Pelovski and National Disability Insurance Agency

This matter concerned an interlocutory application for recusal brought by the applicant, Mr Pelovski, against a member of the National Disability Insurance Agency (NDIA) Tribunal, Ms P Goward SM. The applicant sought the Tribunal member's recusal on the grounds of apprehended bias, stemming from comments made by the member in newspaper columns prior to her appointment.

The central legal issue before the Tribunal was whether the applicant had met the established test for apprehended bias, which would necessitate the recusal of the Tribunal member. This required the Tribunal to consider the nature of the comments, their relevance to the applicant's case, and the standard of proof required to demonstrate a reasonable apprehension of bias in an administrative decision-making context.

The Tribunal applied the test for apprehended bias as confirmed by the High Court in *Ebner* and *Charisteas*. The Tribunal noted that the applicant had not provided the newspaper columns in question, nor had the applicant's legal representatives claimed to have read them. Furthermore, the applicant failed to articulate a logical connection between the quoted extracts and the specific matter before the Tribunal, which concerned the applicant's rejection of a summons. The Tribunal also considered the respondent's submission that the onus of proof for apprehended bias is high and that a "vague sense of unease or disquiet" is insufficient. The Tribunal found that the applicant's criticisms, based on readily available online commentary, did not demonstrate a sufficient level of concern to meet the required standard, particularly as the NDIA was not referenced in the articles and the Tribunal member had no prior involvement with the applicant's case. The Tribunal concluded that the applicant's concession that the "basic test is the same" for both curial and non-curial decision-making was the relevant consideration, and that the principles of judicial independence and public confidence in impartiality apply equally to tribunals.

The Tribunal was not satisfied that the applicant had established a case of apprehended bias and therefore refused the application for recusal.