Sayed v National Disability Insurance Agency & Anor

SAYED
v
NATIONAL DISABILITY INSURANCE AGENCY & ANOR
[2023] HCASL 41
M10/2023

The applicant requires an extension of time within which to seek special leave to appeal from two related decisions of the Federal Court of Australia in which O'Bryan J dismissed an application that he recuse himself by reason of bias and, by separate orders made on the same date, refused leave to appeal from that decision.
Special leave should be refused. 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.
Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application.

M.M. Gordon S.H.P. Steward

13 April 2023

CaseChat Overview and Summary

The applicant, Sayed, has applied for an extension of time to seek special leave to appeal two decisions of the Federal Court of Australia. The first decision involved an application by Sayed for the Judge, O'Bryan J, to recuse himself due to bias, which was dismissed. The second decision was a refusal to grant leave to appeal the first decision. The High Court was asked to grant an extension of time to apply for special leave to appeal these decisions.

The primary legal issues before the High Court were whether the application for an extension of time was made within the requisite timeframe and whether it complied with statutory and procedural requirements. Specifically, the Court needed to determine if the application was in accordance with section 33(2) and section 33(4B)(a) of the Federal Court of Australia Act 1976 (Cth), as well as rule 41.08.1 of the High Court Rules 2004 (Cth).

The High Court held that the application was incompetent for several reasons. Firstly, the applicant did not seek the extension of time required nor did he provide an affidavit in support of the application. Secondly, the application for special leave was deemed incompetent because it attempted to appeal a judgment by a single Judge exercising the original jurisdiction of the Federal Court, which is prohibited under section 33(2) of the Federal Court Act. Additionally, section 33(4B)(a) of the Act, read together with section 25(2)(a), precluded an application for special leave in respect of an application for leave to appeal to the Federal Court. Finally, the Court found that an appeal to the High Court would not have any prospects of success and would therefore be futile.

The High Court dismissed the application for an extension of time. Pursuant to rule 41.08.1 of the High Court Rules 2004 (Cth), the Registrar was directed to draw up, sign and seal an order dismissing the application.

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