behaviours include the making of frequent interruptions in hearings when other persons involved in the proceeding are speaking or are trying to speak. It includes interruptions when witnesses are being asked questions and while witnesses are giving their evidence and responses to questions under cross-examination. As can be seen from the footage of the hearing on 17 March 2023, the behaviour included Ms Kollias telling the Applicant what to say in response to questions asked by Mr Cleary. It also includes sudden outbursts of aggression, often directed at the Respondent, and/or their legal representatives. I appreciate that the Applicant and Ms Kollias have taken my requests to refrain from these behaviours to demonstrate bias. I have asked Ms Kollias to refrain from engaging in these behaviours at hearings to enable the proceeding to proceed with integrity and fairness to both parties.
I appreciate that the Applicant and Ms Kollias are not legally trained, and that the Applicant is not represented in this proceeding by a legal practitioner. The Tribunal process can be complex and difficult for unrepresented litigants to navigate and to understand. I appreciate that the supports sought, and their approval are matters important to the Applicant and to Ms Kollias.
I do not accept the broader submission made by Ms Kollias that the Applicant is not being heard or will not be heard. This is because the substantive hearing of the Applicant’s application has not yet concluded. When the hearing of his application resumes on 16 June 2023, the Applicant will have the opportunity to present his case on whether the supports he seeks are reasonable and necessary. He will have the opportunity to continue with his evidence and the Respondent will have the opportunity to continue with their cross-examination of the Applicant. The Applicant’s witnesses will also be able to give evidence in support of his application at the resumed hearing. As stated previously, the Applicant and Ms Kollias will have the opportunity at the resumed hearing to cross-examine the Respondent’s two expert witnesses and finally at the conclusion of the hearing, the Applicant and Ms Kollias will be invited to make any closing submissions to the Tribunal before the Tribunal makes a determination of whether the supports sought by the Applicant are reasonable and necessary.
It follows that I do not consider asking a person involved in a Tribunal proceeding to refrain from engaging in inappropriate behaviours demonstrates actual or apprehended bias. Thus, there is no basis for my recusal.
The second ground of bias made by Ms Kollias in her emails is that I am biased against the Applicant and Ms Kollias because I have allowed the Respondent and/or their legal representatives to file the report of Ms Beileiter without first obtaining the consent of the Applicant and for allowing Mr Cleary to refer to that report at the hearing on 17 March 2023 when he was cross-examining the Applicant.
The Respondent was not required or under any obligation to obtain the consent of the Applicant before filing the report of Ms Beileiter. The Respondent was directed by the Tribunal to file the report of Ms Beileiter, which they have done.
The Respondent is a party to the proceeding and as such may rely on the evidence that they obtained for the purpose of the proceeding, and to rely on and engage with that evidence as part of their case; including when cross-examining a witness. The same applies to the Applicant.
The Tribunal has not expressed a view about the integrity of Ms Beileiter’s report or made an assessment regarding its reliability and/or viability. The Tribunal has not expressed a view about the findings, opinions and recommendations contained in Ms Beileiter’s report or any other evidence that is before the Tribunal. Further, the Tribunal notes that it is open to the Applicant and Ms Kollias to cross-examine Ms Beileiter about her report at the resumed hearing when she is called by the Respondent to give her evidence.
Thus, there is no proper or reasonable basis for this statement. I am satisfied that there is no actual or apprehended bias and thus there in no basis for my recusal as submitted by Ms Kollias in her emails.
The third ground of bias made by Ms Kollias in her emails is that I am biased against the Applicant and Ms Kollias because I have not disciplined or reprimanded the Respondent and/or their legal representatives for filing the report of Ms Beileiter and referring to it at hearings and relying on it in the proceeding.
For the reasons outlined above, I am satisfied that there is no actual or apprehended bias and thus there is no basis for my recusal as submitted by Ms Kollias in her emails.
The fourth ground of bias made by Ms Kollias in her emails is that I am biased against the Applicant and Ms Kollias because I did not call one of the Applicant’s witnesses back on 27 September 2022 so that the Applicant or Ms Kollias could ask the witness further questions.
I was not aware of any request made by or on behalf of the Applicant on 27 September 2022 to call either Mr Wong or Mr Rayment back to take further evidence from them. If it is the case that the Applicant is of the view that further evidence is required to be taken from either Mr Wong or Mr Rayment, the Applicant can request to recall either or both of them to attend the resumed hearing in June 2023 to give further evidence.
I am satisfied in these circumstances that there is no actual or apprehended bias and thus there in no basis for my recusal as submitted by Ms Kollias in her emails.
The fifth ground of bias made by Ms Kollias in her emails is that I am biased against the Applicant and Ms Kollias because I acknowledged in a comment at the Directions Hearing on 14 December 2022, the Respondent’s request for me to discipline Ms Kollias for her behaviour, which I said would be managed at the resumed hearing in March 2023.
My decision to make the comment was based on my observations of some of the behaviours of Ms Kollias for which I had concerns. I have a reasonable expectation that the parties and their representatives involved in proceedings will behave appropriately when appearing before the Tribunal in order to preserve the integrity of the process.
The comment I made was not about the merits of the Applicant’s application and nor was it about the substantive issue for which I am yet to determine the outcome. I do not consider the making of a comment about a representative and their behaviour to be a case of bias. I am therefore satisfied that there is no actual or apprehended bias and thus there is no basis for my recusal as submitted by Ms Kollias in her emails.
The sixth ground of bias made by Ms Kollias in her emails is that I am biased against the Applicant and Ms Kollias is because I instructed my Associate to write to the Respondent to ascertain whether there was any objection to the Tribunal issuing two summonses to Ms Beileiter and Ms O’Riley to produce documents. The Applicant alleges bias because the Tribunal did not seek the Applicant’s views when the Respondent requested that the Tribunal issue summonses to the Applicant’s experts. As indicated in paragraph [15] above, I was unaware that this email had not been provided to the Applicant. Notwithstanding this, the parties discussed these summonses at the Directions Hearing on 1 July 2022. The Applicant had an opportunity to raise any objections during this proceeding. The Applicant raised no objection to the Tribunal issuing these summonses.
In the circumstances, I am therefore satisfied that there is no actual or apprehended bias and thus there is no basis for my recusal as submitted by Ms Kollias in her emails.
CONCLUSION
Accordingly, for the reasons outlined above, I have decided not to recuse myself from hearing and deciding the Applicant’s application.
DECISION
The application made to the Tribunal requesting that Member Smith who constitutes the Tribunal for the purpose of this proceeding recuse himself from hearing and deciding the Applicant’s case on the basis of actual or apprehended bias is refused.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Member P Smith
.................................[SGD].......................................
Associate
Dated: 31 May 2023
Date of hearing: Heard On the Papers Advocate for the Applicant: Ms M Kollias Counsel for the Respondent: Mr M Cleary Solicitors for the Respondent: Ms S Wright, Mills Oakley
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