FEDERAL COURT OF AUSTRALIA
Singh v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180
Citation: Singh v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180 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: 26 October 2012 Catchwords: PRACTICE AND PROCEDURE – application for leave to amend notice of appeal – whether proposed amended notice of appeal identifies any appellable error – application for appeal to be dismissed pursuant to ss 25(2B)(ba) or 25(2B)(bb) Federal Court of Australia Act 1976 (Cth) Legislation: Federal Court of Australia Act 1976 (Cth) ss 25, 37M
Federal Court Rules 2011 r 36.11, 36.74Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28
Goldie v The Commonwealth of Australia [2004] FCA 973
Olivieri v Stafford (1989) 24 FCR 413
Shirreff v Beck Legal Pty Ltd (No 3) [2011] FCA 604
SZISM v Minister for Immigration and Citizenship (2007) 158 FCR 292
Tinkler v Elliott [2012] EWCA Civ 1289
Van Reesema v Giameous (1979) 27 ALR 525
Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773Date of hearing: 25, 26 October 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 56 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondent: Mr D Radman of Grace Lawyers Pty Ltd
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 593 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: JAGJIT SINGH
AppellantAND: THE OWNERS - STRATA PLAN NO 11723
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
26 OCTOBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appellant’s application for leave to amend the notice of appeal is dismissed.
2.The notice of appeal filed on 24 April 2012 is dismissed under both ss 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) for want of prosecution and failure to comply with the Court’s directions.
3. The appeal scheduled to be heard on 5 November 2012 is vacated.
4.The appellant is to pay the respondent’s costs of and incidental to the interlocutory applications the subject of these proceedings and also of the appeal.
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
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: JAGJIT SINGH
AppellantAND: THE OWNERS - STRATA PLAN NO 11723
Respondent
JUDGE:
GRIFFITHS J
DATE:
26 OCTOBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION AND BACKGROUND
The respondent seeks an order dismissing an appeal which is currently scheduled to be heard on 5 November 2012. The appellant also seeks leave…
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- Case
- [2012] FCA 1180
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the appellant's application for leave to amend his notice of appeal should be granted and whether the appeal itself should be dismissed for want of prosecution and non-compliance with court orders. The respondent argued that Mr Singh had not taken sufficient steps to progress his appeal and had failed to comply with several court directions, including the filing of an appeal book and the submission of an outline of submissions and chronology. The court found that Mr Singh's repeated non-compliance with court directions and the Federal Court Rules 2011, along with his failure to submit a statement of affairs to the trustees of his bankrupt estate, justified the dismissal of the appeal.
In dismissing the appeal, the court highlighted that Mr Singh had not demonstrated an ability to rectify his past non-compliance and had not provided any new material or arguments to support his application for leave to amend the notice of appeal or for a stay of the sequestration order. The court concluded that the appeal should be dismissed under sections 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 for want of prosecution and failure to comply with court directions. The court also ordered that Mr Singh pay the respondent's costs of the interlocutory applications and the appeal.
The final orders included the dismissal of Mr Singh's application for leave to amend the notice of appeal, the dismissal of the notice of appeal for want of prosecution and non-compliance, the vacating of the appeal hearing scheduled for 5 November 2012, and an order for Mr Singh to pay the respondent's costs associated with the proceedings.
Orders
Orders of the court
1. The appellant’s application for leave to amend the notice of appeal is dismissed.
2. The notice of appeal filed on 24 April 2012 is dismissed under both ss 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) for want of prosecution and failure to comply with the Court’s directions.
3. The appeal scheduled to be heard on 5 November 2012 is vacated.
4. The appellant is to pay the respondent’s costs of and incidental to the interlocutory applications the subject of these proceedings and also of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The respondent also draws attention to the fact that the appellant is yet to submit a statement of affairs to the trustees of his bankrupt estate. It submits that the rights of creditors could be prejudiced as the trustees are unable to identify all of the appellant’s creditors. It further submits that the prejudice both to it and to other creditors, coupled with the inefficient use of the Court’s resources caused by the appellant’s repeated failure to comply with Court directions and the 2011 Rules, are factors which support the appeal being dismissed for want of prosecution. CONSIDERATION In my view, this is an appropriate case to dismiss the appeal under either or both ss 25(2B)(ba) and (bb) of the Act. First, as is evident from the list described above, the appellant has repeatedly failed to comply with Court directions and relevant requirements of the 2011 Rules. The appeal has now been on foot for six months yet, as I observed in [61] of Singh (No 3), Mr Singh has taken few steps to progress his appeal. No appeal book has been filed, even though Part A was required to be filed by 2 August 2012. Nor has Mr Singh complied with paragraph 3 of Justice Emmett’s orders dated 18 July 2012, which included orders for finalising the appeal book and filing and serving an outline of submissions and chronology in accordance with practice notes APP2 and CM2. Although Mr Singh did not attend to these matters before the directions hearing held on 23 October 2012, he did take some steps immediately prior to the hearing on 25 October 2012. Those steps are described in [9] above. His application for leave to amend the grounds of his notice of appeal has been refused. Accordingly, as matters stand at present, there are no grounds in his notice of appeal and many other steps need to be taken before any appeal would be ready for hearing. Furthermore, I accept the respondent’s submission that Mr Singh has not demonstrated that he is in the process of taking steps to rectify his past non-compliance. Mr Singh included a “request” in paragraph 9 of his document dated 22 October 2012 that the Court should set aside the sequestration order on the basis of the “facts on record” (whatever they might be). In the alternative, Mr Singh appears to seek further time for him to raise what he describes as “serious grounds inconvenient to Respondent”. He makes yet a further request that the sequestration order be stayed. Finally, as is apparent from the terms of paragraph 10 of his document as set out in [5] above, he seeks some sort of clarification as to “how the Court is able to justify (against own submissions of Respondent/Creditors Petitioner) the amount claimed in Creditors Petition for passing the sequestration order”. Each of these matters illustrates how the Court can have no confidence in the appellant’s capacity to have the matter ready for hearing on 5 November 2012 (or, perhaps, at any time). Plainly, the Court is not in a position to set aside the sequestration order based simply on what the appellant describes as the “facts on record” and in the absence of an adequate notice of appeal. The appellant has had ample opportunity to produce a proposed notice of appeal which is in accordance with the relevant requirements (see my observations above in [32]). Moreover, the appellant has adduced no material to support an adjournment. Further, the appellant’s request that the sequestration order be stayed ignores the fact that a similar application by him was heard and dismissed in Singh (No 1). The appellant has advanced no new material or argument to support any such order being made, nor did he seek leave to appeal that earlier decision.