Pelovski and National Disability Insurance Agency

[2022] AATA 4185

Pelovski and National Disability Insurance Agency [2022] AATA 4185 (7 December 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/8051

Re:Zoran Pelovski

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

Decision

Tribunal:Senior Member P Goward

Date:7 December 2022

Place:Sydney

I refuse the Applicant’s recusal application.

................................[SGD]........................................

Senior Member P Goward

Catchwords

PRACTICE AND PROCEDURE – interlocutory application – recusal – objection to the Tribunal’s constitution – whether the applicant has met the test to prove apprehended bias as a ground for recusal – interlocutory application refused.

Cases

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Charisteas v Charisteas [2021] HCA 29
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41

Secondary Materials

JJ Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review, 77 – 91

REASONS FOR DECISION

Senior Member P Goward

7 December 2022

1. This is an application for recusal which was made by the Applicant as a ‘complaint’ about my constitution to an interlocutory hearing on summons in this matter. The Applicant’s solicitor initially regarded it as a complaint but on 9 November 2022, the Applicant’s solicitor emailed the Tribunal to advise ‘…if the tribunal (sic) is going to insist on such Ms Goward is going to have to recuse herself. If she does not do so the media will report this’.

2. On this understanding, and on the Respondent’s submissions, the Tribunal conducted an interlocutory hearing on 18 November 2022 to determine the recusal application. The Applicant was represented by his solicitor Ms Kline and advocate Mr Walton. The Respondent was represented by Mr Sproule of counsel.

   Introduction

3. The Applicant bases their recusal application on five grounds:

   1.)   There is a current investigation by the NDIS Registrar of a complaint involving the member. The matter is also before the Attorney General.

   2.)   Apprehended Bias

   3.)   The member is not qualified

   4.)   Her appointment is not merit based

   5.)   She is not experienced in complex NDIS matters.

4. Grounds 3, 4 and 5 are not within the Tribunal’s jurisdiction to decide since the appointment of members to the Tribunal, as submitted by the Respondent, falls within the remit of Chapter 3 courts. The Tribunal is an inappropriate forum to challenge these matters and they must therefore be set aside as grounds for recusal. Ground 1, if upheld, would be an invitation to parties in other matters to make complaints about members before whom they would prefer not to appear. As the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) observed of complaints against decision makers ‘… the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable’. The consequence of this would be the undermining of the impartiality required of Australia’s legal bodies. It must also therefore be set aside as a ground for recusal.

5. The hearing on 18 November 2022 dealt entirely with Ground 2 or the issue of apprehended bias, and this decision, as a consequence, is centred on whether the Applicant has made out the case for apprehended bias.

   Contentions

   Applicant’s Position

6. The Applicant contends that the case for apprehended bias may be made out on the evidence before the Tribunal as a ground for recusal. The Applicant submits that the category of apprehended bias in this instance is ‘disqualification by conduct, including published statements’: see Deane J’s judgment in Webb & Hay v R [1994] HCA 30; (1994) 181 CLR 41 at [12].

   Respondent’s Position

7. The Respondent did not make submissions on whether the Applicant’s claims of apprehended bias are substantiated, nor whether recusal should occur in this instance.

   The test to be applied

8. The Respondent provided submissions on the test to be applied in determining whether apprehended bias is made out as a ground for recusal. The Applicant also provided submissions in this regard.

9. The Applicant’s submission describes the basic test for apprehended bias at section 2:

   The basic test for Apprehended Bias is whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judicial or administrative decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand.

10. The Respondent referenced the test for apprehended bias as laid down by the High Court in Ebner. In particular, the High Court’s judgment identified two steps first ‘it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits’ and, second, ‘there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits’.

11. The Respondent submits that once the above test is satisfied, the next step would involve the application of the test noted in the Applicant’s submission. This follows the High Court’s reasoning in Charisteas v Charisteas [2021] HCA 29 at [11] (Charisteas).

12. Having considered the parties’ submissions, I am satisfied that the test for apprehended bias to be applied in the initial instance is that which is set out in the High Court’s judgment in Ebner and confirmed in Charisteas.

    CONSIDERATION

13. The Applicant’s submission provides a series of quotes from two columns written by me before appointment to the Tribunal and comments in response to those quotes.

14. The Applicant’s solicitor expressed her ‘horror’ and ‘disquiet’ at the comments she quoted. I note the columns that were the subject of the Applicant’s concern were not provided to the Tribunal and neither the Applicant’s solicitor nor advocate claimed to have read them.

15. Applying the Ebner test, the Applicant did not reference any remarks I might have made about the Applicant’s rejection of summons, which was the matter constituted to me, but not yet heard, and made no attempt to articulate a logical connection between my presumed position on the rejection of summons to the quoted extracts from the two ‘offending’ articles.

16. The Respondent also noted that the NDIS was not referenced in either news article relied upon and that I had no prior involvement with the Applicant’s matter.

17. The Respondent further contended that the onus of proof of apprehended bias was necessarily high and that it was not enough for the reasonable bystander to have a ‘vague sense of unease or disquiet’: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507.

18. The Applicant’s advocate, Mr Walton, contended that ‘it’s a big step to write to the Tribunal and it goes to the level of concern we have, which is more than a vague sense of unease’. I disagree with this claim. The criticisms were made through a series of brief emails, supported by references to newspaper commentary easily obtained through a Google search. The news articles themselves were not provided and it was unclear if they had been read by the Applicant’s solicitor and advocate. It is not apparent that much effort was made to take this ‘big step’ by the Applicant.

19. During the hearing, the Applicant’s solicitor and advocate contended that ‘a higher standard of neutrality was required of an administrative decision-maker’.

20. Subsequently, the Applicant provided a further written submission which argued that:

    Although the basic test is the same for both curial and non-curial decision making, the underlying rationale for that test is not identical. For judicial decision-making the rationale relates to fundamental and deep-rooted considerations of judicial independence and the need to maintain and promote public confidence in the independence and impartiality of the courts.

21. The Tribunal considers that the Applicant’s concession that the ‘basic test is the same’ is the relevant consideration here, and must be applied, irrespective of the rationale. In any case, the notion of judicial independence and the need to maintain and promote public confidence in the independence and impartiality of the courts is necessarily as applicable to any tribunal as it is to the Australian courts.

22. The Applicant’s solicitor, in her further submissions, relies on the observations of Spigelman CJ about procedural fairness as serving the wider purpose of ‘institutional integrity’ which ‘encompasses the maintenance of fidelity to the public purposes for the pursuit of which an institution is created and the application of public values, including procedural values, which the institution is expected to obey’. These observations were reported in the Public Law Review of 2010 in an article titled ‘The Centrality of Jurisdictional Error’ and do not appear to relate to argument about a higher standard of neutrality being required in matters of administrative law and in any case, a journal article lacks the persuasiveness of case law.

23. The Applicant’s advocate, Mr Walton, contended during the hearing that the quotes he referenced from the two news pieces suggested I would not meet this higher standard of administrative neutrality because ‘it’s an issue of natural justice’. He contended that the extracts from the two opinion pieces provided to the Tribunal reflected on the Applicant’s human rights.

24. Having considered the further material provided by Ms Kline, as well as the arguments led during the hearing, the Tribunal finds the requirement for a higher standard of neutrality in administrative law matters does not form part of the established law applying to recusal applications. Rather, it is the leading case of Ebner which must be applied at the initial stage. A high level of neutrality and impartiality is a requirement in all Australian courts and tribunals, as it should be, and the application of case law, in particular Ebner, reflects this requirement.

25. The Tribunal finds, having listened carefully to both parties, and considered all evidence provided to it, that the two steps identified in Ebner as necessary tests for apprehended bias have not been made by the Applicant. It is unnecessary therefore to apply the test noted in the Applicant’s submissions.

    Conclusion

26. I am not satisfied that the Applicant has made out a case of apprehended bias.

    Decision

27. I refuse the Applicant’s recusal application.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

..............................[SGD].....................................

Associate

Dated: 7 December 2022

Date(s) of hearing:	18 November 2022
Date final submissions received:	21 November 2022
Advocate for the Applicant:	Mr R Walton
Solicitor for the Applicant:	Ms K Kline
Counsel for the Respondent:	Mr J Sproule
Solicitor for the Respondent:	Ms E Hulme, Sparke Helmore Lawyers