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Application for recusal – grounds of actual bias and apprehended bias…

…practice and procedure

In Sayed v National Disability Insurance Agency (No 2) [2022] FCA 1591 (23 December 2022), the applicant brought an application for the judge to recuse himself on the grounds of actual bias and apprehended bias.

The basis of the application was predominantly matters that occurred during the first case management hearing in the proceeding. The court summarised the well-settled legal principles for both actual bias and apprehended bias (at [13]-[21]).

Each of the applicant’s grounds were dismissed. The first ground concerned the judge’s refusal to make a cost-capping order in the case management hearing (at [22]-[28)). As O’Bryan J said (at [27]): “It is apparent that the applicant disagrees with my ruling on his application for a cost-capping order. However, disagreement with a ruling made by a judge does not establish bias or apprehended bias…”

The second ground concerned the judge’s ruling at the case management hearing – that it was unnecessary at that point in time to make the order sought by the applicant which required the Admistrative Appeals Tribunal (AAT) to provide an audio recording of the AAT hearing (of which the complaint was made) (at [29]-[41]).

The third ground concerned the judge’s ruling at the case management hearing, as to problems with the form of the applicant’s notice of appeal (at [42]-[74]). This ruling was as to practice and procedure (at [68]). O’Bryan J observed (at [69]): “…generally speaking, interlocutory rulings ought not to be regarded as giving rise to a reasonable apprehension of bias or actual bias because they necessarily precede the final resolution of the proceedings and therefore do not finally determine any of the issues”.

The fourth and final ground relied on – which was also rejected – was the judge’s refusal to order production of a case management hearing audio recording (at [75]-[78]).

Immediately following delivery of judgment, the applicant made an application for leave to appeal orally, without consideration of reasons published in respect of the recusal application. That application for leave to appeal was dismissed: Sayed v National Disability Insurance Agency (No 3) [2022] FCA 1600 (23 December 2022).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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