Rustom v Ismail

Rustom brought proceedings against Ismail before the Victorian Civil and Administrative Tribunal, relating to a building dispute. Ismail had previously appeared before the Tribunal and the same member was presiding over this case. In the prior case, a finding was made against Ismail’s credibility. At the beginning of this case, the Tribunal Member made further adverse comments about Ismail’s credit. Ismail applied to set aside the decision on the basis that the Tribunal Member had a reasonable apprehension of bias. Rustom opposed the application. The court had to determine whether the Tribunal Member’s conduct engaged the rule against bias.

The court held that the Tribunal Member’s comments demonstrated a reasonable apprehension of bias. The prior adverse finding concerning Ismail’s credibility was not in itself sufficient to engage the rule against bias, however, the further comments made by the Tribunal Member at the beginning of this case reflected adversely on Ismail’s credit and engaged the rule. The court found that the Tribunal Member was not impartial and that the decision should be set aside and the matter remitted for rehearing before a different Tribunal Member. The court did not make any orders for costs.