Singh v Harrowell

[2023] NSWSC 420

Supreme Court

New South Wales

Medium Neutral Citation:

Singh v Harrowell & Ors [2023] NSWSC 420

Hearing dates:

13 February and 3 April 2023

Date of orders:

24 April 2023

Decision date:

24 April 2023

Jurisdiction:

Common Law

Before:

Kunc J

Decision:

Proceedings permanently stayed; interlocutory order made of the Court’s own motion restraining further steps in proceedings (including appeal) without leave

Catchwords:

CIVIL PROCEDURE — Pleadings — Striking out or permanent stay — Abuse of process — Vexatious proceedings — No issues of principle

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil Procedure Act 2005 (NSW)

Crimes Act 1900 (NSW)

Judicial Officers Act 1986 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Judiciary Act 1903 (Cth)

Vexatious Proceedings Act2008 (NSW)

Cases Cited:

Ansett Transport Industries (Operation) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636

Attorney-General for New South Wales v Agarsky (1986) 6 NSWLR 38

Blair v Curran (1939) 62 CLR 464

Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937

Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245

Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366; [2013] UKPC 17

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Durack v Gassior (High Court of Australia, 13 April 1981 unrep)

Fingleton v The Queen [2005] HCA 34

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125

Hassan v Iemma [2008] NSWSC 1476

Jago v District Court (NSW) (1989) 168 CLR 23

Khan v Singh [2021] FCCA 950

Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173

Magill v Magill (2006) 226 CLR 551

Mannigel v Hewlett Phelps [1991] NSWCA 186

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

Northern Territory v Mengel (1995) 185 CLR 307

Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59

Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW),14 March 1991, unrep)

Rajski v Powell (1987) 11 NSWLR 522

Reichel v Magrath (1889) 14 App Cas 665

Samootin v Shea [2010] NSWCA 371

Singh v Fobupu Pty Ltd [2018] NSWCATAP 127

Singh v Fobupu Pty Ltd [2019] NSWCATAP 111

Singh v Fobupu Pty Ltd [2019] NSWCATAP 34

Singh v Fobupu Pty Ltd [2020] NSWCATAP 11

Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886

Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14

Singh v Khan; Singh v Fobupu Pty Ltd [2019] NSWSC 485

Singh v Singh; Singh v RCMO Pty Limited; Singh v Sharma; Singh v Murphy; Singh v Armstrong; Singh v Tidball [2023] NSWSC 280

Sirros v Moore [1975] QB 118

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Williams v Hursey (1959) 103 CLR 30

Category:

Procedural rulings

Parties:

Gurjit Singh (Plaintiff)
Mark Harrowell (First Defendant)
David Charles (Second Defendant)
Theresa Simon (Third Defendant)
David Goldstein (Fourth Defendant)
Jerry Riznyczok (Fifth Defendant)
Rebel Kenna (Sixth Defendant)
Karen Jones (Seventh Defendant)
Lauren Aquilina (Eighth Defendant)
Attorney General of New South Wales (Ninth Defendant)
Anzer Khan (Tenth Defendant)
Sarah Khan (Eleventh Defendant)
Ghulam Akbar Khan (Twelfth Defendant)
Samina Khan (Thirteenth Defendant)
Fobupu Pty Ltd (Fourteenth Defendant)
Anthony Dicembre (Fifteenth Defendant)
McGrath Dicembre & Co (Sixteenth Defendant)
Ryan Brown (Seventeenth Defendant)

Representation:

Counsel:

R Lee (First to Ninth Defendants)
E A J Hyde (Tenth to Fourteenth Defendants)
D Glamcevski (Solicitor) (Fifteenth and Sixteenth Defendants)
E Steer (Seventeenth Defendant)

Solicitors:

Crown Solicitor’s Office (First to Ninth Defendants)
Mills Oakley (Tenth to Fourteenth Defendants)
McGrath Dicembre & Company (Fifteenth and Sixteenth Defendants)
Colin Biggers & Paisley Lawyers (Seventeenth Defendant)

File Number(s):

2022/24794

Publication restriction:

Nil

JUDGMENT

Summary

1. For the purposes of this judgment, it is convenient to divide the defendants into four groups. Each group has filed its own motion for the summary disposal of the plaintiff’s claims against them. For the reasons that follow, the Court has determined that the plaintiff’s claims should be permanently stayed in their entirety and recommends that the Attorney-General consider an application for a vexatious proceeding order against the plaintiff.

2. The plaintiff has made various claims for declaratory relief and sought damages for multiple torts allegedly committed by the defendants. For the reasons set out below, those claims are unsustainable. In summary, there are three reasons for this conclusion:

1. Mr Singh is a bankrupt. Therefore, the right to bring the various claims for which he seeks damages is vested in the trustee of his bankrupt estate.

2. The pleadings are either or both inadequate or seek to relitigate issues already determined in previous proceedings.

3. No action is maintainable against the first to eighth defendants, who each benefit from judicial immunity.

3. Given the hopeless nature of the allegations, as well as the vexatious and oppressive effect any continuation of these proceedings would have on the defendants, the Court has determined that it is necessary to exercise its extraordinary power to issue a permanent stay.

4. Furthermore, the defendants have, in this and in other proceedings, incurred considerable expense in defence of claims made by the plaintiff which are patently unfounded. This is an abuse of the Court’s processes, abuse which is likely to continue unless the plaintiff’s right to bring proceedings is curtailed, including to take any further steps such as an appeal or application for leave t appeal from the orders made to give effect to these reasons. To protect the Court’s processes, the Court will of its own motion order that the plaintiff can take no further steps in these proceedings (including in relation to an appeal) without the leave of a Judge of the Court.

5. I will also recommend that the Attorney-General considers bringing an application to make a vexatious proceeding order against the plaintiff. To enable time for that consideration to occur, I will refer these proceedings to the Chief Judge at Common Law to be dealt with other matters involving the plaintiff that are already being case managed by his Honour.

Dramatis personae

6. The plaintiff is Mr Gurjit Singh (Mr Singh), who appeared for himself. Mr Singh has been involved in a protracted series of disputes in NSW Civil and Administrative Tribunal (NCAT), the Supreme Court, and Federal Court. Mr Singh seeks to impugn the conduct of persons during, and in relation to, those proceedings.

7. The first group of defendants (the Khan Group), for whom Mr E.A.J. Hyde of Counsel appeared, comprises:

1. Fobupu Pty Ltd (Fobupu) is the fourteenth defendant. Fobupu was, at the relevant time, the landlord of the property at Kingswood (Kingswood property), the subject of the initial NCAT proceedings, and has been involved in several proceedings against Mr Singh.

2. Mr Ghulam Akbar Khan and his wife Mrs Samina Khan are the twelfth and thirteenth defendants respectively. They were, at the relevant time, directors of Fobupu. Since 2018, they have been involved in a series of proceedings against Mr Singh, both personally and in their capacity as directors of Fobupu.

3. Mr Anzer Khan and Ms Sarah Khan are the tenth and eleventh defendants respectively. They are the children of Mr Ghulam Akbar Khan and Mrs Samina Khan.

8. The second group of defendants (the Officials Group), for whom Mr R. Lee of Counsel appeared, comprises:

1. Mr Mark Harrowell (Mr Harrowell) is the first defendant. Mr Harrowell was, at all relevant times, an NCAT Principal Member. He heard three separate proceedings involving Mr Singh on 18 April 2018, 1 February 2019, and 21 January 2020 respectively.

2. Mr David Charles (Mr Charles) is the second defendant. Mr Charles was, at all relevant times, an NCAT Senior Member. He heard two separate proceedings involving Mr Singh on 23 January 2018 and 26 July 2018 respectively.

3. Ms Theresa Simon (Ms Simon) is the third defendant. Ms Simon was, at the relevant time, an NCAT Senior Member. Ms Simon heard one matter involving Mr Singh on 6 March 2018.

4. Mr David Goldstein (Mr Goldstein) is the fourth defendant. Mr Goldstein was, at all relevant times, an NCAT Senior Member. He heard four separate matters involving Mr Singh. The first matter was heard on 19, 20 and 23 July 2018, and 26 October 2018. The other matters were heard on 31 October 2018, 27 November 2018, and 27 February 2019 respectively.

5. Mr Jerry Riznyczok (Mr Riznyczok) is the fifth defendant. Mr Riznyczok is the Registrar of the New South Wales Court of Appeal.

6. Ms Rebel Kenna (Ms Kenna) is the sixth defendant. Ms Kenna is the Prothonotary Director of the New South Wales Supreme Court.

7. Ms Karen Jones (Ms Jones) is the seventh defendant. Ms Jones is the New South Wales Supreme Court Common Law Registrar.

8. Ms Lauren Aquilina (Ms Aquilina) is the eighth defendant. Ms Aquilina is the Senior Client Services Officer and Chief Clerk at the New South Wales Supreme Court.

9. The Attorney General of New South Wales (the Attorney General) is the ninth defendant.

9. The third group of defendants (the Dicembre Group), for whom Mr D. Glamcevski, solicitor, appeared, comprises:

1. Mr Anthony Dicembre (Mr Dicembre) is the fifteenth defendant. Mr Dicembre is a solicitor. On several occasions, he has acted for members of the Khan Group in proceedings involving Mr Singh.

2. McGrath Dicembre & Co is the sixteenth defendant. It is Mr Dicembre’s firm. For the purposes of this proceeding, McGrath Dicembre & Co is indistinguishable from Mr Dicembre.

10. The fourth group comprises of the seventeenth defendant only, Mr Ryan Brown of Counsel (Mr Brown), for whom Ms E. Steer of Counsel appeared. At various times Mr Brown has appeared for members of the Khan Group, instructed by Mr Dicembre, against Mr Singh.

11. It is also necessary to record for completeness that, within the statement of claim filed on 28 January 2022 (the SOC), Mr Singh made several allegations concerning Kim Rosser and Kay Ransome who, at the relevant time, held office in NCAT. Neither, however, is a defendant in these proceedings.

Procedural history

12. The notices of motion resolved by this judgment (the motions) were filed for Mr Brown on 13 April, for the Khan and Dicembre Groups on 14 April, and the Officials Group on 19 April 2022.

13. On 6 July 2022, written submissions were provided by the Officials Group in support of their motions.

14. On 23 August 2022, Registrar Walton made orders that the defendants file and serve written submissions by 2 September 2022. On 30 August 2022 supplementary written submissions were provided by the Officials Group, on 2 September 2022 both the Khan Group and Mr Brown provided written submissions, and on 5 September 2022 the Dicembre Group provided written submissions.

15. On 16 September 2022, the motions were listed for hearing before me on 13 February 2023. Mr Singh was ordered to file and serve written submissions by 4 November 2022. No such submissions were forthcoming.

16. On 7 February 2023, I convened a directions hearing, at which Mr Singh appeared remotely. During the hearing, I noted that Mr Singh had not provided written submissions and asked him whether he wished to rely upon written submissions. Mr Singh declined, stating that he wished to rely upon oral submissions only (Tcpt, 7 February 2023, p 5 (5)-(25)):

“HIS HONOUR: All right.  Do you wish the opportunity to file anything in writing before Friday?  It seems to me your case, and certainly the Court, would be assisted, and the parties would be assisted, if they had even an outline of the matters you wish to raise in response.

PLAINTIFF: Your Honour, I think oral submissions is something I will rely on.

HIS HONOUR: So to be clear, Mr Singh, you do not wish to file any written submissions before the hearing next Monday; is that correct?

PLAINTIFF: Correct, your Honour.

HIS HONOUR: And also to be clear, Mr Singh, you’re telling me that you will be content to make oral submissions only in response to whatever has been written in the written submissions and whatever is said on Monday; is that correct?

PLAINTIFF: Correct, your Honour, yes.

HIS HONOUR: So on that basis we should finish the case on Monday, and you’re not going to be asking for an opportunity to file further written submissions after Monday; is that correct?

PLAINTIFF: That’s correct…”

17. At the hearing on 13 February 2023, before the luncheon adjournment, it became apparent that Mr Singh was having difficulty presenting his submissions adequately and was unlikely to finish his submissions within the allotted time. To provide Mr Singh with an opportunity to address the defendants’ submissions, the Court enquired whether Mr Singh wished to have additional time to make written submissions (Tcpt, 13 February 2023, p 55(1)-56(15)):

“HIS HONOUR: Mr Singh, I just want you to think about this because my principal concern is to ensure you have the fullest opportunity to make your submissions. We discussed this at the directions hearing the other day. You said to me you were content to make your submission orally in response. You are perfectly entitled to adhere to that position and I have allowed, at least as far as my diary is concerned, the possibility we won't finish today and I will continue the hearing tomorrow.

But I would like you to think over lunch how you feel you are best able to respond to the submissions that have been made and in particular whether you think you will be able to respond better and more clearly and more advantageously to your position if you do so in writing or if you make some oral submissions and do something in writing.

I would like you to think about that over lunch because I am content for you to continue to address this afternoon. But you will have to decide whether that's it or if you are better to do it in writing and perhaps come back and address me in light of your written submissions. Just at the moment, I'm not being critical, I am not sure you are giving yourself the best chance doing it the way you are doing it at the moment.

PLAINTIFF: Your Honour, if you allow me to continue a little bit.

HIS HONOUR: Of course.

PLAINTIFF: I am trying to address your questions at the moment. You are raising questions and I am answering it. But I have my notes to make submissions but I haven't had a chance to get down that path right now. But that's a problem.

HIS HONOUR: The difficulty is ‑ it's not a difficulty ‑ I am only asking questions because I am trying to understand what you are taking.

PLAINTIFF: Yes, yes, that's fine. There's no problem. But when I'm answering your questions I'm trying to address your concerns and obviously, from my point of view set off is important because ‑ but I think the point I am trying to make here is the set off issue is never considered and all of this went to ‑ I will take you to those affidavits and paragraphs. In front of Justice Gleeson submissions were made that tribunal has done and dusted this issue, Mr Singh is re‑litigating it. And the cost issue, all that stuff, I have made those‑‑

HIS HONOUR: Mr Singh, we will come back at 10 past 2.

PLAINTIFF: In terms of written submissions, I don't understand the proposal.

HIS HONOUR: You have had the written submissions of the defendants since September. They are very clear but they deal with a number of bases on which they say that their respective clients are entitled to have your proceedings struck out, dismissed or stayed. Normally I would expect to receive a point by point rebuttal to the points they have raised.

How you organise your submissions is a matter for you. But I want you to think about how you are best ‑ what's the best way for you to make the points in response to the written submissions.

I know you said to me last week or the other day you were content to do it orally. You can maintain that position. You can address me orally and then supplement them in writing. Or you can come back after lunch and say I want to do a full set of written submissions and we will come back for an additional hearing where I can ask you any questions and the other side respond.

I will leave the ball in your court over lunch to think about what is the way you think you will be able to respond to your best advantage.

18. After the luncheon adjournment, Mr Singh indicated that he wished to make written submissions. It was thought, on balance, that it would assist the parties and Court to be provided with a written outline of Mr Singh’s submissions (Tcpt, 13 February 2023, p 57(10)-(30)):

“HIS HONOUR: Yes, Mr Singh.

PLAINTIFF: I think I consider your proposal and based on time it will take ‑ I had oral submissions to make but I think I can make written submission as well. And it is just a time frame issue.

HIS HONOUR: So do you want to make oral submissions now or do you want to convert to full written submissions?

PLAINTIFF: I will convert to full written submissions.

HIS HONOUR: Is there any opposition to that course?

HYDE: It is really a matter for the Court. I accept he is a litigant in person. I note there's been various directions made. I note what happened last week. To give your Honour the most assistance, it is not opposed but not consented to.

HIS HONOUR: Of course, I understand. I can't see there being any prejudice and I can see some advantage to everybody having a clear statement of what Mr Singh's submissions are.”

19. While the Court assented to this course, it was reiterated to Mr Singh that, in granting him a further period to make written submissions, the Court was affording him a substantial indulgence (Tcpt, 13 February 2023, p 60(44)-61(7)):

“HIS HONOUR: Let's make some directions. What I want to emphasise to you Mr Singh is this, I will give you four weeks from this Friday so there's a bit of extra time there but may I respectfully emphasise this to you, you are being granted something of an indulgence in the sense that we went through this last week and you assured me that you would be happy to proceed orally. It seems to me you have made the best decision in your own interests to present your case to best advantage in writing but I will give you four weeks and you must do it in four weeks.

Please do not expect any extensions or leniency in the absence of extraordinary circumstances because I'm not only going to make a direction about you putting on your submissions but I will now appoint a further hearing date. I need to do that while everybody is here and everybody has their diaries and most importantly I have my diary so I know when I can fit you all in again.”

20. The hearing was initially adjourned until 31 March 2023, however, was further postponed to 3 April 2023, because Mr Singh requested further time to make his written submissions. Between 6 and 31 March 2023, the Court received four separate sets of written submissions from Mr Singh.

21. On 24 March 2023, in separate proceedings, Beech-Jones CJ at CL made interlocutory orders under s 8 of the Vexatious Proceedings Act2008 (NSW) that Mr Singh “shall not commence or institute any further proceedings in this Court without first obtaining the leave of a Judge of the Court”: Singh v Singh; Singh v RCMO Pty Limited; Singh v Sharma; Singh v Murphy; Singh v Armstrong; Singh v Tidball [2023] NSWSC 280 (the March Judgment) at [106].

22. At the hearing on 3 April 2023, Mr Singh attended by phone and declined to supplement his written submissions by way of oral argument. At the conclusion of the hearing, the Court noted that, if the Court accepted the position of the applicants that the proceedings should be stayed or dismissed, the Court would, under its inherent jurisdiction, make an order (similar to that of Beech-Jones CJ at CL) that Mr Singh would require leave of the Court to take further steps in these proceedings. Subsequently, Mr Singh was informed that, if he wished to make submissions opposing such an order, he had until 11 April 2023 to serve and file them. No submissions were forthcoming.

Litigation history

23. Mr Singh’s claims relate to a protracted series of disputes, which began in late 2017 and continue. For the purposes of this judgment, it is necessary only to describe those proceedings which are referred to in the SOC. However, it is important to note that not all proceedings involving Mr Singh and the seventeen named defendants are set out in the following history of litigation.

24. On 18 December 2017, Mr Singh applied to NCAT seeking to extend the term of a lease granted to Anmol Holdings Pty Ltd — a company associated with Mr Singh which is now deregistered — based on an alleged oral agreement. The application was made against Fobupu, the owner of the Kingswood property, and Mr Ghulam Akbar Khan and Mrs Samina Khan, who were the company’s directors.

Interlocutory Order

25. On 23 January 2018, Mr Charles made an interlocutory order, restraining Fobupu, Mr Ghulam Akbar Khan, and Mrs Samina Khan from terminating the lease on the Kingswood property, on the condition that Mr Singh continued to pay monthly rent while proceedings were on foot.

Directions to Make Documents Available

26. On 6 March 2018, Ms Simon made directions for copies of the documents that parties wished to rely upon be provided to NCAT. Mr Singh sought leave to appeal Ms Simon’s directions, and on 18 April 2018, Mr Harrowell refused the plaintiff leave to appeal: Singh v Fobupu Pty Ltd [2018] NSWCATAP 127. On 25 May 2018, Mr Harrowell gave reasons for this decision and ordered the plaintiff to pay the defendants’ costs.

27. On 17 August 2018, Mr Singh filed a summons in this Court to appeal the decision to refuse leave to appeal Ms Simon’s directions made by Mr Harrowell on 18 April 2018.

28. This summons was dealt with by Harrison AsJ on 26 April 2019 in amalgamated proceedings. It is dealt with below under the heading “Interim Stay Application”.

29. On 9 and 24 September 2019, Mr Harrowell made further costs orders in NCAT against Mr Singh.

Substantive NCAT Proceedings

30. On 19, 20 and 23 July, and 26 October 2018, Mr Goldstein heard Mr Singh’s substantive application seeking to extend the term of the lease of the Kingswood property.

Restraint Order

31. On 31 October 2018, Mr Goldstein made orders restraining Fobupu, Mr Ghulam Akbar Khan, and Mrs Samina Khan, from repossessing the premises while proceedings were underway, on the condition that Mr Singh continued to pay rent.

32. On 14 November 2018, Mr Singh made an application to NCAT concerning the restraint order. The application sought, in effect, to relieve Mr Singh of the obligation to pay rent under the orders made by Mr Goldstein on 31 October 2018.

33. On 27 November 2018, Mr Goldstein dismissed Mr Singh’s application in NCAT.

34. On 6 December 2018, Mr Singh lodged an appeal, in NCAT, seeking a review of the orders made by Mr Goldstein on both 31 October and 27 November 2018. Mr Singh also sought a stay of Mr Goldstein’s restraint order made on 31 October 2018.

35. On 14 December 2018, the Appeals Panel made preparatory orders for Mr Singh’s appeal and granted a stay of the substantive proceedings, subject to another order restraining Fobupu from repossessing the premises, on the condition that Mr Singh would pay the requisite amount of rent.

36. On 11 January 2019, Fobupu applied to the Appeals Panel to lift the stay of proceedings and dissolve the order restraining Fobupu from repossessing the premises, because Mr Singh had not complied with the conditions of the order made by the Appeals Panel on 14 December 2018.

37. On 1 February 2019, Mr Harrowell, sitting as the Appeals Panel, lifted the stay of proceedings and dissolved the order restraining Fobupu from repossessing the premises: Singh v Fobupu Pty Ltd [2019] NSWCATAP 34.

38. On 27 February 2019, in the substantive proceedings, on the application of Fobupu, Mr Goldstein ordered that Mr Singh surrender the Kingswood property for failing to comply with his orders. Mr Singh then lodged an appeal both to NCAT and the Supreme Court. Button J dismissed Mr Singh’s appeal to the Supreme Court that day.

39. On 1 May 2019, Principal Member Rosser and Senior Member Ransome, sitting as the NCAT Appeals Panel, refused Mr Singh’s appeal from the decision of Mr Goldstein made on 31 October and 27 November 2018: Singh v Fobupu Pty Ltd [2019] NSWCATAP 111.

40. On 21 January 2020, Mr Harrowell and Senior Member Robertson, sitting as the NCAT Appeals Panel, dismissed the appeal from the decision of Mr Goldstein made on 27 February 2019: Singh v Fobupu Pty Ltd [2020] NSWCATAP 11.

Interim Stay Application

41. On 15 October 2018, Mr Singh filed a notice of motion in this Court seeking an interim stay of the substantive NCAT proceedings, and on 21 November 2018, Mr Singh filed a further notice of motion seeking an interim stay of the substantive NCAT proceedings.

42. On 27 November 2018, Adamson J refused Mr Singh’s applications for an interim stay of the substantive NCAT proceedings.

43. On 20 December 2018, Mr Singh again filed a notice of motion seeking an interim stay of the substantive NCAT proceedings.

44. On 26 April 2019, Harrison AsJ dealt with the three notices of motion filed by the plaintiff, as well as the summons filed by Mr Singh to appeal the decision of Mr Harrowell, made on 18 April 2018, to refuse leave to appeal against Ms Simon’s directions. Harrison AsJ dismissed all three notices of motion and stood over the summons, filed on 17 August 2018, to 31 October 2019 for further directions before the Registrar: Singh v Khan; Singh v Fobupu Pty Ltd [2019] NSWSC 485.

45. On 20 May 2019, Mr Goldstein made orders dismissing the substantive proceedings and ordering that Mr Singh pay the costs of the Khan parties.

46. On 3 June 2019, Mr Singh filed a notice of motion, returnable on 13 June 2019, to challenge Harrison AsJ’s decision to dismiss the notices of motion. On 13 June 2019, a directions hearing was held on Mr Singh’s motion. As Mr Singh had not notified the respondents to the motion, it was adjourned to 25 July 2019.

47. On 25 July 2019, a directions hearing was held. Mr Singh failed to appear and the hearing was adjourned to 8 August 2019. On 8 August 2019, the Registrar (Ms Jones) dismissed the notice of motion to challenge Harrison AsJ’s decision, as well as the balance of proceedings, because Mr Singh had again failed to appear.

48. On 31 October 2019, the Registrar (Mr Riznyczok) adjourned the summons, which had been stood over by Harrison AsJ from 26 April 2019, by consent of the parties to 20 February 2020. At the hearing, Mr Singh appeared, as did Mr Brown, who appeared for the Khan Group.

49. On 20 February 2020, the directions hearing was held by the Registrar (Ms Jones) with respect to the summons that had been stood over by Harrison AsJ. Ms Jones noted the balance of proceedings had been dismissed on 8 August 2019 with the result that the matter was closed.

Costs Order

50. On the 16 and 17 October 2019, on application by the Khan Group and on the basis of the two costs orders made in NCAT on 25 May 2018 and 24 September 2019 by Mr Harrowell, the Local Court entered two judgments against Mr Singh naming Fobupu as creditor. On 9 December 2019, the Khan Group served on Mr Singh a bankruptcy notice, which required Mr Singh to pay Fobupu as creditor.

51. On 16 March 2020, Mr Singh filed a notice of motion in the Local Court seeking to set aside the Local Court judgments. On 9 April 2020, Tsavdaridis LCM dismissed Mr Singh’s notice of motion.

52. On 25 June 2020, Gleeson J (then a judge of the Federal Court) dismissed Mr Singh’s application to the Federal Court to challenge the bankruptcy notice: Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886.

53. Mr Singh appealed Gleeson J’s decision and, on 3 February 2021, the Full Court (Rares, Farrell and Stewart JJ) dismissed the appeal: Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14.

Sequestration Order

54. On 6 July 2020, several of the Khan Group filed a creditor’s petition in the then Federal Circuit Court seeking a sequestration order based on Mr Singh’s non-compliance with the bankruptcy notice.

55. On 6 May 2021, Street J made a sequestration order against Mr Singh: Khan v Singh [2021] FCCA 950. Mr Singh has since appealed this decision, however, there is no evidence before this Court as to what has happened in that appeal.

Legal principles

56. The defendants adopt one another’s submissions. Therefore, the relevant legal principles outlined in what follows may be treated as relating to all parties, except where reference is made to a particular party.

57. In the various motions, the following relief is sought, either: (1) Mr Singh’s claims should be dismissed under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); (2) struck out under rule 14.28 of the UCPR; or (3) permanently stayed under section 67 of the Civil Procedure Act 2005 (NSW).

58. The defendants collectively submit the Court is empowered to order this relief on three grounds: (a) Mr Singh is a bankrupt, and therefore, has no standing to bring his claims; (b) Mr Singh has not adequately pleaded his case; and (c) the claims Mr Singh alleges are an attempt to relitigate issues already decided in previous proceedings. The Officials Group raise a further ground: (d) that Mr Singh’s actions are not maintainable against the Officials Group because they have the benefit of judicial immunity.

Summary dismissal

59. Rule 13.4 of the UCPR includes:

“13.4   Frivolous and vexatious proceedings…

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).”

60. The presumption, which must be displaced by the defendants, is that the plaintiff is entitled to have his case go to trial. For the Court to exercise its jurisdiction to dispose of proceedings summarily, the case against the plaintiff must be very clear. Once it appears that a real question of fact or law is to be determined, the Court will not be justified in summarily dismissing the proceedings: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92 (Dixon J).

Inadequate pleadings

61. A claim which is inadequately pleaded will disclose no reasonable cause of action. Moreover, because such a claim has no prospect of success, it will also constitute an abuse of process (see Hassan v Iemma [2008] NSWSC 1476 [45]). In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129, Barwick CJ stated the relevant test:

“[A claim may be summarily dismissed where it is] ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.”

62. In determining whether a statement of claim could not possibly succeed, the defendants must show that the plaintiff’s pleadings, taken at their highest, nevertheless cannot establish the alleged cause of action. In doing so, the defendants must accept the truth of the facts pleaded in the plaintiff’s statement of claim. Moreover, the defendants must adopt the “ranges of meaning of the assertions of fact in the statement of claim which those assertions are reasonably capable of bearing”: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW),14 March 1991, unrep).

63. Given the exceptional nature of the power to dispose of proceedings summarily, it will not be appropriate to do so where pleadings are merely ill expressed. As Kirby P stated in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-7 (Hope and Samuels JJA agreeing):

“Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form.”

64. Hence, in order to justify the exercise of the Court’s powers, the pleadings must be “so bad that no legitimate amendment could cure the defect”: Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 942 (Cross J).

Issue estoppel

65. Furthermore, proceedings may be dismissed as an abuse of process where those proceedings are an attempt to re-litigate issues which have already been determined in previous proceedings: Reichel v Magrath (1889) 14 App Cas 665. In such circumstances, parties are estopped from raising issues which have already been determined. Importantly, as Dixon J (as he then was) stated in Blair v Curran (1939) 62 CLR 464 at 531-2:

“[t]he estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion...”

66. Issue estoppel is, therefore, distinct from res judicata. Issue estoppel relates to those legal elements, and corresponding factual matters, of a cause of action which are necessary to establish (or not establish) the cause. It is only these essential issues of law and fact, and not those which are ancillary to establishing the case, which parties are estopped from denying. Whereas res judicata relates to the very cause of action itself which, once it passes into judgment, cannot be reopened. Dixon J (as his Honour then was) explained the distinction (Blair v Curran (1939) 62 CLR 464 at 532):

The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

…

In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived.”

Striking out pleadings

67. Rule 14.28 of the UCPR includes:

“14.28   Circumstances in which court may strike out pleadings…

(1)  The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).”

68. There is considerable overlap between the principles that apply to summary dismissal and the principles that apply to the striking out of pleadings. Both may be invoked where no reasonable cause of action is disclosed or where there is an abuse of the court’s processes. Therefore, the principles I have set out above — which relate to inadequate pleadings and the re-litigation of issues which have already been determined — may be taken to apply equally to the Court’s power to strike out pleadings.

69. Pleadings will be an embarrassment where they are “unintelligible, ambiguous, inconsistent, confusing or contain irrelevant allegations”: Hassan v Iemma [2008] NSWSC 1476 at [51] (Norrish AJ). Similar to the Court’s power of summary dismissal, if defective pleadings can be cured by amendment, the court should grant leave to do so: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-7 (Kirby P). Furthermore, the case to strike out pleadings must be a clear and obvious one: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91-92 (Dixon J).

Permanent stay of proceedings

70. Proceedings may be permanently stayed under section 67 of the Civil Procedure Act 2005 (NSW):

“67   Stay of proceedings…

Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.”

71. The principles relating to the exercise of the Court’s jurisdiction to stay proceedings are well settled. I respectfully adopt and apply this summary by Bell P, as the Chief Justice then was, in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 (“Moubarak”) at [71].

“From a trilogy of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27), the following uncontroversial propositions may be derived:

(1) the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (Mason CJ, Dawson, Toohey and McHugh JJ)

(2) a permanent stay should only be ordered in exceptional circumstances: Jago at 31 (Mason CJ), 76 (Gaudron J); Spautz at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (Mason CJ, Deane and Dawson JJ)

(3) a permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (Mason CJ), 74 (Gaudron J); Spautz at 520 (Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (Gleeson CJ, Gummow, Hayne and Crennan JJ)

(4) the categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (Gaudron J); Batistatos at [9] (Glee­ son CJ, Gummow, Hayne and Crennan JJ)

(5) one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (Gaudron J); Walton at 393 (Mason CJ, Deane and Dawson JJ)

(6) the continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ)

(7) proceedings may be oppressive where their effect is “seriously and unfairly burdensome, prejudicial or damaging”: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 (Deane J); [1988] HCA 32 cited in Jago at 74 (Gaudron J); Batistatos at [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ)

(8) proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (Mason CJ, Deane and Dawson JJ); Batistatos at [6] (Gleeson CJ, Gummow, Hayne and Crennan JJ), and

(9) proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (Mason CJ, Deane and Dawson JJ); Batistatos at [6] (Gleeson CJ, Gummow, Hayne and Crennan JJ).”

72. A further category of case where a stay might be granted is where a stay will prevent an abuse of process: Jago v District Court (NSW) (1989) 168 CLR 23 at 25 (Mason J); Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 944 (Cross J).

Relief sought in the SOC

73. Mr Singh seeks damages for three torts which, he alleges, have been committed against him. These are misfeasance in public office, conspiracy, and collateral abuse of process.

74. Mr Singh also claims damages for “fraud”. While fraud is an element of numerous actions, it does not itself constitute an independent action for damages. That being so, at several paragraphs in the pleading Mr Singh refers to alleged “dishonest” conduct of the parties. The defendants have taken these references, along with the references to fraud, to refer to the tort of deceit. In an attempt to construe Mr Singh’s pleadings in their best light, the Court will also proceed on this basis.

75. Mr Singh also seeks declarations that Mr Harrowell, Mr Brown and Mr Dicembre “brought the administration of justice into disrepute”, and that Ms Jones perverted the course of justice. Declaratory relief must be based on a recognisable cause of action. Declaratory relief cannot be granted with respect to it “[bringing] the administration of justice into disrepute”, because no such action exists.

76. Furthermore, while perverting the course of justice is an offence under s 319 of the Crimes Act 1900 (NSW), it is not something in relation to which the Court would give declaratory relief. First, the offence is a serious indictable offence, and the proper course is for the matter to be determined in criminal proceedings. Second, there are no civil rights or liabilities which are contingent on a finding that Ms Jones perverted the course of justice. Therefore, there is no utility in such a declaration being made. Furthermore, Mr Singh advances no pleading in support of this claim. On this basis alone, the proposed declaration may be summarily disposed of on the basis that no reasonable cause of action is disclosed. This leaves Mr Singh’s various claims for damages, to which I now turn.

Mr Singh’s submissions

77. Mr Singh’s submissions are, with the greatest of respect to him, not easy to follow. They do not adequately engage with the legal issues raised in the motions, nor do they respond to the arguments made by the defendants. Most notably, Mr Singh’s has made no submissions in response to the argument that he does not have standing to bring his various claims because of his bankruptcy. Similarly, Mr Singh has made no submissions with respect to whether judicial immunity precludes him from continuing his claims against the Officials Group.

78. Where Mr Singh has made submissions that, if construed generously, relate to issues raised in this proceeding, I will address them under the relevant heading below. However, it is convenient first to deal with two fundamental defects in Mr Singh’s submissions.

79. First, Mr Singh seems to suggest that, because the defendants deny the allegations made against them, the onus of proof has shifted onto the defendants. He further suggests that, in the absence of a request for particulars by the defendants, it was unnecessary for him to specify any particulars. In both cases, Mr Singh criticises the defendants for not engaging adequately with the specific allegations he has made against them. For instance, he is critical of the fact that the defendants have not proffered any evidence to counter his claims.

80. These submissions betray a basic misunderstanding about the Court’s present task. What is being determined is not whether the plaintiff has in fact proven his case, but whether on the pleadings the plaintiff could prove his case. Pleadings must detail the essential facts upon which the plaintiff’s cause will be pressed. It is not necessary, at the stage of pleading, that these facts be proven. All that is necessary is that the pleaded facts are capable of giving rise to a cause of action. The purpose of pleadings is to put the defendant on notice of the allegations being made against them and to give them an opportunity to respond. Not only are Mr Singh’s submissions wrong as propositions of law, they are contrary to this fundamental purpose.

81. Second, Mr Singh submitted that he has been, and is likely to be, treated unfairly on the basis that he is a self-represented litigant and does not speak English as his first language:

“5. The reason I have to explain this point goes back to the fundamental character of litigation in this country and that is to exploit the vulnerability of the self represented person by throwing at him points which are simply not arguable. And I believe there is certain degree of similar tendency here to exploit the vulnerability of myself who do not conduct his day to day life in english.

…

18. The administration of Justice community place too much emphasis on “Justice Seen To Be Done” by distorting the truth and that makes Common Law biggest scam over the humanity in circumstances. Thank God to be not part of such a regime.”

82. Throughout his submissions, Mr Singh further asserted that the NSW Court system was racially prejudiced and that he would suffer discrimination as a result. The following extract is illustrative of the general tenor of these submissions:

“4. Now coming back to our matter:

a. No Particulars were requested

b. No Defence was filed.

c. I suspect that the only disparity between [Ea v Diaconu [2020] NSWCA 127] and this situation is that the plaintiff is represented by someone with the last name O’Brien, which has an unmistakable “IRISH” background when I searched its origin. This suggests a possible indication of racial discrimination.

5. Contending Prejudice for racial discrimination in NSW Courts is stupidity and hence I move on to my next point because I am sure there will be some Authority will be thrown to justify the course of action taken by experienced barristers.”

83. I do not doubt that it is Mr Singh’s perception that our courts and tribunals are systemically racist. I also do not doubt that Mr Singh believes that his numerous failures in this Court are a result of the injustices he perceives. These matters are beyond the scope of these reasons and it is not my role to say any more about them. They are wholly irrelevant to the issues of law raised on the motions. However, insofar as the conduct of the proceedings before me is concerned, the Court has given Mr Singh more than ample opportunity to respond to the motions (see [15]-[22] above) and his arguments, to the extent they are relevant and comprehensible, are addressed in what follows on their merits.

Mr Singh’s standing as a bankrupt

84. The defendants submit that, by virtue of Mr Singh’s bankruptcy, he does not have standing to bring the causes of action which he asserts. Instead, the defendants contend, those causes of action are vested in the trustee of his bankrupt estate, and therefore, the proceedings have no prospect of success, constituting an abuse of the Court’s process.

Legal principles

85. The property of a bankrupt is vested in their trustee by operation of s 58 of the Bankruptcy Act 1966 (Cth):

“58 Vesting of property upon bankruptcy—general rule

(1) Subject to this Act, where a debtor becomes a bankrupt:

(a) the property of the bankrupt, not being after‑acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and

(b) after‑acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.

(6) In this section, after‑acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt.”

86. Section 5(1) the Bankruptcy Act defines “Property” under the Act to mean:

“[R]eal or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.”

87. This broad definition of “Property” in s 5(1) includes choses in action: Samootin v Shea [2010] NSWCA 371 at [74] (Campbell JA; Beazley and Hodgson JJA agreeing).

88. Section 116(1)(b) of the Bankruptcy Act provides:

“116 Property divisible among creditors

(1) Subject to this Act:

…

(b) the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge; and

…

is property divisible amongst the creditors of the bankrupt.”

89. Therefore, by operation of ss 58(1) and 116(1)(b) of the Bankruptcy Act, any chose in action that accrues to a bankrupt is property divisible among the creditors and vested in the trustee. This, however, is subject to several exceptions in s 116(2) of the Bankruptcy Act. Property that falls under an exception is not divisible among the bankrupt estate’s creditors, and therefore is not vested in the trustee. Consequently, it is a right which may be exercised by the bankrupt. Section 116(2)(g) includes:

“(2) Subsection (1) does not extend to the following property:

…

(g) any right of the bankrupt to recover damages or compensation:

(i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; …

and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person;”

90. The question is therefore whether the pleaded cause of action falls under the relevant exception. In Samootin v Shea [2010] NSWCA 371 at [79], Campbell JA expounded the test as follows, in a passage which I respectfully adopt:

“The test of whether a cause of action seeks “damage or compensation … for personal injury or wrong” has been held to be “… whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind body or character and without reference to his rights of property”: Cox v Journeaux (1935) 52 CLR 713 at 721 per Dixon J (applying in the Australian statutory context, Wilson v United Counties Bank Ltd [1920] AC 102 at 111 and 128–133, which was in turn applying Erle CJ in Beckham v Drake (1849) 2 HLC 579 ; 9 ER 12113 at 604, 1222), applied in Daemar v Industrial Commission of NSW (1988) 12 NSWLR 45 at 55–56 per Kirby P (with whom Clarke JA agreed); Mannigel v Hewlett Phelps [1991] NSWCA 186 at 2 per Handley JA (with whom Meagher JA agreed and Kirby P agreed “generally”); Arnoya Holdings Pty Ltd v Metway Leasing Ltd [1999] NSWCA 120 at [16] per Sheller JA (with whom Powell and Beazley JJA agreed). In Faulkner v Bluett (1981) 52 FLR 115 at 119 Lockhart J said:

The common thread running through these cases is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt … Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt.”

Submissions

91. The defendants argue that Mr Singh’s bankruptcy is a complete answer to the SOC. They submit that Mr Singh’s claims for damages do not fall within the section 116(2)(g) exemption, because the damages claimed are consequential on damages suffered by the plaintiff arising from a series of legal disputes relating to the plaintiff’s asserted interest in the Kingswood property. In support of this contention, the defendants rely on Mannigel v Hewlett Phelps [1991] NSWCA 186 (“Mannigel”).

92. In that case, the plaintiff, who at the relevant time was a bankrupt, brought several claims against their solicitor “for damages for loss of credit, for mental distress, inconvenience and for injury to their physical and mental health”: Mannigel at 2. The question for the Court was whether the damages claimed were for personal injury or wrong, and therefore, whether the plaintiff had standing to bring the claims. Handley JA, with whom Kirby P and Meagher JA agreed, held that while the damages claimed were particularised in a way that appears to assert damages for personal injury, the “claims were consequential upon alleged breaches of professional duty owed to them by the defendants in relation to the purchase of the land and the contract by the vendor to erect a dwelling house on it” (Mannigel at 2). On this basis, “[t]he plaintiff’s claims for damages… were not claims ‘without reference to their rights of property’ within the principle stated by Dixon J. On the contrary those claims were consequential on damages to the plaintiff’s financial and property interests as a result of alleged breaches of professional duty by the solicitors”.

93. The defendants contend that Mr Singh’s various claims for damages, including for “non-economic loss” and “medically diagnosable” emotional distress, are claims that, similar to Mannigel, are consequential on damages to Mr Singh’s financial and property interests, which he suffered on account of the lengthy series of legal disputes which Mr Singh has been involved in relating to his interest in the Kingswood property.

94. Alternatively, the defendants argue that Mr Singh’s bankruptcy offers a partial answer to the SOC. More specifically, they contend that the damages claimed by the plaintiff for conspiracy and deceit relate only to pecuniary loss, and therefore are actions vested in the trustee.

95. First, the defendants contend, quoting Brooking J in Ansett Transport Industries (Operation) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636, that the “gist” of the tort of conspiracy is “actual and substantial pecuniary loss”. Hence, the defendants assert that conspiracy is a cause which could only be vested in the trustee.

96. Second, the defendants similarly argue that the tort of deceit is a cause concerned only with pecuniary loss. In aid of this point, the defendants rely upon Magill v Magill (2006) 226 CLR 551 (“Magill”), in which Gummow, Kirby and Crennan JJ observed, with respect to the tort of deceit, that “applications outside a commercial or economic setting are rare and the action is mainly associated with pecuniary loss” (Magill at [117]). On this basis, the defendants contend that Mr Singh’s various claims for deceit are necessarily vested in the trustee.

Consideration

97. The Court accepts the defendants’ submissions that Mr Singh’s bankruptcy provides a complete answer in their favour on the motions. By virtue of Mr Singh’s bankruptcy, the various claims for tortious damages that Mr Singh has brought are vested in the trustee of his bankrupt estate. The “economic and non-economic loss” that Mr Singh contends he has suffered arise out of his numerous failures in legal disputes concerning his interest in the Kingswood property, including the subsequent loss of this interest and resulting bankruptcy. The damages Mr Singh claims, therefore, cannot be said to be without reference to his proprietary interest. It follows that the various claims for tortious damages arising out of this interest do not fall under the statutory exception and Mr Singh has no standing to bring them.

98. It is, therefore, unnecessary to address the defendants’ submissions as to whether Mr Singh’s bankruptcy provides a partial answer in the defendants’ favour.

Relief sought in the SOC

99. Although Mr Singh’s bankruptcy provides a sufficient reason for the Court to grant summary relief to the defendants, if this view is wrong, the Court further concludes that Mr Singh’s SOC fails on the additional grounds that it has been pleaded inadequately and seeks to relitigate issues already determined in previous proceedings.

100. The SOC is confusing and vague. It is difficult to discern precisely what assertions are being made and to whom they are directed. For the most part, Mr Singh’s pleadings amount to little more than an allegation that a tort has been committed against him. The pleadings are so deficient that, in regular circumstances, it would be unnecessary to attempt to elucidate the specific allegations made by Mr Singh. As the defendants have rightly submitted, Mr Singh has failed to address any of the specific elements relating to each of the causes of action he presses. On this basis alone Mr Singh’s SOC may be summarily dealt with by the Court. However, noting that Mr Singh is a self-represented litigant, the Court will attempt to construe the SOC in its best light and explain why his several claims must fail.

101. I now turn to the specific allegations contained in the SOC.

Misfeasance in Public Office

Legal Principles

102. The principles relating to the tort of misfeasance in public office are well settled. I respectfully adopt the summary of North and Rares JJ in Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 at [97]:

“The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and, thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham’s more modern characterisation, ‘material damage’ such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance)…”

Pleadings

103. Mr Singh claims damages for misfeasance in public office against all members of the Officials Group, except the Attorney-General. To this end, Mr Singh contends that certain decisions made by members of the Officials Group were made knowingly in excess of power with intent to cause Mr Singh harm. Mr Singh impugns the conduct of the defendants in relation to the following decisions:

1. Mr Singh alleges that the orders made by Mr Charles on 23 January 2018 were made knowingly in excess of power and with intention to cause Mr Singh harm (SOC[1]-[4]).

2. Mr Singh alleges that the directions made by Ms Simon on 6 March 2018 were made knowingly in excess of power and with intention to cause harm (SOC[5]-[6]).

3. Mr Singh claims that Mr Harrowell’s decision on 18 April 2018 to refuse leave to appeal from the decision of Ms Simon, his decision to lift the stay of proceedings on 1 February 2019, his decision, sitting with Senior Member Robertson as the Appeals Panel, on 21 January 2020 to dismiss Mr Singh’s appeal from the decision of Mr Goldstein, and the costs orders he made on 25 May 2018, 9 September 2019 and 24 September 2019, were made knowingly in excess of power and with intent to do Mr Singh harm (SOC[7]-[8]).

4. Mr Singh contends that Mr Goldstein’s decision, on 31 October 2018, to restrain the Khan parties from repossessing the property, his decision on 27 November 2018 to dismiss Mr Singh’s application against this decision, his order on 27 February 2019 that Mr Singh surrender the property, and decision on 20 May 2019 to dismiss Mr Singh’s substantive NCAT proceedings, were made knowingly in excess of power and with intent to do Mr Singh harm (SOC[11]-[12]).

5. Mr Singh contends that Mr Riznyczok’s decision, on 31 October 2019, to adjourn proceedings by consent of the parties, and to refuse a fee waiver to relist the Summons, was made knowingly in excess of power and with intent to do Mr Singh harm (SOC[15],[17]-[21]).

6. Moreover, Mr Singh asserts that Ms Kenna refused a fee waiver to relist the summons which, he contends, was made knowingly in excess of power with intent to do Mr Singh harm (SOC[16],[20]-[21]). While Mr Singh does not make clear on which occasion this took place, it is assumed the event took place in or around Mr Riznyczok’s hearing on 31 October 2019, to which Mr Singh refers in the surrounding paragraphs of the SOC.

1. Mr Singh claims that Ms Jones’s decision on 20 February 2020 to close proceedings was made knowingly in excess of power with intent to do harm to Mr Singh (SOC[22]-[24]).

2. Mr Singh claims that on 2 November 2021 Ms Aquilina’s refusal to allow Mr Singh to file a claim for judicial review against the decision of Mr Charles was made knowingly in excess of power with intent to do harm to Mr Singh (SOC[25]-[26]).

Submissions

104. The Officials Group submit that Mr Singh’s various claims for public misfeasance are not adequately pleaded.

105. First, the defendants submit that no specific loss or harm, resulting from allegedly tortious conduct of the various members of the Officials Group, is pleaded by the plaintiff. Mr Singh made no submissions in answer to this contention.

106. Second, although Mr Singh asserts that he has suffered psychiatric trauma, the defendants submit that he failed to plead any specifically recognisable psychiatric injury. Again, Mr Singh made no submissions in response to this.

107. Third, the defendants contend that malice has not been pleaded and furthermore that, under rule 15.4 of the UCPR, a pleading which alleges malice must particularise the facts on which the party making the pleading relies. They argue that no specific instance of malice has been particularised. Replying to this point, Mr Singh argued that an unauthorised decision made with knowledge that it would cause harm is made maliciously.

108. Fourth, the defendants submit that none of the decisions that Mr Singh has referred to in his pleadings has been held to be invalid, nor have they been successfully appealed, therefore, misfeasance in public office has not been adequately pleaded. The defendants further contend that Mr Singh’s various allegations of public misfeasance constitute an attempt to relitigate issues which have already been determined in earlier proceedings. In response, Mr Singh argued that a successful appeal is not a prerequisite to bring an action for tortious damages.

Consideration

109. Mr Singh does not plead any specific financial or physical damage which he has incurred as a result of the alleged misfeasance. Nor does he plead any particular psychiatric injury. On this basis, his claims for misfeasance in public office against the Officials Group are inadequately pleaded. While this is sufficient to dispose of Mr Singh’s claims for misfeasance in public office, the Court also accepts the defendants’ submissions on the other two points.

110. Mr Singh is correct to assert that malice may be imputed where a public officer acts knowingly in excess of power: see Northern Territory v Mengel (1995) 185 CLR 307 at 344-5 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ)). However, even if the decisions made by members of the Officials Group were unauthorised (which, as I discuss next, was not the case), the SOC contains no particulars relating to what the Officials Group did, or did not, know with respect to the exercise of their decision-making power. Therefore, in this respect, the SOC is inadequately pleaded.

111. The defendants are correct to point out that none of the decisions Mr Singh impugns, all of which have been the subject of an appeal by Mr Singh, have been found to have been made in excess of power. By impugning these decisions, Mr Singh is attempting to relitigate issues that have already been determined. That is an abuse of process.

The Tort of Deceit

Legal Principles

112. The elements of the tort of deceit were summarised by Gummow, Kirby and Crennan JJ in Magill at [114]:

“The modern tort of deceit will be established where a plaintiff can show five elements: first, that the defendant made a false representation; secondly, that the defendant made the representation with the knowledge that it was false, or that the defendant was reckless or careless as to whether the representation was false or not; thirdly, that the defendant made the representation with the intention that it be relied upon by the plaintiff; fourthly, that the plaintiff acted in reliance on the false representation; and fifthly, that the plaintiff suffered damage which was caused by reliance on the false representation. Generally, the elements of the tort have been found to exist in cases which concern pecuniary loss flowing from a false inducement and the need to satisfy each element has always been strictly enforced, because fraud is such a serious allegation.”

Pleadings

113. Mr Singh alleges that all defendants in the Officials Group, except Ms Kenna and Ms Aquilina, have engaged in conduct which he believes is dishonest and fraudulent. As explained above, the Court treats these as allegations of tortious deceit.

1. Mr Singh claims that Mr Harrowell, Ms Simon, Mr Charles, Mr Goldstein, Ms Jones, and the Attorney-General, in the course of the hearings referred to above in Mr Singh’s claims for public misfeasance, made “omissions” that constitute dishonesty (SOC[3],[6],[8],[12],[23],[36]).

2. Mr Singh claims that his cross-examination of Mr Khan was terminated by Mr Goldstein on the basis of a false promise made by Mr Goldstein to Mr Singh, which he contends constitutes “promissory fraud”. The essential premise of Mr Singh assertion is that Mr Goldstein’s alleged dishonesty caused Mr Singh harm, and so, reading the pleading in its best light, will be taken by the Court to constitute a claim for tortious deceit against Mr Goldstein (SOC[13]-[14]).

3. Mr Singh claims that the Attorney-General’s omission to consider his submissions with respect to the statutory review of the Civil and Administrative Tribunal Act 2013 (NSW) was dishonest (SOC[32]-[36]).

4. Mr Singh claims that, on 20 February 2020, Mr Riznyczok’s omission to notify Mr Singh that proceedings had been dismissed was fraudulent and, assumedly, deceitful (SOC[66]).

114. Mr Singh further claims that on 27 November 2018 Mr Dicembre knowingly made false submissions to Adamson J which, Mr Singh contends, resulted in Adamson J finding against him, thus adversely impacting his personal and financial circumstances (SOC[50]-[52]).

115. Mr Singh claims that on 9 September 2019 Mr Brown and Mr Harrowell engaged in deceitful conduct. Mr Singh asserts that both Mr Brown and Mr Harrowell had initially offered mediation. However, when Mr Singh subsequently asked for mediation, Mr Harrowell refused the application. Mr Brown then applied for costs and Mr Harrowell made the costs order against him (SOC[60]-[62]).

116. Mr Singh claims that, on 31 October 2019, Mr Brown deceived him by encouraging Mr Singh to sign Short Minutes of Order adjourning the proceedings to 20 February 2020. While it is difficult to discern from the SOC any specific act of fraud that Mr Brown is supposed to have perpetrated against Mr Singh with respect to the Short Minutes of Order, at the very least, he seems to assert it was Mr Brown’s intention to have the proceedings dismissed rather than adjourned. This accusation is hopeless. The effect of the signed Short Minutes of Order was to adjourn the hearing to 20 February 2020, which is what occurred. The proceedings were then discontinued at the hearing on 20 February 2020 on the basis that the Registrar noted that proceedings had already been dismissed on 8 August 2019. Whatever Mr Brown’s intentions, the decision of the Registrar on 20 February 2020 had nothing to do with the circumstances surrounding the signing of the Short Minutes of Order (SOC[64]-[67]).

Submissions and consideration

117. It is submitted by the defendants that Mr Singh has not adequately pleaded the elements of the tort of deceit. Mr Singh made no submissions in reply to this.

118. For a plaintiff to assert deceit successfully, the plaintiff must have suffered damage as a result of their reliance on the defendant’s deceitful conduct. Other than Mr Singh’s general claim for damages for economic and non-economic loss caused by the defendants’ tortious acts at [1] of the SOC, Mr Singh does not particularise any specific damages in respect of any of the instances of fraud he alleges. On this basis alone, the pleadings are inadequate. Moreover, there are no pleadings which specifically address whether any of the alleged deceitful conduct was intentional on the part of the defendants. Mr Singh’s claims for deceit are therefore inadequately pleaded.

The Tort of Collateral Abuse of Process

Principles

119. I respectfully adopt the summary of the elements of collateral abuse of process set out by Bell P (as the Chief Justice then was) in Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245:

“[42] In summary, the elements of the tort of collateral abuse of process, as I understand them to be, are:

(1) The alleged tortfeasor must have instituted a legal process for an improper purpose.

(2) The legal process in question must have been misused in order to obtain some advantage or benefit “entirely outside” that afforded by the legal process invoked — hence, a collateral advantage.

(3) The process in question must have been deployed in furtherance of the alleged tortfeasor’s improper purpose by way of an overt act or threat, distinct from pursuit of the proceeding itself according to its ordinary course — though in certain circumstances, the commence­ment of proceedings can be a sufficient act where there has been some prior improper conduct on the part of the alleged tortfeasor.

(4) In New South Wales at least, authority currently requires that the claimant have suffered special damage.”

Pleadings

120. Mr Singh claims that Ms Sarah Khan has engaged in collateral abuse of process, in which she used her “legal skills” — by “giving instructions” to her solicitor and counsel — for the improper purpose of protecting her father from the consequences of a substantial tax liability (SOC[31]).

121. Mr Singh claims that Mr Ghulam Khan, Mrs Samina Khan and Fobupu engaged in collateral abuse of process by instituting, with the aid of Mr Dicembre and Mr Brown, bankruptcy proceedings against Mr Singh for an improper purpose — a purpose not readily identifiable from the SOC — which caused Mr Singh harm by triggering his bankruptcy (SOC[42]-[47]]).

122. Mr Singh claims that Mr Dicembre instituted “a process” for the award of costs against Mr Singh for an improper purpose — again, not readily discernible from the SOC — in proceedings “AP 18/15303”. It must be noted that those proceedings were an appeal, initiated by Mr Singh, against an interlocutory order of Ms Simon made on 6 March 2018 that was determined by Mr Harrowell on 25 May 2018. The award of costs was made against Mr Singh, who lost the appeal (SOC[48]-[49]).

123. Mr Singh claims that Mr Brown sought costs against him, during proceedings on 9 September 2021, for an improper purpose — a purpose which was one “other than to indemnify his clients” (SOC[57]-[59]) — which led directly to his bankruptcy.

Submissions and consideration

124. It was first contended that the tort of collateral abuse of process cannot lie against any of the defendants, except Mr Ghulam Khan, Mrs Samina Khan and Fobupu, as none have instituted proceedings against Mr Singh. This is plainly correct. Mr Singh makes no reference in the SOC to any proceedings instituted by persons other than Mr Ghulam Khan, Mrs Samina Khan and Fobupu. The claims for collateral abuse of process against all other defendants are thus inadequately pleaded. This leaves only the claim, at [121], that Mr Ghulam Khan, Mrs Samina Khan and Fobupu committed a collateral abuse of process when they instituted bankruptcy proceedings against Mr Singh.

125. The defendants submit that this claim fails because it identifies no collateral purpose. Instead, it is asserted that the purpose of instituting the bankruptcy proceedings was precisely to have Mr Singh declared a bankrupt. Mr Singh made no submissions in reply to this submission. I accept the defendants’ submissions as plainly correct. In Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366; [2013] UKPC 17 Lord Sumption observed (emphasis added):

“149 …The essence of the tort is the abuse of civil proceedings for a predominant purpose other than that for which they were designed. This means for the purpose of obtaining some wholly extraneous benefit other than the relief sought and not reasonably flowing from or connected with the relief sought.”

126. There is nothing in Mr Singh’s pleadings to suggest that Mr Ghulam Khan, Mrs Samina Khan and Fobupu instituted the bankruptcy proceedings for any reason other than to have the plaintiff declared a bankrupt. Far from being a purpose “wholly extraneous” to the relief sought, this was the very point of the proceeding. Mr Singh’s claim for collateral abuse of process against these defendants is also inadequately pleaded.

The Tort of Conspiracy

Legal Principles

127. Mr Singh did not specify in his SOC whether he sought damages for conspiracy by lawful or unlawful means. As will become apparent, whether the Court proceeds on either basis will not alter the outcome. However, given Mr Singh’s repeated claims that the decisions against him were made in excess of power and the reference in the pleadings to an “unlawful” costs order, the Court has assumed that Mr Singh seeks damages for the tort of conspiracy by unlawful means.

128. Menzies J defined the tort in Williams v Hursey (1959) 103 CLR 30 at 122 as:

“If two or more persons agree to effect an unlawful purpose, whether as an end, or a means to an end, and in carrying out that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy.”

Pleadings

129. Mr Singh alleges the Attorney-General, Mr Anzer Khan, and Ms Sarah Khan entered into a conspiracy against Mr Singh. More specifically, it is said that the Attorney-General, in league with Mr Anzer Khan and Ms Sarah Khan, sought to influence the proceedings heard by Mr Goldstein on 20 May 2019 (SOC[27]-[30]), the same day as a dinner of the Muslim Legal Network, at which the three defendants referred to were in attendance.

130. Mr Singh alleges that Ms Sarah Khan, Mr Anzer Khan, Mr Dicembre, Mr Ghulam Khan, Mrs Samina Khan, Fobupu, and Mr Harrowell entered into a conspiracy to harm Mr Singh by procuring an unlawful costs order against him and to end Mr Singh’s litigation against several of the Khan parties (SOC[39]).

131. Mr Singh claims that Mr Brown, Mr Riznyczok, and Ms Jones entered into a tortious conspiracy to delist Mr Singh’s summons at or around the hearings which took place on 31 October 2019 and 20 February 2020 (SOC[40]).

132. Mr Singh claims that Mr Brown, Mr Ghulam Khan, Mrs Samina Khan, Fobupu, and Mr Goldstein entered into a conspiracy to harm Mr Singh by coercing him to make a payment into a trust which, he alleges, does not exist (SOC[41]). This presumably refers either to the hearing on 31 October 2018, at which Mr Goldstein made orders requiring Mr Singh to continue to pay rent while proceedings were on foot, or the hearing on 20 May 2019, at which Mr Goldstein dismissed proceedings and ordered Mr Singh to pay the Khan parties’ costs.

Submissions and consideration

133. The defendants submit that the elements of the tort have not been adequately pleaded. Mr Singh made no submissions in reply. Specifically, the defendants’ contend that damages have not been particularised. As Lord Diplock stated in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 188, “[t]he gist of [the tort of conspiracy] is damage to the plaintiff”. On this basis, I accept the defendants’ submissions. Mr Singh has not particularised any loss or damage resulting from any of the alleged conspiracies asserted in the SOC. This is sufficient to conclude that Mr Singh’s various claims for tortious conspiracy are inadequately pleaded for want of particularised damages.

134. In summary, all of Mr Singh’s claims are either inadequately pleaded or an attempt to relitigate issues that have previously been determined. This, together with Mr Singh’s lack of standing, provides a basis upon which to deal with the proceedings summarily.

Judicial immunity

Legal Principles

135. Under the principle of judicial immunity, no action is maintainable ‘against judges for acts done in the course of hearing or deciding cases which come before them’: Rajski v Powell (1987) 11 NSWLR 522, 537 (per Priestley JA; Hope JA agreeing) quoting Aickin J in Durack v Gassior (High Court of Australia, 13 April 1981, unrep). This immunity from civil liability is conferred on judges, not for their private advantage, ‘but for the protection of judicial independence in the public interest’: Fingleton v The Queen [2005] HCA 34 [38] (Gleeson CJ).

136. In determining whether a judge’s act attracts judicial immunity, there is a distinction between those acts made within jurisdiction and those made outside of jurisdiction: Sirros v Moore [1975] QB 118, 132-7 (Lord Denning MR). In cases where the relevant act is made within jurisdiction, the immunity is absolute. Whereas, in cases where the relevant act is made outside of jurisdiction, the immunity is qualified and extends only to bona fide acts: Rajski v Powell (1987) 11 NSWLR 522, 538 (per Priestley JA; Hope JA agreeing). In those circumstances, as Kirby P (as he then was) stated in Attorney-General for New South Wales v Agarsky (1986) 6 NSWLR 38 at 40, an ‘[a]ction is not maintainable where judicial officers act in good faith in the performance of their judicial duties’ (emphasis added). Section 44A of the Judicial Officers Act 1986 (NSW) broadens judicial immunity to circumstances where a judge is performing ministerial duties.

Submissions and consideration

137. The defendants submit that, by way of legislative grant, the first to eighth defendants fall under the protection of judicial immunity. This is plainly correct. Section 44C of the Judicial Officers Act extends judicial immunity to Registrars, including Mr Riznyczok and Ms Jones. It further extends to ‘any other officer of a court’ when such a person is ‘performing the duties of a judicial officer (including ministerial duties)’. This includes Ms Kenna, who is the Prothonotary Director, and Ms Aquilina, who is the Senior Client Services Officer and Chief Clerk, as their duties are ancillary to the judicial function.

138. The immunity also extends to members of NCAT. Under Schedule 2 clause 4 of the Civil and Administrative Tribunal Act, a member of NCAT has, ‘in the exercise of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court’. Under section 9 of the Civil and Administrative Tribunal Act, the relevant ‘members of the tribunal’ to which the immunity extends include ‘principal members’ and ‘senior members’ of NCAT. Thus, Mr Harrowell, Mr Charles, Ms Simon, and Mr Goldstein all also benefit from judicial immunity.

139. All of the acts of these defendants which Mr Singh impugns occurred in the exercise of their official roles. Furthermore, none of the impugned decisions were made outside of jurisdiction and, even if they were, there is nothing in the pleadings which suggests any of the decisions were not bona fide. Therefore, the first eight defendants benefit from judicial immunity as against Mr Singh’s various claims and, as such, all of these claims are bound to fail.

Notice of a constitutional matter

140. On 31 March 2023 (the date originally fixed for the resumed hearing of the motions), Mr Singh purported to give notice to the Attorney-General of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). His covering submission said this was “triggered” by the March Judgment. The effect of the notice was that Mr Singh sought an adjournment of the current proceeding, pending determination of the constitutional question which he raised.

141. The essence of Mr Singh’s constitutional argument seems to be that the refusal of the Court to waive his filing fee was unconstitutional. Mr Singh contends that the Australian Constitution gives effect to the rule of law in Australia, the rule of law requires that persons have access to justice, and that the failure to waive his filing fee limited his access to justice:

“7. The whole idea of the Constitution of Australia is to establish a Rule of Law. It achieves this by separating powers of Legislature, Executive and Judiciary.

8. On 27 April 2020 NSW Department of Justice decided concerning fee waiver to Supreme Court, which is as follows:

…

5. In all of the circumstances, I refuse to waive or postpone the filing fee

9. An impartial, equal, transparent and principled system that gives effect to the rule of law is necessary to any justice system. In the original c. 40 of Magna Carta, which promised:

To no one will we sell, to no one will we deny or defer [i.e. delay] right or justice

10. Everyone has the right of full equality to a fair and public hearing by an independent and impartial tribunal to determine his rights and obligations and of any criminal charge against him.

…

12. The substantial court fee is interference in rule of law.

…

17. It appears that there is lots of hypocrisy as far as the administration of Justice is concerned. But hypocrisy is not a constitutional issue in this notice. Restricting an access to Justice is definitely a constitutional issue.”

142. At the hearing on 3 April 2023, the Crown Solicitor made the following submissions (Tcpt, 3 April 2023, 3(37)-4(49)):

“LEE: Your Honour, I do wish to say something about it.  Essentially my submission is that the 78B notice is effectively an abusive process.  Your Honour is obviously aware of the adjournment applications that the plaintiff made.  Those adjournment applications having failed, I note that in his submissions covering the 78B notice at para 5, Mr Singh says:

I understand the Court must provide a reasonable time to the Attorneys‑General before proceeding.

In my submission, if one puts together the failed adjournment applications and that statement was the 78B notice effectively is, is an attempt to get more time.  For that reason in my submission, it's an abusive process.  In respect of the questions themselves your Honour.

HIS HONOUR: That's what I'm interested to hear about.

LEE: My submission is they don't raise any constitutional matters or they are not ‑ they don't ‑ the questions aren't drafted with sufficient specificity as required under r 1.22 of the Uniforms Civil Procedure rules so as to inform your Honour that there is.  The notice itself in particular question or para 2 poses a question.  That seems to me the ‑ where the notice itself goes most towards.  There's explanatory paragraphs at paras 7 to 17 of that notice.

HIS HONOUR: Yes.

LEE: Your Honour will see that in fact the plaintiff refers to at para 11 of that notice:

A person's right to unimpeded access to the courts can only be taken away by express enactment.

That's a reference to Lord Bridge of Harwich which was then adopted by Chief Justice Mason and Brennan, Gaudron and McHugh JJ in Coco v The Queen.  What's evident from that your Honour is that it's not a constitutional matter.  Even in the High Court what it's saying that in order to aggregate a right if that be so, it only need require express enactment.  It's therefore not a constitutional issue.  This is similar or this is consistent with para 16.  Your Honour‑‑

HIS HONOUR: Yes.

LEE: Where there is a reference to a judgment.  I'm not sure what the judgment is.  The plaintiff says that this judgment says:

Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically a in effect by express provision permits the executive to turn people away from the court door.

Once again it's not a constitutional issue. It's a legislative issue. The cases that Mr Singh has referred to clearly state that if Parliament so enacts, then it can be done. In relation to the balance of the questions, your Honour, that are at three to six of the notice. My submission overall in relation to those paragraphs are that they don't refer to any particular provision of the Constitution. It's not explained how those matters relate to the Constitution or an interpretation of a particular provision of the Constitution. Your Honour can not be satisfied that this notice properly invigorates s 78B of the Judiciary Act and therefore your Honour is entitled to not ‑ not be bound by the provisions which say that a Court must do certain things.

HIS HONOUR: Yes.

LEE: Because the notice is not good.”

143. I accept those submissions. The notice Mr Singh has produced has no legal merit. His argument is premised on legal principles that apply to issues of statutory interpretation, not constitutional validity. It can be inferred from the fact that the notice has been produced at the eleventh hour that it is an attempt by Mr Singh to delay this Court’s decision in this proceeding. This constitutes an abuse of process.

144. I now turn to the relief sought by the defendants.

Relief sought in the motions

Submissions

145. In oral argument, Mr Hyde made submissions to the effect that the Court would be justified in taking the exceptional course of permanently staying the proceeding. He put this on the basis that, not only are Mr Singh’s claims hopeless, but to allow them to continue would be oppressive to his clients, who have already been put to great expense, and have been “pursued relentlessly through many jurisdictions and many proceedings” (Tcpt, 13 February 2023, 21(4-5)).

Which relief should be granted?

146. With reference to the principles summarised by Bell P (as the Chief Justice then was) in Moubarak (see [71] above) the Court accepts Mr Hyde’s submissions and will grant a permanent stay of proceedings on the grounds that a continuation of this proceeding would be vexatious and oppressive to the defendants for the following reasons.

147. First, Mr Singh’s various claims are hopeless. Second, as is evident from the extensive litigation history, it is unlikely that Mr Singh will cease appealing, or at least impugning, the numerous decisions which have been made against him. Mr Singh has relentlessly pursued the defendants in this proceeding and in other proceedings. It seems Mr Singh has initiated this proceeding, not on its legal merit (of which there is none that I am able to discern), but on the basis that he feels personally victimised by the justice system. Unless Mr Singh’s right to continue this proceeding is made conditional upon leave of the Court, it is highly likely that the defendants will continue to be unfairly burdened by Mr Singh’s baseless claims.

148. Furthermore, I respectfully adopt the following observations made by Beech-Jones CJ at CL in the March Judgment, which were made regarding Mr Singh’s conduct in relation to several other proceedings in this Court. Evidence of all of these proceedings is before me in these proceedings and his Honour’s observations are pertinent to whether a stay should be granted in this matter:

“Vexatious Proceedings

82.   The multitude of cases commenced by Mr Gurjit Singh over the last 18 month appears to have a number of vexatious qualities. At this point it suffices to note six of them.

83.   First, a number of them either are, or appear to be, mostly manifestly hopeless.

84.   Second, the proceedings appear to be commenced with Mr Singh having what may have been a legitimate disgruntlement with his treatment in NCAT, but they have expanded from that beyond all proportion to his original complaint.

85.   Third, it appears that each time that Mr Singh is subject to a ruling that he disagrees with, he then commences proceedings in which he personally sues the tribunal member or judicial officer who has ruled against him.

86.   Fourth, it appears that he takes no real cognisance of any attempt by the various judicial officers to point out the fundamental flaws in all the proceedings he commences.

87.   Fifth, Mr Singh appears to be proceeding with impunity in that as a bankrupt he is not deterred by any costs order.

88.   Sixth, for the reasons I have already outlined, Mr Singh appears to be attempting to carry on proceedings on behalf of others and, in effect, entangle them in the vexatious proceedings he has commenced.”

149. The first to fifth “vexatious qualities” noted by the Chief Judge apply with equal force to the proceedings before me. His Honour’s observations support the conclusion that I have reached in [146] above, that it would be vexatious and oppressive to allow the proceedings to continue. For that reason, the Court will exercise its exceptional jurisdiction to order that the proceeding be permanently stayed.

150. I have already noted that at the conclusion of the March Judgment, Beech-Jones CJ at CL made an interlocutory order precluding Mr Singh from commencing any further proceedings in this Court without leave. His Honour also recommended that the Attorney-General consider an application for a vexatious proceeding order with respect to Mr Singh. That proceeding is to return to the Chief Judge on 18 May 2023 where, if the Attorney-General wishes to pursue the application, a final order may be sought declaring Mr Singh to be a vexatious litigant: March Judgment at [96]-[97]. Based on the findings that I have made about Mr Singh’s conduct in this proceeding, under the inherent power of the Court, I respectfully join in the Chief Judge’s recommendation that the Attorney-General consider making an application for a vexatious proceeding order with respect to Mr Singh.

151. I have already recorded (see [22] above) that Mr Singh did not take up the opportunity to make any submissions as to why I should not make orders similar to those in the March Judgment restraining his ability to take any further steps in these proceedings. Mr Singh is already subject to the Chief Judge’s order in relation to commencing any new proceedings in this Court. I will therefore confine myself, and for reasons identical to those of the Chief Judge, to making an interlocutory order restraining Mr Singh from taking any further step in these proceedings, including the filing of an appeal or an application for leave to appeal from the orders I will make, without the leave of a Judge of the Court.

152. For the purpose of dealing with any application which may be made by the Attorney-General, I will stand these proceedings over to Beech-Jones CJ at CL on 18 March 2023 to be case managed with Mr Singh’s numerous other proceedings returnable on that day.

Conclusion

153. The orders of the Court are:

1. These proceedings are permanently stayed.

2. The plaintiff, Gurjit Singh, pay the defendants’ costs of these proceedings.

3. Note that the Court has recommended to the Attorney General that he consider making an application for a vexatious proceedings order in relation to Gurjit Singh.

4. Until further order, Gurjit Singh shall not take any further step in these proceedings, including commence any appeal or application for leave to appeal from these orders, without first obtaining the leave of a Judge of the Court.

5. Direct the staff of the Registry of the Supreme Court not to accept any document sought to be filed purporting to take any further step in these proceedings, including commence any appeal or application for leave to appeal from these orders, but instead they must refer the document to a Judge of the Court for a determination on the papers of whether to grant leave pursuant to Order 4.

6. List these proceedings for directions before Beech-Jones CJ at CL on 18 May 2023 at 930am.

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Decision last updated: 24 April 2023