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[2017] FCA 1505
Federal Court of Australia
2017-12-22
Gilmour J
Original judgment source is linked above.
GILMOUR J: 1 The Eighth Respondent, Mr Gurdit Singh, applies to extend the time for compliance with the order of the Court made on 13 September 2017 that he make, file and serve his list of documents by 4pm on 6 October 2017, failing which his defence be struck out and judgment be entered for the applicant, A1 for Maintenance Pty Ltd (A1), against him for damages to be assessed. 2 The application, which is opposed by A1, is supported by Mr Singh's two affidavits sworn on 30 October and 12 November 2017 respectively.
Background 3 The proceedings were commenced by A1 on 4 April 2017. In its originating application, the applicant claims that the respondents are bound by and have contravened three franchise agreements for car wash businesses. The applicant seeks various declarations, injunctions and damages as relief. 4 Mr Singh is alleged by the applicant to have been directly or indirectly, knowingly concerned in, or party to the various unconscionable conduct and franchisee agreement breaches alleged against. 5 Mr Singh is the registered holder of the business name "Impeccable Hand Car Wash", which name is the subject of certain of the applicant's allegations of misconduct by the respondents. 6 A general order for discovery was made by consent in respect of all the parties, including Mr Singh, on 24 May 2017 for compliance by 21 June 2017. 7 Mr Singh did not comply with this order. 8 At a directions hearing on 13 September 2017 I made the following orders relevant to the issue of discovery:
Legal principles 14 The Court has discretion to extend the time for compliance with a Self-Executing Order, even if that order has crystallised. The Court's ability to do so has been the case since the High Court decision of FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. 15 The Full Court recently endorsed the following summary of relevant authorities concerning Self-Executing Orders in LFDB v SM [2017] FCAFC 178 at [40]: The High Court recognised the existence of peremptory orders of an analogous type in FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 in determining that a court at first instance has the power to extend time under a self-executing order which has 'sprung'. The Court of Appeal of Western Australia has noted that 'springing' orders are a well-established method of applying appropriate sanctions for non-compliance with orders: see Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185. That intermediate Court also equated 'unless' orders and 'springing' orders as reflecting the needs to have regard to those rules of court (reflected in this Court in Part VB of the Federal Court of Australia Act 1976 (Cth) (FCAA)) which provide that the processes of the court are to be applied so as best to attain the just determination of litigation, the efficient use of the resources of the court, and the timely disposal of the business of the court at affordable cost. Such peremptory orders "are made to be obeyed and they are generally made only where the party in default has already failed to comply with an order of the court, or has failed to pursue the action in accordance with the rules of court and has been responsible for serious delay": see Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84 at 101 [95] per Newnes JA. (emphasis in original) 16 The cases since FAI identify five factors that the Court should have regard to in the exercise of the discretion to extend: (1) the circumstances in which the springing order came to be made; (2) the reasons for non-compliance with the springing order; (3) the prejudice to the default party if time were not extended; (4) whether the defaulting party has a reasonably arguable case on the merits, there being no point resuscitating a case that is devoid of merit; and (5) the prejudice to the other parties if the time is extended. 17 I will consider the explanation provided by Mr Singh for his delay in compliance against these factors.
Mr Singh's explanation 18 In his first affidavit Mr Singh deposed as follows at [2]. I was supposed to submit the affidavit as per the order of the court before 6 October 2017. When I was going to make the affidavit. I realised that Microsoft word is not working. I tried to figure out what's causing it and I found out that my license to use Microsoft office is expired. I tried several times to pay it online but every time it showed an error. I didn't have access to any alternative computer, I only have one laptop that's more than five years old and is very slow. 19 He also annexed a copy of a Microsoft email dated 29 September 2017 to Mr Singh's email address, gurditsingh86@gmail.com. I will in these reasons refer to this as 'his email address'. It advised that his 'Office 365 premium Trial' expired on 6 August 2017 and that if he did not choose to buy the package, all of the data associated with the trial would be permanently deleted in 7 days. 20 Mr Singh does not depose to whether he responded to this email or bought the package. 21 Prior to the 13 September 2017 directions hearing, my Associate sent emails to Mr Singh dated 24 May 2017, 24 July 2017, 21 August 2017, 1, 11 and 13 September 2017 at his guritsingh86@gmail.com address. Mr Singh appeared volunteered at the hearing on 13 September that he had received at least one email from my Associate. 22 At the directions hearing on 13 September 2017 when the Self-Executing Order was made in relation to Mr Singh, the following exchanges took place, with Mr Singh appearing by telephone. These commenced with Mr Singh responding to a question whether he had received by email a copy of a number of proposed orders, including the Self-Executing Order in relation to discovery by him, from Mr Pirrie, who was acting for the applicant. MR SINGH: Actually, I haven't seen them, your Honour. Yesterday my six year old - I was having his birthday, and I didn't see any email yesterday, but not even today - like I fell ill actually. HIS HONOUR: Well, do you have a laptop or a PC? MR SINGH: Yes. I will just see. I will turn on my laptop and I will see if I can find it. … HIS HONOUR: Very well. Now, what's the position in relation to Mr Singh, the eighth respondent? Mr Singh, have you now read the applicant's minutes of proposed orders? MR SINGH: Your Honour, I haven't received it. I'm looking into the emails and only email that refers to me for proposed orders is from the Associate of yours, and that says: Could parties please provide any minute of proposed order to the chambers as soon as practicable - and this is just ..... HIS HONOUR: And what is your email address? MR SINGH: My email address is my full name, gurditsingh86@email.doc. HIS HONOUR: All right. Now, Mr Pirrie, for some reason your minute hasn't been received. MR PIRRIE: Your Honour, I can't - yes, I can't accept that. Mr Singh is conducting the business of the court according to his timetable and his agenda. He said to the court initially that he had a child's birthday party yesterday and now he appears to be saying he hasn't received it all. I haven't received any communication back which says that the document was not sent or that it wasn't received. …. MR PIRRIE: Yes, I sent it. And I haven't received an email back - I haven't received a communication from my computer which says it wasn't received. MR SINGH: No. That have my email address, because I'm not able to find it in my inbox. I'm just in front of the laptop now. I have many unread emails, so I'm just going through all of them, but I'm unable to find any email with the proposed MR PRIME: Yes. Mr Singh, it's g-u-r-d-i-t-s-i-n-g-h 86@gmail.com. HIS HONOUR: That's your email address, Mr Singh? MR SINGH: Yes, that is. Yes. … MR SINGH: No, I haven't in my inbox, martinpirrie@hotkey.net.au, no email in my inbox. MR PIRRIE: I find that extraordinary, because I haven't received any - - - … MR SINGH: Yes. Sorry. HIS HONOUR: Just a - - MR SINGH: Sorry. Sorry. Just a minute. I find that in the spam box. So it was not in the inbox. I just find it. It was in the spam box, 4.36. … HIS HONOUR: Yes. Don't worry about that for the moment. I just want to deal with what's in front of us, which is the issue of discovery. We can deal with that, if necessary, some other time. Now, Mr Singh, have you yet downloaded the order? MR SINGH: Yes. Yes. It is open now, your Honour. Sorry. HIS HONOUR: Can I ask you please to read proposed order number 3. MR SINGH: Yes. HIS HONOUR: Do you wish to make any submission in relation to that proposed order? MR SINGH: Yes. I have no issue filing that by 6 October. HIS HONOUR: So what the applicant is saying is if you fail to comply with this order for discover by 6 October, then the court - and the order will be that your defence will be struck out and judgment will be entered for the applicant on its claim for damages to be assessed. MR SINGH: Yes. HIS HONOUR: Now, Mr Singh, the way to avoid that happening - in other words, the way to avoid your defence being struck out, at least for the moment, and to avoid judgment being entered - is for you to comply with the order to provide discovery by 6 October. MR SINGH: Yes. HIS HONOUR: So it's all in your hands. Do you understand? MR SINGH: So that's okay. That's okay, sir. HIS HONOUR: All right. MR SINGH: I'm fine. Yes. HIS HONOUR: You understand. That's fine. MR SINGH: Yes. Yes. Thank you, sir. 23 It is apparent that Mr Singh made no mention at this hearing of any problems associated with using his computer to prepare, file and serve his list of documents. Indeed he advised the Court positively that he could comply with the discovery order. Mr Singh also clearly understood the nature of the Self-Executing Order and what he was required to do in order to ensure compliance. 24 A1, in opposition to the application, relied upon an affidavit sworn on 10 November 2017 by one of its solicitors, Mr John Lancefield. 25 Mr Lancefield deposes to a number of matters including: On 18 August 2017 (12 days after the putative expiry of Mr Singh's Microsoft package) he sent Mr Singh an email with a proposed consent order in Word format. Mr Singh was evidently able to open and print the Word document, as he subsequently, on 18 August 2017, emailed Mr Lancefield, attaching a copy of the signed consent order of the form of the Word document which had earlier been emailed to him. Receipt by him of an email from Mr Singh on 3 November 2017 attaching copies of the present interlocutory application and Mr Singh's 30 October affidavit. This was in response to Mr Lancefield's email earlier that day demanding that Mr Singh serve him with those documents by 5pm that day failing which he would raise the matter with the Court. Both of those emails were annexed to Mr Lancefield's affidavit. The email address in respect of these communications was Mr Singh's email address. 26 Mr Singh, in his affidavit sworn 12 November 2017 (the day before the hearing of this application), deposes to 'finding' two more emails on his computer from Microsoft addressed to his email address. He refers in particular to one email from Microsoft dated 30 August 2017 advising that he will lose access after 6 September 2017. In fact, he annexed not only that one but another from Microsoft dated 7 August 2017 and a further copy of a Microsoft email of 29 September annexed to his first affidavit. 27 He deposes at [4] and [5]: Due to some difficulty I am unable to read all the emails, today on 12 November 2017. I have 6330 unread emails into my email (gurditsingh86@gmail.com) account. I was unaware about these emails and I only came to know that I can not access the Microsoft word when I tried to make the affidavit for discovery of documents. I have whitened out some sensitive and private information that includes username and subscription id etc., as I am afraid of getting my account hacked, as applicant know all my details such as my name date of birth and address. 28 It transpires that Mr Singh e-lodged a List of Documents with the Court on 12 October 2017. He did not serve this on the applicant until 12 November. It discovers one document, a business registration document of the business name 'Impeccable Hand Car Wash'. 29 He deposed, in effect, in his 12 November affidavit, that when he tried to make his affidavit of discovery, he discovered he could not access Microsoft Word. Yet he did prepare and lodge his discovery affidavit on 12 October 2017 apparently using a computer borrowed from his sister-in-law. Moreover, when discovery orders were made by consent on 13 September 2017, he was aware of the threat to terminate his Microsoft Office package if he did not pay a subscription fee. This was not mentioned to the Court. Mr Singh does not say whether or not he purchased a Microsoft Office 365 package upon receipt of the Microsoft email dated 29 September 2017. If he did not he would have known of the termination prior to 13 September 2017. If he did, he would have had access to Microsoft Word. As I mentioned at [23], he advised the Court on 13 September 2017 that he would have no issue filing his discovery by 6 October 2017. 30 I do not accept Mr Singh's explanations for his subsequent delay in compliance. I have set out below my conclusion to the use he made of his computer using his email address. He must be taken to have had use of his computer and email service using his email address when he received or sent emails, on at least the following dates, as is apparent from what I have set out above: (1) email from Mr Lancefield dated 18 August; (2) email to Mr Lancefield dated 18 August; (3) emails from Microsoft dated 7 and 30 August 2017 and 29 September 2017; (4) email dated 11 September concerning the 13 September 2017 directions hearing from my Associate; (5) email dated 13 September 2017 concerning leave to appear by phone at the hearing that day from my Associate; (6) email from Mr Lancefield dated 3 November; (7) email to Mr Lancefield dated 3 November; and (8) email sent by Mr Singh to applicants' lawyer dated 12 November 2017. 31 This discloses both the receipt and transmission of emails, including with attachments, to and from his email address, between 18 August and 12 November 2017. I do not accept his explanation that he did not have use of a computer with email capacity between 13 September, when the discovery order was made, and 6 October being the last day for compliance with that order. 32 There are also, on file, emails from Mr Singh to my Associate dated 24 July, 13 September (two), 13 October and 13 November 2017.
Mr Singh's defence 33 The allegations made and relief sought on the substantive proceedings are complex and detailed. So far as concerns Mr Singh, the following relief is sought against him for damages as set out in the originating application: [62] Damages against the Eight Respondent under section 82 of the Competition and Consumer Act 2010 (Cth) for being knowingly concerned in the breach by the Sixth and Seventh Respondents of clause 6 of the Competition and Consumer (Industry Codes - Franchising) Regulation 2014 (Cth) and section 51ACB of the Competition and Consumer Act 2010 (Cth) referred to in paragraph 58 above. [63] Damages against the Eighth Respondent under section 236(1) of the Australian Consumer Law as made a law of the: (1) Commonwealth by section 131 of the Competition and Consumer Act 2010 (Cth); and/or (2) State of Western Australia by sections 19 and 24 of the Fair Trading Act 2010 (WA), for being knowingly concerned in the breach by the Sixth and Seventh Respondents of sections 20 or 21 of the Australian Consumer Law referred to in paragraph 61 above. 34 The statement of claim pleads that Mr Singh was knowingly concerned in, or a party to what is earlier pleaded as the 'Subiaco Franchising Code Breach' and the 'East Perth Franchising Code Breach', 'the Maddington Franchising Code Breach' as well as various pleaded allegations of unconscionable conduct by others. These pleas are set out at [227]-[235] of the Statement of Claim. Mr Singh merely does not admit these without more. 35 He has not put on any evidence in support of this application, going to the merits of his defence. Accordingly, I am unable to assess it has even arguable merit. Of course Mr Singh will suffer prejudice, assuming his defence has merit, if his defence is struck out and judgment is entered against him, but this factor is but one amongst others which I have considered. It does not weight strongly in the balance against those other factors. 36 Mr Singh has shown knowing disregard for the Court's orders and his explanations do not withstand scrutiny. Indeed, I do not believe them to be true. 37 I will not extend time for compliance. To do otherwise would reward discreditable conduct and would tend to diminish respect for the Court's orders. 38 Accordingly, I dismiss Mr Singh's application for an extension of time. I will reserve the question of costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.
SCHEDULE OF PARTIES WAD 162 of 2017 Respondents Fourth Respondent: RAJIV KALYAN Fifth Respondent JASVINDER SINGH Sixth Respondent JFK AUSTRALIA PTY LTD ACN 603 024 826 Seventh Respondent ANDREW KRISNADHARMA Eighth Respondent GURDIT SINGH
A1 For Maintenance Pty Ltd
Lehal Pty Ltd