Singh v Official Trustee in Bankruptcy
[2013] FMCA 57
•29 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v OFFICIAL TRUSTEE IN BANKRUPTCY & ANOR | [2013] FMCA 57 |
| PRACTICE AND PROCEDURE – Contempt proceedings – whether charges to be heard by Court as constituted at time of alleged contempts – whether alleged contempts an abuse of process – whether Attorney-General of the Commonwealth ought to be joined as respondent. |
| LAWYERS – Whether lawyer who is a likely witness ought to be a solicitor or counsel for a party – whether lawyer appearing not on High Court of Australia roll of practitioners. |
Judiciary Act 1903 (Cth), ss.55B(3), 55C(1) & (2)
| Ashby v Commonwealth of Australia (No.4) (2012) FCA 1411 Justice DA Ipp, “Lawyers’ Duties to the Courts” (1998) 114 LQR 63 |
| Applicant: | SARDUL SINGH |
| First Respondent: | OFFICIAL TRUSTEE IN BANKRUPTCY |
| Second Respondent: | MAN MAHAN SINGH |
| File Number: | PEG 168 of 2006 |
| Applicant: | SARDUL SINGH |
| First Respondent: | OFFICIAL TRUSTEE IN BANKRUPTCY |
| Second Respondent: | MAN MAHAN SINGH |
| File Number: | PEG 211 of 2007 |
| Judgment of: | Lucev FM |
| Applicant: | SARDUL SINGH |
| First Respondent: | OFFICIAL TRUSTEE IN BANKRUPTCY |
| Second Respondent: | MAN MAHAN SINGH |
| File Number: | PEG 239 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 29 January 2013 |
| Date of Last Submission: | 29 January 2013 |
| Delivered at: | Perth |
| Delivered on: | 29 January 2013 |
REPRESENTATION
| Counsel for the Applicant Mr Sardul Singh: | No appearance |
| Solicitors for the Applicant Mr Sardul Singh: | Eapon Carlose |
For Mr Eapon Carlose: | Mr E Carlose |
| For the First Respondent Official Trustee in Bankruptcy: | No appearance |
| Counsel for the Second Respondent Mr Man Mahan Singh: | Mr S S Sandhu |
| Solicitors for the Second Respondent Mr Man Mahan Singh: | S S Sandhu |
PEG 168 of 2006
ORDER
That the matter be adjourned to a directions hearing on a date and time and before a Federal Magistrate to be advised.
PEG 211 of 2007
ORDER
That the matter be adjourned to a directions hearing on a date and time and before a Federal Magistrate to be advised.
PEG 239 of 2011
ORDER
That the matter be adjourned to a directions hearing on a date and time and before a Federal Magistrate to be advised.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 168 of 2006
| SARDUL SINGH |
Applicant
And
| OFFICIAL TRUSTEE IN BANKRUPTCY |
First Respondent
| MAN MAHAN SINGH |
Second Respondent
PEG 211 of 2007
| SARDUL SINGH |
Applicant
And
| OFFICIAL TRUSTEE IN BANKRUPTCY |
First Respondent
| MAN MAHAN SINGH |
Second Respondent
PEG 239 of 2011
| SARDUL SINGH |
Applicant
And
| OFFICIAL TRUSTEE IN BANKRUPTCY |
First Respondent
| MAN MAHAN SINGH |
Second Respondent
REASONS FOR JUDGMENT
(Edited extempore reasons)
In each of the three Applications in a Case before the Court, the second respondent, Mr Man Mahan Singh, alleges contempt and seeks to have the applicant, Mr Sardul Singh, and Mr Eapon Carlose, who appeared for the applicant in the substantive applications in this Court, charged with contempt. The contempt is said to variously arise from a breach of orders of this Court and a breach of undertakings given to this Court, as currently constituted, in each of the three substantive applications. It is unnecessary, for present purposes, to refer specifically to the relevant orders.
Mr Sardul Singh and Mr Carlose are said to have committed contempt. Mr Carlose is said to have committed contempt himself or to have aided and abetted Mr Sardul Singh to do so. The issue arises as to whether the Court, as presently constituted, ought to hear the contempt applications.
In Clampett & Anor v Attorney General of the Commonwealth,[1] the then Chief Justice of the Federal Court, in respect of an application concerning a finding of contempt by a Federal Magistrate in the Queensland Registry of this Court said:
44. In the present case, however, there were, as well as the competing considerations to which I have referred, particular matters that pointed in favour of referral to another federal magistrate. The conduct was not such that it incontestably “could not wait to be punished”, nor was it “urgent and imperative to act immediately” to preserve the integrity of a proceeding in progress. Moreover, even if the matter were to be viewed as especially serious and requiring not only prompt attention but also severe punishment if the authority of the court were to be maintained, it was by no means essential that the contempt had to be dealt with by the same magistrate. There was, of course, no jury waiting and no witness being interrupted or delayed in the course of giving evidence, to take but two examples. In considerable contrast, the Federal Magistrate was delivering reasons for judgment in a strikeout application in proceedings for the oral examination of a judgment debtor. Those proceedings were not of themselves especially urgent and, in any event, it was evidently thought appropriate to delay the hearing of the charges for some days; and this was not for the purpose of allowing Mr Clampett to obtain legal advice and representation, for that matter was not mentioned until the day fixed for the hearing of the charges.
45. In this context, it may be noted that counsel for Mr Clampett, whilst not denying that the actions of his client were capable of constituting contempt of court, relied strongly upon the absence of any urgent need for the Federal Magistrate to hear the proceedings himself and argued that he should have disqualified himself, a submission which he contended derived support from the statement of Lord Denning, that “[i]t is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter” (see R v Commissioner of Metropolitan Police; ex parte Blackburn (No.2) (1968) 2 QB 150 at 154 – 155).
46. It is trite law that an appellate court will not upset the exercise of a judicial discretion merely because it would have taken a different course. It must appear that some error has been made in the exercise of the discretion, such as a failure to take into account some material considerations; see House v the King (1936) 55 CLR 499 at 504–505. A failure to appreciate that a power requires the exercise of a discretion will, of course, itself be such an error.
47. In the matter of Mr Clampett, I am satisfied that the Federal Magistrate’s discretion miscarried. It is by no means apparent that he turned his mind at all to the discretion that he was required to exercise but I would conclude that even if he did do so, he did not give any adequate weight to important considerations central to the due administration of justice in such a case, that the nature of the power required him to take into account in the circumstances. Those considerations were the need to exercise sparingly the power to hear the charges himself and to do so only in exceptional cases in which the overall requirements of the administration of justice required or at least justified such a course. The authorities and the considerations to which I have referred in these reasons about the exceptional nature of the power and the potential conflict with fundamental principles of justice compel the conclusion that these were matters that are required to be taken into account and to be given appropriate weight in the proper exercise of the discretion conferred by s17(3) of the [Federal Magistrates] Act.
48. I have reached this conclusion having taken into account the speed with which the decision to deal with Mr Clampett was made, the nature of the proceedings and the stage they had reached and, in the circumstances, the absence of any statement of the Federal Magistrate’s reasons for taking the course he did. The absence of any reasons is a strong indicator of error, where the proper exercise of a discretion requires the careful balancing of powerful competing considerations going to the administration of justice, and particularly so in a case such as this where the balance of those considerations pointed in favour of a hearing before another judicial officer or where (as is also the present case) a severe penalty may have been in contemplation.[2]
[1] (2009) 181 FCR 473; [2009] FCAFC 151 (“Clampett”)
[2] Clampett FCR at 482-483 per Black CJ; FCAFC at paras.44-48 per Black CJ.
The Court notes Finkelstein J agreed with the then Chief Justice of the Federal Court. [3] Greenwood J also arrived at the same view, [4] citing in particular the judgment of Murphy J in Keeley v The Honourable Mr. Justice Brooking[5], where Murphy J described a summary trial for contempt conducted by the Judge who presided over the proceeding in which the contempt is alleged to have been committed, as dangerous to the administration of justice.[6]
[3] Clampett FCR at 489 per Finkelstein J ; FCAFC at para.83 per Finkelstein J.
[4] Clampett FCR at 507-508 per Greenwood J; FCAFC at 158 per Greenwood J.
[5] (1979) 143 CLR 162 (“Keeley”).
[6] Keeley at 186 per Murphy J.
It is tolerably clear from the judgment in Clampett that a Federal Magistrate ought not to hear an application for contempt arising from orders that that Federal Magistrate has made, unless it is essential to do so in order to preserve the integrity of the proceedings. In this case, there is nothing in the nature of the proceedings which would require that they be heard by the Court, as presently constituted. These applications are but the latest manifestation in long running litigation between Mr Man Mahan Singh and Mr Sardul Singh, who are brothers, which litigation has troubled this Court, the Supreme Court of Western Australia, and also now, it appears, the courts in Malaysia.[7]
[7] See for example, Singh v Official Trustee in Bankruptcy & Anor (2007) 214 FLR 84; [2011] FMCA 1367; Singh v Official Trustee in Bankruptcy & Anor (No.2) [2008] FMCA 521; Singh v Official Trustee in Bankruptcy & Anor [2011] FMCA 677 (“Singh 2011”), and the various proceedings in the Supreme Court of Western Australia therein referred to. As to the Malaysian courts proceedings see the Affidavit of Man Mahan Singh, affirmed 11 December 2012, Annexure MMS-32 in each application.
The contempts alleged are themselves aged. The most recent alleged contempt is in September 2011, the oldest in September 2007. The matter is neither urgent nor imperative, or, put differently, there is no evidence before the Court that it is such. There are no current proceedings in this Court in respect of these matters, other than the contempt proceedings, and no other proceedings in this Court which are thereby delayed or interrupted. There was some reference, in the previous directions hearing, by counsel for Mr Man Mahan Singh, to Malaysian court proceedings, but there has been nothing indicative of urgency in those proceedings put before the Court.
The contempts alleged will be determinable upon the evidence as to whether the orders or undertakings have been breached. That does not require involvement by the Federal Magistrate who made the orders or accepted the undertakings. In the circumstances, it is therefore appropriate that the Court, as presently constituted, does not continue to hear the contempt applications, as it was the Court as presently constituted which made the orders, or to which the undertakings were given, and which are now the subject of the contempt proceedings in these matters, and upon which observations have already been made.[8] In the Court’s view, it is necessary to adjourn the matters pending reallocation to another Federal Magistrate.
[8] Singh 2011, especially at paras.23-27 per Lucev FM.
There are matters in respect of which the Court has considerable concerns, one or two of which have already been dealt with, at least in part, in argument today. The Court, therefore, considers it necessary to make some further observations, at least for the benefit of a Federal Magistrate coming to the matter afresh.
First, this is the latest, as the Court has indicated, in a long line of litigation between Mr Man Mahan Singh and Mr Sardul Singh, including a prior unsuccessful contempt application in the Supreme Court of Western Australia in relation to Mr Man Mahan Singh’s wife and daughter.[9] Contempt applications are not the parties’ mere play things but important matters related to the preservation of the integrity of justice. They are not arguably to be used for a collateral purpose or be an abuse of process. The Court observes that counsel for Mr Man Mahan Singh said:
Mr Sardul Singh is not bankrupt, far from it. The real point is that there are proceedings on foot in Malaysia concerning land in Malaysia which was previously in the ownership of a bankrupt and in those proceedings, on affidavit, there is an absolute denial that Sardul Singh has, in any way, acted improperly in the Australian courts in obtaining a Supreme Court judgment in respect of executing a power of attorney over that land. That judgment is directly contrary to his own undertakings before this court and the orders of this court. In those affidavits, there is, as I’ve said before, the statement from Sardul Singh that he has acted properly and within the bounds of the Australian law and has followed legal advice given in that regard. To that extent my client, the bankrupt, contends that that is entirely false and, of course, not to trivialise this there is in the affidavits of Mr Carlose in Malaysia and Sardul Singh a challenge to produce an order of an Australian court to show that they are in contempt. That challenge is now taken up.[10]
[9] Singh v Kaur Bal (No.3) [2012] WASC 243
[10] Transcript, 12 December 2012, page 5.
Whether or not that approach might constitute the use of this Court for a collateral purpose or be an abuse of process is a matter which may arise for consideration before the Federal Magistrate who ultimately hears these proceedings. It is a matter which might be properly resolvable by evidence and it may be that the concern expressed is not a concern which will ultimately be considered to be a collateral purpose or an abuse of process, [11] but it is certainly a present concern which may need to be addressed by some appropriate evidence.
[11] The tests for which are set out in Ashby v the Commonwealth of Australia(No. 4) [2012] FCA 1411 at para.4 per Rares J.
Secondly, there is the issue of whether the Attorney-General for the Commonwealth ought to be a respondent. In Nathan v Burness[12] the Federal Court citing Clampett said:
I ordered that the Attorney-General of the Commonwealth be joined as second respondent. I did so because the Attorney-General is the person with responsibility to protect Commonwealth courts as Her Majesty’s responsible Minister of State… The Attorney-General appeared by counsel who directed the court’s attention to relevant matters of fact and law without acting in a partisan manner.[13]
[12] [2011] FCA 288 (“Nathan”).
[13] Nathan at para.13 per Tracey J.
In a case such as this where the parties are partisan, and appear to be particularly antagonistic litigants, it may be appropriate that further and more fulsome consideration be given in due course to whether or not the Attorney-General be joined to these proceedings.
Thirdly, with respect to Mr Carlose’s position, and this relates to the issue of whether or not he ought to appear in these proceedings, assuming that he is on the High Court Roll of Practitioners, it is relevant to note that it not only the applicant against whom a contempt is alleged, but also Mr Carlose for his conduct as Mr Sardul Singh’s solicitor, or alternatively that Mr Carlose aided or abetted Mr Sardul Singh’s alleged contempt. In those circumstances, it would appear that there is every likelihood of a conflict of interest arising which would necessitate Mr Carlose ceasing to act as solicitor as well as counsel for Mr Sardul Singh. In particular, it seems inevitable that Mr Carlose will have to give evidence, that is be a witness, in these proceedings and in those circumstances it is, in any event, arguable that he should not be either solicitor or counsel for the applicant.[14]
[14] Richardson v Leonard Cohen & Co [2007] FMCA 78 at fn.19 per Lucev FM; Morien v Johnston [2006] FMCA 1918 at para.54 per Lucev FM; Pittorino v Meynert & Ors [2001] WASC 245 at paras.7-10 per Bredmeyer M; and Justice DA Ipp, “Lawyers’ Duties to the Courts” (1998) 114 LQR 63.
The Court also now has before it evidence that Mr Carlose is not on the High Court Roll of Practitioners, being a copy of a letter from an officer of the Registry of the High Court of Australia,[15] and Mr Carlose admitted as much to the Court.[16] As the Court indicated earlier, if Mr Carlose is not on the High Court Roll of Practitioners that may pose some difficulties in relation to his appearance in this Court and other federal courts.[17] Furthermore, if he has not been on the High Court Roll of Practitioners since he has been appearing in this Court, at least since 2006, this becomes a matter which might warrant further action. In that regard the Court will refer the matter to the Principal Registrar of this Court for further action and on-forwarding to the appropriate regulatory authorities, if that is considered necessary.
[15] Exhibit 1.
[16] Transcript 29 January 2013, pages 2-3.
[17] As to which see Judiciary Act 1903 (Cth), ss.55B(3) and 55C(1) and (2); De Pardo v Legal Practitioners Complaints Committee & Anor (2000) 97 FCR 575 at 594-595 per French J; [2000] FCA 335 at para.50 per French J; University of Western Australia v Gray & Ors (No.35) (2009) 180 FCR 483 at 491 per Barker J; [2009] FCA 1227 at para.25 per Barker J; Deputy of Commissioner of Taxation v Debaugy (2012) 263 FLR 193 at 198-200 per Lucev FM; [2012] FMCA 451 at paras.20-23 per Lucev FM.
Save for the referral of the last above mentioned issue to the Principal Registrar, the remaining issues, together with various applications for security of costs which were filed last week, are best left to the Federal Magistrate who will hear these Applications in a Case. There will be, in each matter, an order that each matter be adjourned to a directions hearing on a date and at a time and before a Federal Magistrate to be advised.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 6 February 2013
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