Singh v Singh

[2008] NSWSC 1312

CITATION:	Singh v Singh [2008] NSWSC 1312
HEARING DATE(S):	1 December 2008
JUDGMENT DATE :	1 December 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Ward J at 1
EX TEMPORE JUDGMENT DATE:	1 December 2008
DECISION:	Leave granted to extend time for institution of appeal from McLaughlin AsJ. Appeal dismissed.
CATCHWORDS:	PROCEDURE - Courts and judges generally - Courts - Dismissal of proceedings - Appeal from decision of Associate Judge dismissing proceedings - Whether Associate Judge erred in dismissing proceedings for want of prosecution or as an abuse of process - Whether dismissal on grounds of abuse of process precluded by existence of viable claim - HELD: No error made by Associate Judge in exercise of discretion to dismiss proceedings.
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules
CATEGORY:	Principal judgment
CASES CITED:	Hearne v Street (2008) 248 ALR 609 Hoser v Hartcher [1999] NSWSC 527 Micallef v ICI Australia Operations [2001] NSWCA 274 Razvan v Berechet (unreported, Court of Appeal, 23 February 1990) Securum Finance v Ashton [2001] 1 Ch 291 Van Der Lee v New South Wales [2002] NSWCA 286 Williams v Spautz (1992) 174 CLR 509
PARTIES:	Baljinder Singh (Plaintiff) Anil Singh (First Defendant) Subashini Singh (Second Defendant) Actgrove Pty Ltd (Third Defendant)
FILE NUMBER(S):	SC 5239 of 1999
COUNSEL:	In person (Plaintiff) D A Smallbone (Defendants)
SOLICITORS:	In person (Plaintiff) Harish Prasad and Associates (Defendants)
LOWER COURT JURISDICTION:	Supreme Court (Associate Judge)
LOWER COURT JUDICIAL OFFICER :	McLaughlin AsJ
LOWER COURT DATE OF DECISION:	7 February 2008

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

MONDAY 1 DECEMBER 2008

005239/99 BALJINDER SINGH v ANIL SINGH & 2 ORS

JUDGMENT

1 HER HONOUR: This matter came before me today on the hearing of a notice of motion signed 2 June 2008 but filed on 18 June 2008 for orders: first, extending the time allowed for the institution of an appeal against the judgment of McLaughlin AsJ handed down on 7 February 2008; secondly, setting aside the judgment of McLaughlin AsJ, thirdly, granting leave for the filing of an amended statement of claim; and, fourthly, for orders remitting the matter to the District Court of New South Wales for hearing, as well as for costs and other consequential relief.

2 The applicant, Mr Baljinder Singh, who I will refer to as Mr Singh, was the plaintiff in proceedings number 5239 of 1999 brought against three defendants, Anil and Subashni Singh and a company Actgrove Pty Limited, to whom I will jointly refer as the Singh defendants.

3 On 7 February this year McLaughlin AsJ, on the application of the Singh Defendants, dismissed the proceedings with costs. The Singh defendants’ application for dismissal was brought alternatively pursuant to Pt 13 r 4 of the Uniform Civil Procedure Rules 2005 for dismissal on the ground that the proceedings were being prosecuted for an improper purpose and constituted an abuse of process or pursuant to Pt 12 r 7 of the Supreme Court Rules for want of prosecution. Their notice of motion dated 16 November 2006 sought further in the alternative an order that the proceedings against the third defendant Actgrove Pty Limited be dismissed on the ground that they disclosed no reasonable cause of action against it.

4 In relation to Actgrove, when the matter came before his Honour McLaughlin AsJ, a concession was made on behalf of Mr Singh that the proceedings against it should be dismissed. The court was informed that Mr Singh consented to that order and his Honour indicated that in the event that the proceedings otherwise remained on foot, he would make an order for the dismissal of the proceedings against Actgrove in any event.

5 Today’s motion was initially listed for hearing before me on 31 October 2008. On that occasion Mr Singh informed the court that he needed new representation and he sought an adjournment to allow him time to find alternative representation. I granted that adjournment.

6 On the hearing today, Mr Singh represented himself. He said that he did so because he had been, to use his own words, “mucked around” by so many barristers and solicitors. Mr Singh is not a lawyer and it is unfortunate that he chose not to avail himself of the opportunity afforded to him by reason of the adjournment to seek legal representation on this hearing. However, that was a choice open to him to make. Mr Singh tells me that he does intend to obtain legal representation on the prosecution of the hearing, assuming this appeal is successful.

7 Turning first to the application for leave to extend time for the filing of this appeal, Mr Singh relies upon an affidavit sworn 16 July 2008 by Mr Imran Khan, the then solicitor for the applicant. I should note that so far as the court files show, Mr Khan is still the solicitor on the record for Mr Singh. I raised this on the last occasion the matter was before me. Mr Khan in his affidavit deposed to the circumstances in which he said a summons had been prepared and filed by Mr Singh’s previous solicitors in relation to this appeal; Mr Singh’s new solicitors, (by what is said to have been an administrative oversight, filed a notice of change of solicitor in the wrong proceedings); new counsel briefed for Mr Singh then gave advice that the appeal should have been brought by way of filing of a notice of motion; that motion was filed in respect of the wrong court file number and was subsequently dismissed; and a new motion was then prepared but would not be accepted by the Registry until the notice of change of solicitor had been filed.

8 The culmination of this sorry saga is that the time within which the application should have been brought to appeal against McLaughlin AsJ’s decision had elapsed by the time those errors had been rectified.

9 In this regard, counsel for the defendants noted that no explanation was proffered for the delay between April and July this year and that this was yet another example of inadequate attention on the plaintiff’s side of the record to the preparation and presentation of its case. It was put to me that the court could not have confidence that, if McLaughlin AsJ’s order was reversed, these proceedings would be appropriately prosecuted rather than there being just a continuation of the litany of delay which had characterised the conduct of the proceedings to date.

10 It was submitted that even if an extension of time were to be granted, this would be a further circumstance for the court to take into account, namely the prospect that the appeal would have no utility because the court could not be confident that the matter would be appropriately prosecuted.

11 For his part, Mr Singh professes his intention to proceed. He says he has spent nine years fighting for justice and he wants his case to be properly heard. He invited me to fix a date in about two months for the hearing. That would, of course, be inconsistent with his application by this motion for the matter to be remitted to the District Court for hearing and, in any event, where the pleadings have not yet been closed, any such course of action would be premature.

12 In the circumstances, having regard to the errors by Mr Singh’s legal representatives, which appear to have permeated the bringing of this application, and the fact that the application has now been heard, I am prepared to grant leave to extend the time for the institution of the appeal.

13 Turning to the appeal itself, Mr Singh’s notice of motion articulates four grounds of appeal. First, that McLaughlin AsJ erred in finding that the plaintiff’s case was “weak”. Secondly, that his Honour ought to have found that the proceedings should not be dismissed, on the basis that the plaintiff had a viable claim. Thirdly, that his Honour erred in holding, by reference to the overall view of the conduct of the proceedings by the plaintiff, that it would be making a mockery of the process of the court and of the overriding purpose of s 56(1) of the Civil Procedure Act 2005 if he were to allow the proceedings to remain on foot any longer. And fourthly, that the plaintiff had brought the proceedings and allowed them to remain on foot for a collateral and improper purpose.

14 In his oral submissions today, Mr Singh initially addressed only grounds 1, 2 and 4, but in reply to a query I had raised as to the third ground, Mr Singh said in effect that he was relying on the fact that any delay was caused first by his solicitors messing the case up and secondly by the defendants themselves bringing numerous interlocutory applications.

15 The history of the proceedings is set out in some detail in McLaughlin AsJ’s reasons for judgment of 7 February 2008. I do not propose to repeat that history now. Suffice it to note that Mr Singh does not point to any aspect of the outline given by his Honour in his judgment as being incorrect in respect of the chronology of events. I note that the statement of claim was initially filed on 24 December 1999, that an amended statement of claim was filed on 11 April 2003 (which his Honour noted was significantly different from the statement of claim by which the proceedings had been instituted) and that a significant part of that amended statement of claim was itself subsequently struck out. A further amended statement of claim was filed on 1 December 2005, though not served at that time on the defendants. McLaughlin AsJ noted that this was without authority and after some 19 months in which Mr Singh had done nothing in the proceedings.

16 Orders were made by his Honour on 13 July 2006 in relation to the filing of any further draft amended statement of claim and any motion (if necessary in the absence of consent) to be filed by 17 August 2006, as well as for the filing and service by 27 July 2006 of an affidavit with respect to the missing page of a document which seems to have been the subject of disputes between the parties for some considerable time.

17 When the matter came before McLaughlin AsJ, there remained in force a stay of the proceedings consequent upon the orders he had made on 13 July 2006 in respect of which his Honour noted no attempt had been made by the plaintiffs to seek to have the stay lifted. Further, at that time the plaintiff was also in default of a direction for the filing of a written outline of submissions for which no explanation was proffered. His Honour considered that this was a matter of considerable concern as well as was the fact there had been considerable delay in having the motion listed before him.

18 It can be seen from the grounds of appeal that they in effect fall within two limbs. First, grounds relating to the dismissal in so far as it was based on want of prosecution and, secondly, grounds in relation to dismissal in so far as it was based on an abuse of process. I deal with the issue of want of prosecution issue first.

19 Once default or delay is established, the decision to dismiss proceedings for want of prosecution is a discretionary one and that was made clear in Micallef v ICI Australia Operations [2001] NSWCA 274 where it was said (at [45] per Heydon JA, as his Honour then was and with whom Sheller and Studdert JJA agreed) that such a decision will not be disturbed unless it can be shown that the decision maker has made an error of legal principle, a material error of fact, has taken into account some irrelevant matter, has failed to take into account or given insufficient weight to some relevant matter or has arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred. It is not enough for this court to conclude that it would, or might, have exercised the discretion differently. The law permits interference with an exercise of discretion only in the limited circumstances so described.

20 The errors put in issue on this limb of the appeal seem to relate to the first and third grounds of appeal - the fact that his Honour considered the plaintiff’s claim to be weak and, secondly, that his Honour took into account the overriding purpose of s 56(1) and expressed the view that it would be making a mockery of the process of the court to allow the proceedings to remain on foot. Turning to the second of those matters first in my view his Honour carefully considered the way in which the proceedings had been conducted. The claim as originally made was reformulated a number of times with delay in the prosecution of the case and delays in compliance with, or on some occasions non compliance with, directions. His Honour rejected the submission put on behalf of Mr Singh that the only relevant delay on the part of the plaintiff was that he was about three weeks out of time in compliance with the 13 July orders and I refer to para 52 of his Honour’s judgment in that regard.

21 It is clear that McLaughlin AsJ had regard to the overall conduct of the proceedings which it was proper for him to do. In Securum Finance v Ashton [2001] 1 Ch 291 it was recognised that the overriding objective provision of the English Civil Procedure Rules can be taken into account in relation to the discretion to dismiss for want of prosecution and, as counsel for the defendant says, it was hardly exceptional for his Honour to have regard to the overriding purpose outlined in s 56.

22 Mr Singh’s submissions do not suggest that there was no delay. In fact, implicit in the blame now being cast by him on his solicitors is a recognition that there was delay on their part and/or that the proceedings had not been properly conducted by them. In so far as Mr Singh seeks to attribute delay to the Singh defendants’ interlocutory motions, this is in my view, misguided. The Singh defendants are entitled to have the case put against them properly pleaded and I note that the strike out application they brought was in fact largely successful. The interlocutory motions themselves on more than one occasion were to move for dismissal on the very ground of want of prosecution.

23 I note that in Hoser v Hartcher [1999] NSWSC 527 Simpson J pointed to the dilemma faced by the defendant who opposes an apparently inactive plaintiff as to whether that defendant should take no steps to secure process in the proceedings and stand by in the hope that the passage of time will ensure the quiet death of the proceedings or to attempt to prod the plaintiff into action and by so doing bring about the position whereby the plaintiff resumes prosecution of the claim. Her Honour there noted that if the defendant had done nothing to progress the matter, then it could hardly be heard to complain of the plaintiff’s earlier inactivity. Here I do not think the Singh defendants can be criticised for having sought to bring about what they were entitled to have happen, namely for the matter to be progressed promptly.

24 Accordingly I cannot see any error of fact or law in his Honour’s decision in relation to that basis of the claim.

25 In relation to his finding that the case was weak, on the authority of Hoser v Hartcher it cannot be said that his Honour erred simply in having regard to the strength of the plaintiff’s claim as a factor to be taken into account on an application for dismissal for want of prosecution. McLaughlin AsJ noted, as is the case, that the original claim as pleaded had been substantially amended. In Hoser v Hartcher, her Honour noted that the plaintiff’s prospects of success was a relevant factor to be taken into account and, if it appeared that the prospects were minimal, the discretion was more likely to be exercised in favour of the defendant, citing Kirby P, as he then was, in Razvan v Berechet (unreported, Court of Appeal, 23 February 1990).

26 Mr Singh submitted that on the evidence his case was not weak. He sought to tender, and ultimately I admitted over objection and subject to relevance, various documents or parts of documents on which he relies for what I apprehend to be his allegation that the assertion he made of partnership (as opposed to an employment or contractual arrangement) was strong and/or that there had been some misconduct on the part of one or more of the Singh defendants as a result of which he had suffered loss. However, Mr Singh could not point to where that material had been put before McLaughlin AsJ. I have had difficulty on my review of the affidavit evidence which was before his Honour in identifying much at all of the material so tendered as having been before his Honour.

27 The essence of Mr Singh’s oral submission was that he had invested moneys with the Singh defendants, that the Singh defendants were or had been judicial officers or employed by the DPP, that the Singh defendants had used him like a slave, and that it would be a miscarriage of justice not to allow his case to be heard. Reference was made to the obtaining by one or more of the Singh defendants of apprehended violence orders against Mr Singh to prevent him interfering with the Singh defendants’ business. It was suggested that this was part of a plan fraudulently to mislead the police. The relevance of this to the current application is by no means apparent. I note that counsel for the defendants submitted, which appears to me to be correct, that there was no affidavit evidence before McLaughlin AsJ on 7 February which went to the merits of the claim or which showed any substantial prospects of success. On my review of the material that submission is well founded. I refer to the observation made by McLaughlin AsJ in para 44 that he was in agreement with the submission of the defendants that the plaintiff’s case was weak. It seems to me that that is a reference to the plaintiff’s claim as originally put, that being a claim in contract under which the plaintiff asserted a contractual arrangement by which he had acquired an interest in a company. His Honour accepted that even if such a contractual arrangement were to be found there would be little practical benefit since the company had long ago ceased to trade and had no significant assets. His Honour noted that the claim in deceit had been struck out or deleted. It seems to me that his Honour’s view as to there being little practical benefit in the relief sought in relation to the alleged contractual arrangement is correct.

28 I note that as at February 2008 new allegations were sought to be made by Mr Singh going back to 1993. Those had not been pleaded or asserted before. His Honour did not comment on the strength of those nor would he have been in a position to do so, although from a review of the pleading in the further amended statement of claim there may well be problems with the way in which those representations were asserted as well.

29 In circumstances where there is no serious challenge to his Honour’s findings in relation to delay and his overall view of prospects I cannot see that his discretion miscarried in relation to the dismissal of the proceedings on the ground of want of prosecution.

30 I note that there is a factual issue also as to whether the condition for the lifting of the stay order has been satisfied; it being put that if not then any proceedings now revived would still be subject to the stay and that there is no evidence of intention to move for a lifting of the stay.

31 Turning to the second limb of the challenges to his Honour’s judgment, the remaining two grounds of appeal are relevant: ground 2 as to the viability of the claim and ground 4 as to his Honour’s finding in relation to collateral and improper purpose. A ground of appeal based on a finding in respect of the viability or otherwise of the claim can only go to the question of abuse of process not to want of prosecution.

32 Before McLaughlin AsJ reliance was placed for Mr Singh on the decision of the Court of Appeal in New South Wales in Van Der Lee v New South Wales [2002] NSWCA 286 and the decision of the High Court in Williams v Spautz (1992) 174 CLR 509 for the proposition that proceedings should not be dismissed (even if brought for a collateral or improper purpose) if there is a viable claim.

33 The collateral or improper purpose to which his Honour referred related to or was suggested could be inferred from the conduct of the plaintiff in respect of affidavits filed on behalf of the Singh defendants but not yet read, and by complaints made by Mr Singh to various public authorities. I will go later in these reasons to whether or not any finding was made in relation to that.

34 In Van Der Lee the then president of the Court of Appeal, Mason P, agreed with Hodgson JA that the evidence, if admissible, did not establish an abuse of process and said “I further agree that the claimant’s case fails because there is a viable claim … joinder of the claimants in that context is not an abuse of process”. However, his Honour went on to accept that Williams established that proceedings may be permanently stayed as an abuse of process if it is shown that they are brought for a predominantly improper purpose even if there is a prima facie case and the trial would be fair. In Williams the High Court made it clear that proceedings are brought for an improper purpose and constitute an abuse of process where the purpose of bringing them is not to prosecute them to a conclusion but to use them as a means of obtaining an advantage for which they are not designed or some collateral advantage beyond what the law offers.

35 Therefore, the fact that Mr Singh may have a viable claim does not mean that McLaughlin AsJ would have erred in law in dismissing it as an abuse of process if his Honour was of the view that there was a predominantly improper purpose for the bringing of the proceedings. Here, on the evidence before him, his Honour considered the case to be weak. He made no express finding as to its viability but he also did not in terms dismiss the matter solely as an abuse of process. Accordingly, I do not find that his Honour erred in law on the second ground of appeal.

36 Finally, as to the fourth ground of appeal, the question whether his Honour made a formal finding that the plaintiff had brought the proceedings and allowed them to remain on foot in a dilatory fashion for a collateral and improper purpose is not apparent to me. Para 55 of his Honour’s judgment says that his Honour had the “strongest possible suspicion”. I would not have read that, on its face, as a finding of fact. Counsel for the Singh defendants conceded, I think for the purposes of this application, that this could be treated as a finding because counsel’s notes of his Honour’s judgment recorded his Honour as saying “submission” and not “suspicion”. With respect to counsel’s note taking ability it is not clear how that would linguistically alter what his Honour was saying even if that sentence had commenced “there was the strongest possible submission that”, unless the following sentence was read as an acceptance of that submission. That may have been the case.

37 In any event, counsel for the defendants submitted that his Honour was entitled, if in fact he did, to form the view that there was a collateral purpose. I was referred to the High Court in Hearne v Street (2008) 248 ALR 609 where circumstances of the kind mentioned in the judgment were treated as instances of misbehaviour. There was no material put before me by Mr Singh to suggest that his Honour erred as a matter of fact in finding, if that is what he did, that there was a collateral and improper purpose for the commencement and maintenance of the proceedings. The conduct of Mr Singh which was relied upon by the Singh defendants and which is not denied by him, coupled with the dilatory conduct of the proceedings, would in my view have permitted an inference to be drawn of such a purpose. In any event in my view what McLaughlin AsJ was entitled to do as a matter of discretion was to take into account this kind of conduct in determining whether the want of prosecution was such as to warrant dismissal of the proceedings irrespective of any factual finding of an abuse of process.

38 On that basis I find that there is no error which would justify the setting aside of his Honour’s judgment. Accordingly, I grant leave extending the time allowed for the institution of an appeal against the judgment of McLaughlin AsJ on 7 February 2008. I dismiss the appeal and I otherwise dismiss the motion of the plaintiff with costs.

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