Singh v State of NSW; Singh v Lekhwar

[2021] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260

Hearing dates:

18 October 2021

Decision date:

18 October 2021

Before:

Leeming JA

Decision:

In each of proceeding 2021/00282536 and 2021/00271771, summons for judicial review filed by Mr Singh dismissed.

Catchwords:

JUDICIAL REVIEW – summonses seeking judicial review of decision of Supreme Court orders – whether judicial review lies to Court of Appeal – Penson v Titan National Pty Ltd [2015] NSWCA 404 applied – summonses dismissed

Legislation Cited:

Supreme Court Act, ss 69, 101

Cases Cited:

Barton v Walker [1979] 2 NSWLR 740

McGinn v Cranbrook School [2015] NSWCA 378

Penson v Titan National Pty Ltd [2015] NSWCA 404

Category:

Principal judgment

Parties:

In 2021/00282536:
Gurjit Singh (Applicant)
State of NSW (First Respondent)
Keshvanand Lekhwar (Second Respondent)
Vinita Lekhwar (Third Respondent)
Stephen Rothman AM (Fourth Respondent)

In 2021/00271771:
Gurjit Singh (Applicant)
Keshvanand Lekhwar (First Respondent)
Vinita Lekhwar (Second Respondent)
Christina Prina (Third Respondent)
Michael Coutts-Trotter (Fourth Respondent)
Lea Armstrong (Fifth Respondent)
Robert Beech-Jones (Sixth Respondent)

Representation:

Applicant in person
First and Second Respondents in person
C Frommer (Solicitor) (Fourth Respondent in 2021/00271771)

Solicitors:
Crown Solicitor for NSW (Fourth Respondent in 2021/00271771; submitting appearance for other respondents)

File Number(s):

2021/00271771; 2021/00282536

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

New South Wales Supreme Court

Jurisdiction:

Common Law

Citation:

-

Date of Decision:

14 September 2021, 1 October 2021

Before:

Beech-Jones J; Rothman J

File Number(s):

2021/00255522

EX TEMPORE Judgment

1. LEEMING JA: Mr Gurjit Singh has filed two summonses in the Court of Appeal. The first was filed on 23 September 2021 and is directed to a decision made by Beech-Jones J on 14 September 2021. The second was filed on 1 October 2021 and is directed to a decision of Rothman J of the same day. Both of the decisions in the Common Law Division were made in a single proceeding, which is Mr Singh’s challenge to orders made by NCAT. That proceeding is 2021/00255522. The details of the underlying proceeding are, for reasons to which I will come, not presently relevant.

2. On 14 September 2021, Beech-Jones J made the following directions:

“THE COURT DIRECTS that:

(1) The third, fourth and fifth defendants to the summons be removed and replaced by the New South Wales Civil and Administrative Tribunal (NCAT).

(2) The Notice of Motion filed 14 September 2021 be returnable before the Registrar on Thursday, 16 September 2021.

(3) The plaintiff serve a copy of the Notice of Motion on the first and second defendants by email and advise them that the Motion is returnable before the Registrar on Thursday, 16 September 2021.”

Subsequently there were two directions hearings before registrars and a hearing before Campbell J. In oral submissions today Mr Singh has expressed some dissatisfaction with Campbell J, but no proceedings have been commenced relating to anything that his Honour did.

3. On 1 October 2021, Rothman J made the following orders:

“The Court Orders:

1. There is no arguable proposition for apprehended bias;
2. The summons is dismissed;
3. The plaintiff shall pay the costs of the defendant if any on an indemnity basis.”

4. The proceedings on their first return date in the Court of Appeal came before the Registrar. The Registrar made the following orders on 11 October 2021, which is last Monday:

“ORDERS MADE BY THE COURT

1. Note the Summons appears to be incompetent on the basis of Penson v Titan National Pty Ltd [2015] NSWCA 404.

2. Note that the applicant does not intend to substitute a leave application for the Summons.

3. Stood over to 18/10/2021 to show cause why the Summons should not be dismissed. as being incompetent.

4. The question of the substitution of the Secretary of Department of Communities and Justice for the fourth Respondent is stood over to 18/10/2021.

5. Registry notify parties.”

5. Subsequent to those orders, Mr Singh has filed a four page submission dated 17 October 2021 explaining why he contends that this Court has jurisdiction to hear and determine the matter, notwithstanding that he has proceeded by way of summons seeking judicial review.

6. The point raised by the Registrar is a very straightforward one. The decision on which it is based, Penson v Titan National Pty Ltd [2015] NSWCA 404, is short and recent and a decision of the Court of Appeal constituted by Meagher, Gleeson and Simpson JJA. One point in that decision was whether Ms Penson, who appeared in person, had commenced within time, and that was determined favourably to her. Another point, on which Mr Singh relies, is that Ms Penson was seeking relief pursuant to s 69 of the Supreme Court Act from two decisions of the Court of Appeal constituted by, as it happens, Ward JA and me. Unlike Ms Penson, Mr Singh seeks to challenge decisions of judges sitting in the Common Law Division.

7. The paragraph of present relevance is para 8, and that provides as follows:

“Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69. Ms Penson’s application in this respect is misconceived and should be dismissed.”

It will be seen that the Court of Appeal constituted by three judges there stated that orders of judges of the Supreme Court are not amenable to review under s 69. It may be that there are exceptions to the universal proposition stated by the Court of Appeal, for example if a judge of the Supreme Court is exercising a function conferred upon him or her personally which is an administrative function. But there is no suggestion that that is the case at present. Beech-Jones J made orders altering the constitution of the proceedings, removing some parties from the proceedings and joining NCAT. Rothman J heard and determined an application that he disqualified for bias and then heard and determined the summons.

8. I interpolate it is now 5 past 11 and about 6 or 7 minutes into these reasons. I understand that Mr Singh has ended his connection to the AVL hearing. I will continue.

9. Repeatedly during this hearing, and, I infer from the terms of the Registrar’s orders, also last Monday before the Registrar, Mr Singh was asked why he was proceeding with a summons for judicial review when on any view it remained open for him to seek leave to appeal from at least the judgment of Rothman J, which is the judgment that was dispositive of the proceedings in the Common Law Division. I do not know what answer, if any, was given to the Registrar. No answer was given to me as to why this Court was occupied with determining whether or not there was some way in which it was not bound by what had been held in Penson v Titan.

10. Mr Singh’s submissions draw upon the following points. First, he submits that the Australian legal system is an adversarial legal system. He complains that the point of jurisdiction raised by the Registrar was not raised by any of the parties, some of whom have not filed notices of appearance and none of whom have filed any notice of motion. Nor, he says, has there been any oral application to challenge the competency of his summons. He says that it is very unfair to test his argument without them filing any notice of motion or grounds of opposition. I do not accept this.

11. It is the first duty of any Court to be satisfied that it has jurisdiction. As I sought to explain to Mr Singh during the hearing, the overwhelming majority of proceedings commenced in the Court of Appeal commence by either notice of appeal or summons seeking leave to appeal, and I am not aware until today of ever having participated in a hearing from a judge sitting in a Division exercising a judicial function from which proceedings under s 69 rather than a notice of appeal or summons for leave to appeal has been brought.

12. Mr Singh’s second submission is that some of the defendants have filed submitting appearances without any challenge to jurisdiction. He says that the rules say that a defendant must, before taking any step in the proceedings, file a notice of appearance. Mr Singh is accurate in his statement of the rule. However, it is open to the Registrar, in the exercise of the Court’s duty to determine whether its jurisdiction has been validly invoked, of its own course to take the steps that led to the hearing today.

13. Mr Singh’s third point is that one of the decisions to which the Court of Appeal referred in Titan, namely Barton v Walker [1979] 2 NSWLR 740, was not available on Caselaw and he was not in a position to present argument in relation to it. However, I made it clear during the hearing, and I think it is clear from the directions made by the Registrar, that the point he is required to address is the simple proposition stated in Penson itself that judicial review does not lie to the Court of Appeal from judges either in the Supreme Court or of the Court of Appeal.

14. Fourthly, and most substantively, Mr Singh was of the view that there was no right of appeal. This was put both in writing and orally, but with respect to him, was not elaborated. He pointed to s 101 of the Supreme Court Act and the various exceptions. The exceptions in s 101(2) impose an additional obligation to seek leave to appeal, and it seems to me that leave would be required were he to seek to appeal from the decision of Rothman J if it proceeded on a summary basis. From the materials before me it is not clear whether or not that is so. Certainly leave to appeal would be required to appeal from the directions concerning parties made by Beech-Jones J, because they are interlocutory. But none of that supports the proposition repeatedly stated by Mr Singh that he had no right of appeal.

15. I need to add that paragraphs 18 to 20 of Mr Singh’s submissions make statements which I regard as unfounded. They suggest a predisposition by Mr Singh to perceive that the system is biased against him, and he makes serious statements concerning public misfeasance. I regard those statements to be as unfounded as similar statements that were made by Mr Singh to the tipstaff of Beech-Jones J in connection with the orders made on 14 September 2021 and also statements made from the virtual bar table concerning his suspicion that there had been some untoward communications between one of the defendants and this Court.

16. It may be best that I record as transparently as I can the course of the hearing today. The Registrar directed that it take place at 10.30. We started briefly at 10.30 and then, unfortunately, Mr Singh’s telephone line was disconnected shortly after he advised he was having difficulties. An attempt was made to contact him by Mr Frommer but the line would not connect. My Associate sent a couple of emails to Mr Singh after we had waited in court for him to reconnect for some seven or eight minutes, advising him that the hearing would proceed in his presence or absence at 11am. At 11am it did proceed and it has proceeded for just under one hour of oral submissions from Mr Singh.

17. Most of the oral submissions were directed not so much to the matters I have summarised from his written submission, which were directed to the matters raised by the Registrar’s directions, but instead to Mr Singh’s dissatisfaction with the orders made by Beech-Jones and Rothman JJ (and to a much lesser extent Campbell J). It is no part of my role today to express any view on the merits or otherwise of any of those decisions. That is a matter for the Court of Appeal constituted by other than a single Judge of Appeal.

18. The only question today is a pure question of law. It is whether Mr Singh by way of summons filed in the supervisory jurisdiction of the Supreme Court, rather than by way of summons seeking leave to appeal, can properly bring his complaints about both of those decisions. Mr Singh has made it abundantly clear that he does not wish to have the summonses that he has filed treated as applications for leave to appeal. So be it.

19. I take the view that I have no choice in the application today. As the Registrar indicated a week ago, the decision of this Court constituted by three judges in Penson v Titan holds, in a way that binds me, that Mr Singh’s processes do not validly engage this Court’s jurisdiction. It is plain from what was said in McGinn v Cranbrook School [2015] NSWCA 378 at [5] that a single Judge of Appeal has power to exercise the powers of the Court of Appeal to dismiss a proceeding for want of jurisdiction. That is the course that I am bound to follow in light of the authorities which I have mentioned.

20. For completeness, I should say that paragraph 15 of earlier submissions filed by Mr Singh dated 10 October 2021 makes critical reference to a decision in which I participated as follows:

“In [2021] NSWCA 80 Gleeson JA and Leeming JA court refused to address criticism of Justice Cavanagh and denied leave to appeal for out of time in circumstances when it was filed in time. Summons was filed in time and notice of appeal were filed in time but it was refused to hear on the basis it was out of time.”

I raised this with Mr Singh. It might be thought that my involvement in that decision might have been regarded in the way Mr Singh has framed his submission as an objection to my participating in the determination of this application. No such application was made by Mr Singh. However, had an application been made, that is to say an application for my disqualification for apparent bias having previously been engaged in that matter which Mr Singh said involved an acquaintance or friend of his, I would have rejected it.

21. For those reasons, in each of proceeding 2021/00282536 and 2021/00271771, I dismiss the summons for judicial review filed by Mr Singh.

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Decision last updated: 27 October 2021