Singh v Secretary of the Department of Communities and Justice

[2021] NSWSC 1409

Supreme Court

New South Wales

Medium Neutral Citation:

Singh v Secretary of the Department of Communities and Justice [2021] NSWSC 1409

Hearing dates:

1 November 2021

Date of orders:

1 November 2021

Decision date:

01 November 2021

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) The hearing of the notice of motion filed on 3 September 2021 listed for 8 December 2021 is vacated.

(2) The matter of the notice of motion filed on 3 September 2021 is listed before the registrar on 5 November 2021 to obtain a date for hearing in the first two weeks of February 2022.

Catchwords:

CIVIL PROCEDURE — court administration — sittings and vacations — application to vacate and relist hearing opposed by plaintiff on account of delay — whether hearing to be vacated and relisted to allow defendants to retain counsel acquainted with proceedings involving a degree of complexity — application to vacate and relist hearing allowed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 14.3

Category:

Procedural rulings

Parties:

Gurjit Singh (Plaintiff)
Secretary of the Department of Communities and Justice (First Defendant)
Anthony Dicembre (Second Defendant)
Innis Cull (Third Defendant)
Gess Michael Rimbaldi (Fourth Defendant)
Ghulam Akbar Khan (Fifth Defendant)
Samina Khan (Sixth Defendant)
Fobupu Pty Ltd (Seventh Defendant)

Representation:

Plaintiff (self-represented)

Counsel:
H Blake (Second, Fifth, Sixth and Seventh Defendants)

Solicitors:
Crown Solicitor’s Office (First Defendant)

File Number(s):

2021/00227850

EX TEMPORE Judgment (rEVISED)

1. The Court has before it a notice of motion seeking to have the hearing date for the second, fifth, sixth and seventh defendants’ motion filed on 3 December 2021, which is presently 8 December 2021, vacated and that the matter be relisted for hearing.

2. The underlying proceedings involve a summons brought by the plaintiff seeking to have a decision of the Manager, Costs Assessment, on an application for review of a costs assessment, set aside.

3. The grounds are in the following terms:

“1. Denial of procedural fairness.

2. Exercised unavailable discretion by ‘acting under the dictation’ of a third party.

3. Exercise of Judicial Power vested in Commonwealth Federal Court.

4. Failure to consider factors required by legislation to be considered.”

4. The summons has not yet been listed for hearing.

5. The summons relates to proceedings which were brought originally in the Civil and Administrative Tribunal of New South Wales, known as NCAT, and then decisions in those proceedings which have been appealed to the Appeal Panel, and various aspects of those decisions which have then been the subject of proceedings at first instance in the Common Law Division. I am also informed that there are proceedings in the Court of Appeal challenging aspects of the decisions of Adamson J in the Common Law Division, which are on for hearing on 8 November 2021.

6. As a result of some orders at some stage and in some of the proceedings involving the plaintiff and the second, fifth, sixth and seventh defendants, it appears that the plaintiff has been declared bankrupt and his estate has been vested in trustees in bankruptcy. Those trustees also are parties to the plaintiff’s summons.

7. The notice of motion, which is on for hearing on 8 December 2021, as I understand it, relates in part to the proceedings that were brought in what is now called the Federal Circuit and Family Court of Australia in relation to the plaintiff’s bankruptcy, and also to proceedings in the Federal Court that are related in some way, which I do not understand and do not need to specify.

8. The situation is that when the second, fifth, sixth and seventh defendants’ notice of motion was before the registrar, Mr Brown of counsel appeared for those parties and indicated that, although he was not available on 8 December 2021, if that was the first available day his client would take that date in order to try and have the matter resolved as soon as possible. It now appears that, on further consideration, the second, fifth, sixth and seventh defendants are of the view that Mr Brown’s involvement is essential because he has been involved in the proceedings in NCAT, in the Appeal Panel of the Tribunal, in the Federal Circuit and Family Court and in the Federal Court. It is not clear to me on the evidence whether he has also been involved in the proceedings in the Common Law Division and the Court of Appeal.

9. It is, I think, fair to say, and everyone agrees, that there is a degree of complexity in the proceedings that have been brought by the plaintiff in relation to his bankruptcy. The plaintiff’s bankruptcy is, as I understand it, at least a significant foundation for the orders sought in the notice of motion filed on 3 September 2021, seeking two declarations that the plaintiff does not have standing to bring the proceedings commenced by his filing his summons on 10 August 2021, and a declaration that the proceedings are incompetent or a nullity, as well as dismissal under r 14.3 of the Uniform Civil Procedure Rules 2005 (NSW).

10. The plaintiff submits that, in light of what Mr Brown told the Court, the second, fifth, sixth and seventh defendants should not be entitled now to resile from that and that he is entitled to have the hearing of the notice of motion filed on 3 September 2021 proceed without delay. He also contends that the delay in hearing the motion filed on 3 September 2021 will delay the ultimate hearing of the summons.

11. While there is some overlap between the proceedings in the Court of Appeal to be heard on 8 November 2021 and the subject matter of the summons, it does not appear, as I am presently informed, that the Court of Appeal proceedings will effectively dispose of the matter which is the subject of the notice of motion for hearing on 8 December 2021.

12. While the plaintiff, in my view, has made some forceful points concerning the delay and the second, fifth, sixth and seventh defendants being held to their position that they adopted when the notice of motion filed on 3 September 2021 was listed for hearing, it does appear to me that there is some good sense in having Mr Brown, who is well-acquainted with all the proceedings and all the complexity of them, available to assist the Court and to ensure a more efficient hearing of the notice of motion filed on 3 September 2021. I accept that his involvement in this matter will be of assistance in facilitating the just, quick and cheap resolution of the real issues in the notice of motion filed on 3 September 2021, which will, in addition, assist with the resolution in a similar way of the real issues in the proceedings as a whole.

13. I also accept that the involvement of Mr Brown will be likely to lead to a reduced need to instruct fresh counsel in relation not only to the summons filed on 10 August 2021 by the plaintiff, but also to the whole range of proceedings, including those in NCAT, the Appeal Panel, the Federal Circuit and Family Court of Australia and the Federal Court, in addition, perhaps, to the Common Law Division and the Court of Appeal that would be required if another counsel were engaged. That would be inefficient and likely to be relatively costly.

14. In all the circumstances, although I understand the plaintiff’s position in relation to the second, fifth, sixth and seventh defendants resiling from the position previously stated, and the possibility that there may be some delay, I am nonetheless of the view that it is appropriate in this case to vacate the hearing date of 8 December 2021 for the notice of motion filed on 3 September 2021 and to list the matter before the registrar on 5 November 2021 to obtain a date for hearing of that motion in the first two weeks of February 2022.

15. I note that between 8 December 2021 and the beginning of February 2022 the Court vacation occurs and, as a result, it appears to me that any delay to the plaintiff will be minimised.

16. Accordingly, the orders of the Court are, in relation to the notice of motion filed on 25 October 2021:

1. The hearing of the notice of motion filed on 3 September 2021 listed for 8 December 2021 is vacated.

2. The matter of the notice of motion filed on 3 September 2021 is listed before the registrar on 5 November 2021 to obtain a date for hearing in the first two weeks of February 2022.

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Decision last updated: 02 November 2021