Federal Court of Australia

Sayed v National Disability Insurance Agency [2023] FCA 1550

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for leave to appeal and his application that the application for leave to appeal be referred to a Full Court be refused.

2.    The Applicant pay the First Respondent’s costs of the appeal, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a lump sum fixed by a Registrar.

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

REASONS FOR JUDGMENT

ANDERSON J

introduction

1    The Applicant seeks leave to appeal from orders of O’Bryan J dated 12 December 2022: Sayed v National Disability Insurance Agency and Anor [2022] FCA 1494 (Sayed No 1). For the reasons given below, leave to appeal will be refused.

background

2    On 8 September 2022, the Applicant filed a Notice of Appeal from a decision of the Administrative Appeals Tribunal (Tribunal). The first case management hearing in this proceeding was held by O’Bryan J on 4 November 2022.

3    Following that hearing, the Applicant made an application to the Court for an order directing the Court's transcript service provider (Auscript) to provide the Applicant with the audio recording of the hearing. The Applicant also filed an application pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) (FCR) to obtain the audio recording: Sayed No 1 at [3]-[5].

4    The Applicant also filed, on 25 November 2022, an interlocutory application seeking an order that O'Bryan J recuse himself from further involvement in the proceeding on the grounds that his Honour had “brought into question [his] ability to adjudicate the proceeding impartially by reason of actual (prejudgment) bias” (recusal application). The alleged grounds of bias arise from the alleged warnings and statements O’Bryan J made at the first case management hearing of the proceeding conducted on 4 November 2022: Sayed No 1 at [3]-[5]. The recusal application was listed for hearing before his Honour on 16 December 2022.

5    On 12 December 2022, O’Bryan J dismissed the Applicant's applications for the audio-recording. That decision in Sayed No 1 (at [43]), is the subject of the present leave to appeal application. His Honour also ordered that, if the First Respondent had obtained a copy of the transcript of the case management hearing held on 4 November 2022, a copy of that transcript be provided to the Applicant. At that time, the First Respondent did not have the transcript but, on 13 December 2022, was able to obtain a copy from Auscript. On the same day, an electronic copy was sent to the Applicant by email.

6    On 15 December 2022 (ie. the day before the recusal application was listed for hearing), the Applicant filed the present leave to appeal application.

leave hearing

7    On 23 November 2023, the Applicant’s application for leave to appeal was heard before me. The Applicant appeared to represent himself and participated in the hearing by telephone. The First Respondent was represented at the hearing by Mr Swan of counsel.

8    In summary, the Applicant submitted that the decision of O’Bryan J made on 12 December 2022, is attended with sufficient doubt to warrant being reconsidered by the Full Court because:

(1)    His Honour was wrong to propound a test that it was only in “exceptional circumstances” where the interests of justice would require an audio recording of a hearing taken by Auscript to be made available to the parties.

(2)    His Honour was wrong not to find that the interests of justice required the Auscript audio recording of a case management hearing that was conducted on 4 November 2022 be provided to the Applicant.

(3)    His Honour was wrong to refuse the application in circumstances where the Applicant had issued an interlocutory application on 25 November 2022 that O’Bryan J recuse himself from further involvement in the proceeding as the audio recording was critical to the Applicant being able to advance his case on the recusal application.

(4)    His Honour was wrong to find that the Applicant had not demonstrated a sufficient reason for the Court to order production of the audio recording of the case management hearing as a written transcript would not enable the Applicant to demonstrate why his Honour had “engaged in conduct that likely amounted to unprofessional and oppressive conduct, and caused unfair prejudice to the Applicant’s legitimate interests in the proceeding”.

(5)    His Honour was wrong to find that the four principal reasons the Applicant advanced for requiring an audio recording had not been made out.

legal principles

9    The orders made by O’Bryan J on 12 December 2022 are interlocutory and relate to a matter of practice and procedure. While the grant of leave to appeal is discretionary, the factors considered are, first, whether, in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court and, secondly, whether substantial injustice would result if leave were refused. Ordinarily, both limbs must be satisfied. The Court will also be cautious in granting leave to appeal in cases (such as the present) which deal with matters of practice and procedure: Paschke v Secretary, Department of Social Services [2023] FCAFC 143 at [5] (Anderson, McEvoy and Hespe JJ); Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9 (Sheppard, Burchett and Heerey JJ). The Court may refuse to grant leave to appeal where the application for leave to appeal is lacking in utility: see, eg, Duncan v Secretary, Dept of Family and Community Services [2007] FCA 507 at [32] (French J).

consideration of application for leave to appeal

10    For the following reasons, the application for leave to appeal made by the Applicant has no utility and the decision of O’Bryan J in Sayed No 1 is not attended by sufficient doubt to warrant it being reconsidered by the Full Court. It follows that there would be no substantial injustice to the Applicant if leave were refused.

11    The Applicant filed submissions on the application for leave to appeal on 30 October 2023 (AS). It is clear from those submissions that the Applicant sought the audio recording of the 4 November 2022 case management hearing for the purpose of his application that O’Bryan J recuse himself: AS [8]-[9]. The Applicant wished to rely on some aspect of the way in which O’Bryan J conducted that hearing that is not reflected in a written transcript. According to the Applicant, the transcript of the hearing would not represent “the true colour and tone of what transpired at the hearing”: AS [9]

12    Importantly, the recusal application was heard by O’Bryan J and dismissed on 23 December 2022, and an application for leave to appeal was also dismissed by O’Bryan J on the same day. It is apparent from the transcript of the hearing of the recusal application that O’Bryan J raised with the Applicant whether he wished to proceed with his recusal application in circumstances where he had also filed an application for leave to appeal his Honour’s decision with respect to audio recording access in Sayed No 1. The transcript records that the following exchange occurred:

HIS HONOUR: - - - Sayed’s interlocutory application which was filed on 25 November 2022, seeking an order that I recuse myself from further involvement in the proceeding. I’m aware, though – and I think it was yesterday – that Mr Sayed has filed an application for leave to appeal my ruling that an audio transcript – an audio – I beg your pardon – an audio recording of the case management hearing on 4 November 2022 not be produced and, instead, this hearing proceed on the way of a written transcript. Mr Sayed, I wanted to ask you first, in those circumstances, given that you filed an application for leave to appeal my judgment, do you wish to proceed with the recusal application this morning or do you wish to adjourn the recusal application?

MR SAYED: Hello. Yes. Look, I have appealed the decision.

HIS HONOUR: Yes…

…However, if your Honour wishes to proceed today with this hearing, I am not waiving any right. I will simply, on protest, proceed with the hearing. Sorry. So that – in short, a reply to your answer is, yes, I’m happy - - -

HIS HONOUR: No.

MR SAYED: - - - to get on with it.

HIS HONOUR: Let’s proceed. Yes. No, that’s fine. Thank you…

13    On 23 December 2022, O’Bryan J dismissed the recusal application: Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 (Sayed No 2). Immediately after O’Bryan J delivered judgment in Sayed No 2, the Applicant sought leave to appeal his Honour’s refusal to recuse himself before O’Bryan J. His Honour also dismissed that application: Sayed v National Disability Insurance Agency (No 3) [2022] FCA 1600 (Sayed No 3).

14    The Applicant sought special leave to appeal Sayed No 2 and Sayed No 3 to the High Court. Special leave was refused on 13 April 2023: Sayed v National Disability Insurance Agency [2023] HCASL 41 (Gordon and Steward JJ). The High Court identified the following reasons for refusing the Applicant’s application for special leave:

First, the applicant has not sought the extension of time required nor has he provided an affidavit in support of such an application. Secondly, the application for special leave is incompetent by virtue of s 33(2) of the Federal Court of Australia Act 1976 (Cth) ("the Act"), which provides that an appeal shall not be brought to this Court from a judgment by a single Judge exercising the original jurisdiction of the Federal Court, and separately by reason of s 33(4B)(a) of the Act, read together with s 25(2)(a), which precludes an application for special leave in respect of an application for leave to appeal to the Federal Court. Thirdly, an appeal to this Court would not enjoy any prospects of success. Therefore, it would be futile to entertain any application for an extension of time.

15    Separately, it appears that the Applicant made an application for a constitutional or other writ in connection with the proceeding. That application was refused by Steward J. The Applicant sought leave to appeal Steward J’s decision, which was refused including on the basis that the Applicant had not identified any arguable error in Steward J’s reasons: Sayed v Justice Michael Hugh O’Bryan & Ors [2023] HCASL 170 (Edelman and Gleeson JJ).

16    In the light of the above, the Applicant’s recusal application, on account of his Honour’s (alleged) conduct at the 4 November 2022 case management hearing, has been disposed of. That is both in the sense of the application itself being dismissed, as well as all appellate challenges to it.

17    I accept the First Respondent’s submissions that, in circumstances where the recusal application has fallen away, the Applicant’s application for leave to appeal lacks utility. During the hearing of the application for leave to appeal, the Applicant appeared to accept as much when he stated:

But yes, the final issue is, I guess ..... what do you do then? Because you’re right, I mean, an audio recording by itself is meaningless. It has to be for something, and I – at this stage, I don’t have that something. (T 17: 1-3)

18    The Applicant has failed to identify any real benefit, unconnected to his recusal application, that would accrue to him if his appeal was successful, and the Court ordered that he be given possession of the audio recording of the case management hearing on 4 November 2022. That is especially so in circumstances where the Applicant has a copy of the written transcript.

19    The Applicant has failed to establish that substantial injustice would result if leave were refused. This is a sufficient basis to refuse leave to appeal.

20    For completeness, I have also considered the arguments advanced by the Applicant and I am not persuaded that the decision of O’Bryan J was attended by sufficient doubt to warrant being reconsidered by the Full Court. The Applicant has simply not advanced any argument to throw into doubt the correctness of his Honour’s decision to refuse to provide the Applicant with the audio recordings of the first case management hearing on 4 November 2022.

hearing before a full court

21    By an interlocutory application dated 24 March 2023, the Applicant also sought orders that his application for leave to appeal be heard by a Full Court pursuant to s 25(2)(e) of the Federal Court of Australia Act 1974 (Cth). At the hearing of the application, the Applicant pressed this application.

22    The ordinary position under s 25(2)(a) of the Act is that applications for leave to appeal are heard and determined by a single Judge. In Edwards v Santos [2010] FCA 34 (at [10]), Collier J identified the circumstances in which the Court may depart from this ordinary position as relevantly including:

(1)    whether the judgment concerns a “minor interlocutory squabble” or whether the orders have important and final consequences for the parties regardless of whether substantive rights were determined;

(2)    whether the application and appeal raise issues of novel and general importance which should be the subject of consideration by a Full Court;

(3)    whether prima facie it can be said that there are arguments of substance supporting the conclusion that the primary judgment is attended by sufficient doubt to warrant reconsideration by the Full Court or substantial injustice as a hopeless application should not be referred to the Full Court.

23    The issue raised by the Applicant’s application for leave to appeal concerns the Applicant’s access to a recording of a case management hearing, in circumstances where the Applicant has been provided access to a transcript of that hearing. That issue can fairly be described as a relatively minor interlocutory issue. I am not satisfied that the issues raised by the Applicant are novel and of general importance. Further, having concluded that the application for leave to appeal is inutile, it is my opinion that the application for leave to appeal does not warrant referral to the Full Court.

disposition

24    The Applicant’s application for leave to appeal, and his application for the Court to direct that his application be heard by a Full Court, is refused.

25    The First Respondent has made written submissions on the Applicant’s applications. Counsel for the First Respondent also appeared at the hearing of the application for leave to appeal. The First Respondent’s written and oral submissions were of assistance to the Court in understanding the procedural background to the applications, and the appropriate disposition of the applications.

26    In these circumstances, it is appropriate that the Applicant pay the First Respondent’s costs of the applications.

Associate:

Dated:    7 December 2023