XKSC and National Disability Insurance Agency (Practice and procedure) - [2025] ARTA 362

XKSC and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 362 (9 April 2025)
Applicant/s:  XKSC
Respondent:  National Disability Insurance Agency
Tribunal Number:                2024/1796

Tribunal:General Member L Proske
Place:Adelaide
Date:9 April 2025

Decision:The Applicant’s recusal application is refused.

Statement made on 09 April 2025 at 3:01pm
Catchwords
PRACTICE AND PROCEDURE – application for recusal – actual bias – apprehension of bias – recusal application refused
Legislation
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
Cases
Ebner v The Official Trustee in Bankruptcy [2000] HCA 63
Johnson v Johnson [2000] HCA 48
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17
Idoport Pty Ltd & Anor v National Australia Bank Limited & 8 Ors, Idoport Pty Limited & Anor v Donald Robert Argus [2004] NSWSC 270
Charisteas v Charisteas [2021] HCA 29
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2023] HCA 5
Statement of Reasons

The Applicant (XKSC) made an application to the Administrative Appeals Tribunal (AAT) on 26 March 2024 for review of a decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (Respondent) on 20 March 2024. That decision confirmed a previous decision made by the Respondent on 31 January 2024 to approve the statement of participant supports (SOPS) in XKSC’s plan.
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[1] XKSC’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[2] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[1] s 8 of the Administrative Review Tribunal Act 2024 (ART Act).
[2] item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
This matter is listed for a substantive hearing on 7, 8, 19 and 20 May 2025. On review, XKSC is seeking to have funding included within her SOPS for a side-by-side vehicle (SSV), a hydrotherapy swim spa, home modifications (expansion of solar battery capacity), specialist disability accommodation, support worker assistance, occupational therapy, physiotherapy, psychology, speech pathology, remedial massage therapy, a continence nurse, and consumables. The question arising on review is whether those supports are reasonable and necessary supports that will be funded in XKSC’s SOPS.
RECUSAL APPLICATION
An email to the Tribunal and the Respondent from XKSC dated 6 March 2025 was construed as a recusal application.
An interlocutory hearing in relation to the recusal application was held on 28 March 2025. Two advocates attended the interlocutory hearing with XKSC, those being Ms Katie Gagliardi (Ms Gagliardi) and Mr Bob Buckley (Mr Buckley). At the commencement of the interlocutory hearing, Ms Gagliardi confirmed XKSC had made a recusal application, XKSC wanted Ms Gagliardi to speak on her behalf excluding a brief introductory comment to be made by XKSC; and that no outline, submissions or pre-recorded statement had been filed in advance of the interlocutory hearing.
Ms Gagliardi made oral submissions on XKSC’s behalf in support of the recusal application. Ms Gagliardi advised she had assisted XKSC to prepare those oral submissions. The Respondent advised they were neutral in relation to XKSC’s recusal application and made no submissions.
Ms Gagliardi’s oral submissions will not be reproduced in full, but they were to the effect:
a)    XKSC gained access to the NDIS based on a diagnosis of autism spectrum disorder, assessed as Level 2 requiring substantial support in communication. XKSC subsequently gained approval for Ehlers-Danlos Syndrome (EDS). XKSC remains a participant of the NDIS, so the requirement for substantial support with communication has remained a baseline requirement throughout these proceedings, compounded by the impacts of her EDS.
b)    The Tribunal’s rigid understanding of fairness and its cumulative impacts in this case have led to profound unfairness. The Tribunal has repeatedly failed to address accessibly matters. Matters the Tribunal has avoided addressing form part of the cumulative conduct that suggests apprehension of bias, as does the approach taken to procedural matters.
c)    The Tribunal has not been responsive to XKSC’s communication or accessibility requirements. The Tribunal has failed to tailor accessibility to the circumstances of the case and repeatedly failed to engage with and address XKSC’s accessibility concerns, including those that relate to hearing procedure. Matters the Tribunal has avoided addressing and its approach to procedural matters form part of the cumulative conduct that suggest apprehension of bias and are now fatally compromising XKSC’s capacity to engage in these proceedings in an equitable way.
d)    The direction made 16 July 2024 was inequitable, resulted in significant administrative burden, and did not address XKSC’s concerns. More generally, directions the Tribunal has made in this matter have been inequitable. When making directions the Tribunal has given inadequate consideration to accessibility concerns raised by XKSC, such as her need to stagger gathering evidence. Sometimes, directions made in this matter suggest contempt for XKSC’s insistence on accessibility. The Tribunal’s prioritisation of efficiency over equitable access appears to be intentional or negligent sabotage of XKSC’s access to a fair hearing.
e)    At the directions hearing on 7 August 2024, the Tribunal orally outlined the things it considered it needed to turn its mind to when considering XKSC’s request that the proceeding be split, but did not raise these in the listing notice for that case event, despite XKSC needing information in writing to properly understand and respond to it. At this same case event, the Tribunal said it would be assisted by the Respondent being in a position to make submissions at the forthcoming interlocutory hearing that go to the interlocutory considerations. The Tribunal did this without consideration of whether the Respondent was neutral in fact or had motive not to split the proceeding. The Tribunal has not afforded the same degree of trust and presumption of good faith to XKSC’s accessibility requests. The Tribunal may not trust XKSC or her treating professionals and may hold direct bias in favour of the Respondent.
f)     In deciding to refuse XKSC’s request to split the proceeding the Tribunal gave inadequate consideration to concerns expressed by XKSC about the time she would need to prepare for a substantive hearing, failed to consider whether the Respondent would benefit from the proceeding not being split, and did not hold XKSC’s competing needs well. Refusing to split the proceeding has caused profound harm to XKSC’s preparations.
g)    In the oral reasons for refusing XKSC’s request to split the proceeding, the Tribunal said ‘it is at this time unclear what facts are agreed between the parties’. Correspondence records demonstrate XKSC has desperately sought the Tribunal’s assistance in enforcing such clarity from the Respondent since May 2024, and in making this comment the Tribunal placed the onus on extracting this clarity from the Respondent on XKSC. XKSC remans no clearer at the end of March 2025 regarding the Respondent’s position.
h)    At the directions hearing on 9 October 2024, the Tribunal said, ‘am I to understand the applicant has made no effort to obtain further evidence since the last hearing’. That comment showed no regard for the impact of XKSC’s disability on her capacity to meet requirements. The Tribunal also commented that it was unusual for a briefing letter to an IME to be given to an applicant in advance of an IME assessment, which suggests the Tribunal is not impartial regarding XKSC’s communication requirements, nor to the Respondent’s reticence to support these. In these circumstances, if a fair-minded observer was informed of the disability impacts at issue, they would likely apprehend the Tribunal may decide the case based on an assumption that XKSC’s disability is less severe than the established facts suggest, and may treat her contentions with more suspicion than those argued by the Respondent. At this same case event, the Tribunal failed to address legislative amendments and did not direct the parties to file submissions in relation to those. The Tribunal’s conduct at this case event disadvantaged XKSC.
i)   The Tribunal failed to address concerns raised in correspondence dated 1 November 2024. XKSC believes this failure suggests her case will not be heard in an unbiased way.
j)   XKSC has concerns regarding December 2024 and January 2025 correspondence, directions, and the response to XKSC’s request for variations and reasonable adjustments. The crux of these concerns boils down to most of XKSC’s accessibility requests being ignored, and the Respondent’s timeline variation being honoured without the Tribunal giving equivalent consideration to how that would impact XKSC’s already severely reduced capacity to comply with timeframes. The Tribunal cannibalised XKSC’s time to respond to preserve the Respondent’s subsequent timeframes, and did not acknowledge that the revised directions, or the Respondent’s failure to clarify their position, was to XKSC’s detriment. March 2025 correspondence and directions demonstrate a clear escalation of this determinant.
k)    The Tribunal has not proven the conditions imposed on XKSC are reasonable, having regard to all of the circumstances of the case and XKSC’s disability impacts. Nor has the Tribunal justified refusal of XKSC’s detailed requests for reasonable adjustments, or proven the adjustments sought would impose hardship incapable of being justified. In the absence of such proof, each failure by the Tribunal to make the requested adjustments is, by definition, disability discrimination.
l)   If a lay observer was sufficiently informed they would likely apprehend the Tribunal may decide the matter based on an assumption XKSC’s disability is less severe than the established facts suggest and that any merits not articulated would be XKSC’s fault and not a cascading failure of procedural fairness; or they may take a more damming view that XKSC is doomed to further inflame matters if she continues advocating for her accessibility needs and is doomed to fail if she does not. This is because inequality of arms cannot be resolved by legal representation in a case that turns on the material facts of XKSC’s lived experience of disability and the most intimate details of her daily life.
m)   The Tribunal had no intention of turning its mind to XKSC’s revised accessibility request before considering hearing length or this recusal application. The Tribunal was demonstrably unwilling to do so upon XKSC submitting the request 3 weeks early, except to refuse key adjustments for this interlocutory hearing.
n)    By cumulative conduct and the history of XKSC’s consistently unmet accessibility needs a fair-minded lay observer might well infer that there is nothing XKSC could give by way of evidence or submit by way of argument that might change the Tribunal’s mind. Any fair-minded lay observer informed of the cumulative facts would logically conclude a significant possibility of the Tribunal deciding the case other than on its legal and factual merits. This is based on the devastating impacts of the entirety of the Tribunal’s conduct on XKSC having a reasonable opportunity to fully and effectively articulate those merits at hearing.
o)    The communication differences between XKSC and the Tribunal are irreconcilable. Because of this, XKSC has no faith she will be heard equitably at substantive hearing, especially given she wants her evidence to be considered with sufficient weight, she will need to be cross-examined by the Respondent’s barrister without the reasonable adjustments requested, with any reasonable adjustments agreed to after this interlocutory hearing coming far too late.
p)    It is impossible to overstate the gross injustice, or indeed irony, of a government agency tasked with supporting Australians with disability, expecting an autistic participant of the scheme to respond verbally in real time under deliberate commutative stress engaged by a legal profession. Expecting an autistic applicant to simply overcome this injustice without the adjustments requested or reasonable notice of the case to be met is not only manifestly unfair, it is patently absurd. Therefore, XKSC requests that the presiding member recuse herself.
CONSIDERATION
Section 37(1) of the Administrative Review Tribunal Act 2024 (ART Act) provides that the President may direct that a member or members constitute the Tribunal for the purposes of a proceeding in the Tribunal. When so directed, a member has a duty to hear and determine an application for review.[3] That duty is however constrained by a fundamental tenet that a review will be heard and determined by an independent and impartial tribunal.[4] Actual bias or an apprehension of bias will require a presiding member to recuse themselves for the purposes of a proceeding.[5]
[3] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 (Ebner), [19].
[4] Ebner, [22].
[5] Ebner, [5]-[6]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors [2023] HCA 5 (QYFM), [26].
Actual bias requires that one is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.[6] The question is not whether a decision-maker’s mind is blank, it is whether it is open to persuasion.[7] An allegation of actual bias is very serious – it must be distinctly made and clearly proved.[8]
[6] Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 (Jia), [72].
[7] Jia, [71]
[8] Jia, [127].
An apprehension of bias will be established where a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[9] The question of whether there is an apprehension of bias is one of possibility not probability.[10] The observer is taken to be reasonable, and the decision-maker being observed is a professional decision-maker whose training, tradition and oath or affirmation require them to discard the irrelevant, the immaterial and the prejudicial.[11]
[9] Ebner, [6], [83].
[10] Ebner, [7].
[11] Johnson v Johnson [2000] HCA 48 (Johnson), [12].
Given the contentions made by XKSC in support of her recusal application, it is necessary to set out in some detail the procedural history of this application.
On 5 July 2024 it was directed that I constitute the Tribunal for the purposes of this proceeding, and since then there have been 3 case management directions hearings and 2 interlocutory hearings.
A case management directions hearing was held via MS Teams on 16 July 2024. XKSC was legally represented at this case event by Mr Christopher Bilboe (Mr Bilboe) of Intrepidus Law. Mr Bilboe stated XKSC sought to proceed to a hearing regarding her request to have funding included in her SOPS for a SSV, and to then have the other supports in issue on review traverse the normal course through the Tribunal. Mr Bilboe explained that the reason for wanting to split the proceeding in this way was that there are concerns regarding XKSC’s safety whilst she does not have access to the SSV. Mr Bilboe and the Respondent’s representative informed the Tribunal they had spoken to each other in advance of this case event, and consistent with what was recommended by them, the Tribunal made the following direction:
On or before 23 July 2024, the Applicant must give the Tribunal and the Respondent:
a) details of the supports sough on review, including the type of support, hours sought and frequency (if relevant)
b) details of any further material they intend to file and rely on at the hearing, and the date by which that will become available.
On or before 30 July 2024, the Respondent must inform the Tribunal and the Applicant of their view in relation to the Applicant’s request that the proceeding be split; and the requested funding for the SSV proceed to hearing, separate to the other issues on review.
On 22 July 2024, XKSC informed the Tribunal that she was no longer represented by Intrepidus Law. XKSC confirmed the supports sought on review and indicated an intention to provide further evidence. The Respondent advised XKSC’s request to split the proceeding was a matter for the Tribunal.
A case management directions hearing was held via MS Teams on 7 August 2024. XKSC was legally represented at this case event by Ms Elise Almond (Ms Almond) of Villamanta Disability Rights Legal Service Inc. The parties were informed that XKSC’s request to split the proceedings would be listed for an interlocutory hearing and the Tribunal flagged those things it would need to turn its mind to when considering that request. These included whether the Tribunal has the power to split the proceedings, and if it does, any issues that may arise if the proceedings were split (interlocutory considerations). The parties were invited to provide written submissions prior to the interlocutory hearing, should they wish to. Whilst the Respondent was neutral in relation to this interlocutory issue, the Tribunal stated it would be assisted by the Respondent being in a position to make submissions at the interlocutory hearing regarding the interlocutory considerations.
An interlocutory hearing was held via MS Teams on 20 August 2024 in relation to XKSC’s request that the proceeding be split. XKSC was legally represented at this case event by Ms Almond. Ms Almond made submissions on behalf of XKSC. The Respondent made brief submissions regarding the interlocutory consideratoins. Ms Almond made submissions in reply, which included that it is important to remember that XKSC is at serious risk of harm or death every day whilst she does not have the SSV. XKSC made comments in closing. After a brief adjournment, the Tribunal informed the parties that XKSC’s request to split the proceedings was refused and provided oral reasons for that decision. The Tribunal made the following direction:
On or before 30 August 2024, the Applicant and the Respondent must inform the Tribunal and the other party what further material they intend to file and when that will become available.
A case management directions hearing was held via MS Teams on 9 October 2024. XKSC was legally represented at this case event by Ms Almond. At this case event, which went for approximately 1 hour:
a)    The Tribunal was informed that XKSC had agreed to participate in a functional capacity assessment with an occupational therapist (IME), that IME assessment was scheduled to take place on 5 November 2024, and the IME report would likely become available approximately 4 weeks after the assessment. The Tribunal was also informed that the parties had been in discussions and had agreed the Respondent would give XKSC a copy of the briefing letter to the IME before the IME assessment, and that it would be appropriate for the Respondent to provide an updated Statement of Issues 3 weeks after receipt of the IME report. Ms Almond suggested that updated Statement of Issues would assist XKSC to seek some targeted further evidence.
b)    The Tribunal sought to clarify with Ms Almond whether it was to understand that since the last hearing XKSC had made no effort to obtain the further evidence on which she intended to rely. Ms Almond advised XKSC did have one further physiotherapy report, but energy had otherwise gone into communications with the Respondent regarding the IME assessment.
c) The Tribunal explained that it needed to give each of the parties a reasonable opportunity to present their case; what is reasonable turns on the circumstances of the matter; and the Tribunal’s objective as outlined in s 9 of the Administrative Review Tribunal Act 2024 (ART Act) also bears upon how an application is progressed. The Tribunal further explained it needed to balance the challenges XKSC has raised with presenting her case, with what XKSC has stressed are life threatening risks associated with delay in this application. The Tribunal made clear that if either party intends filing further material, they needed to turn their mind to that now because the application was being progressed towards a hearing.
d)    The Tribunal stated that it is for an applicant how they will present their case. The Tribunal explained that for those supports sought on review that are not resolved between the parties, the Tribunal will need to consider the evidence for itself, and it can land differently to either party’s view of that evidence. The Tribunal explained this is a good reason why XKSC might turn her mind now to the evidence she wants to put before the Tribunal in relation to those supports sought on review.
e)    XKSC referred to recent legislative amendments which may bear upon this application. The Tribunal explained its expectation that any Statement of Issues, or Statement of Facts, Issues and Contentions, filed by the Respondent would reflect their view on the relevance and impact of any legislative amendment, and any rules or guidelines made under those, and therefore declined to direct the Respondent to also file submissions in relation to this.
f)     Directions that would be made to prepare the application for a hearing were discussed with the parties. During this discussion, Ms Almond advised her representation of XKSC would cease following this case event. The Tribunal stated that in those circumstances, it considered it appropriate for the Respondent to file a Statement of Facts, Issues and Contentions after XKSC’s evidence had been filed, and for XKSC to have an opportunity to then file an outline of argument in reply, should she wish to. The Tribunal acknowledged the parties had between themselves agreed the IME briefing letter would be given to XKSC in advance of the IME assessment. The Tribunal stated that was unusual, if the parties were happy with that it would be for them to arrange that between themselves, but the Tribunal would not make a direction in relation to that. The Tribunal made the following direction:
On or before 23 October 2024, the Applicant and the Respondent must give the Tribunal and the other party a Hearing Certificate that addresses availability to attend a hearing during the period May to July 2025.
On or before 3 December 2024, the Respondent must give the Tribunal and the Applicant a copy of the report prepared by Ms Alicja Ploszaj, together with a copy of the briefing letter to the occupational therapist.
On or before 20 December 2024, the Respondent must give the Tribunal and the Applicant an updated Statement of Issues, which makes clear their position in relation to each of the requested supports.
On or before 24 February 2025, the Applicant must give the Tribunal and the Respondent any further material on which they intend to rely.
On or before 17 March 2025, the Respondent must give the Tribunal and the Applicant:
a)    a Statement of Facts, Issues and Contentions
b)    a hyperlinked list of any authorities on which they intend to rely.
On or before 14 April 2025, the Applicant must give the Tribunal and the Respondent a reply to the Respondent’s Statement of Facts, Issues and Contentions or an outline of argument; OR inform the Tribunal and the Respondent that they do not intend filing any such reply or outline.
On or before 28 April 2025, the Respondent must give the Tribunal and the Applicant:
a)    an agreed joint tender bundle, indexed and paginated
b)    an agreed or proposed schedule of appearances of witnesses.

On 4 November 2024, the parties were sent a listing notice confirming the substantive hearing would be held on 7, 8, 19 and 20 May 2025 and that each day would commence at 12:00PM.
On 3 December 2024, the Respondent informed the Tribunal and XKSC that they were yet to receive Ms Ploszaj’s report, were following up with Ms Ploszaj regarding the delay, and would provide an update upon speaking with Ms Ploszaj. XKSC objected to this delay. On 13 December 2024, the Respondent informed the Tribunal and XKSC that Ms Ploszaj was endeavouring to have her report to the Respondent by 20 December 2024. XKSC reiterated her objection to, and concerns arising from, this delay. The Respondent filed Ms Ploszaj’s report dated 19 December 2024, on 19 December 2024, and proposed revised directions given the delay in receiving that report. XKSC objected to those proposed directions. On 10 January 2025, the Tribunal made the following direction:
Directions 3, 4, 5, 6 and 7 made 9 October 2024 are vacated.
On or before 31 January 2025, the Respondent must give the Tribunal and the Applicant an updated Statement of Issues, which makes clear their position in relation to each of the requested supports.
On or before 12 March 2025, the Applicant must give the Tribunal and the Respondent any further material on which they intend to rely.
On or before 2 April 2025, the Respondent must give the Tribunal and the Applicant:
a)a Statement of Facts, Issues and Contentions
b)a hyperlinked list of any authorities on which they intend to rely.
On or before 30 April 2025, the Applicant must give the Tribunal and the Respondent a reply to the Respondent’s Statement of Facts, Issues and Contentions or an outline of argument; OR inform the Tribunal and the Respondent that they do not intend filing any such reply or outline.
On or before 1 May 2025, the Respondent must give the Tribunal and the Applicant:
a)an agreed joint tender bundle, indexed and paginated
b)an agreed or proposed schedule of appearances of witnesses.
In an email dated 6 March 2025 to the Tribunal and the Respondent, XKSC raised several concerns. As noted above, this email included a recusal application. Other concerns raised in this email included, but were not limited to, XKSC’s difficulty complying with existing directions, whether sufficient time had been set aside for the substantive hearing, and procedural adjustments for the hearing. On 12 March 2025, the Tribunal made the following direction:
On or before 21 March 2025, the Applicant and the Respondent must give the Tribunal and the other party details of any witness they intend to call to give oral evidence at the hearing. This will assist the Tribunal’s consideration of whether sufficient time has been allocated for the scheduled hearing.
The date by which the Applicant must comply with Direction 3 made 10 January 2025 is extended until 21 March 2025.
The date by which the Respondent must comply with Direction 4 made 10 January 2025 is extended until 11 April 2025.
Directions 5 and 6 as made on 10 January 2025 remain in effect.
The recusal application be listed for an interlocutory hearing on Friday 28 March 2025 at 4:00PM.
On or before 9 April 2025, the Applicant may provide particulars of her accessibility request. This will assist the Tribunal to consider the accessibility request, any requirements set out in the ART Act, and decide what adjustments are appropriate for the scheduled hearing.
On 17 March 2025 XKSC filed a 7-page document titled ‘Applicant’s Accessibility Requirements’. Included within this document are particulars of the revised procedural adjustments XKSC is seeking for all Tribunal listings. On 19 March 2025, the Tribunal made the following direction:
UPON NOTING:
In an email to the Tribunal and the Respondent dated 6 March 2025, the Tribunal understood the Applicant was requesting that the presiding Member (General Member Proske) recuse herself in this matter (recusal application).
The recusal application is listed for an interlocutory hearing on 28 March 2025 (interlocutory hearing). The interlocutory hearing will be an opportunity for the Applicant to make any oral submissions she would like to make in relation to the recusal application.
In an email to the Tribunal and the Respondent dated 17 March 2025, the Applicant requested several adjustments to participate in the proceedings. Relevant to the interlocutory hearing, the Applicant has requested that the Tribunal enable the chat function in MS Teams during case events and provide express permission for her to record case events on her personal device.
The Tribunal DIRECTS:
The parties are strictly prohibited from recording or transmitting the interlocutory hearing. Either party can however order a transcript of the hearing by sending a request form directly to Epiq. Charges are set by Epiq and payable by the party ordering the transcript. Further information regarding ordering a transcript is available on the Tribunal’s website.
The chat function in MS Teams will not be enabled during the interlocutory hearing.
On or before 26 March 2025, the Applicant may give the Tribunal and the Respondent:
a)a written outline or submissions that explain why she considers General Member Proske should recuse herself; OR
b)a pre-recorded video statement that addresses why she considers General Member Proske should recuse herself.
The Applicant may elect to rely on the abovementioned written outline or submissions OR video statement instead of making oral submissions at the interlocutory hearing.
22.Section 9 of the ART Act provides:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a)is fair and just; and
(b)ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c)is accessible and responsive to the diverse needs of parties to proceedings; and
(d)improves the transparency and quality of government decision-making; and
(e)promotes public trust and confidence in the Tribunal.
Section 51(1) of the ART Act provides that as far as is practicable, the Tribunal must conduct each proceeding in the Tribunal in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties. In relation to the Tribunal, the term ‘accessible’ means enables persons to apply to the Tribunal and to participate effectively in proceedings in the Tribunal.[12]
[12] s 4 of the ART Act.
Section 55(1) of the ART Act provides:
The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:
(a)present the party’s case; and
(b)access any information or documents to which the Triubnal proposes to have regard in reaching a decision in the proceeding; and
(c)make submissions and adduce evidence.
25.This review application has now been before the Tribunal for over 12 months. XKSC has had 12 months to gather, file and serve any material on which she intends to rely. The supports sought on review by XKSC have not changed significantly in nature or number since the reviewable decision.
XKSC was legally represented at the directions hearing held on 16 July 2024, the directions hearing held on 7 August 2024, the interlocutory hearing on 20 August 2024, and the directions hearing held on 9 October 2024. The Tribunal also notes that XKSC was assisted by a disability advocate from 12 April 2024 until 25 June 2024, and by Ms Gagliardi and Mr Buckley at the interlocutory hearing held on 28 March 2025. XKSC has therefore been represented or assisted at all case events held, and at which directions were made, since this proceeding was constituted; and in circumstances where XKSC has at times been legally represented, it would seem reasonable to presume she has had the benefit of legal advice in relation to her review application.
The direction made on 16 July 2024 was entirely consistent with that suggested by XKSC’s legal representative, and formulated by the parties in discussions which took place before the directions hearing on 16 July 2024. Directions made at case events held on 7 August 2024, 20 August 2024, and 9 October 2024 were discussed with the parties at those case events before they were made, and any comments or suggestions made by the parties were given careful consideration. The direction made on 9 October 2024, which essentially timetabled the matter to hearing, followed extensive discussions regarding the Tribunal having to balance the challenges XKSC foresaw in preparing for a substantive hearing, and the very serious safety concerns she and her legal representatives had pressed upon the Tribunal and the Respondent in relation to the SSV.
The direction made on 10 January 2025, which essentially varied the direction made 9 October 2024, was made after the Tribunal considered the reason provided by the Respondent for their delay in filing Ms Ploszaj’s report (which was essentially that Ms Ploszaj was late providing her report to the Respondent), the need for the Respondent to have time to consider Ms Ploszaj’s report in order to prepare the Statement of Issues Ms Almond had suggested would be of assistance to XKSC, and the objection and concerns raised by XKSC. The direction made on 12 March 2025, was made after the Tribunal considered concerns raised in XKSC’s email dated 6 March 2025, which included her difficulty complying with existing directions, whether sufficient time had been set aside for the substantive hearing, and procedural adjustments for the hearing.
The parties have been on notice since 16 July 2024 that they needed to turn their minds to gathering and filing the material on which they intend to rely. Since this matter was constituted, XKSC has had 8 months to carefully stage her evidence gathering. This is substantially longer than would generally be given to any party to a proceeding in the Tribunal to present their case, and this was informed by the circumstances of the matter, including XKSC’s accessibility needs.
The Tribunal rejects XKSC’s serious contention that any directions it has made show contempt for her insistence on accessibility, or that in making those directions the Tribunal has intentionally or negligently sabotaged her access to a fair hearing. Further, what has been construed by XKSC to be a rigid understanding of fairness, is the Tribunal pursuing its statutory objective, mindful it is to be accessible, and that it must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to present its case.[13]
[13] ss 9, 51, 55 of the ART Act.
XKSC contends that the listing notice for the directions hearing on 7 August 2024 should have set out in writing the interlocutory considerations. This case event was held because the Tribunal was mindful of XKSC’s accessibility needs and it was unclear whether she would be legally represented at the interlocutory hearing in relation to her request to split the proceedings. In any event, XKSC was legally represented by Ms Almond at this case event, and at the subsequent interlocutory hearing.
At the directions hearing on 7 August 2024, the Tribunal did comment that whilst the Respondent was neutral in relation to XKSC’s request to split the proceedings, it would be assisted by submissions at the interlocutory hearing that go to the interlocutory considerations. This is entirely consistent with s 56(1) of the ART Act which requires that in a proceeding for review of a decision, the decision-maker and any person representing the decision-maker must use their best endeavours to assist the Tribunal to make the correct or preferable decision in relation to the proceeding and to achieve the objective in s 9 of the ART Act. XKSC and Ms Almond were similarly on notice of the interlocutory considerations and equally entitled to make relevant submissions. It is of course incumbent on the Tribunal to consider legal issues arising for itself, and the Tribunal can never simply accept without scrutiny submissions made by either party to a proceeding. Nevertheless, such submissions can be, and often are, helpful.
To the extent XKSC contends the Tribunal gave inadequate consideration to any particular matter when deciding her request to split the proceedings, this is essentially a disagreement with the decision to refuse that request. The Tribunal does not propose to revisit that decision. It will however address the concern raised by XKSC in relation to the oral reasons for that interlocutory decision, specifically the statement ‘it is at this time unclear what facts are agreed between the parties’. Fact finding is an integral part of merits review. Parties to a review may not, and often do not, agree as to what the material facts in a particular matter are. The Tribunal must make findings as to what the material facts are, based on the material before it. The Tribunal must then apply the law to those material facts when making the correct or preferable decision. At the time the Tribunal decided not to split the proceeding, the parties were yet to file all the evidence on which they intend to rely, and therefore the material facts the Tribunal will need to make findings in relation to in this matter could not be exhaustively identified.
XKSC contends comments made by the Tribunal at the directions hearing on 9 October 2024 demonstrate it has no regard for the impact of her disability on her capacity to meet requirements, and that it is not impartial regarding her communication requirements. However, these comments must be taken within the context in which they were made.[14] On numerous occasions during the case event, the Tribunal explained it must balance the challenges XKSC has raised with presenting her case, with what XKSC has stressed are life threatening risks associated with delay in this application. The Tribunal acknowledged this was a difficult balance to strike. Further, the Tribunal’s comment that it is unusual that an IME briefing letter would be given to an applicant before an IME report is filed and served, was within the context of the Tribunal explaining why it would not make a direction to that effect and instead leave that with the parties to arrange between themselves.
[14] Idoport Pty Ltd & Anor v National Australia Bank Limited & 8 Ors, Idoport Pty Limited & Anor v Donald Robert Argus [2004] NSWSC 270, [27].
Having now reviewed the recordings of all case events held in this matter, and considered XKSC’s contentions as they relate to those, the Tribunal is satisfied all case events have been conducted in a way that is fair, just, accessible and responsive to XKSC’s needs.
The parties were notified on 4 November 2024 that the substantive hearing would commence on 7 May 2025. This means the parties were given 6 months’ notice of the scheduled hearing, which is significantly more notice than parties to a proceeding would generally receive. When scheduling the substantive hearing the Tribunal considered XKSC’s accessibility request. This is why the hearing will take place over 4 days spread over 3 weeks, no hearing day will exceed 4 hours, and mornings have been avoided.
XKSC has sent numerous emails to the Tribunal Registry during these proceedings. The Tribunal Registry does not forward every communication received from a party to a presiding member. It is only in considering this recusal application that the full extent of XKSC’s emails to the Tribunal Registry has become clear. Much of what has been raised in XKSC’s communications is most appropriately addressed at the substantive hearing. With respect to adjustments XKSC is asking to be made at the substantive hearing, those requests have evolved over time, and a number of those relate to the Respondent’s cross-examination of her. Rather than consider XKSC’s requested adjustments for the substantive hearing in a piecemeal way, those are most appropriately considered once the evidence in this matter has been filed, and having had an opportunity to consider that evidence, the parties have each confirmed who they do and do not seek to cross-examine.
Most recently, on 17 March 2025, XKSC filed a 7-page document titled ‘Applicant’s Accessibility Requirements’. Included within this document are particulars of the revised procedural adjustments XKSC is seeking for all Tribunal hearings. This document was filed in response to a direction made on 12 March 2025, that being:
On or before 9 April 2025, the Applicant may provide particulars of her accessibility request. This will assist the Tribunal to consider the accessibility request, any requirements set out in the ART Act, and decide what adjustments are appropriate for the scheduled hearing.
39.XKSC contends the Tribunal had no intention of turning its mind to the document she filed on 17 March 2025, before considering hearing length or this recusal application; and that it was demonstrably unwilling to do so despite XKSC submitting the request early, except to refuse key adjustments for the interlocutory hearing held on 28 March 2025. It would not have been appropriate for the Tribunal to make any decision in relation to procedural adjustments sought by XKSC in the document referred to in paragraph [38] as they relate to the substantive hearing, in circumstances where XKSC’s recusal application was yet to be determined.
The Tribunal has considered contentions articulated by Ms Gagliardi on XKSC’s behalf, regarding the directions it has made, its approach to procedural matters, its conduct during directions hearings and interlocutory hearings, and its alleged failure to consider and address matters pertaining to accessibility. The Tribunal has considered each of the concerns raised on XKSC’s behalf individually, and cumulatively. The Tribunal finds XKSC has not established that the Tribunal is in fact so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.[15] The Tribunal finds there is no logical connection between those matters raised by XKSC, either individually or cumulatively, and her assertion the Tribunal may decide her review application otherwise than on its legal and factual merits.[16] The Tribunal further finds no fair-minded lay observer might reasonably apprehend that it might not bring an impartial mind to the resolution of the question it is required to decide, that being whether the supports sought on review are reasonable and necessary and will be funded in XKSC’s SOPS.[17] Therefore, neither the legal test for actual bias, nor the legal test for an apprehension of bias, is met. XKSC’s recusal application is refused.
[15] Jia, [72].
[16] Ebner, [8]; Charisteas v Charisteas [2021] HCA 29, [11]; QYFM, [38].
[17] Ebner, [8].
DECISION
The Applicant’s recusal application is refused.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for the decision herein of General Member L Proske.
……………………[sgnd]……………………
Associate
Dated: 9 April 2025
Date of hearing: 28 March 2025