Singh v DEWR

[2011] FMCA 302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v DEWR [2011] FMCA 302

BANKRUPTCY – Application to review out of time Sequestration Order made by a Registrar in 2008 – no explanation for delay – no prospects of success – application for extension of time refused.

Grundy v Wattyl Australia Pty Ltd [2002] FCA 1480
Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 113 ALR 637
Singh v Secretary, Dept of Employment and Workplace Relations [2009] FCAFC 59

Applicant: MOHINDER SINGH

Respondent: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

File Number: MLG 1422 of 2007

Judgment of: Burchardt FM

Hearing date: 28 March 2011

Date of Last Submission: 28 March 2011

Delivered at: Melbourne

Delivered on: 9 May 2011

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Ciullo

Solicitors for the Respondent: Sparke Helmore

The Trustee: In person

ORDERS

1. The application be dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1422 of 2007

MOHINDER SINGH

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

REASONS FOR JUDGMENT

1. The matter before the Court is an application by Mr Singh to review out of time a Sequestration Order made against him by Registrar Burns on 28 February 2008.  The application was filed on 3 March 2011 and the orders sought, in part, read:

   “Quash the creditor’s petition filed by the respondent on

   
   

   16 October 2007.”

2. From the materials filed in the proceeding (almost all by the applicant) it is quite clear, as is submitted in paragraphs 1 and 2 of the respondent’s outline of submissions, that the applicant has brought numerous proceedings against the respondent in a variety of courts and tribunals and that each of the many proceedings is related, in one way or another, to a decision made on 4 November 1999 by a Delegate of the Department obliging MMI Workers Compensation (Victoria) Limited to pay Centrelink $88,633.34 in respect of social security payments received by the respondent and his wife out of moneys the respondent’s accident compensation insurer would otherwise have paid to the respondent. 

3. A detailed history of the various proceedings, in all of which Mr Singh has been unsuccessful, in substance, is set out in the affidavit of Stephen Kendall Lucas sworn on 13 April 2010 and annexed to the applicant’s affidavit filed on 9 March 2011.  The Creditor’s Petition which led to the Sequestration Order now sought to be reviewed was filed on 16 October 2007.  The Petition was based upon a prior Bankruptcy Notice.  The amount alleged in the Petition was $36,066.20 pursuant to legal costs ordered by Federal Magistrate Hartnett in this Court, together with two other orders in the Federal Court and one in the High Court. 

4. The affidavit of personal service filed on 18 October 2007 discloses that on 20 September 2007 Mr Singh was served with an official copy of the Bankruptcy Notice issued on 14 September 2007, together with copies of the orders and certificate of taxation that gave rise to the various debts.  It is plain from the material that was personally served and which is copied in the affidavit of service that the orders and certificate of taxation were final orders and regularly taken out. 

5. By an affidavit of personal service on 23 October 2007 sworn by the process server, it is clear that on 22 October 2007 Mr Singh was served with the Creditor’s Petition and the supporting affidavits of debt and search, and the affidavit verifying paragraphs 1, 2 and 3 of the Petition. 

6. As earlier indicated, the Sequestration Order was made by Registrar Burns on 28 February 2008. 

7. The application for review and for an extension of time in which to lodge the review therefore raises two issues in my opinion. 

8. In Grundy v Wattyl Australia Pty Ltd [2002] FCA 1480, Justice Downes held, in relation to an application for a review of the Registrar’s decision to make a Sequestration Order at [19]:

   “Two issues therefore arose. The first was whether an extension of time should be granted. The second was whether, if the extension was granted, an order setting aside the sequestration order should be made.”

9. In the same judgment, Justice Downes also said at [9]:

   “Indeed, the rationale for short time limits would seem to be the achieving of certainty at an early point of time without compromising the requirement for review. This is confirmed by the requirement that review applications be promptly heard.  

   Bankruptcy administration must begin promptly. If bankruptcy administrations are to be at risk of termination months after they have begun, with issues as to how intervening costs incurred by the trustee are to be met, problems could arise with respect to the proper administration of bankrupt estates. The present application was made more than four months out of time. In the interim the trustee had incurred substantial costs in connection with the administration of the estate.”

10. Here, the application is made over three years after the original Sequestration Order in circumstances where Mr Singh was well aware of the proceeding at the time.  At paragraph 33 of his affidavit filed on 3 March 2011, Mr Singh deposed:

    “This Creditor’s Petition was listed for hearing on 4 December 2007.  The applicant did not file any notice of appearance nor attended the Court for any matter relating to the proceeding of Creditor’s Petition to obtain a Sequestration Order by the respondent against the estate of the applicant.

    Pursuant to the Court orders dated 4 December 2007, the respondent notified the applicant that the hearing of the creditor’s petition dated 4 December 2007 had been adjourned to 5 February 2008. … The orders of Registrar Hetyey were made because of applicant’s absence in the bankruptcy proceedings.”

11. What Mr Singh deposed to was true enough.  He did not in any way participate in the bankruptcy proceedings despite being aware of them.  His affidavit offers no explanation for this omission.  Likewise, it offers no explanation for the delay in the bringing of this application.  Furthermore, when his oral submissions were made before me,

    
    

    Mr Singh did not address the question of delay in any fashion. 

12. The application for an extension of time involves the exercise of the Court’s discretion.  Amongst the most relevant things to arise are an explanation for the delay, and the question of prejudice to any party in the event that extension of time were granted. 

13. The administration of this estate is still under way.  On 10 June 2008, Mr Singh forwarded a bank cheque in the sum for which he had been made bankrupt on the Creditor’s Petition.  At paragraph 39 of his

    
    

    3 March 2011 affidavit, he deposes:

    “Despite paying the debt, the official trustee were not giving me the certificate of the annulment of the bankruptcy despite paying the approved debt the official trustee was asking me to file the statement of affairs.  I did not and the respondent informed me the Department of Public Prosecution on 12/12/2008.”

14. From this, it is clear that the failure of Mr Singh to file his statement of affairs has led to the continuation of his bankruptcy beyond the standard three year period. 

15. It is highly likely that the trustee will engender substantial costs in the administration of the estate occasioned by Mr Singh’s delay in bringing his application. 

16. Another matter to be considered is the prospect of success.  In Halliday v High Performance Personnel Pty Ltd (in liq) (1993) 113 ALR 637 Chief Justice Mason held at 638:

    “The purpose of the court's power to grant an extension of time is to enable the court to "do justice between the parties".   However, there are a number of factors which must be considered in the exercise of the discretion to grant an extension of time, one of which is the prospect of success of the proposed appeal.”

17. In this case, as is plain from the materials as a whole, the applicant has been seeking to overturn the 1999 decision for many years but with a complete lack of success. 

18. In his oral submissions before me, Mr Singh asserted that the 1999 litigation is still on foot (and there is at least one extant proceeding before Justice Bromberg) and that the orders made against him from time to time, including the Sequestration Order, have been obtained by fraud.  Courts have, on various occasions, addressed this matter and in Singh v Secretary, Dept of Employment and Workplace Relations [2009] FCAFC 59 at [56], Justice Lander and Justice Flick commented on Mr Singh’s allegations of fraud as follows:

    “The appellant’s complaint of fraud in this ground is baseless and, like his other complaints of fraud, should not have been made.”

19. To the extent that the applicant says that the Sequestration Order was obtained by fraud because he had ongoing appeals, as it were, against the judgments which gave rise to the Bankruptcy Notice and the Petition, on the face of the materials filed before me, it is plain that this allegation could not succeed. 

20. Indeed, all the materials filed with the Bankruptcy Notice on their face represent debts amounting in total to the amount claimed, and are all based on enforceable final orders. 

21. The prospects of success on the review are negligible to non-existent. 

22. In all the circumstances it follows that the application for an extension of time must be refused. 

23. Even if I were wrong in this regard, I would not be minded to set aside the Sequestration Order.  All the matters raised by the applicant in this regard have been addressed above when considering the prospects of success in the application for review.  The same conclusion necessarily follows. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date:  9 May 2011