Sayed v National Disability Insurance Agency

1. The application for leave to appeal from the orders of O'Bryan J dated today's date be dismissed.
2. A copy of the transcript of the hearing in this matter on 16 December 2022 be provided to the applicant at the Court's expense.
3. The matter be listed for further case management at 9:30 am on 25 January 2023.
4. There be no order as to costs of the application for leave to appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered ex tempore, revised from the transcript)

O'BRYAN J: 1 On 23 December 2022, I delivered judgment on the applicant's interlocutory application, filed on 25 November 2022, seeking an order that I recuse myself from further involvement in these proceedings by reason of bias. The reasons for judgment are published as Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 (Sayed No 2). By orders made that day, I dismissed the application. 2 Immediately following the making of those orders, the applicant informed me that he wished to apply for leave to appeal from that decision. The applicant also indicated that he wished to make that application immediately, without having had any opportunity to consider the reasons for judgment in Sayed No 2. The applicant also confirmed that he was aware that he had the option of separately filing an application for leave to appeal, which would be likely to be heard by another judge of this Court at a later point in time, but the applicant informed me that he wished to proceed with an application for leave to appeal immediately and made orally. 3 The applicant correctly stated the principles that apply for determining an application for leave to appeal. Those principles were recently restated in a convenient manner in the decision of Wigney J in Roberts-Smith v Roberts [2022] FCA 524 (Roberts-Smith) at [13]-[17]. I take what is said by Wigney J in those paragraphs as a correct statement of the law. As the applicant submitted, in applying for leave to appeal an applicant must generally demonstrate: first, that the decision in question is attended with sufficient doubt to warrant it being re-considered by the Full Court; and second, that substantial injustice would result if leave were refused, supposing the decision to be wrong. Those principles emanate from the decision of the Full Court of the Federal Court in Re Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, which was referred to by Wigney J in the Roberts-Smith decision. 4 I turn first to the issue of whether the decision in question is attended with sufficient doubt to warrant it being reconsidered. The applicant did not address the reasons expressed in Sayed No 2 for the obvious reason that the applicant had not had an opportunity to consider those reasons. That was the applicant's election in pressing his application for leave to appeal despite not having read my reasons for decision. Instead, in his oral submissions, the applicant merely repeated, in a summary way, the submissions that he had made on the original hearing of the recusal application. In Sayed No 2, I explained why the applicant's submissions fail. Suffice to say, the applicant has not advanced submissions causing me to consider that anything in my reasons is attended by sufficient doubt to warrant it being reconsidered by the Full Court. 5 As to the second matter - whether substantial injustice would result if leave were refused, supposing the decision to be wrong - in Roberts-Smith Wigney J observed that the question of substantial injustice in this context very much depends upon the character of the interlocutory decision that is the subject of the application for leave to appeal. At [16], Wigney J observed that if the interlocutory decision has the practical effect of finally determining the rights of the parties, or determines a substantive right, leave is more likely to be given. In contrast, at [17] his Honour observed that: Different considerations generally apply … where the decision in question is a discretionary decision relating to a matter of practice and procedure and no questions of general principle are at stake. 6 For the reasons explained in Sayed No 2, the subject of the applicant's complaints about the matters raised at the first case management hearing are matters of practice and procedure. The matters have no bearing on any substantive issue in the proceeding and have no bearing on any issue that might ultimately need to be determined in the proceeding. As such, and as I concluded in Sayed No 2, none of those matters affect the applicant's legal rights and interests which are sought to be agitated through this proceeding. By reason of those considerations, I also find that the applicant has not satisfied the second test for leave to appeal: that substantial injustice would result if leave were refused, supposing the decision to be wrong. 7 For these reasons, I dismiss the application for leave to appeal from Sayed No 2. I make no order as to costs in respect of the application. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.