Von Stieglitz and Comcare (Compensation)

In the matter of *Von Stieglitz and Comcare (Compensation)*, Deputy President Gary Humphries P of the Administrative Appeals Tribunal considered an application for recusal on the grounds of apprehended bias, and a related issue concerning legal professional privilege over certain documents. The applicant sought the Deputy President's recusal, alleging that the tone and substance of a previous recusal decision demonstrated personal animosity and a lack of impartiality. The applicant also contended that a fair-minded lay observer, upon reading her submissions and the Deputy President's reasons for refusing recusal, might reasonably apprehend bias.

The primary legal issues before the Tribunal were whether the Deputy President should recuse himself due to apprehended bias, and whether nine documents produced by Comcare attracted legal professional privilege, and if so, whether that privilege had been waived. The applicant argued that the Tribunal had unduly delayed addressing her concerns regarding Comcare's privilege claim, and that the Deputy President's remarks in a previous decision were a measured response to this argument. The applicant further submitted that the Deputy President's characterisation of her belief that she had been deprived of her day in court, as expressed in paragraph 21 of his earlier reasons, indicated a lack of impartiality.

The Deputy President reasoned that the applicant's current application for recusal was a restatement of arguments already fully considered and rejected in the original recusal decision. He found that the remarks in question were a proportionate response to the applicant's submission regarding delay and did not demonstrate personal animosity or a lack of impartiality. The Deputy President concluded that a fair-minded lay observer would not reasonably apprehend bias based on the material presented.

Consequently, the Tribunal refused the application for recusal. The Tribunal also determined that the nine documents produced by Comcare attracted legal professional privilege, and that this privilege had not been waived by Comcare's conduct.