Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd

[2016] VSCA 108

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Tribunals
3. › Victorian Civil and Administrative Tribunal
4. › Reconstitution of Tribunal
5. › Apprehended bias
6. › Whether decision-maker who expressed extensive views on merits should be disqualified
7. › Whether correct test applied
8. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 108(1)(a)
1. Administrative Law
2. › Natural justice
3. › Apprehended bias
4. › Correct formulation of test
5. › Double 'might' test from Ebner v Official Trustee in Bankruptcy
6. › Whether substitution of more stringent test constitutes error of law
7. › Whether decision-maker 'would be incapable' of impartiality is more stringent than whether decision-maker 'might not' be impartial
1. Administrative Law
2. › Natural justice
3. › Apprehended bias
4. › Decision-maker who has expressed detailed views on merits subsequently overturned on appeal
5. › Whether justice must be seen to be done
6. › Whether reconstitution should be ordered

Quick Take

The 'double might' test from Ebner v Official Trustee in Bankruptcy must be applied precisely: the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question. Substituting a test of whether the decision-maker 'would be incapable' of impartiality imposes a more stringent standard and constitutes an error of law. Where a tribunal member has expressed extensive views on the merits of claims in interlocutory rulings that are subsequently overturned on appeal, reconstitution of the tribunal is the proper course to ensure justice is seen to be done.