Singh v Khan - [2021] FCA 140

FEDERAL COURT OF AUSTRALIA
Singh v Khan [2021] FCA 140

File number: NSD 1392 of 2020

Judgment of: STEWART J

Date of judgment: 24 February 2021

Catchwords: PRACTICE AND PROCEDURE – statement of claim – strike out application – content of pleadings required by r 16.02 of the Federal Court Rules 2001 (Cth) – statement of claim failing to disclose a reasonable cause of action – frivolous or vexatious material – evasive or ambiguous – likely to cause prejudice, embarrassment or delay – statement of claim struck out with leave to re-plead

Legislation:
Bankruptcy Act 1966 (Cth) s 40(1)(g)

Federal Court of Australia Act 1976 (Cth) s 37M(1)

Income Tax Rates Act 1986 (Cth) Sch 7 Pt 1

Medicare Levy Act 1986 (Cth) s 6(1)

Taxation Administration Act 1953 (Cth) ss 12-190(1), 15-10(2), 16-167

Federal Court Rules 2011 (Cth) Div 16.1, r 16.02(1)(d)

Taxation Administration Regulations 2017 (Cth) regs 5, 38(2)

Cases cited:
Dare v Pulham [1982] HCA 70; 148 CLR 658

David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353

Devaynes v Noble (1816) 35 ER 781

French Caledonia Travel Service Pty Ltd (in liq) [2003] 59 NSWLR 361

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

Division: General Division

Registry: New South Wales

National Practice Area: Taxation

Number of paragraphs: 21

Date of hearing: 24 February 2021

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondents: A Dicembre of McGrath Dicembre & Company

ORDERS

NSD 1392 of 2020

BETWEEN:
GURJIT SINGH

Applicant

AND:
GHULAM AKBAR KHAN

First Respondent

SAMINA KHAN

Second Respondent

FOBUPU PTY LTD

Third Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

24 FEBRUARY 2021

THE COURT ORDERS THAT:
1.The applicant’s statement of claim filed on 17 December 2020 is struck out.
2.The applicant is to file and serve a new statement of claim on or before 24 March 2021.
3.Costs are reserved.
4.The matter is listed for further case management on 30 March 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
STEWART J:

This proceeding was commenced by originating application and statement of claim, both filed on 17 December 2020. Those documents seek to assert a claim that has previously been referred to in two judgments of this Court. Mr Singh is self-represented in the proceeding, as he was in the previous two proceedings.
In Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886, Gleeson J dismissed an application by Mr Singh to set aside a bankruptcy notice. The bankruptcy notice had been issued on the application of the respondents in the present case on the basis that they were judgment creditors of Mr Singh. One of Mr Singh’s grounds for seeking to set aside the bankruptcy notice was that he had a counter-claim, set-off or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh v Khan

Details

AGLC: Singh v Khan [2021] FCA 140
Case: [2021] FCA 140
Decision Date: 24 February 2021

CaseChat Overview and Summary

The applicant, Singh, filed proceedings against the respondent, Khan, in the Federal Court of Australia. Singh's statement of claim was subject to a strike out application by Khan, who argued that Singh's statement of claim failed to disclose a reasonable cause of action and contained frivolous or vexatious material. The claim was also described as evasive or ambiguous and likely to cause prejudice, embarrassment or delay.

Singh argued that the strike out application should be dismissed, but the Court held that the statement of claim did not meet the requirements of r 16.02 of the Federal Court Rules 2001 (Cth), which sets out the content of pleadings. The Court found that the statement of claim did not disclose a reasonable cause of action, was evasive or ambiguous, and was likely to cause prejudice, embarrassment or delay. The Court noted that the statement of claim contained frivolous or vexatious material and that Singh had not provided sufficient information to allow the Court to determine whether a cause of action existed.

The Court held that the statement of claim was struck out and that Singh was to file and serve a new statement of claim on or before 24 March 2021. The Court also reserved costs and listed the matter for further case management on 30 March 2021.

Orders

Orders of the court

1. The applicant’s statement of claim filed on 17 December 2020 is struck out.

2. The applicant is to file and serve a new statement of claim on or before 24 March 2021.

3. Costs are reserved.

4. The matter is listed for further case management on 30 March 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	NSD 1392 of 2020
Judgment of:	STEWART J
Date of judgment:	24 February 2021
Catchwords:	PRACTICE AND PROCEDURE – statement of claim – strike out application – content of pleadings required by r 16.02 of the Federal Court Rules 2001 (Cth) – statement of claim failing to disclose a reasonable cause of action – frivolous or vexatious material – evasive or ambiguous – likely to cause prejudice, embarrassment or delay – statement of claim struck out with leave to re-plead
Legislation:	Bankruptcy Act 1966 (Cth) s 40(1)(g) Federal Court of Australia Act 1976 (Cth) s 37M(1) Income Tax Rates Act 1986 (Cth) Sch 7 Pt 1 Medicare Levy Act 1986 (Cth) s 6(1) Taxation Administration Act 1953 (Cth) ss 12-190(1), 15-10(2), 16-167 Federal Court Rules 2011 (Cth) Div 16.1, r 16.02(1)(d) Taxation Administration Regulations 2017 (Cth) regs 5, 38(2)
Cases cited:	Dare v Pulham [1982] HCA 70; 148 CLR 658 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 Devaynes v Noble (1816) 35 ER 781 French Caledonia Travel Service Pty Ltd (in liq) [2003] 59 NSWLR 361 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
Division:	General Division
Registry:	New South Wales
National Practice Area:	Taxation
Number of paragraphs:	21
Date of hearing:	24 February 2021
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondents:	A Dicembre of McGrath Dicembre & Company

ORDER MADE BY:	STEWART J
DATE OF ORDER:	24 FEBRUARY 2021