Federal Court of Australia

Sayed v National Disability Insurance Agency [2022] FCA 1494

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for the Court to order the provision to the applicant of an audio recording of the case management hearing on 4 November 2022 be dismissed.

2.    The applicant’s interlocutory application filed on 9 December 2022 be dismissed.

3.    If the first respondent has obtained from Auscript a transcript of the case management hearing on 4 November 2022, the first respondent provide an electronic copy of that transcript to the applicant by 14 December 2022, notifying the chambers of Justice O’Bryan that it has done so.

4.    If the first respondent has not obtained from Auscript a transcript of the case management hearing on 4 November 2022, the applicant be provided with an electronic copy of the transcript at the Court’s expense.

5.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    The applicant, Mr Sayed, has commenced this proceeding purporting to seek relief against the first respondent, National Disability Insurance Agency (NDIA), and the second respondent, the Administrative Appeals Tribunal (AAT), in relation to decisions each have allegedly taken.

2    The applicant does not have legal representation and is conducting the proceeding himself.

3    These reasons concern an application made by the applicant to the Court for an order directing the Court’s transcript service provider, Auscript, to provide the applicant with the audio recording of the first case management hearing in the proceeding that was conducted by me on 4 November 2022.

4    Subsequently, the applicant filed an interlocutory application seeking an order that I recuse myself from further involvement in this proceeding on the ground that I have “brought into question [my] ability to adjudicate the proceeding impartially by reason of actual (prejudgment) bias”. The alleged grounds of bias arise from alleged rulings and statements I made at the first case management hearing of the proceeding conducted on 4 November 2022.

5    The applicant then sought to file a parallel application in the Court under r 2.32 of the Federal Court Rules 2011 (Cth) (FCR) to obtain the audio recording of the case management hearing. When that application was refused by a Registrar of the Court, the applicant filed an interlocutory application for a review of the Registrar’s decision. As explained below, the second application was unnecessary in circumstances where the applicant had already applied to the Court for an order that the audio recording be provided.

6    As explained on the Court’s website, a party involved in a proceeding, a non-involved party and the media may purchase the whole, or a part, of a transcript in a proceeding from the Court's authorised transcript provider, Auscript. Copyright in all transcripts belongs to the Commonwealth of Australia and, subject to the FCR and any order or direction of the Court, transcripts cannot be shared between parties or distributed to any other recipients. Audio recordings of Federal Court proceedings are not available other than by order or direction of the Court.

7    The Court’s website also explains that parties and any other person must not use a recording device for the purpose of making a transcript or record of the evidence or submissions at a hearing.

8    The Court does not ordinarily require an audio recording of hearings taken by Auscript to be made available to parties or others. The Court would only make such an order in exceptional circumstances where the interests of justice require it, such as where there is a legitimate dispute as to the accuracy of the transcript or where, on an appeal from a hearing on the grounds of apprehended bias, there is a need for the appellate court to have access to the audio recording.

9    For the reasons explained below, I am not persuaded that the interests of justice require Auscript’s audio recording of the case management hearing that was conducted on 4 November 2022 be provided to the applicant. I therefore refuse that application. I will, however, make orders ensuring that the applicant has access to a transcript of the hearing to assist him in the recusal application he has brought, which is referred to below.

10    It is necessary to refer to two other matters at the outset.

11    First, by an amended interlocutory application filed on 25 September 2022, the applicant sought an order that a pseudonym be affixed against his name on all Court documents prepared or published as a result of these proceedings for the purpose of prohibiting or restricting any disclosure or publication of the applicant’s identity, or evidence of disability or impairment, or private medical records, including those pertaining to past and current treatment. On 6 December 2022, in anticipation of making a ruling on the applicant’s application concerning the audio recording and publishing these reasons, I determined that an order as sought by the applicant was necessary to prevent prejudice to the proper administration of justice within s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). I therefore directed the Registry of the Court to affix a pseudonym against the applicant’s name and the parties were notified of that step. On 7 December 2022, the applicant replied to that notification objecting to the use of a pseudonym. It is unnecessary to set out the lengthy reasons given by the applicant for the objection. It is sufficient to note that the applicant asked that the order be immediately rescinded. Later that day, I directed that the pseudonym be removed from the applicant’s file as requested by the applicant.

12    Second, since the commencement of the proceeding, the applicant has sent my chambers and the Court Registry in excess of 40 emails. Many of the emails are lengthy, and frequently the emails have a rude, if not abusive, tone. Emails of that kind are both inappropriate and unnecessary and should not be sent to the Court. Any complaints that a litigant may have about the manner in which a hearing or a proceeding has been conducted or a decision of the Court should be agitated through a formal application to the Court or through an appeal against the Court’s decision. Complaints should not be agitated through email correspondence, particularly emails of a rude or abusive tone.

Overview of the proceeding

13    On 8 September 2022, the applicant filed a notice of appeal from a decision of the AAT made on 11 August 2022. By that decision, the AAT dismissed the applicant’s application for review of a decision of the first respondent, the NDIA, on the basis that the AAT did not have jurisdiction. The AAT concluded that the NDIA had not made a decision under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and, as a consequence, there was no decision that was reviewable by the AAT (as per s 103 of the NDIS Act). The AAT dismissed the application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

14    On 19 September 2022, the applicant filed an amended notice of appeal, and on 26 September 2022 filed a further amended notice of appeal.

15    It is relevant to note that the further amended notice of appeal raises a number of questions as to the formulation of the applicant’s claim.

16    First, the original notice of appeal was stated to be an appeal under s 44 of the AAT Act from the AAT’s decision and sought an order under s 44(5) of the AAT Act that the decision of the AAT be set aside and the applicant’s review application be remitted with a direction that the AAT, constituted differently, reconsider the matter according to the law. The notice of appeal was properly formulated in accordance with FCR r 33.12 and using Form 75. However, the applicant incorrectly joined the AAT as a party to the proceeding as so constituted. In an appeal from the AAT to the Federal Court under s 44 of the AAT Act, the AAT is not a party and should not be named as a respondent to the proceeding.

17    Second, the further amended notice of appeal contains an additional basis of “appeal”, being the Court’s jurisdiction under s 39B(1A) of the Judiciary Act 1903 (Cth). It can be inferred that, by the “notice of appeal”, the applicant also seeks judicial review of the AAT’s decision. An application for judicial review is not an appeal and such an application is made under FCR r 31.11 and using Form 69. However, the Court may waive compliance with those rules. In an application for judicial review, the body being reviewed (in this case the AAT) is a necessary party to the proceeding.

18    Third, the further amended notice of appeal also purports to seek relief against the NDIA, including an order in the nature of mandamus compelling the NDIA to review the applicant’s current Statement of Participants’ Supports and make a decision pursuant to s 100(6) of the NDIS Act. While purporting to seek such relief, the further amended notice of appeal does not in any obvious or clear way seek judicial review of a decision of the NDIA. Further, to the extent that the applicant seeks judicial review of a decision of the NDIA (in addition to appealing and seeking judicial review of the AAT’s decision), a question arises whether a separate proceeding is properly required.

First case management hearing

19    I conducted a first case management hearing in the proceeding on 4 November 2022. Initially, I proposed to conduct the case management hearing in open court. The applicant applied to have the case management hearing conducted by telephone. I was initially unwilling to do so. Communication with the parties, and particularly a self-represented litigant, is usually easier and clearer in person. As the applicant expressed an unwillingness to attend Court for the case management hearing, I subsequently proposed that the case management hearing be conducted by video-conference facilities using Microsoft Teams. However, the applicant informed the Court that he did not have access to a computer to enable his participation over that medium. The applicant then provided the Court with a medical report which explained why the applicant sought to have the hearing conducted by telephone. It is unnecessary to refer to the matters raised in the medical report. On the basis of the medical report, I permitted the case management hearing to proceeding in that manner.

20    Three principal matters were considered at the case management hearing with the following rulings or directions given:

(a)    First, by email dated 2 November 2022, the applicant asked the Court to make a cost-capping order against the NDIA. The applicant submitted that he sought such an order because he had become aware that four legal practitioners were attending the case management hearing on behalf of the NDIA, which he considered to be excessive. At the case management hearing, I refused to make such an order, but observed that, if the applicant was unsuccessful in the proceeding and if a costs order were made against the applicant, the Court would only order the applicant to pay an amount of costs that the Court considered to be fair and reasonable.

(b)    Second, by his amended interlocutory application filed on 25 September 2022, the applicant sought an order requiring the District Registrar of the AAT to file with the Court a copy of the audio recording of the AAT hearing held on 11 August 2022. Ultimately, I deferred making any ruling on that application because the NDIA informed me that it believed the AAT was in the process of providing an audio recording to the parties and the Court. That subsequently occurred.

(c)    Third, I raised with the applicant the concerns I had with the formulation of his “notice of appeal” as referred to earlier in these reasons. Ultimately, I ruled that the “notice of appeal” was not in a proper form. No order was made in respect of that ruling, but I requested the NDIA to correspond with the applicant about how to put the proceeding into a proper form reflecting the applicant’s wish to apply to review both the decision of the AAT and the earlier decision of the NDIA.

Applications for audio recording and recusal

21    On 8 November 2022, the applicant sent an email to my chambers stating, relevantly:

I wish to access audio recording of the case management hearing last week.

Please advise whether his Honour is able to direct provision of the recording or should I submit a formal application?

22    On 14 November 2022, my chambers replied to Mr Sayed relevantly as follows:

In relation to the case management hearing on 4 November 2022, written transcripts of all hearings in the Court are able to be ordered by litigants from the Court’s transcript provider, Auscript. Ordinarily, a fee is payable for a transcript. The Court has a policy with respect to impecunious litigants. Practically, the policy requires the following:

1.     The Court needs to be satisfied that the litigant is impecunious and that it is in the interests of justice that the litigant should be provided with a copy of the transcript.

2.     If so satisfied, the Court will enquire whether another party has ordered and paid for a copy of the transcript.

3.    If another party has purchased the transcript, then the Court may order that party to provide a copy of the transcript to the impecunious litigant.

4.     If no other party has purchased the transcript, then the Court may order (and pay for) a copy of the transcript and provide a copy to the impecunious litigant.

If you wish to seek a copy of the transcript pursuant to the impecunious litigant policy, it will be necessary to make a formal application to Justice O’Bryan with supporting material.

The Court does not ordinarily have available or require to be made available an audio recording of hearings. The Court would only make orders requiring the production of an audio recording of a hearing in exceptional circumstances such as where, on an appeal from a hearing, there is a need for the appellate court to have access to the audio recording.

23    On 25 November 2022, the applicant filed an interlocutory application seeking an order that I recuse myself from further involvement in this proceeding on the ground that I have “brought into question [my] ability to adjudicate the proceeding impartially by reason of actual (prejudgment) bias”. As noted earlier, the alleged grounds of bias arise from alleged rulings and statements made at the first case management hearing of the proceeding conducted on 4 November 2022. That interlocutory application has been listed for hearing on 16 December 2022.

24    Also on 25 November 2022, the applicant sent an email to my chambers repeating his request for the Court to order or direct the provision of an audio recording of the case management hearing. The relevant part of the email was as follows:

In relation to my recusal application, it is crucial for everyone to have access to the audio recording of hearing in question.

I therefore ask, again, for the judge to direct provision of complete and accurate recording of the proceeding to both parties asap.

Whereas his honour or the respondent can request a transcript, I intend to rely on the audio recording in my submissions for judge’s recusal.

25    On 29 November 2022, my chambers replied to Mr Sayed in the following terms:

At present, your application does not provide a sufficient reason for the Court to make that direction. The recusal application makes extensive reference to statements made at the case management hearing which the application is based on and which presumably have been drawn from the transcript of the case management hearing. There is no evidence before the Court suggesting that the transcript of the hearing is inaccurate. The fact that a party wishes to rely on an audio recording rather than a written transcript is not a sufficient basis for the Court to take the unusual step of directing the provision of an audio recording.

If you wish to maintain your application, it will be necessary to provide to chambers a statement of the reasons that the audio recording will be required in order to hear and determine the recusal application and any evidence in support of the statement of reasons. Any such statement and supporting evidence should be provided in the next 7 days.

26    On 29 November 2022, the applicant replied by email. The email did not state any reason why the applicant required an audio recording of the case management hearing in order to conduct his recusal application beyond asserting that it was required “for the purpose of prosecuting misconduct allegations against the judge”. Indeed, rather than provide a statement of reasons, the email demanded that the Court provide reasons to deny access to an audio recording.

27    Subsequently, on 5 December 2022, the applicant sent a further email to chambers in relation to the request for an audio recording. The email attached a copy of an application dated 4 December 2022 under FCR r 2.32 for the audio recording of the case management hearing. The email also set out the applicant’s reasons for requiring access to the audio. The relevant part of the email was as follows:

Applicant’s statement of reasons for requiring access to the audio.

1.    Disqualification of a decision-maker on the basis of actual bias requires that it be established that the decision-maker’s mind was closed to persuasion on an issue for determination.

2.    This requires an assessment of the decision-maker’s state of mind as determined by his comments and conduct.

3.    To establish Actual Bias:

a)     the judge must be “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”; and

b)     the test of actual bias in the form of pre-judgment requires an assessment of the state of mind of the judge in question.

4.    Accordingly the gravamen of applicant’s complaint is that, without notice or inviting submissions from either party the judge proceeded to make a clear ruling in the matter whilst simultaneously giving the erroneous impression that the applicant will be given an opportunity to make submissions in support of the validity of the Amended Notice, including each question of law raised therein.

5.    In relation to determining the issue of bias (actual or apprehended) the question can only be determined by reviewing the audio recording and transcript of the hearing.

6.    To this end following judgements (among a number of decisions which leave no room for doubt) should serve as an authority against any attempt by the judge to withhold real evidence of his misconduct from the complainant.

28    The email also extracted passages from Chen v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs (2022) 288 FCR 218 (Chen) (at [44]-[46], [49], [51] and [74]) and Dennis v Commonwealth Bank of Australia (2019) 272 FCR 343 (Dennis) (at [5], [35], [37], [47]).

29    On 9 December 2022, the applicant filed an interlocutory application seeking review of the purported decision of a Registrar of the Court refusing to provide the applicant with an audio recording of the case management hearing. The interlocutory application contains the allegations that the refusal was contrary to advice published on the Court’s website and in contravention of FCR r 2.32.

Consideration

30    The Court’s authorised transcript provider (currently, Auscript) typically records each hearing in the Court and produces a written transcript. As stated earlier, any person is entitled to receive a transcript of a hearing in the Court upon payment of the applicable charge (subject to any suppression order that may have been made at the hearing). However, the Court does not ordinarily require an audio recording of a hearing taken by Auscript to be made available to parties or others. The Court would only make such an order in exceptional circumstances where the interests of justice require it.

31    Contrary to the contentions in the applicant’s interlocutory application filed on 9 December 2022, neither the Court’s website nor FCR r 2.32 suggests otherwise. The Court’s website states, under the heading “Accessing audio”:

Recordings of Federal Court proceedings are not available other than by order or direction of the Court.

32    As is made clear by FCR rr 2.32(2)(m) and 2.32(5), any person may apply to receive a transcript of any hearing heard in open court upon paying the applicable charge for the transcript. The rules do not, however, extend to the provision of an audio recording of the hearing. An order of the Court is required for that purpose.

33    It follows that the applicant’s interlocutory application filed on 9 December 2022, seeking review of the purported decision of a Registrar of the Court refusing to provide the applicant with an audio recording of the case management hearing, is misconceived and must be dismissed. An audio recording is not able to be obtained under FCR r 2.32 and requires an order of the Court. Further, the applicant had already applied to me for such an order. There is no decision of a Registrar to be reviewed on that application, because the application is before me as docket judge.

34    Returning to the application that was made by email to my chambers, there are two main circumstances in which the Court may require an audio recording to be provided to a litigant.

35    The first is where there is a legitimate dispute as to the accuracy of the written transcript. In the present case, the applicant has not demonstrated any basis for a belief that the transcript of the case management hearing is inaccurate. I have reviewed the transcript and I have been unable to observe any inaccuracy in the record.

36    Second, a court may have regard to an audio recording of a hearing (whether of a tribunal or an inferior or first instance court) where a question is raised of actual or apprehended bias (of the decision-maker or the judge respectively) and:

(a)    the court considering the question of actual or apprehended bias is not the decision-maker or judge that presided at the hearing the subject of the allegations of bias (ie, in a judicial review or appellate context rather than a recusal application); and

(b)    the allegation of bias refers to matters that can only be gleaned from the audio recording (cf. the transcript) because they relate to the manner in which the hearing was conducted including matters such as the tone or volume of the judge or the frequency of interruptions.

37    There are many cases in that second category. Examples include Chen and Dennis as cited by the applicant as well as the first instance decisions in Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 145; Zaki v Minister for Immigration and Border Protection [2019] FCA 1822; and SWDB v Minister for Immigration and Citizenship [2007] FCA 1636.

38    In contrast, in a recusal application made to a judge on the ground of actual or apprehended bias arising from the conduct of an earlier hearing by that judge, it will usually be unnecessary for the party making the application to rely upon an audio recording of the prior hearing. A transcript of the hearing will usually be sufficient because the judge hearing the application will be aware of the manner in which the prior hearing was conducted.

39    In the present case, the applicant has not demonstrated a sufficient reason for the Court to order production of an audio recording of the case management hearing when a written transcript can be made available to the applicant, particularly and having regard to the matters raised by the applicant’s recusal application. By his recusal application, the applicant alleges that, during the course of the case management hearing on 4 November 2022, I “engaged in conduct that likely amounted to unprofessional and oppressive conduct, and caused unfair prejudice to applicant’s legitimate interests in the proceeding” for four principal reasons:

(a)    failing to properly consider the cost-capping application;

(b)    declining to order the AAT to provide an audio recording of the proceeding the subject of the appeal;

(c)    on my own motion, questioning the validity of the proceeding before ruling on the matter without notice or opportunity to make submissions; and

(d)    (after the case management hearing) refusing access to an audio recording of the hearing.

40    In my view, each of those grounds can be fully and properly argued at the recusal hearing on the basis of the transcript of the hearing, and it is unnecessary for the applicant to rely upon an audio recording.

41    With regard to the transcript of the case management hearing, it is unclear to me whether the applicant has a copy of the transcript. As noted earlier, the applicant’s recusal application purports to quote statements made at the case management hearing, which suggests the applicant has a copy of the transcript. The source of the purported quotes is not otherwise clear. The applicant has not to date made any application to be provided with a copy of the transcript without charge under the Court’s policies with respect to impecunious litigants. Regardless, I am aware that the applicant has applied for and been granted a general exemption from the payment of Court fees. In those circumstances, I consider it to be appropriate to extend the benefit of the Court’s impecunious litigants’ policy to the applicant. Accordingly, I will make orders that:

(a)    If the NDIA has obtained from Auscript a transcript of the case management hearing on 4 November 2022, the NDIA provide an electronic copy of that transcript to the applicant by 14 December 2022, notifying the chambers of Justice O’Bryan that it has done so.

(b)    If the NDIA has not obtained from Auscript a transcript of the case management hearing on 4 November 2022, the applicant be provided with an electronic copy of the transcript at the Court’s expense.

42    In reaching the decision on these applications, I have also had regard to s 37M of the FCA Act which requires the Court to interpret and apply the civil practice and procedure provisions, and any power conferred or duty imposed by them, in the way that best promotes the overarching purpose, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. I consider that the applicant’s application for an audio recording of the case management hearing, when a transcript is available, is only productive of cost and inefficiency. It is not a step that is necessary for the just resolution of the applicant’s recusal application. It is also important for the Court to adopt a principled approach to applications such as the present to discourage unmeritorious applications for audio recordings.

Conclusion

43    In conclusion, I will dismiss the applicant’s application for the Court to order the provision to the applicant of an audio recording of the case management hearing on 4 November 2022 and the parallel interlocutory application filed by the applicant on 9 December 2022. However, I will make orders ensuring that the applicant has access to the transcript of the case management hearing.

Associate:

Dated:    12 December 2022