Applicant's evidence to the Tribunal on 23 September 2025. However, it is necessary to disclose that during cross-examination, I asked that the witness leave the hearing room at one point so I could ask for reassurance from her counsel that the warning did not need to be reapplied. The below records this exchange from the transcript following a particular question asked of the witness by counsel for the Respondent:

SENIOR MEMBER: Can I just stop at this point? Do I need to give a warning to the witness at all, Dr Schulte? And if necessary, I can step out while we discuss it.

1. The witness withdrew and the following exchange took place:

DR SCHULTE: It might be worth just reflecting upon the question that Mr Hanna was asking.

SENIOR MEMBER: Well, in what way, Dr Schulte? My question to you was about a warning. But in what - are you making an objection to the question.

DR SCHULTE: No, no, I'm just - well, I'm sorry I'm responding to your query.

SENIOR MEMBER: Thank you. All right. Well, up until this point, the witness has said [xxx]. My question is, has her answer now changed that? I'm just being very cautious, Dr Schulte. I'm not casting any aspersions on anyone, but I have an obligation here and I have to try to look around corners. So I'm just being cautious and I'm raising the question, if there's contentment, that there's no need for me to reissue a warning given that she's now giving different answers. Well, perhaps I'm understanding her answer differently, but I'm just being cautious in asking the question.

DR SCHULTE: Just bear with me a second. SENIOR MEMBER: Thank you.

DR SCHULTE: Thank you. We don't apprehend that there's any need to issue a warning.

1. On 1 October 2025, the Applicant sought to draw my attention to the transcript and the words of the warning I had applied at the commencement of the Applicant's evidence. In particular, counsel pointed with concern to the words which suggested an inference could be drawn should the privilege be claimed. A brief adjournment followed and I then recalled the parties and advised as follows:

(a) I accepted the error on the face of the transcript in the administration of the warning;

(b) I asked the Applicant to take instructions as to whether PJFX harboured any concerns about the impact that incorrect wording may have had on any part/s of her evidence and make application to address those concerns; and

(c) I adjourned the hearing pending hearing and determination of that application on 2 or 3 October 2025 (at the Applicant's election) and made directions for the timing of the lodging of the application and submissions.

1. The Applicant wrote to the Respondent and the Tribunal prior to close of business on 1 October 2025 foreshadowing an application for recusal and an application in respect of the Applicant's evidence. The interlocutory application, a solicitor's affidavit, and written submissions were lodged on 3 October 2025 prior to the hearing of the application and in accordance with those directions.

1. The Respondent lodged written submissions and a correspondence bundle shortly before the hearing of the application. He informed the Applicant and the Tribunal that he:

(a) consented to paragraph (a)(i); and

(b) otherwise opposed the application.

1. As ground (a)(i) of the application is not contested I have only addressed (a)(ii) and (b) in these reasons. It makes sense to do so in reverse order, for reasons which will become apparent.

1. In Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281, Gibbs CJ stated at pages 288-289:

It has been a firmly established rule of the common law, since the seventeenth century, that no person can be compelled to incriminate himself. A person may refuse to answer any question, or to produce any document or thing, if to do so "may tend to bring him into the peril and possibility of being convicted as a criminal": Lamb v. Munster (22). The mere fact that the witness swears that he believes that the answer will incriminate him is not sufficient; "to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer": Reg. v. Boyes (23). That statement of the law has frequently been approved; see Ex parte Reynolds; In re Reynolds (24); Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. (25); In re Westinghouse Uranium Contract (26).

1. The privilege has been found to operate in the Tribunal. For example, in Tsiamis v Comcare

[2013] FCA 684, (2013) 60 AAR 506 at 511, Flick J observed:

There is no denial of a "reasonable opportunity" for the purposes of s 39 of the Administrative Appeals Tribunal Act in circumstances where a witness properly invokes a privilege against self-incrimination. Although s 33(1)(c) of that Act provides that the Tribunal is not bound by the rules of evidence, that freedom does not carry with it the ability to require a witness to answer questions which (for example) may expose him to self-incrimination. The privilege against self-incrimination is "one deeply rooted in the law as a fundamental right": Griffin v Pantzer [2004] FCAFC 113; (2004) 137 FCR 209 at [44] per Allsop J (as his Honour then was) (Ryan and Heerey JJ agreeing). It is a privilege available generally "even in a non-curial context, as the foundation of an entitlement not to answer a question or produce a document": Griffin v Pantzer [2004] FCAFC 113 at [44]. A "reasonable opportunity" does not require a hearing in which a witness may be compelled to abandon a privilege the common law has long recognised.

1. His Honour also noted, with reference to Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202; (1993) 42 FCR 206 at 215-216 per Spender J that it is not open to the Tribunal to draw an adverse inference from the refusal to answer.5

1. In PJFX (Practice and Procedure), I set out the relevant principles which attend an application for recusal of a decision maker or judge on the basis of apprehended bias (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344-345 per Gleeson CJ, McHugh, Gummow and Hayne JJ [6]-[8] and [20]).6 I will not repeat the whole of those extracts in these reasons but have restated [20] below which I will refer to in respect of paragraph (a)(i) of the application:

[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable. (emphasis added)

1. In Johnson v Johnson [2000] HCA 48; (2000) 174 ALR 655, Kirby J, in agreeing with the majority who dismissed an appeal seeking that a judge be disqualified, examined in some detail the principles applicable to consideration of an application for recusal on the ground of

5 The Respondent also referred the Tribunal to Bolton v Australian Securities and Investments Commission [ 2018] AATA 976 (24 April 2018).

apprehended bias. His Honour made observations about the operation of the test and then stated:

[45] Such considerations lay behind the salutary warning given in Re JRL; Ex parte CJL that judicial officers in Australia were obliged to discharge their professional duties unless disqualified by law. They were told not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope of securing an adjudicator more sympathetic to a party's cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.

1. Kirby J also made relevant observations about the attributes of the fair minded observer:7

[53] The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.(emphasis added)

1. The Respondent also referred the Tribunal to similar statements in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at

[47] per Kiefel CJ and Gageler J and Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497 at [34] per Kirby J.

1. In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352, Mason J observed:

7 The Respondent also referred the Tribunal to Webb v the Queen [1994] HCA 30; (1994) 181 CLR 41 at [73-[74] per Deane J.

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established": Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

1. The Tribunal was also referred to SZQGB v Minister for Immigration and Citizenship [2012] FCA 113 at [14] per Collier J, and her Honour's observation 'that an allegation of bias is a very serious claim which must be clearly made and distinctly proved (re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425)'.

1. The Applicant also referred the Tribunal to Minister for Immigration v Jia Legeng (2001) 205 CLR 507 [136]. I have set out below both paragraphs [135] and [136] where the High Court made some general observations about the test for imputed bias (in the context of considering whether the Minister's decision to cancel a visa was infected by actual or imputed bias). I have discussed this case further below but do not agree with the Applicant's submission these considerations are directly relevant to the case at hand, given the particular circumstances of that case:

Many decisions of this Court have emphasised that imputed bias is determined by reference to a standard that is more easily made out. Such bias must still be "firmly established". It is not enough that the reasonable bystander has a vague sense of unease or disquiet. The test for imputed bias, which has now been accepted by this Court, is expressed in terms of possibilities (might), rather than of the proof of a "high probability" of bias inconsistent with the fair performance of public duties, that was formerly the accepted criterion.

The reason for embracing this different, and less stringent, requirement in the case of allegations of imputed bias is not difficult to find. It can be attributed to the social purpose served by this branch of the law of natural justice. That purpose is to uphold vigilantly the high standards applicable to the appearance of justice and fairness in official decision-making in Australia. At least two reasons sustain this approach. If the appearances are just, and the procedures manifestly fair, the likelihood is that just and fair conclusions will follow. As well, appearances affect the confidence of the community in the decisions of those who exercise public power on the community's behalf. Although many of the cases

concerning imputed bias have related to courts, tribunals and decision-makers connected with them, the rule is one that applies to the decisions of every public office-holder. Being a rule of natural justice, it adapts to the nature and significance of the decision concerned, the character of the office of the decision-maker and the requirements, express or implied, of any legislation applicable to the case.

1. The Respondent referred the Tribunal to two passages in Galea v Galea (1990) 19 NSWLR

263. The first was an observation by Kirby A-CJ (as his Honour then was) at page 279:

In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. Whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing. Judges should understand the variety of skills in communication that exist in the community. Some people are pedantic, even without wishing to be so. I get the impression that the appellant liked to take fine points of language which might delight a seminarian but which could cause irritation to a busy judge who thereby formed the opinion that he was temporising and evading questions which were embarrassing to him. Some of the expressions of Powell J, combed over in a detailed appellate examination of the transcript, are such that, with hindsight, they could doubtless have been improved. On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context.

1. The second was by Meagher JA who agreed with Kirby A-CJ (and I have added to the reference referred to by the Respondent for context):

In this matter I have had the advantage of reading in draft the reasons of Kirby A-CJ. I agree with them, and with the orders he proposes. I merely wish to add some brief observations on the second ground of appeal, viz, that Powell J by his conduct of the case exhibited a degree of hostility to the appellant such as to disqualify him on the ground of apprehended bias. I found it hard to take this submission seriously. In a series of cases the High Court of Australia has laid it down that a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 and Vakauta v Kelly [1989] HCA 44; (1989) 63 ALJR 610; 87 ALR 633; (1989) Aust Torts Reports 80-277. This has led to appellants, in cases otherwise devoid of merits, seizing on any acerbic utterance made by the trial judge and urging that utterance as a ground for appeal on the basis of bias. This is a tendency which is not justified by these authorities and must be resisted. Where, as in the present case, a judge is confronted by a witness who is both deceitful and evasive, there is no principle that he is not at liberty to express his measured displeasure at being trifled with. There is no principle that he must endure the ordeal with ladylike serenity. Indeed in Vakauta (at 611; 635; 68, 939) Brennan, Deane and Gaudron JJ state that to maintain a total silence in such situations '"would not represent a model to be emulated". More than that, a timely intervention serves the interest of the party leading such evidence, as it provides him with a chance to mend the damage already inflicted.

1. During the hearing of the interlocutory application, I referred the parties to In the matter of Cheal Industries Pty Ltd - Fitzpatrick v Cheal [2012] NSWSC 812 per Ward J, where her Honour refused a recusal application brought on the bases that:

(a) she had engaged in appellable error; and

(b) by the nature and context of those errors, she had failed to afford procedural fairness.

1. In Cheal, her Honour had acknowledged the alleged error and proposed variation to the judgment or vacation of orders. Similarly to the present case, the defendants there contended that she should disqualify herself from further hearing in the matter on the ground of apprehended bias.

(a) noted that the defendants had not suggested that appellable error alone was sufficient to found an application for refusal; and

(b) found in the circumstances that her actions did not give rise to any apprehension of bias and further, the manner in which she acknowledged and dealt with issue upon being made aware of it 'would dispel any reasonable apprehension in that regard'.8

1. In Cheal, Ward J also referred to the observations of Kirby P (as he then was) in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; (1992) 9 ACSR 309 (417- 418) where his Honour made similar observations to those he later made in Johnson before observing at [79]:

There is an understandable attraction, on an application such as this, to the course of simply acceding to the application by the defendants and leaving the matter to be dealt with by another judicial officer. However, I do not consider that that would be consistent with my duty (as indicated in the observations of Kirby P, as his Honour then was, to which I have earlier referred) nor do I consider that it would be consistent with the case management principles applicable in this court. Appellable error (assuming for the purpose of this application, that there is appellable error in the findings of 1 June 2012) is not of itself sufficient to give rise to an apprehension of bias. I do not accept that the indication by Mr Slater on 5 April 2012 that the valuation would be significant from a costs perspective (or that a small difference in valuation might have "huge leverage") alters the position that there is no more than a potential appellable error in this regard. Nor do I accept that the findings can properly be described as

punitive (even apart from the fact that I have no basis to determine the impact of such orders on the costs position of the respective parties at this stage). If that were to be the case, then so must the authorities to which I have referred in my earlier judgment be accepted as punitive.

1. Ward J also referred to the High Court's judgment in Michael Wilson & Partners Ltd v Nicholls & Ors (2011) 244 CLR 427; [2011] HCA 48; (2011) 282 ALR 685 and I

acknowledge the Respondent also referred to it in his submissions. In Michael Wilson an application for recusal was made in part on the basis that the primary judge could be apprehended to have prejudged the dispute because he had made several interlocutory orders on ex parte applications prohibiting disclosure of the applications and material in support not be disclosed to the other party. The High Court found that the making of those orders and hearing evidence on the applications by the judge did not found a basis for a reasonable apprehension of bias. In particular, the Court observed that in making those orders the judge had not determined any issue in the substantive proceeding, nor did he make any finding about the reliability of any witness.9

1. With these points in mind, I turn to address grounds (a)(i) and (b) of the interlocutory application.

The attempt to reagitate ground (d) from the prior recusal application

1. To the extent the recusal application has attempted to reprise the prior recusal application concerning my prior professional history, I refer to my published reasons in PJFX (Practice and Procedure) but otherwise do not propose to restate those reasons. If the Applicant is dissatisfied with the Tribunal's decision in in PJFX (Practice and Procedure), the appropriate course is for the Applicant to seek review of that decision by the Federal Court.

The allegation about the correspondence to the Principal Registrar of the Tribunal

1. Counsel for the Applicant contended that new information had arisen since the prior recusal application which should be considered as part of the interlocutory application. Here he referred to the correspondence and in his written submissions stated at [32]:

9 Michael Wilson [72]-[73] per Gummow A-CJ, Hayne, Crennan and Bell JJ.

The Applicant has sought clarification from the Senior Member to no avail. "It is logical, and reasonable, that a fair minded lay observer, with a broad knowledge of the material objective facts...might apprehend..." that the Senior Member 'might not bring an impartial mind to the matter' based on her historical associations.

1. The allegation can be addressed briefly. Leaving aside the question whether it does comprise a fresh ground, the correspondence was addressed to the Principal Registrar of the Tribunal. It requests that the Tribunal provide information to the Applicant. It is incorrect to suggest that I could or should respond to correspondence directed to the Principal Registrar whose role is established under s 225 of the Tribunal Act and is a duly appointed office holder.10

1. In the circumstances, I cannot find any basis for the assertion that I have somehow failed to respond to the correspondence. I cannot accept that in such circumstances, a fair minded lay observer might apprehend that I might not bring an impartial mind to this proceeding on the basis that the Applicant is awaiting a response to correspondence from the Principal Registrar.

1. The Applicant contended that the error in the warning amounted to a denial of procedural fairness. In written submissions, the Applicant argued:

(a) [8]-[10] the privilege against self-incrimination is a common law right and is available in civil proceedings. An adverse inference cannot be drawn from the act of claiming the privilege;11

(b) [11] the Tribunal cannot coerce a witness to answer an incriminating question;

(c) [13] the erroneous wording of the warning could be considered equivalent to the Applicant being given no warning (Promsopa v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2020] FCA 1480 [36]-[45] per Allsop CJ); but then argued

10 Tribunal Act s 227 provides for appointment of the Principal Registrar by the Governor-General, by written instrument, on the recommendation of the Attorney-General.

11 The Applicant referred to and relied upon Reid v Howard (1995) 184 CLR 1, [8], [15]; Griffin v Pantzer (2004)

[2004] FCAFC 113; 137 FCR 209, [44]; Petty v The Queen (1991) 173 CLR 95.

(d) [16] 'opportunity was given to an extent, but the consequence of taking the opportunity was "Should you take that election the Tribunal has the right to draw inferences from your refusal to answer, but that is a right that exists in the Tribunal." No authority was identified in support of this second submission;

(e) [39] it is logical to conclude given my prior professional history that this statement provides a proper basis to apprehend I will depart from impartiality;

(f) it is not easy to be satisfied that a denial of natural justice could have no bearing on the outcome of the trial (Stead v State Government Insurance Commission (1986) 161 CLR 141 per Mason, Wilson, Brennan, Deane and Dawson JJ at page 145); and

(g) the effect of the 'Tribunal's broad discouragement of claiming the privilege is a material denial of the opportunity to claim privilege that infects the witness's evidence' (Nathanson v Minister for Home Affairs [2022] HCA 26; (2002) 276 CLR 80)".

(a) [29] and [39] the Applicant has failed to apprehend the serious nature of an allegation of this nature and the matters required to be established;

(b) [35]-[41] the circumstances of the case count against such an allegation. [4] Even on the assumption that the Applicant's argument went no higher than an allegation of coercion,12 the allegation was serious and lacking in foundation in the context of civil proceedings and merits review. The Respondent here referred to the transcript of the hearing on 1 October 2025 (pages 199-200) where the allegation was first raised by the Applicant's counsel, and the acknowledgement of the error and the steps taken;

(c) [31] even if the matter involved error, that alone does not found the basis for an application for recusal of the member. the Applicant has not identified what might be said to lead me to decide the case other than on its facts and merits;13

12 The Respondent observed that the Applicant appeared not to press his original observation on 1 October 2025 that the wording of the warning had the 'flavour of a threat or inducement' but had not withdrawn it. The Applicant did not seek to contest that submission. Transcript page 200.

13 the Respondent referred to Ebner [8] see above and [207] per Jagot; QYFM [47].

(d) [61] even if the submission in (b) were found to be incorrect, the Applicant has waived her rights, or in the alternative, the doctrine of necessity applies;14

(e) [48]-[51] in the proceeding, the Applicant bears the onus under s 14ZZK of the TAA to the civil standard. The authorities suggest that the practical consequences for an applicant claiming the privilege in tax proceedings and more broadly in the civil context may be that they risk a finding that they have not proved their claim. The submission was that the authorities lend support to the view that while an inference cannot be drawn against the refusal to answer alone, the failure to bring the evidence can be taken into account by the decision maker in determining whether the onus is discharged;15 and

(f) [26]-[28] the transcript of the hearing on 30 September 2025 disclosed that the Applicant had freely answered questions, even when they were to her detriment and had been afforded fairness not only by the Tribunal but also by the Respondent's counsel;

(g) Promsopa concerned a circumstance where a warning was not applied and the witness was not legally represented and was not relevant to the present case, drawing attention to the fact that the Applicant was legally represented;

(h) Nathanson was also not relevant to the present case comprising as it did an appeal; and

(i) Stead is also not relevant to this case which concerns merits review.

1. There is no dispute as to the application of the privilege in the Tribunal. Nor is the potentiality for error disputed should it not be addressed. The parties are in partial agreement as to a course of action to address that concern. While I accept the practical observation made by

14 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 572; Ebner [64]-[65] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

15 The Respondent referred to and relied upon Giannarelli v Wraith (No 2) [1991] HCA 2; (1991) 171 CLR 592 at 605 per McHugh J; Wayne Lawrence Pty Limited v Hunt [1999] NSWSC 1044 at [15] per Hodgson CJ.

the Respondent as to the operation of proceedings under s 14ZZK of the TAA that does not change the application of the privilege (and he did not suggest it does).

1. The question I must address is whether by virtue of any error in the application of the warning, an impartial bystander would apprehend that I am incapable of hearing and determining this application impartially. The Applicant submits it is inevitable that I cannot continue to hear the matter. I disagree for the reasons which follow.

1. The context in which this issue arose is relevant. The potential error occurred early in the substantive hearing and without any final decision from the Tribunal and in circumstances where:

(a) the Applicant was legally represented while giving her evidence and where she confirmed she had previously been advised about the privilege by her legal advisors;

(b) no findings have been made by the Tribunal of the Applicant or facts in her dispute which are relevant to the determination of the substantive dispute; and

(c) no objection was raised to the warning or thereafter by her legal advisors or the Respondent.

1. Also relevant is what occurred once the issue was detected. On 1 October 2025 (the next morning), I was alerted to the Applicant's concern of risk that the warning as recorded contained an error, and there may be potentiality for an argument that the Applicant felt constrained in giving her evidence. Having received the transcript, I took immediate steps out of an abundance of caution to acknowledge the potential error and to address any risk which may arise by affording the Applicant an opportunity to discuss the matter with her legal advisors. The hearing was adjourned while that occurred, to ensure any error was not compounded.

1. I acknowledge an error has occurred but cannot identify from the Applicant's material how it is logical to assume that an impartial bystander might form the view that I am incapable of hearing this matter impartially. As the authorities note,16 judges and decision makers are not immune from error and it is not sufficient to point to an error (including an actual or

16 Ebner [8] and [207]; QYFM [47]; Johnson [53]; Galea page 279.

potential appellable error) to found a successfully application for recusal.17 To err is human, but it does not establish that a decision maker or judge is incapable of impartiality.

1. The authorities18 also support the view that the fair minded bystander would bring to their consideration of this issue, the matters I have described above and particularly, the acknowledgement and steps taken to ensure procedural fairness.

1. As Ward J observed in Cheal, those very steps objectively should dispel any apprehension that I am incapable of being impartial in my adjudication of the proceeding.19

1. Turning to the Applicant's authorities, Nathanson comprised an appeal to the High Court of Australia concerning the Tribunal's failure to afford an applicant an opportunity to be heard on specific and material matters before making its decision which was adverse to the Applicant. The Court found that that failure comprised jurisdictional error. As I have recorded, no decision has been made by the Tribunal in this case, so the facts are different, but further the steps I have taken are designed to ensure against such error arising in the present case.

1. I have already observed that the facts of Jia Legeng are also very different to the present case. There, the conduct of the Minister in making public and adverse comments while considering a visa application were in issue. to the extent the Applicant's submission at [25] could be read as suggesting anything less than the test in Ebner, I cannot agree. I am bound by the test in Ebner which has been reconfirmed most recently in QYFM. I cannot accept that there has been any broadening of that test by Jia Legeng.

1. In Stead, the primary judge had made an observation in closing submissions on a trial, that they did not accept a witness's evidence and that the opposing party did not need to address on that point but then relied on the witness in their judgment. There was little dispute as to the error but the observations referred to by the Applicant were made by the High Court prior to its consideration of the question it was required to decide which was whether the Full Court (which did not have the benefit of hearing from the witnesses) was in a position

18 Galea page 279; Johnson [53]; QYFM [47].

to determine that no new trial should be granted on the basis that it would not change the result.20 The extracts need to be read in that context.

1. Having considered the matter carefully, I am not satisfied that there is a basis for the apprehension by this ground of the recusal application.

1. By this ground, the Applicant contended that my actions on one occasion during the Applicant's evidence effectively amounted to 'entering the arena' [19]-[21] of cross-examination. I also understand the Applicant to allege that I have somehow prejudged or drawn an inference against the Applicant's evidence or am predisposed against her.

1. I cannot agree with this characterisation for the following reasons.

1. First, the Applicant's contention misapprehends the purpose of my question. My intention was to ensure the witness was given an opportunity to assert the claim to privilege. In the cut and thrust of cross-examination, questions and answers flow quickly. While there are confidentiality orders in place in this proceeding, the Applicant's legal advisors had put the Tribunal on notice of the risk that the Applicant 'may incriminate herself' in her evidence. No inference or conclusion was drawn in seeking reassurance from the Applicant's counsel. the assurance having been given, the evidence proceeded. No issue was taken or concern raised by the Applicant's counsel at the question.

1. Without repeating myself, the authorities do not support the view that statements or observations made in the course of a hearing are necessarily evidence of an intractable view by a judge or decision maker. as Mason J observed in Re JRL, pre-judgement must be firmly established.21

1. I am not satisfied that there is a proper basis for the apprehension by this ground of the recusal application.

21 Re JRL page 392; See also Johnson [17]; Galea per Meagher JA page 279.

1. In light of my findings on each of the grounds of the recusal application, I have decided to refuse the application in paragraph (b) of the interlocutory application.

GROUND (A)(II) - REQUEST FOR A DIRECTION THAT THE EVIDENCE OF PJFX BE HEARD BEFORE A DIFFERENTLY CONSTITUTED TRIBUNAL

1. The Applicant contended this to be a separate ground, independent of the recusal application. Here, the Applicant spoke of administrative benefit and public confidence if a differently constituted Tribunal were to hear the matter. Counsel for the Applicant also suggested that having seen the evidence which is to be struck that, similar to a jury, I could not fairly proceed with the matter. The Applicant also pointed to the practice of remittal of appeals to a differently constituted Tribunal.

1. In circumstances where the Applicant has brought an application for recusal on the basis of apprehended bias and that application has not been made out, I cannot accept that alternate course is open to me. I say this because the authorities22 endorse in the strongest terms that my positive duty is to continue to hear this application unless there is a proper basis for me to recuse myself.

1. I also do not accept as correct that the Tribunal should be viewed as akin to a jury. In making this submission, the Applicant did not identify authority to support this view.

1. The Tribunal's task is to be an independent fact finder, and while as an administrative body, it does not exercise judicial power, it has been said to be in the 'judicial mould'.23 It is empowered to consider the legality of the decisions which come to it.

1. The Tribunal's role is not comparable to a jury. It is not a passive receiver of facts. It an independent decision maker. It adjudicates on the facts while applying and interpreting the applicable legislation. It has discretion to control its own procedure.24 It may limit the

22 Ebner [20]; Johnson [45] per Kirby J; Re JRL page 352 per Mason J; Cheal [79]; Spedley Securities pages 417 and 418; Galea page 279 per Meagher J.

23 Sir Anthony Mason: Administrative Review. The Experience of the First Twelve Years 18 FLR 122 at 131. See also the Hon Justice Janine Pritchard, The Rise and Rise of Merits Review; Implications for Judicial Review and for Administrative Law AIAL Forum No.79, page 22.

questions of fact, the evidence and the issues it considers.25 It exercises all the powers of the decision maker of the decision it is reviewing.26

1. In respect of evidence presented, Tribunal members are regularly required to make rulings on evidence they have seen (for example where objections are raised). As I have noted, the Tribunal can exclude evidence or limit the scope of the evidence it considers. The parties can of their own volition decide to limit the issues in dispute. It cannot be correct that a Tribunal member cannot proceed to hear a matter because they have had to limit or exclude evidence or have seen evidence which is no longer in dispute. In fact, they are regularly required to do so.

1. In respect of the argument about the process for remittals by way of analogy, I note that no decision has been made on this application and there is no suggestion that it has. I do not consider the analogy to be relevant in this particular context.

1. Ground (a)(ii) of the interlocutory application is refused.

1. In light of my findings, paragraphs (a)(ii) and (b) of the application are refused.

1. This application has a complex pre-hearing history but the hearing is in its early stages. Section 9 of the Tribunal Act supports the view that the Tribunal should where it can fairly do so, take steps to ensure the hearing of this application proceeds as swiftly and efficiently as possible. the Tribunal also has an obligation under s 9 to promote confidence in its decision making. It has power to make directions, in consultation with the parties to allow this to happen and I consider in the present case it will assist the parties to move forward with the proceeding in an efficient manner if the Applicant is afforded the option of having her evidence reheard as quickly as possible and during the currently allocated hearing block.

1. I will hear from the parties as to any appropriate directions which flow from this decision.