Khadem H. v. Ba Barbour, Senior member of the Administrative Appeals Tribunal (Cth) & Anor [1995] FCA 673

Khadem H. v. Ba Barbour, Senior member of the Administrative Appeals Tribunal (Cth) & Anor [1995] FCA 673

A reasonable and fair minded observer, hearing the Senior Member's repeated statements that he did not accept Mr Khadem was giving honest evidence and the repeated suggestions that counsel confer with Mr Khadem about settlement or continuing, would form the view that the Senior Member had made up his mind before hearing further evidence from Mr Khadem's wife and son. The comments went beyond provisional views about credit and created an appearance of bias, requiring the Senior Member to cease hearing the review and the matter to be heard by a differently constituted Tribunal.

Jurisdiction
Australia
Judgment Date
30 August 1995
Procedural Posture
Application for an Order in the Nature of Prohibition Restraining an Administrative Appeals Tribunal Senior Member From Proceeding Further With a Taxation Review / Federal Court Reasons for Judgment After the Tribunal Member Refused to Disqualify Himself
Outcome
Application granted; the Senior Member was ordered to cease hearing the review, the matter was remitted to a differently constituted Administrative Appeals Tribunal, and the Commissioner was ordered to pay the applicant's costs.
Legal Topics
['disqualification for Ostensible Bias' 'reasonable Apprehension of Bias' 'procedural Fairness' 'administrative Appeals Tribunal Review' 'federal Court Prohibition']
['administrative Law' 'taxation'] ['disqualification for Ostensible Bias' 'reasonable Apprehension of Bias' 'procedural Fairness' 'administrative Appeals Tribunal Review' 'federal Court Prohibition']

Case Brief

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Procedural Posture

Application for an Order in the Nature of Prohibition Restraining an Administrative Appeals Tribunal Senior Member From Proceeding Further With a Taxation Review / Federal Court Reasons for Judgment After the Tribunal Member Refused to Disqualify Himself

Legal Issues

  1. 1 ['Whether comments made by the Senior Member during the Administrative Appeals Tribunal hearing gave rise to an appearance of bias.' 'Whether the relevant test for ostensible bias is expressed as a possibility or probability of apparent bias.' "Whether the Senior Member's comments were merely provisional views about credit or conveyed a concluded view before all evidence was heard."]

Ratio Decidendi

A reasonable and fair minded observer, hearing the Senior Member's repeated statements that he did not accept Mr Khadem was giving honest evidence and the repeated suggestions that counsel confer with Mr Khadem about settlement or continuing, would form the view that the Senior Member had made up his mind before hearing further evidence from Mr Khadem's wife and son. The comments went beyond provisional views about credit and created an appearance of bias, requiring the Senior Member to cease hearing the review and the matter to be heard by a differently constituted Tribunal.

Court Disposition

Application granted; the Senior Member was ordered to cease hearing the review, the matter was remitted to a differently constituted Administrative Appeals Tribunal, and the Commissioner was ordered to pay the applicant's costs.

Orders

  • ['Mr Barbour cease hearing the review.' 'The matter be remitted to the Administrative Appeals Tribunal to be heard by a Tribunal differently constituted.' "The second respondent pay the applicant's costs."]