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, 36.72Cases 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 58Date 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
AppellantAND: 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
AppellantAND: THE OWNERS - STRATA PLAN NO 11723
Respondent
JUDGE:
GRIFFITHS J
DATE:
16 OCTOBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The respondent seeks various relief in respect of an appeal which is scheduled to be heard before a single Judge…
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- Case
- [2012] FCA 1121
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.