El-Saeidy v NSW Land & Housing Corporation [2015] HCATrans 204 (19 August 2015)

Last Updated: 21 August 2015

[2015] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S140 of 2014

B e t w e e n -

FAWZI EL-SAEIDY

Applicant

and

NSW LAND & HOUSING CORPORATION ABN24960729253

Respondent

Application for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 19 AUGUST 2015, AT 12.36 PM

Copyright in the High Court of Australia

MR F. EL-SAEIDY appeared in person.

MS E. ELBOURNE: May it please the Court, I appear on behalf of the respondent. (instructed by McCabes Lawyers Pty Limited)

HER HONOUR: You are Mr El-Saeidy?

MR EL-SAEIDY: Yes, your Honour.

HER HONOUR: Yes, thank you, Ms Elbourne. Would you both bear with me for a moment? I need to sort out my papers. Yes, Mr El-Saeidy – am I pronouncing your name correctly?

MR EL-SAEIDY: That is correct, your Honour.

HER HONOUR: Yes, thank you. Mr El-Saeidy, you have filed a summons seeking the reinstatement of your application for special leave to appeal which was filed on 30 June 2014, is that right?

MR EL-SAEIDY: That is correct, your Honour.

HER HONOUR: Now, in support of that - - -

MR EL-SAEIDY: Can I stop your Honour? I have problems with sugar.

HER HONOUR: I am sorry.

MR EL-SAEIDY: I have a problem with sugar, sugar diabetes - - -

HER HONOUR: I see.

MR EL-SAEIDY: - - - and I feel a little bit dizzy. Can I get some sugar, if you do not mind, in a cup of water, if there is any?

HER HONOUR: Yes. Do you require a short adjournment to - - -

MR EL-SAEIDY: Yes, please. I need to get a cup of coffee with more sugar, downstairs, please.

HER HONOUR: Well, Ms Elbourne, perhaps there might be a short adjournment. Do you have any difficulty with that proposal?

MS ELBOURNE: I do have a commitment at 2 o’clock, your Honour, but that will just have to be dealt with. I am in the Court’s hands.

HER HONOUR: I have in mind an adjournment of no more than five minutes to enable Mr El-Saeidy to obtain a sweet or something of that sort.

MS ELBOURNE: Yes.

HER HONOUR: Yes, very well. The Court will adjourn.

AT 12.38 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.46 PM:

HER HONOUR: Yes, Mr El-Saeidy. Now, Mr El-Saeidy, you have filed an affidavit that you swore on 22 June 2015 setting out some matters of history to explain why you have not progressed your application for special leave to appeal within the time limits that are specified.

MR EL-SAEIDY: That is correct.

HER HONOUR: Yes, all right. Now, you rely on the things that you stated in your affidavit; that is so?

MR EL-SAEIDY: Yes, I do.

HER HONOUR: Yes, all right. That is the evidence that you wish to place before the Court in support of the reinstatement of your application?

MR EL-SAEIDY: I have some other evidence, and I have also oral submissions, please.

HER HONOUR: Yes, I will come to your submissions in a moment. You refer to other evidence; what is that?

MR EL-SAEIDY: It would be in response in part to the defendant’s submission, questioning why I have not produced the medical evidence in support of my affidavit.

HER HONOUR: I see. Have you shown Ms Elbourne that material?

MS ELBOURNE: No, your Honour.

MR EL-SAEIDY: Not yet.

HER HONOUR: Any material that you wish to place before me you must show to Ms Elbourne.

MR EL-SAEIDY: She questioned - ask me about any statement to police related to my allegation or claim of being assaulted. There is some evidence.....showing my statement to police here.

HER HONOUR: Would you, for the moment, just show Ms Elbourne the material you wish to place before the Court, please.

MS ELBOURNE: It appears to be page 1 of the statement of the applicant to the police, your Honour. It is not complete.

MR EL-SAEIDY: It has no bearing on the fact that I have been assaulted. If you need the second page, I can look for it.

HER HONOUR: Mr El-Saeidy, I wonder if we can short-circuit this by my saying to you that, as I understand it, the defendant does not contest that you were the subject of an assault at Bankstown Plaza South Terrace on 13 December 2014. I do not think that that is in issue. You assert in your affidavit that persons have been charged in connection with that assault?

MR EL-SAEIDY: That is correct.

HER HONOUR: Again, Ms Elbourne, are either of those matters in issue?

MS ELBOURNE: No, they are not, your Honour.

HER HONOUR: None of that is in issue, Mr El-Saeidy. You may take it that it is accepted that you were the subject of an assault on that date, that the result of the assault was that the police have proffered charges against your assailants.

MR EL-SAEIDY: Yes, that is correct.

HER HONOUR: Are there other documents that you wish to place before the Court?

MR EL-SAEIDY: Yes, your Honour. In part, there is doctor/expert certificate was given by Dr Matter to police. I will refer to some parts of it, because - - -

HER HONOUR: Would you show that document – that is a medical report, is it – would you show that to Ms Elbourne, please?

MS ELBOURNE: There is no objection to page 3 of the report, your Honour, because that has already been served in accordance with the directions that were made. The rest is objected to on the basis of late service. There is no dispute about the assault as such.

HER HONOUR: I understand that, Ms Elbourne. I think Mr El-Saeidy wishes to supplement the material that was filed in accordance with the earlier directions in light of the statements made in your submissions.

MS ELBOURNE: Would your Honour excuse me while I just obtain some instructions about the report? We are rather dealing with it on the fly. It is a five-page report; there are some quite technical matters in - - -

HER HONOUR: Yes, by all means, Ms Elbourne.

MS ELBOURNE: Yes, I withdraw the objection, your Honour.

HER HONOUR: Thank you, Ms Elbourne. Very well, what I will do is I will ask my associate to have photocopies made so that Ms Elbourne and you have copies of that document.

MR EL-SAEIDY: Thank you, your Honour.

HER HONOUR: Yes, thank you. Now, does that complete the evidence you wish to place before the Court?

MR EL-SAEIDY: I am not sure if there.....issue. I have much material. If it is only for reinstatement - - -

HER HONOUR: This application is concerned with reinstatement. The issues which I am addressing are issues concerned with the sufficiency of your explanation for the failure to prosecute this application in a timely way, and a consideration of the defendant’s submission that reinstatement would be effectively futile because there is no prospect that, if your application were reinstated, you would be successful in obtaining the grant of special leave.

MR EL-SAEIDY: In this case, your Honour, we are talking about merits, and in this case I have huge files to support my claims that it should be successful.

HER HONOUR: Well, now, Mr El-Saeidy, I will just stop you there for this reason. Consideration of the merits focuses on the circumstances in which the High Court would grant leave to entertain an appeal from the dismissal of an application for leave to appeal by the Court of Appeal of New South Wales. The circumstances in which that might occur would be limited, taking into account the considerations which bear on the grant of special leave to appeal to this High Court.

The criteria are set out in the Judiciary Act and require the High Court to have regard to any matters that it considers relevant, but to have regard to whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law that is of public importance, whether because of its general application or otherwise, or in respect of which a decision of the High Court as the final appellate court is required to resolve differences of opinion between different courts, or within one court, as to the state of the law, and whether the interests of the administration of justice, either generally or in the particular case require consideration by the High Court. Those are constraints on the grant of leave recognising the role of this Court as the ultimate Court of Appeal for Australia.

Now, the submissions that are put against you are that the Court of Appeal determining not to grant you leave to appeal from Associate Justice Harrison’s orders dismissing two interlocutory notices of motion were said by the Court of Appeal to have not involved any issue of principle, or question of public importance; nor, in the estimate of the Court of Appeal, was it apparent that any injustice had occurred by reason of any error in the primary judgment. It is against those matters that the defendant puts the submissions that it does. This does not involve a factual inquiry relating to the asbestos remediation that has or has not been carried out on the premises.

MR EL-SAEIDY: Can I explain to your Honour now?

HER HONOUR: You may.

MR EL-SAEIDY: My application for leave to appeal based on disputed issue whether the topsoil is contaminated or not. The Court of Appeal made the decision that it is not, and I am saying the decision of the Court of Appeal was totally wrong. Since this is a technical issue, I cannot address their.....was going in the heart of a technical issue which is asbestos. That is why they are interconnected, and they cannot be resolved; leaving the asbestos issue, contamination of topsoil which is still existing over there, aside, for me to answer this question, to satisfy your Honour whether the Court of Appeal was wrong or correct, I have to ask why they concluded their decision. For them to conclude the decision that I have no merits of success for my appeal is to go back into the asbestos issue, which cannot be separated at all. This is the difficulty in this case, and myself as - - -

HER HONOUR: Mr El-Saeidy, the error that you say the Court of Appeal fell into was an error to understand the technical facts relating to the asbestos remediation. Is that right?

MR EL-SAEIDY: That is very much correct; this is one issue, yes.

HER HONOUR: I understand that is your contention, Mr El-Saeidy, but that controversy would not be a matter ordinarily that would attract the grant of special leave to appeal. It is a factual issue.

MR EL-SAEIDY: The second issue, I have been denied procedural fairness. It originates from the Supreme Court, and it went to the Court of Appeal, and in the Court of Appeal was an investigation of factual facts, they agree, was in the Supreme Court and is this.....for the High Court to intervene.

HER HONOUR: All right. Now, I have indicated I am not disposed to this application becoming a mini hearing of the technical evidence relating to the asbestos remediation at the premises. You understand that, Mr El-Saeidy?

MR EL-SAEIDY: Yes. Can I add something?

HER HONOUR: Is there any further you wish to place before me in support of the application?

MR EL-SAEIDY: Regarding the public interest in this case, yes.

HER HONOUR: Yes.

MR EL-SAEIDY: The fact that in the Court of Appeal and before the Supreme Court, they did apply a wrong law in saying why the premises is safe. This, by itself, is a public interest because - - -

HER HONOUR: Mr El-Saeidy, I will come to your submissions in a moment. I am just dealing with matters of evidence. Would you just bear with me a moment? You have handed up a document described as an “expert certificate”. It is a report by Dr Matter. I am going to mark that as Exhibit A on the application. I will just read that, bear with me.

EXHIBIT A: Expert Certificate Report by Dr Matter

Yes, thank you. Now, Mr El-Saeidy, does that complete the evidence that you are placing before the Court on this application?

MR EL-SAEIDY: For the medical part, yes. For any other related, no.

HER HONOUR: Well, what does that mean, Mr El-Saeidy?

MR EL-SAEIDY: It means that they are talking in their submission about the costs. I have some evidence to say that I offered the same to resolve this issue - - -

HER HONOUR: I am sorry, I just did not understand. You referred to the defendant’s submissions about what?

MR EL-SAEIDY: About costs they may have incurred.

HER HONOUR: The costs, yes.

MR EL-SAEIDY: I have evidence here that in the past, I offered the same to resolve this issue, to clear it up in a professional way, less than 50 per cent, and they have rejected it and decided to do a job which is incomplete at this stage. If we will go in that direction, I have some evidence. If it is just on the medical evidence, I have no other support material.

HER HONOUR: Ms Elbourne, can you help me? I think somewhere in your submissions, you refer to the fact that – or it might be in your affidavit – there is reference to the fact that costs orders are unsatisfied. Is that so?

MS ELBOURNE: There are, but Mr El-Saeidy, I think, is referring to the costs of the remediation and doing a repeat of the remediation rather than the costs I am referring to, which are, of course, legal costs.....cross-purposes.

HER HONOUR: Is that right?

MR EL-SAEIDY: They are connected, your Honour.

HER HONOUR: Mr El-Saeidy, I have some difficulty understanding that. There must be costs associated with the asbestos remediation; I appreciate that. Legal costs are a separate consideration.

MS ELBOURNE: Paragraph 18, your Honour.

MR EL-SAEIDY: Can I say something, your Honour?

HER HONOUR: Yes.

MR EL-SAEIDY: With respect, the way they have conducted this case from day one, the way they have conducted the work after her Honour the Associate Justice made some order for them to remove the asbestos. It did cause extensive delay. I will give you an example; I will show - - -

HER HONOUR: No, Mr El-Saeidy, I am really not going to become drawn into hearing about the costs associated with the asbestos remediation. I must fasten your attention on the issues that are before me, which concern the delay, the prejudice that the New South Wales Land and Housing Corporation complains of, which is, in broad terms, that these proceedings have been not prosecuted with diligence and that they are entitled, so they assert, to the orders obtained from the Court of Appeal, being final. In developing that aspect of their complaint, the Corporation draws attention to the fact that there are unsatisfied legal costs orders.

MR EL-SAEIDY: Yes, your Honour. To answer this – I cannot answer this unless you have the whole picture. Associate Justice Harrison in the Supreme Court, she did say to them “You will finish work in eight weeks”, and it took them more than two years. At the end of this two years, they wanted to stop me from coming back to my premises, and I have to go before Justice Rothman, when they want to terminate my lease, and they have to get.....This caused delay and accumulated more legal costs on their side. That is why I have.....and I have evidence about this, please, because there is not a simple answer in this specific case. There is intention from the other side, from the defendant, with my due respect, to hide this information from you. I am here today to show the real issue, why we came to this stage.

HER HONOUR: Ms Elbourne, I understand that Mr El-Saeidy wishes to tender materials tending to establish the cost and length of the process of the asbestos remediation. What is your attitude to that?

MS ELBOURNE: That is objected to, your Honour. The only issue before your Honour this afternoon is whether this should be reinstated or not. In circumstances where there is no explanation for half of the period of delay, I really think exploring these other matters would not be appropriate. Mr El-Saeidy has just characterised the proceedings incorrectly. Unless your Honour wishes me to, I will not go into that, but orders were in fact required to ask Mr El-Saeidy to move out; orders were required to ask Mr El-Saeidy to move back in - - -

HER HONOUR: Ms Elbourne, I will not trouble you with the history. I understand you object to the tender of the additional material touching on the cost of the remediation. I uphold that objection. I will not receive that material, Mr El-Saeidy. Is your evidence complete on this application which is concerned solely with reinstatement of your special leave application?

MR EL-SAEIDY: Your Honour, before I answer this, I object to what she said. I am not doing any characterisation. I am talking the facts - - -

HER HONOUR: Mr El-Saeidy, I am not going to entertain satellite arguments that are not relevant to the procedure. Do not trouble yourself with the characterisation of the proceedings one way or the other in light of the statements that Ms Elbourne just made. Can we please concentrate on the one issue that is before me? Is there any further material that you seek to tender that is relevant to my determination of that issue?

MR EL-SAEIDY: Again, your Honour – I am sorry to come back again – if the merits will not be raised, I do not have. If the merits of my application for leave to appeal will be raised, yes, I do.

HER HONOUR: That is the material to which you have already referred, concerning the technical aspects of the evidence which you submit the Court of Appeal has wrongly understood. Is that so?

MR EL-SAEIDY: In part, and also in Mr Hawkes’ affidavit, which is before your Honour; I have objection to most of it, unless you want me to cross-examine him, and I have objection to submissions of Ms Elbourne - - -

HER HONOUR: We will come to objection to submissions in a moment. Firstly, I have indicated I am not prepared to receive a bundle of material relating to the technical issues. I understand that is an aspect of your challenge to the correctness of the Court of Appeal’s decision. But my assessment of the merits, to the extent that assessment is relevant, will not descend to detail of that kind. Do you understand?

MR EL-SAEIDY: With my due respect to your Honour, because it is a technical issue, it should go to a.....issue why the Court of Appeal got it wrong, and why I am saying that this - - -

HER HONOUR: Mr El-Saeidy, I am not going to canvass the matter with you. I have made a ruling in that respect. Is there any further evidence relevant to the issues that are before me today?

MR EL-SAEIDY: On medical evidence, no.

HER HONOUR: That is the medical evidence that you have just tendered, is that right?

MR EL-SAEIDY: I have oral explanation as well, yes.

HER HONOUR: When you say you have oral explanation, are there things you want to tell me about your condition?

MR EL-SAEIDY: About why this delay, and why the defendant is blaming me.

HER HONOUR: I will come, Mr El-Saeidy, to your submissions in a moment. For the present, I will turn to the defendant’s evidence. Ms Elbourne, you have filed an affidavit.

MS ELBOURNE: I have. Your Honour, just before we turn to the respondent’s evidence, my copy of Mr El-Saeidy’s submissions actually attaches to one-page expert’s reports, and if he does propose to rely on those, I object to you receiving them. They are not material which was ever before a court below.

MR EL-SAEIDY: I rely on them, yes.

MS ELBOURNE: They are irrelevant to this application, with respect, your Honour. They are not evidence that was before either of the courts below, and your Honour should not receive them.

HER HONOUR: I have before me a typewritten document which bears a subheading “Background”. Annexed to that is a facts sheet, an apprehended personal violence order - - -

MS ELBOURNE: I have no objection to those, your Honour.

HER HONOUR: Then there is the Australian Safer Environment and Technology report. That is the subject of your objection, is it?

MS ELBOURNE: Yes. The first is dated 25 April 2015, and the second behind it is 11 July 2014. I object to both of those.

HER HONOUR: Just one moment. The document I have by Australian Safer Environment and Technology is dated 25 April 2015 – I see, and the second one 11 July. They are the two documents, are they?

MS ELBOURNE: Yes, they are, your Honour.

HER HONOUR: Yes. Then, finally, there is annexed to the typewritten submissions the summary of the applicant’s argument.

MS ELBOURNE: Yes. I have been informed by Mr El-Saeidy that is a draft summary of argument. Your Honour will see it is dated 5 August 2014, so last year, unsigned, but I am advised by Mr El-Saeidy this morning it is in fact a draft, and there is part of it missing anyway, so he is going to complete it.

HER HONOUR: I see, thank you, Ms Elbourne. Well, Mr El-Saeidy, what do you say about the Australian Safer Environment and Technology documents?

MR EL-SAEIDY: Yes, your Honour. Actually, the respondent as a model litigant they should understand that by submitting this to your Honour I am showing them that there is a problem now and they have this material some weeks now, their agent at Bankstown, they should have investigated it but they accepted it, they never argued about it because they know that the topsoil is a big issue.

HER HONOUR: Mr El-Saeidy, the documents are objected to. I uphold the objection. I will not have regard to them. Now, I will turn to the evidence that the defendant seeks to put on. Ms Elbourne - - -

MR EL-SAEIDY: Sorry, your Honour, before you go, in a document titled “Applicant summary of argument - - -

HER HONOUR: Yes.

MR EL-SAEIDY: I should have marked this as a draft and also there is from a photocopy perhaps there is half page on page 9 is missing so I will give you same but the correct one, your Honour.

HER HONOUR: Well, do you have a full copy for Ms Elbourne?

MR EL-SAEIDY: I showed her and I will provide her with a copy.

HER HONOUR: All right. Yes, very well.

MS ELBOURNE: I am sorry, this is the complete copy of the draft summary of argument?

HER HONOUR: Of the draft.

MR EL-SAEIDY: Number 9, I will give you a copy.

MS ELBOURNE: Can I keep this one? No?

MR EL-SAEIDY: I have to make a copy.

MS ELBOURNE: You need a copy, all right.

MR EL-SAEIDY: This is for your Honour.

HER HONOUR: Yes, all right. I will again ask my associate to make a photocopy of that so that each party has a copy. Now, all right, Ms Elbourne, do you seek to read the affidavit of Leighton James Hawkes?

MS ELBOURNE: Yes, I do, filed on 17 August 2015, apart from paragraph 15, I do not read that paragraph.

HER HONOUR: All right. Well, yes, you have some objections to the affidavit, do you, Mr El-Saeidy? What are those?

MR EL-SAEIDY: Yes, your Honour. On page 2, item 7, he says at the end of that paragraph “He did not do so” which is absolutely – he was referring to me not going back to my premises.

HER HONOUR: Yes, all right, you object to that. Ms Elbourne, I am disposed not to read the last sentence of paragraph 7, do you wish to be heard?

MS ELBOURNE: Well, I am not sure what Mr El-Saeidy is objecting to. The fact is that he moved back into the premises in 2014, that is not disputed I am assuming, so I am not sure what his objection is.

HER HONOUR: Ms Elbourne, the relevance of it to the issues with which I am concerned is elusive; it is the subject of objection.

MS ELBOURNE: I am happy not to read it, your Honour.

HER HONOUR: Thank you. Yes, very well, anything further, Mr El-Saeidy?

MR EL-SAEIDY: Yes, your Honour. Item number 9 “After various” - he is saying here “Justice Garling dismissed the Appellant’s outstanding applications on 28 March”.

HER HONOUR: Yes.

MR EL-SAEIDY: Actually, we came to a settlement because in Housing at the time they made false allegations that they will sell my premises and when we heard it - - -

HER HONOUR: Mr El-Saeidy, Mr El-Saeidy - - -

MR EL-SAEIDY: Yes.

HER HONOUR: - - - this aspect of the procedural history simply records a dismissal of some outstanding applications on 28 March 2014, do you object to that?

MR EL-SAEIDY: It is not correct, in fact.

HER HONOUR: It is not correct, very well. Well, again, Ms Elbourne, I am not sure what the relevance of all of this procedural history is to the issues with which I am concerned. It is objected to. Do you press it?

MS ELBOURNE: I do not press 8 and 9, your Honour.

HER HONOUR: All right, very well. Now, anything else, Mr El-Saeidy?

MR EL-SAEIDY: Yes, your Honour. Page 3, item 15 at the end of the paragraph.

HER HONOUR: That is not pressed. That is not pressed, Mr El-Saeidy. That is not read. There is no need for you to address it. It is not before me.

MR EL-SAEIDY: That affidavit?

HER HONOUR: No, paragraph 15. Ms Elbourne said she did not read paragraph 15.

MR EL-SAEIDY: She was talking about number 9 please.

HER HONOUR: No, no, before you took any objections, Ms Elbourne told me that she was reading the affidavit sworn by Mr Hawkes, save for paragraph 15, so you need not address it.

MR EL-SAEIDY: Sorry, sorry, my apologies for this.

HER HONOUR: Very well, those are your objections? Well, I think they are.

MR EL-SAEIDY: Yes, your Honour.

HER HONOUR: Yes, thank you, Mr El-Saeidy. That completes your evidence, does it, Ms Elbourne?

MS ELBOURNE: Yes, your Honour, thank you.

HER HONOUR: Yes, thank you. All right. Well, Mr El-Saeidy, can I just take up with you some of the matters that are raised in opposition to the reinstatement of your application?

MR EL-SAEIDY: Yes, your Honour.

HER HONOUR: The application was filed on 30 June 2014 and the defendant notes that you have taken no steps to progress the matter since then. Now, accepting that you had a very serious incident involving an assault on you with significant medical consequences on 13 December of last year, there is still a significant period of unexplained delay both before that and after that.

MR EL-SAEIDY: I will start, okay, after the incident. For your information I am going to go tomorrow for a medical assessment for – procedure on my neck to rectify nerve damage. I will go back from June until I was assaulted in December. During this period from when were filed here in this Court I had a solicitor, it was on record, Mr Kirco Jakimoski. I know that on 2 December he was granted leave to cease to act. Until he was granted leave to act, it was his.....capacity as a solicitor, it was his commitment as a solicitor to progress my case.

I could not have progressed it on my own, and as a fact I came here a couple of time, I spoke with the staff in your Registry here and they advised me that every aspect has to come through a solicitor. Until he ceased to act I could not expedite the progress of my case. So this is answer to it and since I was abided by this I could not do anything about it and by the time I was notified that actually in Court this Court granted him leave to cease to act it was around 22 December. At that time I was assaulted actually. So these two situations left me unable.

I bear some responsibility because of an assault, although it was not my choice, but from June last year until my solicitor ceased to act it was not in my hand at all. I was assisting but I could not file something or do something with the Court here unless he does it and this was my situation. After being assaulted, I wrote to the Court Deputy Registrar here on 2 January saying I will file some document by 6 January and I wrote this and two days later I received a letter from the Court advising that it has been abandoned and I called some legal people to get some like personal advice. They advised me not to rush with this medical situation and do more research on the requirement for my application.

MS ELBOURNE: I do object to this evidence being given from the Bar table.

HER HONOUR: One moment, Mr El-Saeidy.

MS ELBOURNE: I object to this evidence being given from the Bar table, your Honour. None of this is in the affidavit at all.

HER HONOUR: Yes, I note your objection but I will hear - - -

MS ELBOURNE: Yes, thank you, your Honour.

HER HONOUR: Yes, go on, Mr El-Saeidy.

MR EL-SAEIDY: Okay, and that is why an application was to reinstatement was filed later on.

HER HONOUR: Mr El-Saeidy, while you were doing this research, you do not appear to have either contacted the solicitors acting for the defendant nor made contact with the Court. There is, as the defendant points out, no evidence of any action taken between 2 January and 23 June of this year to progress an application.

MR EL-SAEIDY: To answer this, to my understanding, once an application deemed to be abandoned there is no requirement for me to contact the other side because I will cost the same money and there is no issue to resolve between both of us because actually the application is.....Full Court if I understood. Second issue, I had a couple of call in between with your Registrar here, she was a familiar staff and I have an understanding that once it became abundant I can file later on if I need more time to prepare and this was my understanding and also from other.....sources I got similar advice. So I acted on this, taking into account my medical situation, taking into account I am doing this on my own, taking into account that I am a father of a young family.

HER HONOUR: All right. Am I right in understanding that you contest the submission that the proceedings have very little prospect of success, that is, very little prospect of the grant of special leave to appeal because you say the Court of Appeal wrongly understood the technical evidence? Is that the basis of your contention as far as the merits go?

MR EL-SAEIDY: In part yes, in this draft applicant summary there is some points there for your Honour to consider.

HER HONOUR: All right. Could you quickly direct me to those points?

MR EL-SAEIDY: Yes, please. I take you to page 2.

HER HONOUR: Yes.

MR EL-SAEIDY: “The Court of Appeal Had no jurisdiction to deal with the Application for Leave to Appeal”, error of fact and error of law.

HER HONOUR: Right, yes.

MR EL-SAEIDY: And there are some reasons offered there for your Honour and I refer to Justice Beazley, her Honour case which was decided after I brought my application to Court of Appeal before they made that decision and Ms Elbourne, she elected us and she sent an email to associate of Justice Beazley saying there is a Court of Appeal case which could be related to my application which was in the hand of the Court of Appeal, was a judgment being delivered at that time.

So I am submitting here that in Court of Appeal they decided wrongly that I had personal injury component in my amended statement of claim which is absolutely wrong because this has been removed, and based on this they decided that they have jurisdiction to rule on my application. There are some details of it there. On page 3, “Applicant was denied procedural fairness”. At the last paragraph from the bottom - - -

MS ELBOURNE: I am sorry, could you identify where we are?

MR EL-SAEIDY: Page number 3, I was denied procedural fairness because Supreme Court and Court of Appeal disallowed me two very critical technical reports of expert Mahinda De Silva, dated 11 October 2013. These two reports by themselves, they address a current situation and if they had been allowed as they should, and I would explain in a minute why they should be allowed, her Honour Associate Justice Harrison, she should find out that the topsoil is contaminated and hence the Court of Appeal she should - - -

HER HONOUR: Mr El-Saeidy, I am going to interrupt you at the moment because a submission that a person has been denied procedural fairness in consequence of a ruling that an expert’s report is not admissible is a very difficult submission to make good, Mr El-Saeidy. It is not your strong point. Is there - - -

MR EL-SAEIDY: Yes, there are other more.....here. These two reports were excluded and my expert answered the defendant expert report; that expert, that report from Mr Clifton - - -

HER HONOUR: Mr El-Saeidy, I am not going to entertain submissions about your view of the contents of the defendant’s expert report or the strength of your expert reports. These are not issues upon which the determination will turn.

MR EL-SAEIDY: I am not talking about this, your Honour, give me a chance. The defendant evidence was filed almost one month late in the Supreme Court without leave, without an order. At the same time, when I want to rely on this evidence, the Supreme Court rejected it and this is absolutely procedural unfairness in this situation. This is one – and if you go, your Honour, to page 4 and page 5, I have noted too many issues related to miscarriage of justice and I have explained in details.

HER HONOUR: Yes.

MR EL-SAEIDY: Another point, her Honour Justice Harrison incorrectly misguided herself, misinformed herself about applicable law for remediation of contaminated soil in my premises and instead of using current law which was applicable mandatory law since 16 May 2013, she applied outdated law and other side they will try to say work has been done before that date, which is 15 May 2013, which is incorrect because their expert report had been done after that date and this is another ground for appeal. Another issue, her Honour misguided herself, misdirected herself, miseducated herself and hence in the Court of Appeal she wrongly thought there is a clearance certificate. In this case, there is no clearance certificate issued for topsoil. There is no letters. One letter which never mentioned the topsoil - - -

HER HONOUR: Mr El-Saeidy, I am going to interrupt you. Telling me details of the factual history does not assist you. It is simply not relevant to my consideration of whether the refusal of leave to appeal from interlocutory orders dismissing notices of motion made by the Court of Appeal of New South Wales is, in all the circumstances, a matter in which you entertain any reasonable prospect of the grant of special leave.

MR EL-SAEIDY: Okay, last one is about error of law, error of law which is going to the heart of the ground of appeal, error of fact of procedural unfairness and to my understanding this is a ground for leave to appeal.

HER HONOUR: Yes, thank you, Mr El-Saeidy. Yes, now, Ms Elbourne, do I take it you rely on your written submissions?

MS ELBOURNE: I do. I did just want to draw your Honour’s attention to one matter in the progress, or lack of, in these proceedings.

HER HONOUR: Yes.

MS ELBOURNE: The application for leave to appeal was filed on 30 June so that the summary of argument and draft notice of appeal were due by 28 July. On 29 July 2014, so the day after that expired, the Registrar did in fact grant an extension at the applicant’s request to 5 August and directed that an amended application for leave to appeal, draft notice of appeal and summary of argument all be filed by 5 August, and I just wanted to confirm to your Honour that a draft notice of appeal has not been received, an amended application has not been received and the summary of argument, the only one that has been received is the one that the applicant served on Monday which he has replaced today in Court with what he says is the complete version which I note appears to have been prepared by his previous solicitors with their name at the end and the date 5 August 2014. So Mr El-Saeidy has in fact been granted a further period of grace by the Registrar and there is no explanation why he did not comply with that extension either, but that is all I wished to draw your Honour’s attention to.

HER HONOUR: Thank you. Yes, Mr El-Saeidy.

MR EL-SAEIDY: As I explain to your Honour, at the time till late December 2014 I had my solicitor and he was the only solicitor who worked on this case, he was on record, and I could not override him and I was told not to do anything unless he do it, and the court granted - asked me on last communication before it was deemed abandoned that I file it by 2 January. By that time I had this problem arising from assault and I had initiated some communication with the Registry here. I have attached some document to my affidavit in support and I can talk about it if you wish, your Honour.

HER HONOUR: No, that will not be necessary. Now, is there anything further you wish to put in response to the matters that Ms Elbourne has raised?

MR EL-SAEIDY: No, your Honour.

HER HONOUR: Yes, thank you, Mr El-Saeidy.

This is an application to reinstate an application for special leave to appeal which was filed on 30 June 2014. By that application the applicant seeks special leave to appeal from the decision of the Court of Appeal of the Supreme Court of New South Wales refusing to grant leave to appeal from the decision of Associate Justice Harrison delivered on 28 October 2013 dismissing two notices of motion filed by the applicant and making declarations sought by the respondent, the New South Wales Land and Housing Corporation.

The short delay in the filing of the original application was satisfactorily explained. At the time of filing that application the applicant was legally represented. Under the High Court Rules 2004 (Cth), the applicant was required to file the draft notice of appeal and associated documents by 28 July 2014. This he failed to do. On 29 July 2014, the Registrar extended the time under the Rules to 5 August 2014. The documents the subject of that extension were not filed in compliance with the Order.

On 24 October 2014, the solicitors then acting for the applicant filed a summons seeking to be removed as solicitors on the record. An Order was made in those terms on 2 December 2014. On 2 January 2015, the application was deemed abandoned pursuant to the High Court Rules 2004 (Cth). Thereafter, no step was taken to apply for reinstatement until the filing of the present summons on 23 June 2015.

The applicant relies on his affidavit sworn on 22 June 2015. He there states that he is a disability support pensioner and that on 13 December 2014 he was assaulted on South Terrace in Bankstown Plaza. The individuals responsible for that assault have been arrested. Annexed to the affidavit is a certificate by Dr Matter which refers to “serious injuries” suffered by the applicant as a result of that assault. Dr Matter states that the applicant “was left unable to . . . function at his previous level”. In his affidavit the applicant states that the assault has made him “unable [to] perform my normal duties including reading and execute documents”.

As a result of the injuries, the applicant states he was unable to comply with the directions made by the Court to file documents on or before 2 January 2015. On the hearing of the application today, the applicant has tendered a further report by Dr Matter describing, amongst other medical conditions, the injuries sustained in consequence of the December assault.

In addition to those injuries, Dr Matter sets out a long list of medical difficulties to which the applicant is subject. Nonetheless, the medical evidence falls short of an adequate explanation for the failure to take any step in the period between 2 January 2015 and 23 June 2015 to seek reinstatement of the application. The respondent opposes reinstatement. The respondent relies on the statement made by Associate Justice Harrison in her reasons delivered on 28 October 2013:

In my view Mr El-Saeidy’s sense of entitlement has caused both Housing and this court’s limited resources to be used –

Do you have the paragraph number?

MS ELBOURNE: Paragraph 76 of that judgment, your Honour.

HER HONOUR: Yes.

to be used unmeritoriously. His numerous notices of motions have taken a disproportionate amount of court time.

Shortly put, the defendant submits that the applicant has had more than a sufficient opportunity to progress his application for special leave and that the defendant is entitled to treat the orders of the Court of Appeal delivered on 30 May 2014 as finally bringing the controversy between the parties to an end. Prominent in the defendant’s opposition is the contention that the prospect of the applicant being granted special leave is slight.

In my view, that submission is well founded. I drew to the applicant’s attention the criteria under the Judiciary Act for the grant of special leave to appeal to this Court and invited him to address the defendant’s submission respecting the prospects of the grant. In response, the applicant submitted that the Court of Appeal had, among other things, failed to understand the technical detail of the evidence touching on the asbestos remediation which it appears is at the heart of these proceedings. I note that the Court of Appeal in the concluding paragraph of its reasons stated that:

In our view Mr El-Saeidy has not demonstrated that his proposed appeal involves any issue of principle or question of public importance, nor is it apparent that any injustice has occurred by reason of any error in the primary judgment.

Nothing in the material to which the applicant has referred, or in the draft of his summary of argument handed up on the hearing of the application, calls into question that conclusion. In the circumstances, taking into account the length of delay and my acceptance of the slight prospect that the application, if reinstated, would be successful, I have determined that the interests of justice do not favour reinstatement. The applicant’s summons is dismissed with costs. The Court will now adjourn.

AT 1.52 PM THE MATTER WAS CONCLUDED