Kollias and National Disability Insurance Agency

The matter before the Tribunal concerned an application by the Applicant, represented by Ms Kollias, for the presiding member, P Smith M, to recuse himself from hearing and deciding the Applicant's case due to alleged actual or apprehended bias. The Applicant contended that the member was biased against them and their representative based on several grounds, including the allowance of a functional capacity assessment report alleged to be corrupt or illegally altered, the reliance on this report by the Respondent's counsel, the failure to discipline or reprimand the Respondent's representatives for lodging the report, the refusal to recall a witness, and perceived differential treatment regarding requests for summonses and disciplinary comments.

The Tribunal was required to determine whether the member's conduct demonstrated actual or apprehended bias, necessitating recusal. This involved an assessment of whether a reasonable and informed observer, having considered the facts, would apprehend that the member might not bring an impartial mind to the issues to be decided. The grounds for recusal raised by the Applicant were examined in light of established legal principles governing bias in judicial and quasi-judicial proceedings.

The member considered the various allegations of bias. The Tribunal noted that the Applicant's representative, Ms Kollias, initially appeared distressed and her ability to engage meaningfully deteriorated, leading to aggressive comments and threats. The member explained the concept of recusal to Ms Kollias, but she became increasingly agitated. The member attempted to diffuse the situation and engage the Applicant directly on the recusal issue without success, ultimately determining it appropriate to decide the recusal application on the papers. The member found no basis for recusal, concluding that a reasonable and informed observer would not apprehend bias.

The application for recusal was refused. The member determined that he would continue to hear and decide the Applicant's application.