Singh v Owners Strata Plan No 11723 (No 3)

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FEDERAL COURT OF AUSTRALIA

Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121

Citation: Singh v Owners Strata Plan No 11723 (No 3) [2012] FCA 1121
Appeal from: The Owners Strata Plan No 11723 v Singh [2012] FMCA 308
Parties: JAGJIT SINGH v THE OWNERS - STRATA PLAN NO 11723
File number: NSD 593 of 2012
Judge: GRIFFITHS J
Date of judgment: 16 October 2012
Catchwords: PRACTICE AND PROCEDURE – appeal from Federal Magistrates Court – objection to competency – application for summary judgment under s 25(2B)(aa) Federal Court of Australia Act 1976 (Cth) – application for summary judgment under s 31A Federal Court of Australia Act 1976 (Cth) – difference between striking out grounds of appeal and summary dismissal of notice of appeal
Legislation: Federal Court of Australia Act 1976 (Cth) ss 25, 31A
Federal Court Rules 2011 (Cth) r 36.01, 36.11, 36.72
Cases cited: Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Conde v Hunter [2009] FCA 1016
Kowalski v Superannuation Complaints Tribunal [2010] FCA 473
Patten v New Holland Credit Australia Pty Ltd [2006] FCA 1724
Singh v Owners Strata Plan No 11723 [2012] FCA 538
Singh v Owners Strata Plan No 11723 (No 2) [2012] FCA 900
Spencer v The Commonwealth (2010) 241 CLR 118
SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279
Wills v Australian Broadcasting Corporation (2009) 173 FCR 284
Zegarac v Dellios [2007] FCAFC 58
Date of hearing: 15 October 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 62
Counsel for the Appellant: The Appellant did not appear
Solicitor for the Respondent: Mr D Radman of Grace Lawyers Pty Limited

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 593 of 2012
BETWEEN:

JAGJIT SINGH
Appellant
AND:

THE OWNERS - STRATA PLAN NO 11723
Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

16 OCTOBER 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of appeal filed on 24 April 2012 is struck out under s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) as an abuse of process.

2.The amended notice of objection to competency filed 18 July 2012 is dismissed.

3.The appellant is to pay the respondent’s costs of its amended notice of objection to competency and its interlocutory application filed 5 October 2012.

4.The matter is listed for directions before me at 9:30 am on Tuesday 23 October 2012.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 593 of 2012
BETWEEN:

JAGJIT SINGH
Appellant
AND:

THE OWNERS - STRATA PLAN NO 11723
Respondent

JUDGE:

GRIFFITHS J

DATE:

16 OCTOBER 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. The respondent seeks various relief in respect of an appeal which is scheduled to be heard before a single Judge…

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Details
Case
[2012] FCA 1121
Decision Date

CaseChat Overview and Summary

In Singh v Owners Strata Plan No 11723 (No 3), the appellant, Mr Singh, appealed against a decision of Justice Emmett in the Federal Court of Australia. The primary dispute involved objections to the competency of the appellant's filings and a challenge to a sequestration order. The court was tasked with determining whether the grounds of appeal were valid and whether the proceedings should be dismissed under the Federal Court of Australia Act 1976 (Cth).

The central legal issues before the court were whether the appeal was an abuse of process, whether the amended notice of objection to competency should be dismissed, and whether the appellant had any reasonable prospect of success under s 31A of the FCA Act. The court also needed to differentiate between striking out grounds of appeal and summarily dismissing the notice of appeal.

The court found that the appellant's notice of appeal was an abuse of process due to numerous deficiencies and lack of merit in the grounds presented. The court highlighted that the power under s 31A should not be used for mere pleading points but rather for substantive issues. It was determined that the appellant had no reasonable prospect of success, as the evidence and arguments presented did not support a viable case. Additionally, the court clarified the distinction between striking out grounds of appeal and summarily dismissing the notice of appeal, emphasizing the need for caution in summarily dismissing proceedings.

The court struck out the notice of appeal, dismissed the amended notice of objection to competency, and ordered the appellant to pay the respondent's costs. The matter was set for further directions to manage the proceedings going forward.

Orders

Orders of the court

1. The notice of appeal filed on 24 April 2012 is struck out under s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) as an abuse of process.

2. The amended notice of objection to competency filed 18 July 2012 is dismissed.

3. The appellant is to pay the respondent’s costs of its amended notice of objection to competency and its interlocutory application filed 5 October 2012.

4. The matter is listed for directions before me at 9:30 am on Tuesday 23 October 2012.

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

Background

Background to the litigation

It is convenient to set out some background matters before dealing with the applications. BACKGROUND MATTERS On 24 May 2012, I delivered reasons for judgment dismissing the appellant’s application for an order staying a sequestration order pending the hearing of an appeal to this Court (Singh v Owners Strata Plan No 11723 [2012] FCA 538 (“Singh (No 1)”). Those reasons for judgment should be read in conjunction with these reasons for judgment as I will endeavour to avoid duplication. On 14 August 2012, I delivered reasons for judgment dismissing the appellant’s interlocutory application filed on 3 August 2012 which sought production of what was described as “assessment certificates” in respect of certain amounts specified in the creditor’s petition (Singh v Owners Strata Plan No 11723 (No 2) [2012] FCA 900). The creditor’s petition formed the basis for the sequestration order made by Federal Magistrate Smith on 5 April 2012 against the estates of both Mr Singh and his wife, Ms Sarbjit Kaur (see The Owners Strata Plan No 11723 v Singh [2012] FMCA 308). Ms Kaur is no longer involved in the proceedings. On 18 July 2012, the appellant’s appeal came before Justice Emmett. His Honour made various orders, including setting the appeal down for hearing before a single Judge in the Full Court sittings commencing 5 November 2012. His Honour ordered that the usual orders as to written submissions and lists of authorities applied. His Honour also granted leave for the respondent to file in Court an amended notice of objection to competency and ordered that that application be listed for hearing before me. On 31 July 2012, I made directions with a view to the amended notice of objection to competency being heard on 5 October 2012. The appellant did not appear at the directions hearing held on that day. The 31 July directions afforded the appellant an opportunity to make whatever application he wished by 3 August 2012 in respect of the directions made in his absence on 31 July 2012. In the event, no application was filed. On 14 September 2012, the respondent filed detailed written submissions in support of its amended notice of objection to competency. On 27 September 2012, the appellant filed a brief document entitled “Documents not received as per Court directions”, in which he complained that the respondent’s outline of written submissions had not been served at his address for correspondence by the directed date of 14 September 2012. He also included some brief written submissions opposing the amended notice of objection to competency. On 4 October 2012, i.e. the day before the scheduled hearing of the amended notice of objection to competency, the appellant forwarded to the Registry by facsimile a medical certificate issued by a Dr LG Moussa stating that he was unfit to return to work until 7 October 2012. The doctor’s medical certificate is difficult to read but seems to suggest that the appellant was suffering from some problem in his lumbar region. The appellant has represented himself throughout the proceedings in this Court (and in other courts, including the proceedings in the Federal Magistrates Court which now give rise to his appeal). In his facsimile forwarding the medical certificate, the appellant said that he was unable to attend the Court hearing on 5 October 2012 “due to unfitness”. He asked the Registry to “inform the respondent accordingly”. Plainly, this was an inappropriate request. The appellant has the responsibility of ensuring that material which he sends to, or files with, the Court Registry is also served upon the respondent.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As noted above, in its interlocutory application the respondent also relied in the alternative on s 31A of the FCA Act. Section 31A is relevantly in the following terms:Summary Judgment31A (1) …(2)The Court may give judgment for one party against another in relation to the whole or any part of the proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a)hopeless; or(b)bound to fail;for it to have no reasonable prospects of success.(4)This section does not limit any powers that the Court has apart from this section.(5)This section does not apply to criminal proceedings. The power conferred by s 31A of the FCA Act to dismiss a proceeding which has no reasonable prospects applies to appeals, having regard to the definition of “proceeding” in s 4 of the FCA Act (see Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118 and Kowalski v Superannuation Complaints Tribunal [2010] FCA 473). It is now clearly established that the Court’s power to give a judgment under s 31A of the FCA Act does not involve “mere pleading points”. The nature and scope of that power, together with the difficult issues which can arise with some litigants in person, were conveniently described by Rares J (with whom North and Emmett JJ agreed) in Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 at [43]-[45] as follows: PrinciplesIn considering whether to exercise the power to give judgment under s 31A of the Act, the Court is not concerned with mere pleading points. Rather, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [50] (see too Noble Investments Pty Ltd v Southern Cross Exploration NL [2008] FCA 1963 at [34]-[40] per Lander J) the section is concerned with the bringing and defending of proceedings and with substance, not just with form.In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19]- [21], French J said: The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any “reasonable prospect” of successfully prosecuting or defending “the proceeding” or the “part of the proceeding” in issue. That question is not to be answered by a finding that a party’s statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. It follows that a finding that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is. There may yet, by amendment, be a reasonable prospect of successfully prosecuting or defending that proceeding. In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. ... Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for “judgment” or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. ...Proceedings involving parties who represent themselves pose particular difficulties for courts. Self-represented litigants often have little legal training but frequently take considerable effort to try to make themselves familiar with aspects of the law or the Court’s procedures which they see as being relevant to their case, with greater or lesser degrees of accuracy. Of course, the judge or Court cannot be placed in the position where any of the litigants before the Court perceive that it is assisting a litigant-in-person in a way which compromises the integrity and impartiality of the hearing. Nonetheless, some forms of assistance, such as suggestions made by the primary judge that an affidavit be filed, can often be appropriate. But where the self-represented litigant has not taken the hint, it may be necessary to remind him or her that the failure to do so may have the consequence that the proceedings will be dismissed.(Footnotes omitted.)

Ratio Decidendi

Legal Principle Established

I consider that Rares J’s description of the nature and scope of the power under s 31A is consistent with the High Court’s analysis of the provision in Spencer v The Commonwealth (2010) 241 CLR 118. It is also important not to lose sight of the need to proceed with particular caution before summarily dismissing proceedings. In Spencer at [24], French CJ and Gummow J made the following observations on that issue:The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions. CONSIDERATION With those general principles in mind, it is appropriate to now turn and consider each of the grounds set out in the appellant’s notice of appeal. For convenience I set out below verbatim the terms of each of those grounds of appeal, save for ground 11 which discloses no identifiable ground of appeal (it is styled “Observations on reasons for judgment (on 17 April 2012)” and comprises 4 pages of commentary on individual paragraphs of the Federal Magistrate’s reasons for judgment). My consideration of each of the grounds of appeal is set out immediately below the relevant ground. Ground 11.The total of amount mentioned in default judgment by Honourable Local Court on 06 May 2011 is incorrect. On bringing this to the notice of Honourable District Court during appeal, the Honourable Registrar/Judge sent case file to Local Court alongwith (sic) directing the Applicants to bring same to notice of Local Court. Accordingly the Applicants brought same to the notice of Local Court on 20 February 2012 with no reply received till date inspite (sic) repeated personal visits and requests to expedite.