PJFX and Commissioner of Taxation (Practice and procedure)
[2025] ARTA 1871
•16 September 2025
PJFX and Commissioner of Taxation (Practice and procedure) [2025] ARTA 1871 (16 September 2025)
Applicant/s: PJFX (Practice and Procedure)
Respondent: Commissioner of Taxation
Tribunal Number: 2023/5307
Tribunal:Senior Member J Lye
Place:Brisbane
Date of Decision: 16 September 2025
Date of Reasons: 22 September 2025
Decision:The Applicant’s application for disqualification of the Member constituted to hear the application is refused.
................[Sgnd].......................
Senior Member J LyeCatchwords
Practice and Procedure – application for recusal – reasonable apprehension of bias
Legislation
Administrative Review Tribunal Act (2024) (Cth) – s 9; s 49; s 52; s 56; s 69; s 70
Cases
Antoun v The Queen (2006) 80 ALJR 497
ASIC v Sunshine Loans Pty Ltd [2025] FCAFC 32
AZC20 v Secretary, Department of Home Affairs [2023] FCA 1252
British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109
Charisteas v Charisteas (2021) 273 CLR 289
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Jaggi v Minister for Immigration [2024] FedCFamC2G 1267
Jian and Ors v Downing [2023] FCA 1018
Johnson v Johnson (2000) 174 ALR 655
Kohli v Minister for Immigration and Border Protection [2018] FCA 540
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 25 ALD 257; 91 ATC 4942; (1991) 32 FCR 148
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15; 97 ALJR 419
Seeto v Uber Australia Pty Ltd [2025] FCA 1032
Secondary Materials
Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth)
Legal Services Directions 2017 (Cth), Appendix B
Statement of Reasons
INTRODUCTION
These reasons explain my decision to refuse an application to recuse myself from hearing this application on the ground of apprehended bias (the recusal application).
The recusal application was lodged on 8 September 2025 and heard on 16 September 2025. It was opposed by the Respondent. The application for review is listed for final hearing commencing 29 September 2025. Consequently, the recusal application needed to be heard and decided as quickly as possible to provide certainty to the parties ahead of the final hearing.
The recusal application alleged both actual and apprehended bias. Ultimately, the Applicant’s counsel did not pursue the actual bias ground in his written submissions. At the hearing on 16 September 2025, he confirmed that this aspect of the application was abandoned.
The evidence and submissions
The following were brought before the Tribunal by the parties for the purposes of the recusal application:
(a)The recusal application;
(b)A statement of Mr Bourke dated 1 August 2025;
(c)Two affidavits of Damien Bourke (solicitor) dated 21 August and 8 September 2025;
(d)Correspondence from the Applicant to the Tribunal dated 22 May 2025;
(e)Submissions in reply on the Application for confidentiality orders; and
(f)The parties’ written submissions and authorities in respect of the recusal application.
BACKGROUND
It is necessary to briefly summarise the Applicant’s tax dispute with the Respondent to give context to the grounds in the recusal application.
The Applicant is seeking review of default assessments of income tax issued by the Respondent to the Applicant for the 2018 to the 2021 financial years in respect of a shortfall in her declared taxable income. The Respondent has also issued assessments for administrative penalty. These assessments followed an audit undertaken without notice to the Applicant where the Respondent formed the view that she had under-reported income for the years in dispute.
The Applicant is a mother to 4 children and is their primary caregiver. She contends that while she may have earned some income during these years, the Respondent’s assessments are incorrect and that he has assessed to her, income earned by her husband. She objected to the assessments and following that process, remained dissatisfied with the Objection Decision and so has applied to the Tribunal seeking independent merits review.
Certain interlocutory steps taken in this proceeding are relevant to the recusal application. I have briefly described each of these below but will return to them when discussing the grounds for the recusal application.
The application for adjournment of the hearing
The proceeding was originally listed for final hearing commencing 25 August 2025. In July 2025, it became necessary for Tribunal to reconstitute the proceeding and the parties agreed to delay the start of the final hearing by one week to allow it to be reconstituted. The Applicant subsequently brought an application to reopen her evidence and to amend her Statement of Facts, Issues and Contentions (ASFIC) (the 1 August 2025 application). A statement lodged by her lawyer (Mr Bourke)[1] explained that the Applicant needed additional time to prepare her case.[2] On 6 August 2025, I ordered that the hearing dates be vacated to allow the Applicant to lodge further evidence and an ASFIC. The hearing was listed for final hearing for 9 days, commencing 29 September 2025.
[1] Statement of Damien Bourke dated 1 August 2025 (Mr Bourke’s statement).
[2] Ibid [18]-[31].
The confidentiality orders
It is necessary to also explain the confidentiality orders made in this proceeding. On 22 May 2025, the Applicant’s lawyer wrote to the Tribunal (the 22 May correspondence) explaining the Applicant’s husband had agreed to give evidence in the proceeding. He had previously been subject to criminal charges (only 1 remained on foot) and the Tribunal was told that by providing evidence in these proceedings, there was a risk he may compromise his ‘right to silence in criminal prosecution’.[3] Further, in reply submissions prepared in support of the confidentiality application (the submissions), the Applicant’s legal representatives contended there were other matters arising from the husband’s evidence which might also incriminate him. They also submitted there was also some risk that the Applicant may incriminate herself.[4]
The Applicant urged that the Applicant’s husband required confidentiality if he were to give evidence.[5] The Tribunal granted the application and made the confidentiality orders.
[3] Correspondence from the Applicant’s lawyer to the Tribunal dated 22 May 2025 [3(b)][-[3(c)] (the 22 May correspondence.
[4] Submissions in reply to the Commissioner’s submissions filed on 12 June 2025 [7] (the confidentiality submissions).
[5] Ibid [3].
The 6 August 2025 interlocutory hearing
At an interlocutory hearing on 6 August 2025, I considered the 1 August 2025 application. It was initially opposed by the Respondent.
After hearing from the parties, I granted the application and all the directions sought (albeit with different timeframes) and further ordered the hearing dates be delayed by 1 month to allow time for the Applicant’s representatives to undertake all the work they had foreshadowed and for the Respondent to respond.
I also considered requests for summonses lodged by the Applicant. These were addressed to 2 relations of the Applicant (the extended family members) for production of documents as well requiring them to give evidence at the final hearing. I will expand on this when addressing ground (e) below, but essentially the parties agreed to confer and agree amended wording for the proposed summonses. The relodged summonses were duly issued, documents were produced to the Tribunal and the parties have had access to them. I will address in relation to ground (a) below, an administrative error which occurred when the Tribunal issued the access directions for the documents produced by the summonsed parties.
Mr Bourke’s statement informed the Tribunal that the 2 extended family members were both legally represented[6] and that the Applicant proposed to summons them to attend and give evidence at the final hearing.
[6] Exhibits DGB-1.6 and DGB-1.7.
The parties and the Tribunal also discussed whether another witness (a business associate) should be permitted to give evidence remotely at the final hearing. The Respondent opposed his request to give evidence from Sydney. That discussion was parked to permit the Applicant to propose some conditions which might operate to satisfy the Respondent. Those arrangements remain unresolved but will be settled prior to the final hearing.
The 21 August 2025 interlocutory hearing
On 21 August 2025, a further interlocutory hearing was held. This time, the Tribunal was asked to rule on the Applicant’s proposed amended grounds of objection because the Respondent did not consent to them. The Respondent withdrew his objection (which was largely as to form) during the interlocutory hearing. Once again, the parties agreed to confer and ultimately agreed amended grounds of objection which were lodged with the Tribunal, resulting in an order on 29 August 2025 amending the Applicant’s grounds of objection. I address this issue at grounds (f) and (i) below.
On 29 August 2025, the Tribunal issued directions so that certain witnesses could be advised that they had leave of the Tribunal to make applications to the Tribunal to have a legal representative attend the hearing while they gave evidence. These matters are relevant to ground (g) of the application which I address below.
RELEVANT PRINCIPLES AND AUTHORITIES
The making of an application for recusal on the grounds of actual and/or apprehended bias is a serious matter.
As both parties have identified, the key question in determining such an application is whether a fair-minded lay observer, properly informed of the circumstances of the application, might reasonably apprehend that the appointed decision maker has a closed mind against the relevant party such that they might not bring a fair and impartial mind to the resolution of the proceeding.
The leading authority on the question is Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344–345 per Gleeson CJ, McHugh, Gummow and Hayne JJ:
[6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[7] The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires 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. The second step is no less important. 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. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
The majority also noted in Ebner:
[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
In bringing the recusal application, it is not enough for the Applicant to express vague misgivings about the conduct of a decision maker which is said to give rise to apprehended bias. She must be able to point with specificity to the relevant conduct of which she complains and then must demonstrate how that conduct would give rise to the necessary apprehension of bias. That apprehension must be objective and must be real, not remote.
In AZC20 v Secretary, Department of Home Affairs [2023] FCA 1252, Kennett J considered and refused an application that he recuse himself from hearing a migration case, on the basis that he had previously worked as a Commonwealth lawyer and had acted for the Commonwealth on migration matters as a barrister. He relevantly observed in respect of determination of applications for recusal on the basis of apprehended bias:[7]
The principles to be applied are not in contest. A reasonable apprehension of bias requires that there be a possibility, real and not remote, that a fair-minded and appropriately informed lay observer might reasonably apprehend that the decision-maker might not bring a fair, impartial and independent mind to the determination of the matter on its merits. Recently in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15; 97 ALJR 419 at [38], Kiefel CJ and Gageler J identified the inquiry as involving the following steps:
Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
It is important to note that “It is an open, and not an empty, mind that must be kept”: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; 169 ALD 579 at [102] (Allsop CJ). Thus, preliminary views—even fairly strong ones—about the merits of an issue do not found a reasonable apprehension of bias. To put it another way, an apprehension that the decision maker is likely to come to a certain conclusion is not an apprehension of bias in the relevant sense. What must be shown is a reasonable apprehension that the decision maker might not resolve the question on its merits.
A further point that should be noted at this stage is that judges should not accede too readily to suggestions of apprehended bias. A judge has a duty to hear cases that come before them and should generally not yield to the temptation of acceding to a request for recusal—thereby increasing the workload of another judge—to avoid awkwardness. To do so would be an abdication of duty and might encourage parties to make applications for recusal in an attempt to secure a judge who is thought to be more sympathetic: see, eg, Re JRL; Ex parte CJL (1986) 161 CLR 342, 352 (Mason J). (It was submitted by the applicant here that he is not engaged in “judge shopping”. I express no view as to that, except that the motivations of the individual applicant are irrelevant to the point made by Mason J.)
[7] AZC20 v Secretary, Department of Home Affairs [2023] FCA 1252 [10]-[12] per Kennett J.
As Kennett J observed in ACZ20, a ‘fair minded observer’ in this context is properly imbued with knowledge about the relevant facts relating to the circumstances relevant to the allegations, as well as knowing something of the legal system including (for the purposes of that case) how barristers work.[8]
[8] QYFM [18]-[19].
In AZC20, Kennett J considered and distinguished the facts of the recent case of QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] from his own circumstances. The recusal application in QYFM concerned a Federal Court judge who was previously the Commonwealth Director of Public Prosecutions. The judge there had argued points of law in the subject appellant’s appeal against conviction for certain offences. In QYFM, the High Court found that the particular role of a prosecutor was a special one (as a Commonwealth lawyer) which might give rise to an apprehension in a fair-minded observer that the prosecutor held a view about the accused which could impair their ability to fairly determine a later case concerning the same person.[9]
[9] ACZ20 [31]-[32].
In ACZ20, Kennett J referred to AZC20’s (inaccurate) report on his ‘long association’ with Commonwealth parties both as a government lawyer and then as counsel. He also referred to AZC20’s submission that his work history ‘gave colour’ to the other facts and render the issue that they raise ‘more acute”.[10] He made the following relevant observations in refusing the recusal application which I will return to when considering grounds (d) and (j) below:[11]
(a)his long association as a lawyer with Commonwealth parties was not, without more, sufficient to give rise to a reasonable apprehension of bias;[12]
(b)while in principle, a reasonable apprehension of bias could arise from two or more factors working together such circumstances must be rare and did not arise in that case;
(c)Judges and decision makers inevitably have opinions about a wide range of matters and may approach a case with a preliminary view about what might be the correct outcome but these views do not constitute bias even where strongly held they do not constitute a basis for recusal – it is not enough to demonstrate an apprehension that a decision maker may decide a case one way rather than the other;
(d)every ‘factor’ in a recusal application must be considered in its whole context; and
(e)adding together two substantially discrete factors said to be capable of pointing a decision maker in a particular direction, without more does no more than establish a leaning in a particular direction.
[10] Ibid [40]. The other issues related to the fact that a deponent in the matter before Kennett J had been a deponent in matters in which he had been briefed.
[11] Ibid [40]-[44].
[12] British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [85] (Brereton J)
The Applicant referred to another recent High Court decision, Charisteas v Charisteas (2021) 273 CLR 289 in support of the recusal application. This was a case concerning ‘undisclosed communications’ which occurred between a judge and a lawyer appearing before them on a case, conduct which was found to be sufficient to create an apprehension of bias. The Applicant has not suggested these sorts of facts arise in this case. However she submitted:
The principle underscored is that the appearance of partiality is enough to vitiate a judgment, regardless of actual effect or intention. By comparison, the appearance here is arguably more stark. Instead of undisclosed communications, we have on-the-record statements by the adjudicator that imply prejudgment. If undisclosed contact (without more) suffices for apprehension of bias (as in Charisteas), then a clear statement reflecting a belief prejudicial to the Applicant must satisfy the test.
The facts in Charisteas were distinct and serious. I do not accept that there is a ‘principle’ in Charisteas which is relevant to the grounds alleged in this application. There is certainly no basis to suggest I have had ‘contact’ of any sort with those acting for or working for the Respondent on this case. The authority is not of assistance to the Tribunal.
The Applicant also relied on the High Court’s decision in Johnson v Johnson (2000) 174 ALR 655. A review of the reasons of the majority in this case suggest that the Applicant’s reliance on Johnson was misplaced[13] because the judgment records the opposite conclusion to that contended for (no reasonable or warranted basis for an apprehension of bias).[14]
[13] Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655 [18] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne JJ.
[14] Ibid [18].
Despite this, I have had regard to the following observations from the majority in Johnson because they are particularly relevant to ground (j) as well as some other grounds which imply I have or may be perceived to have ‘prejudged’ the Applicant’s case:
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.[15]
And further:
When what Anderson J said is considered in its context, and in the light of his subsequent explanation, the argument for the appellant must fail. The judge was not to be understood as intending to express a concluded view on the credibility of either party. In particular, he was not to be understood as intending to express such a view about the credibility of the appellant, who had not yet been called to give evidence. His expectation as to the importance of independent evidence, and documentary material, was understandable. An apprehension that he had formed a concluded view on the credibility of witnesses, and would not bring an open mind to bear when he decided the case, would have been unwarranted and unreasonable.
[15] Ibid [13].
The Applicant also referred to ASIC v Sunshine Loans Pty Ltd [2025] FCAFC 32 and submitted that by way of contrast to the present case it supported the contention that the Tribunal has ‘evaluated credibility prematurely’ ie., prior to the giving of evidence. This concept of ‘prejudgment’ is referred to throughout the Applicant’s submissions in support of the application but I infer the reference Sunshine Loans to be particularly directed to ground (g) which is addressed below. For the reasons given there, I do not agree that I have ‘prejudged’ the credibility of the Applicant or her witnesses simply because I have put in place arrangements which allow those witnesses to apply to be legally represented while they give evidence to the Tribunal.
Finally, the Applicant also referred the Tribunal to the High Court’s decision in Antoun v The Queen (2006) 80 ALJR 497. In Antoun, the Court[16] held that a trial judge’s refusal to permit counsel to make a ‘no case to answer submission’, presented an unmistakable appearance of prejudgment[17] because the judge’s actions could not be said to be tentative in its nature. They were decisive and emphatic.
[16] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[17] Per Gleeson CJ and Kirby J [21], [33].
The Respondent submits the facts disclosed in each of the grounds in this case are not analogous to the events which occurred in Antoun. I would agree with that factual assessment. However, the following reflection of Kirby J in Antoun about the danger which is presented by a decision-maker who sits silently and thus denies the parties the benefits of their preliminary or tentative thoughts, is relevant to this case. It underscores the observations made in both Johnson and AZC20 about the fact that decision makers may properly express tentative or preliminary views:[18]
I certainly agree with Smart AJ that it is preferable (at least in a trial by judge alone without a jury) that the judge should express tentative or preliminary views to the parties so that they might address the judge on such matters. This Court had said as much. In Vakauta v Kelly, Brennan, Deane and Gaudron JJ observed:
[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.
[18] [31].
Mr Bourke gave evidence by way of an affidavit dated 8 September 2025 for the purposes of the recusal application. The Respondent submitted and I accept as a matter of fact that not all the allegations set out in the Applicant’s written submissions in support of the recusal application were referred to in Mr Bourke’s affidavit.
Having heard this submission, the Applicant submitted for the first time in oral reply submissions that it was not necessary or appropriate for evidence to be led in support of an application for recusal on the grounds of apprehended bias. Here the Applicant referred the Tribunal to the case of Fuller v Fletcher Building Ltd [2024] VSC 712. That decision in the Victorian Supreme Court concerned an unsuccessful application to issue a subpoena seeking production of records in support of a recusal. Delaney J, in reaching the concluded view that applications for recusal should not be supported by filed evidence, acknowledged that there were different views on this question.[19]
[19] See for example DOQ17 v Australian Financial Security Authority (No 2) [2018] FCA 1270, [2] per Perry J where the Court ordered that affidavit evidence not be filed except with leave of the Court and by way of contrast Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275 per Leeming, Payne and Kirk JJA and Wilson and Fagan JJ referred to and considered the evidence lodged at first instance in support of a recusal application without criticism.
In making this submission, the Applicant did not resile from or seek to qualify Mr Bourke’s affidavit or the other evidence exhibited for the recusal application. In the circumstances, I have assumed that the Applicant still seeks to rely on the evidence which was exhibited at the recusal hearing but seeks to rely on Fletcher to the extent it is necessary to argue that the application should not be refused on the basis that his affidavit evidence may be deficient.
I have not refused the recusal application on this basis.
THE GROUNDS OF THE APPLICATION
There are 10 grounds listed the recusal application and I have addressed each in turn. The order in which I have done so reflects the order in which they were raised in the Applicant’s written outline of submissions. In oral submissions, the Applicant’s counsel initially told the Tribunal that the recusal application focussed on 2 grounds – grounds (a) and (f) but all grounds were maintained. The Applicant’s final ground (ground (j)) was that it was the ‘cumulative effect’ of all 10 grounds which founded a reasonable apprehension of bias.
The Respondent contended that each of the 10 grounds did not meet the first step in the test in Ebner and consequently all were without foundation.
Ground (a) - the content of the directions dated 28 August 2025 providing access to material produced by the summonsed parties
On 28 August 2025, the Tribunal issued directions providing a timetable for the parties to access to summonsed material. The proposed timetable for access was settled and approved by me and then the final direction was issued by a Tribunal staff member on a Tribunal template for directions. It was subsequently identified that the Tribunal staff member incorporated the directions into the template normally used for directions in visa applications. Consequently, the published direction contained the following additional words (relevant to those matters) –
The Respondent is to provide the Applicant with copies of the documents if the Applicant is unable to inspect the documents while in prison or detention.”
This error was explained to the parties at the hearing of the recusal application. The Applicant maintained that the wording of the Tribunal’s directions was evidence that I had incorrectly presumed that the Applicant was incarcerated and contended this demonstrated that I had or could be perceived to have prejudged her application. The Applicant does not accept that any administrative error on the part of the Tribunal detracts from the fact that the wording on the direction would suggest to an informed observer that I believed she was incarcerated.
By the time the direction issued, I had presided over two interlocutory hearings where arrangements for the final hearing were discussed. At no time in my conduct of the interlocutory hearings in this proceeding, had I suggested that the Applicant was incarcerated or otherwise make arrangements for the final hearing on the presumption that she was incarcerated. Further, even taken at their highest, the words on the direction did not assume ‘incarceration’.
The Applicant submitted that the erroneous issue of the direction equated with the facts of Jaggi v Minister for Immigration [2024] FedCFamC2G 1267 where the Member attributed unfavourable intentions to ‘99% of the cooks in India.’ I cannot agree that what has occurred in this case is comparable to the circumstances in Jaggi where there was a deliberate attribution of intention about a group of people by the Presiding Member.
The Respondent referred the Tribunal to the following observation made in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 [100], per Gaudron and McHugh JJ:
… When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker's mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.
The Respondent submitted that the Applicant has not demonstrated that the error attending the issuing of the direction established any such basis for fear of predisposition or intent on my part to the Applicant’s case. I agree on the basis that the act which occurred was an administrative mistake in the form of a direction providing access to summonsed documents.
Taking the facts and circumstances in context, I am satisfied that there is no basis for a fair minded bystander to apprehend that I am not capable of determining the Applicant’s case on its merits by virtue of the error which arose from the use of the wrong form of words on the direction which issued to the parties.
Ground (a) fails.
Ground (b) – remarks made on 6 August 2025 highlighting the Applicant’s engagement with potential witnesses and insistence that Mr Bourke attend the Tribunal despite no request that he attend for the reading of his affidavit (presumably for cross examination)
Taking these matters in turn, Mr Bourke’s statement exhibited correspondence sent by Mr Bourke to 2 extended family members explaining the nature of her case and requesting that they give evidence on particular transactions in support of the Applicant in the proceeding.[20] It also exhibited the responses from their lawyers declining to assist.[21]
[20] Exhibits DGB-1.2, DGB-1.2 and DGB-1.4.
[21] Exhibits DGB-1.6 and DGB-1.7.
The Applicant cited the following observation I made at the 6 August 2025 interlocutory hearing about Mr Bourke’s statement in discussing with the Applicant’s counsel whether it needed to be read. I responded to a submission from the Applicant’s counsel that the statement simply gave context to the background to the application by saying ‘Yes, it certainly does that, including engagement with potential witnesses. At the moment I don’t see a need to have it (the statement) read but if you insist on having it read, then we can read it.’[22] The Applicant submitted this observation suggested impropriety in Mr Bourke’s interactions with the extended family members and prejudgement or some sort of suspicion.
[22] Transcript page 12.
The Respondent submitted that it is not clear at all this comment demonstrates prejudgement of the Applicant’s case or apprehended bias.
My observation was made in the context of the Tribunal was asked to adjourn hearing dates, make directions permitting further evidence to be filed and issue summonses to third parties to give evidence and produce records. Mr Bourke’s statement contained correspondence which otherwise would have on the contents been subject to a claim for legal professional privilege. I was considering these matters and whether Mr Bourke’s statement needed to be read given the facts which seemed to suggest adjournment of the final hearing was inevitable.
This context is relevant to my assessment of the words in the response in the context of the allegation.[23] I am unable to discern in such circumstances, any basis for this comment to give rise to an apprehension or fear that I am incapable of determining the application on its merits. My observation described the exhibits in the statement – correspondence between Mr Bourke and the extended family members and their lawyers, asking them to assist the Applicant by giving evidence, and their responses.
[23] Johnson [18].
The second allegation concerns my requirement and observation that Mr Bourke as the deponent to a statement, should attend before the Tribunal for the reading of their evidence unless they have secured an assurance from the other party that they will not be called for cross examination and so may be excused.
Once again, the context in which this occurred is relevant, because the evidence in each case, was lodged in support of two contested applications made by the Applicant, both of which resulted in interlocutory hearings.
A deponent (including the solicitor on the record) who makes a statement or affidavit cannot assume they will not be required for cross examination on their evidence, unless they are excused. This is not just a matter of professional courtesy. Delay can attend for the parties and the Tribunal if a deponent is not in attendance and is called upon.
In circumstances where Mr Bourke’s affidavit was lodged in support of an application for directions which were opposed by the Respondent, the Tribunal could not assume that Mr Bourke would not be required for cross examination.
The extract from the transcript of the interlocutory hearing on the second occasion (21 August 2025) is consistent with this procedural requirement and I cannot discern anything in the recorded exchange which suggests premature distrust. It should be noted that I had not had an opportunity to read the affidavit referred to in this exchange before it was referred to during the hearing. The full exchange which took place was not referred to in the parties’ submissions but is below:[24]
[24] Transcript pages 2-3.
DR SCHULTE: In terms of the material for today of a late affidavit that's come through that just simply - - -
SENIOR MEMBER: To the tribunal.
DR SCHULTE: To the tribunal that provides exchanges of correspondence. It doesn't get any – it's not really much higher than that.
SENIOR MEMBER: Is that something I need to have in front of me today?
DR SCHULTE: It's an affidavit of Mr Burke. It essentially goes through and just explains - - -
SENIOR MEMBER: Where's Mr Burke?
DR SCHULTE: I beg your pardon?
SENIOR MEMBER: Where's Mr Burke if it's his affidavit?
DR SCHULTE: Sorry, I hadn't understood that.
SENIOR MEMBER: Anyway, all right. So I haven't seen it if it's just come through. We've had a fairly wild unruly morning at the tribunal, so there's a few urgent things happening. I'm not sure whether we will be able to pull that up. Is there a spare copy somewhere?
DR SCHULTE: Yes.
DR SCHULTE: My apologies, Senior Member. I'm not familiar with having a witness.
SENIOR MEMBER: Well, I ask if someone's deposing to an affidavit, I'm sure it's unlikely that Mr Burke's going to be cross-examined on this affidavit, but I would have thought that the deponent would appear if there's an affidavit being read that they've deposed to. I guess it's just a matter of form. I'll short-circuit it by asking the respondent. Is there any intention - - -
MR HANNA: There's no intention to cross-examine.
SENIOR MEMBER: No. Thank you. All right. And the respondent, I presume, has seen this affidavit?
MR HANNA: Yes, we have.
SENIOR MEMBER: Right. And is there any objection to any part of it?
MR HANNA: There's no objection.
SENIOR MEMBER: All right. And Dr Schulte, you're proposing to read the affidavit?
DR SCHULTE: Yes, thank you.
SENIOR MEMBER: Okay. All right. And do you want me to mark it as an exhibit?
DR SCHULTE: Yes, please.I am satisfied these exchanges reveal nothing more than a Tribunal member addressing procedural and interlocutory issues arising in a contestable environment. Criticism of my case management style is not sufficient. The Ebner test requires that the facts support a reasonable apprehension of bias such that I am incapable of determining the Applicant’s matter on its merits. I cannot accept that either incident demonstrates such a basis.
Ground (b) fails.
Ground (c) – alleged convergence between the Senior Member’s remarks and the Respondent’s Amended SFIC (ASFIC)
Here, the Applicant contends:
‘in the context of the Respondent’s global assertions about the Applicant’s honesty (see the Respondent’s amended SFIC (RASFIC), the Senior Member’s case management interventions and remarks tend to mirror the Respondent’s scepticism’.[25]
[25] Applicant’s submissions [5(c)].
This submission is confusing but seems to suggest that I sought to mirror contentions contained in the Respondent’s ASFIC in my case management of the 2 interlocutory hearings (6 August 2025 and 21 August 2025).
The fatal flaw with this submission is that the Respondent’s ASFIC was filed on 8 September 2025, after the interlocutory hearings took place. In such circumstances, I cannot accept it has merit.
The Applicant’s use of the word ‘scepticism’ is misplaced. That term implies doubt ie an attribution of a view about something. The Respondent did put both the Tribunal and the Applicant on notice at both interlocutory hearings of his view was that this was a ‘credibility case’ and stressed that this extended to the evidence of a business associate which he intended to test. The Respondent then qualified this notice by saying that he would await amendment of his SFIC to communicate his full position.[26]
[26] Transcript pages 13-14.
I cannot accept that a fair minded observer, properly informed of the Commonwealth’s obligation to act as a model litigant would regard the Respondent’s notice to the Tribunal at the interlocutory hearings as improper or conveying ‘scepticism’. To the contrary, the Respondent’s notification is consistent with the Respondent’s obligation in Appendix B to the Legal Services Directions 2017 (Cth) that he give notice of such matters to the Applicant.
In any event, the Applicant’s representatives had already put the Tribunal on notice of issues and risks which may attend her witnesses’ evidence in this proceeding including discussing the warnings that may need to be issued to witnesses.[27]
[27] See for example the 22 May 2025 correspondence and see further the exchanges recorded in the Transcript dated 6 August 2025 pages 20-21.
Ground (c) fails.
Ground (d) – The Senior Member’s prior professional experience
Here, the Applicant submits that my prior professional experience as a lawyer employed by the Australian Government Solicitor (AGS) and my association with the Respondent as a client in taxation litigation on unspecified ‘similar matters’ gives rise to a ‘logical connection between that association and a feared departure from impartiality’.[28] In making this submission, the Applicant does not suggest that I have had any prior involvement in this case or matters pertaining to the Applicant or any associated persons during my prior employment. Nor does the Applicant point to any evidence that I have otherwise been associated with her case or any matter pertaining to her or those associated with her. Similar to the facts of ACZ20, the Applicant suggests in the most general way that the nature of my prior employment gives rise to a ‘logical connection’ between my prior association with the Respondent and a fear departure from impartiality,[29] without explaining how that is a real possibility on the test in Ebner.
[28] The Applicant referred the Tribunal to Seeto v Uber Australia Pty Ltd [2025] FCA 1032.
[29] Seeto [10]-[14].
The Applicant acknowledged that there was no precise obligation on me to disclose to the parties upon being constituted to the case that I had previously been employed by the AGS and had undertaken legal work for the Respondent.
I pause to note here that my work history is a matter of public record. The Applicant did not raise any issue about this matter prior to the lodgement of the recusal application on 8 September 2025, despite having appeared before me on both 6 August 2025 and 21 August 2025.
The Applicant referred the Tribunal in submissions to the Federal Court decision, Seeto v Uber Australia Pty Ltd [2025] FCA 1032.[30] The Applicant submitted that Seeto provided support for the argument that a prior professional association such as mine was sufficient to support a basis for recusal. For the following reasons, I cannot agree with that submission.
[30] With reference also to Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines (1996) 65 FCR 215.
In Seeto, Shariff J’s decision to recuse himself was not just based on a prior association with a party as a client. What was relevant to his decision was the fact that the client in question was a private company (Uber) and that Shariff J had been briefed on a number of occasions pertaining to particular critical issues. As a first step, Shariff J identified that he had acted for Uber as a client but noted that the second step in his consideration which led to his decision was the fact that he perceived that the same critical issues which pertained to his prior briefs for Uber were also critical to the proceeding which had been assigned to him.[31]
[31] Ibid [12].
The Applicant also referred to the Federal Court decision in Jian and Ors v Downing [2023] FCA 1018 per Meagher J where an ongoing commercial relationship between a member of a committee investigating the applicant and a competitor which had not been disclosed was considered to provide a basis for the Court to find that the committee’s preliminary report was infected by apprehended bias.
In contrast to Jian, the Applicant has not pointed to any specific evidence or reason for his suggestion that there is a basis to fear I will depart from impartiality based on my prior professional experience or work on tax litigation and acknowledges that ‘something more’ is required than a prior association.[32] As I have noted, in ACZ20, Kennett J found that his long association as a lawyer with Commonwealth parties was not, without more, sufficient to give rise to a reasonable apprehension of bias on the basis of the test in Ebner.[33]
[32] Applicant’s submissions [64].
[33] British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [85] (Brereton J).
I am confident in the view I formed when this matter was assigned to me that I have had no previous involvement with matters relating to the Applicant or those connected with her and that there is nothing that would connect me to her case such that I should not hear it. The Respondent is correct to observe that I have not worked at AGS since end of August 2022 but that is not the point. In the circumstances, there is a complete absence of any evidence to suggest I have had some prior connection with this case or the Applicant or some connection or contact which would operate to mean that I should recuse myself or raise the matter with the parties. In this regard, I adopt the reasoning of Kennett J in ACZ20, that my prior professional history of working for the Commonwealth should not of itself preclude me from hearing this matter.
I observe that all members necessarily come to this Tribunal with prior professional experience and associations. We all have an obligation to identify conflicts of interest as they arise but that is a matter for judgment based on the particular case and a member’s prior work history and expertise should not of itself preclude them from hearing matters in which they have relevant expertise.
In the circumstances, ground (d) fails.
Ground (e) – the alleged attempt to ‘neutralise’ the requests for summonses to the extended family members
On 1 August 2025, the Applicant’s solicitors lodged requests for summonses with the Tribunal (the summonses). The summonses were directed to the 2 members of the Applicant’s extended family who had refused to agree to give evidence in support of her application. The summonses required both individuals to produce documents and attend to give evidence at the final hearing.
Here, again, context is important. I reviewed the summonses and decided to hear from the parties on the requests before agreeing to issue them in light of the wording proposed in each summons which seemed to presume a finding of fact which it fell to the Tribunal to determine. As I emphasised to the parties at the subsequent interlocutory hearing, that there was no suggestion that was any deliberate intent in the way the summonses were drafted.[34]
[34] Transcript page 11.
The Applicant agreed to reconsider the wording of the requests for summonses and resubmitted the requests.[35] The summonses both issued shortly after the 6 August 2025 interlocutory hearing and documents were produced by the summonsed parties and produced to the Tribunal.
[35] Ibid.
The Applicant contends that I attempted to ‘neutralise’ the summonses and that the Tribunal should have issued each summons in the original form because the Respondent had not objected to them. For the following reasons, I cannot agree with the correctness of either contention or the allegation that there is a basis for this ground.
In the interests of procedural fairness, I decided to raise my concerns about the summonses before both parties to the proceeding. I cannot agree with the Applicant’s submission that my authority to question or decline to issue a summons depends upon an objection from the opposing party. The power in s 74 of the Tribunal Act is based on a discretion which reflects the Tribunal’s very broad scope to manage its own processes.[36] It does not depend upon an objection from the opposing party (who may be unaware that the request has even been made).
[36] Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth) [544] and Tribunal Act, ss 49 and 52.
I did form a preliminary view that the summonses should be redrawn, if possible. I cannot discern how my questioning of the words in the summonses could lead a fair minded observer to apprehend that this step might lead me to decide the Applicant’s case other than on its legal and factual merits. There was no suggestion the requests would ultimately be refused. As I noted, the Applicant’s counsel offered to consider amendment of the wording, they were redrafted and were duly issued by the Tribunal.
Ground (e) fails.
Grounds (f) and (i) - the form of the notice of objection and the allegation of provision of pre-drafted orders which ‘aligned’ with the Respondent’s approach
In ground (f), the Applicant contends that my management of her application for leave to amend her notice of grounds of objection (which was successful) exceeded the principles of case management and suggested that I had prejudged her application. Because they are brief, I will set out in full the Applicant’s written submissions on this ground:[37]
Also on 21 August 2025, the Member expressed a preference that the Applicant’s amendments be reduced to a short order (1–2 pages), rather than accepting the comprehensive objection document previously permitted (Bourke Affidavit [36ff]). Although the Senior Member acknowledged the Applicant’s right to amend (noting the Respondent had a “steep hill” to oppose), the insistence on drastic truncation can be perceived as prematurely curtailing the Applicant’s articulation of her case. The connection feared is that content the Applicant considers material may be undervalued.
[37] Applicant’s submissions [72].
Once again, context is important. The Respondent initially objected to the Applicant’s application for amendment of the grounds of objection. As the Applicant acknowledges, I observed that the Respondent had a ‘steep hill to climb’ to convince the Tribunal to decline the requested amendment.[38]
[38] Binding authority makes it very clear that there is a very strong presumption in favour of permitting amendment (see, for example, Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (1991) 32 FCR 148).
Consequently my subsequent exchange with counsel for the Applicant proceeded on the mutual understanding that the application to amend would very likely be granted. It also occurred in circumstances where it was understood by all at the hearing that the original notice of objection had not been prepared by the Applicant’s current legal representatives. My assessment was that the form of the original notice made it very difficult for any reader to discern and understand the Applicant’s grounds of objection, because it was written as a narrative. I asked Applicant’s counsel whether ahead of the final hearing a summary document could be prepared to assist the parties and the Tribunal. In tax proceedings, it is necessary for the Tribunal to understand with some precision the taxpayer’s grounds because they found its jurisdiction to hear the application. As I have also noted, the Tribunal has broad scope in relation to its procedure and is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate.[39]
[39] Tribunal Act ss 49 and 52.
I cannot accept that this process extended beyond procedural management of an issue which would be relevant to the final hearing and the Tribunal’s decision. By encouraging the parties to agree a summary document, the Tribunal can presume any resulting document renders this issue non-contentious.
In ground (i) the Applicant alleges that my offer to share a draft of proposed directions with the parties constituted ‘descent into the arena’ and risked the perception that I was not open to persuasion. That document was shared to demonstrate a possible form by which the Applicant might prepare a summary of the existing grounds of objection.
The Tribunal is not a Court. As I have mentioned it has a broad discretion as to its procedure.[40] There is no prejudgment in the preparation of draft directions for discussion with the parties at the interlocutory hearing. The Applicant is correct to observe that in the course of the hearing I offered to share my draft version of such with the parties purely for the purpose of ascertaining what form might assist. The Applicant undertook to consider the proposal ahead of the final hearing. No objection was raised by the Applicant to the suggestion.[41]
[40] Ibid.
[41] Transcript pages 7-8.
The Applicant’s submissions use the words ‘drastic truncation’ to describe what was proposed or intended. Those are not words do not, with respect, accurately reflect what was proposed at the interlocutory hearing on 21 August 2025 or otherwise. My observations to counsel for the Applicant were about the form of the document and ensuring certainty about the grounds – to avoid or minimise disputes arising about the grounds. Further it should be acknowledged that my decision was not final because I invited the parties to come back to the Tribunal about the matter if necessary.[42]
[42] Ibid.
In the circumstances, I cannot accept that the matters raised by the Applicant in these 2 grounds can be fairly interpreted in the way which is suggested. Even if I am wrong in that view, I am not satisfied that the Applicants have demonstrated how these ‘views’ mean a fair minded observer might apprehend that I might not be capable of bringing an impartial mind to determining the application. The Applicant’s own submissions on both grounds fall well short of that mark.
Grounds (f) and (i) fail.
Ground (g) – the directions giving witnesses leave to apply for separate legal representation and the management of issues relating to any warnings to be given to witnesses
On this ground, the Applicant submits that the Tribunal has:
(a)‘highlighted’ that the Applicant’s husband and the business associate should consider obtaining separate legal representation;
(b)foreshadowed warnings may need to be given to witnesses; and
(c)directed correspondence be sent to witnesses in advance noting potential self-incrimination warnings may be given.
Those submissions do not correctly describe the Tribunal’s directions or acknowledge the context in which the Tribunal engaged with the parties about this aspect of the hearing.
The Tribunal has an obligation to give a warning to a witness of their right to refuse to answer a question on the ground that it may incriminate them. Failure to do so may give rise to appealable error.[43]
[43] Kohli v Minister for Immigration and Border Protection [2018] FCA 540 per Flick J. In Kohli Flick J concluded the Tribunal’s failure to administer the warning was not material to the Tribunal’s findings but noted the importance of the right to refuse to answer and the possible consequences [31] with reference to Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209.
The following provides relevant context to the directions which issued:
(a)the Applicant had already alerted the Tribunal to the fact that there was a distinct risk that either or both the Applicant and her husband may incriminate themselves in giving evidence;[44]
(b)the Applicant had also alerted the Tribunal to the fact that both of the extended family members had engaged criminal legal representatives. The Tribunal was being asked to issue summonses requiring both to attend the Tribunal and give evidence; and
(c)the Tribunal was being asked to permit the business associate to give evidence remotely. The Respondent told the Tribunal in opposing this request that his credibility was in issue.
[44] Transcript page 2-3, the 22 May 2025 correspondence and the reply submissions.
In the circumstances, I asked the Applicant’s counsel whether he anticipated warnings would need to be given to the Applicant’s witnesses enquired whether some witnesses might seek to have legal representatives present for the hearing. Those enquiries were made in the interests of procedural fairness. The resulting arrangements are procedural in nature. The focus of my enquiries is demonstrated by the following exchanges:[45]
[45] Transcript page 12.
SENIOR MEMBER: Well, I'm trying to look around the corners. The tribunal has to be seen to be running a fair hearing and in circumstances where the tribunal's on notice that people are coming to give evidence that will require warnings to be given, and in circumstances where witnesses are coming to give evidence, and the tribunal is aware that the only legal representation that is available to assist to prompt them about their rights is one where the interests – and this is no criticism, of course, of the applicant's legal representatives, but where they can't hope to have interests that are wholly aligned between their own client and those witnesses, I have a concern.
And further in respect of the business associate:[46]
SENIOR MEMBER: So the reason I'm asking all of this today is because we're here deciding whether [x] should attend in person. So that's why I wanted to raise this and discuss it in the context of [x], because I'm trying to understand what all of the risks and the issues are that could arise around [x] in terms of how he appears. I mean, obviously if he's appearing remotely and there's issues about his right to refuse to answer, etcetera, it becomes more difficult to manage that with him giving evidence remotely.
And then I also need to take into account if he does have separate representation in any way, how's that being accommodated in the arrangements. You know, how will that work if he's giving evidence remotely as opposed to in person in Brisbane.
And further:[47]
SENIOR MEMBER: Yes, I do. That's the thing that's concerning me about this – is what is the best way to ensure that these witnesses are able to give evidence in a way that's helpful to the tribunal but also in circumstances, Dr Schulte, where – and again no criticism to you or those instructing you – they should not necessarily feel that they can rely on you, to put it bluntly. You're here to act for the applicant. And I must admit, I'm unsurprised to hear that [x] is a critical witness or potentially a critical witness for the Commissioner. I'm not going to make any other comments about it, because I don't know what questions the Commissioner is going to ask.
I just apprehend I'm going to have to give warnings to each of them, and I also apprehend I'm going to have to say to them that they have the right to be represented. And as soon as I say that to them in the hearing, the risk is that one of them might say at that point, 'Well, in that case, I think I better go and get represented', and we're in the middle of a hearing. And I also think it's difficult to manage all of that and to be fair to them to allow them to have the best access to that representative if they're remote. So I wonder whether the first step in all of this is some form of direction that makes sure that all the witnesses are on notice that should they wish to do so, they have the right to apply to be separately represented as they give their evidence.
[46] Transcript pages 12-13.
[47] Transcript page 14.
The Applicant has referred the Tribunal to Charisteas and Antoun (which I do not accept are analogous to the facts in issue in this case) and to Johnson (which I have noted does not support the argument for which the Applicant contends). I do not accept on the face of the evidence that by taking these measures, an informed bystander would apprehend that I have ‘prejudged’ the witnesses. I have made no evaluation of the witnesses evidence, even to the extent that occurred in Johnson and that would found to be insufficient to found an apprehension of bias.[48]
[48] Johnson [18].
I am not satisfied that the issues raised on this ground demonstrates or could lead a bystander to assume that I have prejudged the matter or closed my mind to the matters requiring adjudication in the proceeding.
Ground (g) fails.
Ground (h) – the requirement that the deponent of 2 solicitor ‘affidavits’ attend the interlocutory hearings
By this ground, the Applicant submits I have engaged in an ‘unusual procedural requirement which added to the pattern of strictures applied to the Applicant’.[49] The Respondent contends that the ground is fundamentally flawed and it remains unclear it could indicate a ground of apprehended bias against the Applicant.
[49] Applicant submissions [5(h)].
The ‘affidavits’ were the statement and an affidavit of Mr Bourke. As I have noted, the Tribunal took steps upon being informed that the deponent would not be in attendance at an interlocutory hearing to require that he attend[50] and explained to counsel on the second occasion why his attendance was required.
[50] Tribunal Act, 79.
I have already explained why a deponent to a statement should be available to be questioned unless and until they are excused. I accept that if the party seeking to read the affidavit was in a position to inform the Tribunal ahead of the hearing that the affidavit was uncontroversial, was to be read by the consent of the opposing party then no cross examination would be required or likely and the deponent could be excused. But that was not the circumstance here.
The requirement that a deponent make themselves available is heightened in circumstances where the issues are contested or are controversial. The Applicant has described Mr Bourke’s statement in her submissions as a ‘background statement’. I am unsure what is meant my that but the reality is that any affidavit, when read, is susceptible to cross-examination, but further, the very act of lodgement of an affidavit (whether it is read or not) can have implications for a party.
The Tribunal has the flexibility to act informally where appropriate (s 50) and is not bound by the rules of evidence (s 51). Tax disputes heard in the Tribunal tend to operate more formally and in a more contestable environment where parties engage solicitors and experienced counsel. Regardless and for procedural fairness reasons, the Tribunal needs to be able to provide an opposing party with an opportunity to cross-examine the deponent to an affidavit or statement read in a proceeding. This is context for the exchange which took place between the parties at the interlocutory hearing on 21 August 2025 (above).
In the circumstances, I do not agree that my requirement that the deponent to the statement and affidavit be present until excused, is suggestive of ‘pre-emptive mistrust’. I am satisfied that in my actions reflect proper procedural requirements and standards and ensure procedural fairness and the efficient conduct of the 2 interlocutory hearings in a contestable environment. In that context, I cannot accept that the questions asked of the Applicant’s counsel on 21 August 2025 reflect anything more than my concern about those procedural matters. I am not satisfied in the circumstances that the Applicant has demonstrated how such procedural requirements could lead a fair minded bystander to assume that I have prejudged or closed my mind to the facts and matters requiring determination in the Applicant’s case.
Ground (h) fails.
Ground J – the cumulative effect of grounds (a) to (i)
The Applicant submits that the grounds cumulatively give rise to the necessary presumption of apprehended bias. She suggests such an approach is available to meet the test in Ebner on the basis that individually they ‘may be explained’ but taken together, they ‘paint a consistent picture’ of a ‘prejudgment that the Applicant is not to be trusted’.[51]
[51] Applicant’s submissions [78].
The Respondent contends that the elements of the test in Ebner have not been met in respect of each ground advanced by the Applicant and that the Applicant’s case is at best, an attempt to make a circumstantial case based on her perception of certain events and circumstances.
I have found that none of the individual grounds advanced by the Applicant could reasonably give rise to a presumption of apprehended bias by a fair minded and informed observer. Had any one ground met that test, it would have required me to recuse myself.
But none did.
In the circumstances, I cannot accept these failed grounds can somehow be added together to bring about a requirement for recusal. I say this for the following reasons.
As I have already noted, in AZC20, Kennett J made the following observation:[52]
In every case, the “factor” that is relied upon must be considered in its whole context. However, the context is relevant to the extent that it accentuates (or diminishes) the possible effect of that factor and not otherwise. Adding together two substantially discrete factors, each said to be capable of pointing the decision maker in a particular direction, does no more than establish a leaning in that direction. [emphasis added]
[52] AZC20 [44].
He also relevantly observed that:[53]
I do not think there is any reason in principle why a reasonable apprehension of bias cannot arise from two or more factors working together. However, such circumstances must be rare and they do not exist here. I will endeavour to explain why this is so.
[53] Ibid [41].
He went on to explain that:[54]
(a)it is not improper for a decision maker to approach a case with a preliminary view as to correct outcome;
(b)a preliminary view is not of itself a basis for disqualification unless it the decision maker is unable to be persuaded that their preliminary view is wrong;
(c)it is not enough to demonstrate an apprehension that the decision maker is likely to decide a case one way or another;
(d)what must be demonstrated is a potential impediment to the decision maker making the decision on the merits. That essential element must be demonstrated as leading the decision maker to decide the matter other than on its merits;
(e)that essential element must be considered in its whole context; and
(f)the addition of 2 substantially discrete (analytically distinct) factors, does not demonstrate the decision maker may decide the matter other than on its merits. It only establishes a ‘leaning’ in a particular direction.
[54] Ibid [42]-[46].
In the present case, the Applicant has assembled 9 distinct grounds on which the application for recusal is founded. While the Applicant ultimately contends these grounds operate in combination, they each concern different matters and each has required individual consideration and findings (as evidenced by the parties’ submissions and these reasons). They are multiple and discrete. There is no continuum. This is not the rare circumstance to which Kennett J alluded in AZC20. Nor do I accept that placed side by side and considered in their proper context, these matters are even capable of establishing any ‘leaning’ of the type described by Kennett J in AZC20. I cannot as correct, the proposition that despite each ground having individually failed to meet the requirements of the test in Ebner, they can somehow be combined to create the necessary apprehension that I am not capable of hearing this application on its merits.
Ground (j) fails.
WAIVER
In the circumstances, I need not make any findings as to the timing of the application for recusal.
CONCLUSION
I have found that I am not satisfied any of the 9 primary grounds demonstrate a potential impediment to my ability to make a decision on the Applicant’s application on the merits such that the allegation of apprehension of bias is made out. Further and consistent with AZC20, I have also not accepted the Applicant’s submission that these 9 grounds should nonetheless be considered to operate collectively to create a reasonable apprehension of bias.
For the above reasons, the application for recusal is refused.
Date(s) of hearing: 16 September 2025 Date final submissions received: 12 September 2025 and 15 September 2025 Counsel for the Applicant:
Counsel for the Respondent:
Solicitors for the Applicant:
Dr Richard Schulte
Norman Hanna
Dentons
Solicitors for the Respondent
McInnes Wilson
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20
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