RBWJ and Secretary, Department of Social Services (Social services second review)

[2016] AATA 818

RBWJ and Secretary, Department of Social Services (Social services second review) [2016] AATA 818 (18 October 2016)

Division

GENERAL DIVISION

File Number(s)

2016/1726

2016/1727

Re

RBWJ

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	18 October 2016
Place	Sydney

The Applicant’s request for recusal is refused.

.................................[sgd].......................................

Dr L Bygrave, Member

CATCHWORDS

PRACTICE AND PROCEDURE – request for recusal of Tribunal member – no actual bias – no apprehended bias – request refused

CASES

Ebner v Official Trustee in Bankruptcy [2000] HCA 63

Michael Wilson and Partners Limited v Nicholls [2011] HCA 48

REASONS FOR DECISION

Dr L Bygrave, Member

18 October 2016

INTRODUCTION

1. On 5 April 2016, RBWJ made an application to the General Division of the Administrative Appeals Tribunal for a review of a decision made by the Social Security and Child Support Division (SSCSD) of the Tribunal on 10 September 2015 (reviewable decision).

2. A Directions Hearing for the matter RBWJ and Secretary, Department of Social Services (file nos. 2016/1726-7) was held on 11 October 2016.

3. On 13 October 2016, RBWJ wrote to the Tribunal requesting that I recuse myself from hearing this application.

   RELEVANT ISSUES

4. RBWJ has requested that I recuse myself from hearing the application because of actual and apprehended bias. I will consider each of these matters separately.

   Actual bias

5. Actual bias concerns the question of whether I have effectively pre-judged the issues or the application.

6. The Directions Hearing on 11 October 2016 was convened at the request of the Respondent’s representative, after the Applicant filed voluminous material that had limited relevance to the issues set out in the reviewable decision. Both parties made submissions in relation to the issues for determination and the Tribunal issued Directions that set out a timetable for the provision of further evidence by the Respondent and Applicant.

7. There was nothing said or done at the Directions Hearing that would suggest any pre-judgement of the issues in the application. There was no restriction placed on the Applicant in relation to the material they could provide to the Tribunal.

8. There is no evidence of actual bias in relation to this application.

   Apprehended bias

9. The test for the apprehension of bias is set out in the decisions of Ebner v Official Trustee in Bankruptcy[1] and Michael Wilson and Partners Limited v Nicholls, and requires that I consider ‘whether a fair-minded lay observer might reasonably apprehend that [I] might not bring an impartial and unprejudiced mind to the resolution of the question [I am] required to decide’.[2]

   [1] [2000] HCA 63.

   [2] Michael Wilson and Partners Limited v Nicholls [2011] HCA 48 at 31.

10. The basis for the Applicant’s claims is unclear although the request for recusal did mention the fact that I was previously employed at the Australian Human Rights Commission. This interest, if it is one, does not provide any legal basis for suggesting that I would not bring an impartial and unprejudiced mind to the proceeding.

11. There was also nothing in the conduct of the Directions Hearing that would lead a fair-minded observer to conclude that I am not capable of bringing an impartial and unprejudiced mind to the hearing of this application.

12. I note that the Applicant’s behaviour at the Directions Hearing was unruly. The Applicant was disrespectful to the Tribunal and behaved aggressively towards the Respondent’s representative. It was consequently necessary for me to assert the authority of the Tribunal to clearly state that the Applicant’s behaviour was not constructive to the proceedings of the Directions Hearing.

13. I am satisfied that there is no evidence of apprehended bias in relation to this application.

    DECISION

14. For the reasons set out above, the request that I recuse myself from hearing this application is refused.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.................................[sgd].......................................

Associate

Dated 18 October 2016

Applicant	Self-represented
Solicitors for the Respondent	T Hillyard, Department of Human Services