The dominance exerted by Balthar

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The dominance exerted by Balthar, and abbreviated time dedicated to exploring mitigating factors further suggests an imbalance in the hearing, which is likely to be crystallised by Balthar’s closing statement that Adama’s submission was ‘an improbable tale and you’ve told it very badly.’ Consequently, the apparently critical and disapproving attitude demonstrated by Balthar towards Adama may suggest to a ‘fair-minded lay person’ that the Tribunal member was not impartial.

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In the case of Adama v Balthar (2013) it was held that the manner in which a tribunal president conducted questioning during an appeal hearing constituted apprehended bias. This case highlights the importance of considering how each party is treated during hearings, particularly when one party is unrepresented and lacks legal expertise or knowledge.

The dominance exercised by Balthar throughout proceedings further suggests an imbalance in the hearing; this was undoubtedly catalysed by his conclusionary statement that Adama’s submission was ‘an improbable tale and you’ve told it very badly’ (Adama v Balthar, 2013). Consequently, such a critical and disapproving attitude demonstrated by Balthar towards Adama may suggest to a ‘fair-minded lay person’ that the Tribunal member had predetermined or pre-judged him as guilty without engaging in any meaningful dialogue surrounding mitigating factors outside of what evidence directly implicated him (Johnson v Johnson 2000).

Furthermore, given the abbreviated time dedicated to exploring particular issues related to Adama’s defence – with some topics not even being discussed – it could be seen as further evidence that Balthar had already formed an opinion on matters before him despite having no prior contact with either parties involved in the dispute(McHugh & Gummow JJ at [50]). It should also be noted here that due process requirements mandate decision makers adhere to natural justice principles which involve acting fairly within their duties (Courey & Dixon 2019), thus making it all more apparent why McHugh & Gummow J unanimously ruled against respondent.

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