Singh v Gleeson

Background to the proceedings

1. It is necessary to say a little about the genesis of these particular proceedings, and about the respective roles of each defendant.
2. So far as I can determine, there was in existence a dispute and proceedings in respect of that dispute, between the plaintiff and three parties, Dr Ghulam Khan, Ms Samina Khan and a company, Fobupu Pty Limited (collectively "the Khan defendants"), in the Civil and Administrative Tribunal of NSW ("the Tribunal"). Those proceedings dealt with a question of outstanding rent in respect of a property at Kingswood in the State of NSW. Costs orders were made against the plaintiff in the proceedings in the Tribunal.
3. As a consequence of those costs orders, which were made in favour of the Khan defendants, two judgments were entered in the Local Court of NSW. The first was entered on 16 October 2019 in the amount of $1,591. That judgment was based on a certificate issued under s 78 of the Civil and Administrative Tribunal Act 2013 by the then Principal Registrar of the Tribunal, Ms Szczygielski, who is the sixth defendant in these proceedings.
4. As well, on the following day, 17 October 2019, a judgment was entered in favour of the Khan defendants in the Local Court of NSW in the sum of $26,551.98 which was based upon certificates issued under ss 70 and 71 of the Legal Profession Uniform Law Application Act 2014 by a costs assessor.
5. On 9 December 2019, the Official Receiver, acting in accordance with the Bankruptcy Act 1966 (Cth), issued a Bankruptcy Notice against the plaintiff ("the Bankruptcy Notice"). The Bankruptcy Notice identified as the creditors, the Khan defendants. The Official Receiver, which is a statutory office created by the Bankruptcy Act, is charged with issuing bankruptcy notices if satisfied that the relevant statutory requirements have been met. The Official Receiver is the second defendant in these proceedings. After that Bankruptcy Notice was issued, the plaintiff applied to have that Notice set aside.
6. On 25 June 2020, Gleeson J, then of the Federal Court of Australia, dismissed that application: see Singh v Fobupu Pty Ltd [2020] FCA 886. Her Honour is named as the first defendant in these proceedings with claims for relief being made against her with respect to the proceeding in the Federal Court. I note in passing that an appeal taken by the plaintiff seeking to overturn the judgment of Gleeson J was dismissed by the Full Court of the Federal Court: see Singh v Fobupu Pty Ltd [2021] FCAFC 14 (Rares, Farrell and Stewart JJ).
7. On 6 May 2021, the Federal Circuit Court of Australia, then constituted by Street FCCJ, made a sequestration order against the plaintiff. Street FCCJ is not a defendant in these proceedings. However, earlier today, Beech‑Jones CJ at CL dismissed summarily proceedings which the plaintiff had brought against Street FCCJ. In those proceedings, the plaintiff made claims arising out of the sequestration order that Street FCCJ made against him.
8. The plaintiff appealed against the decision of Street FCCJ. That appeal was heard and determined by Colvin J of the Federal Court of Australia. His Honour dismissed the appeal: see Singh v Khan [2023] FCA 76. His Honour is the seventh defendant named in these proceedings.
9. The third, fourth and fifth defendants are each, respectively, lawyers.
10. The third defendant is the legally-trained son of one of the judgment creditors, Dr Khan. Claims are made against him which relate to his conduct in witnessing his father signing an affidavit which formed part of the evidence relied upon to obtain the issue of the Bankruptcy Notice, and which was subsequently used in later proceedings.
11. The fourth defendant is a solicitor who was instructed by the Khan defendants to act for them in the proceedings by which they sought to enforce the judgments of the Local Court.
12. The fifth defendant is a practicing barrister who, upon the instructions of the fourth defendant, appeared for the Khan defendants in the proceedings before the seventh defendant, Colvin J.
13. The Amended Statement of Claim makes a series of unfocussed allegations which are entirely vague and lacking in any clarity against the third, fourth and fifth defendants.
14. The presently named eighth defendant is the Prime Minister of Australia, the Honourable Anthony Albanese. Although named as a party to the proceedings, no relief is sought against the Prime Minister and no cause of action is pleaded against him. As best as can be discerned, the Prime Minister has been joined because of the plaintiff's assertions that the Commonwealth of Australia has failed in a variety of its obligations, and that the plaintiff is entitled to relief against the Commonwealth of Australia.
15. The ninth defendant was, until March 2023, the Premier of the State of NSW. Like his erstwhile colleague, the Prime Minister, the Premier is named as the ninth defendant, but the pleading contains no cause of action which involves him, or which is directed against him. At best it seems to be that, like the Prime Minister, the Premier is named as being responsible for the conduct of the State of NSW which is alleged to have breached a variety of obligations.

Appearances at the Hearing

1. When the matter was called on for hearing today before me there was no appearance by the plaintiff. Each of the other parties was represented and sought to proceed on the Notice of Motion, with the exception of the eighth defendant, the Prime Minister. This was because, as I have previously stated, the Commonwealth of Australia seeks in the Commonwealth Motion that it be substituted as the eighth defendant (see also [28]-[31] below).

Putative Recusal Request

1. Counsel for the sixth and ninth defendants informed the Court that in the time between when this matter was listed for determination before Beech-Jones CJ at CL earlier today and its listing before me at 2pm today, his solicitor had communicated to the plaintiff the fact that the hearing had been allocated to me because the Chief Judge felt that it was inappropriate that he hear and determine it.
2. Counsel for the sixth and ninth defendants informed me that the plaintiff communicated to his solicitor a statement to the effect that he objected to me presiding over the hearing, and that he was of the view that I should not hear and determine the proceedings. No formal application has been made or prosecuted by the plaintiff to me to that effect. The plaintiff has not personally appeared to make any submission to this Court of the kind. The plaintiff has not sought to appear either in person or by audio visual link. He has proffered no reason for his non-appearance.
3. In the absence of the plaintiff and in the absence of any substantive application, it would be inappropriate for me not to proceed to hear and determine the matter. That is because that is what my judicial oath requires of me. I should add that I know of no reason why I would not be able to hear and determine these proceedings. The fact that I may have made determinations adversely to the plaintiff in one or more proceedings brought by him in the past is not a reason for me to recuse myself from this case.

Substitution of the Eighth and Ninth Defendants

1. Let me deal first with the substitution of the eighth and ninth defendants. There is no cause of action articulated against either of those defendants. Neither of them, being the relevant leaders of the Commonwealth of Australia or, at the time, the State of NSW, are liable for the conduct of either entity or of any identified individual who works for, or is an official of, either of those two governments. Their joinder to these proceedings as parties, against whom no cause of action is articulated and no relief is sought, is clearly inappropriate and neither of them are a necessary or proper party to the proceedings.
2. Accordingly, pursuant to 6.29(a) of the UCPR, I order that each of the eighth and ninth defendants be removed as defendants in the proceedings.
3. The Commonwealth of Australia and the State of NSW each submit that, in light of the relief sought in the Amended Statement of Claim in paragraphs [11] to [17], each are the appropriate parties to be joined to deal with the relief as stated variously against them in those paragraphs. I agree that if the plaintiff wishes to obtain that relief, and can articulate a cause of action for it, then the Commonwealth of Australia and the State of NSW respectively would be both proper and necessary parties to the proceedings. Their presence as parties is also necessary for the determination of all of the matters in dispute.
4. Accordingly, I order, pursuant to r 6.24(1) of the UCPR that the Commonwealth of Australia be joined as the eighth defendant and that the State of NSW be joined as the ninth defendant.

Claims against the First and Seventh Defendants

1. It is convenient to deal next with the claims against the first and seventh defendants. The claims against the first and seventh defendants relate to and arise from judgments given by them in the course of their appointments as Justices of the Federal Court of Australia. It is alleged in the Amended Statement of Claim that, in the course of hearing the proceedings, and by reference to the contents of their judgments, various causes of action against them personally arise.
2. It has long been the case that Judges in the exercise of their judicial functions are protected by an absolute immunity which precludes them from being held liable for activities carried out in the course of their judicial duties. That judicial immunity, which is one of longstanding, exists because of the greater public interest in the resolution of disputes and the need for judicial independence.
3. Even if all that is said by the plaintiff in the Amended Statement of Claim is true, and I have not for the moment determined that it is, the first and seventh defendants would be entitled to the judicial immunity which exists for any civil liability which may be established for acts done in the exercise of their judicial function or capacity.
4. Accordingly, the claim against these two judges, as articulated in the Amended Statement of Claim, cannot possibly succeed. The bringing of it and the maintenance of it is vexatious within the meaning of r 13.4(1)(a) of the UCPR. This is so because of the fact that no reasonable cause of action is pleaded or disclosed, as that term is used in r 13.4(1)(b). Likewise, the proceedings, at least as against the first and seventh defendants, are an abuse of the process of this Court as that term is used in r 13.4(1)(c).
5. Accordingly, having regard to the well-known principles applicable to the summary dismissal of a claim, I am satisfied that the Court should exercise its power to summarily dismiss the proceedings as against the first and seventh defendants. It is, on any view, the clearest case for the exercise of the Court's summary dismissal power.
6. Accordingly, I order that the proceedings against the first and seventh defendants be summarily dismissed.

Claims against the Second Defendant

1. I will now consider the claims against the second defendant, the Official Receiver. As far as can be gleaned from the Amended Statement of Claim, the cause of action which is identified relates solely to the issue by the Official Receiver of the Bankruptcy Notice. The Amended Statement of Claim asserts that the second defendant had no jurisdiction to issue that Notice because the underlying judgments relied upon to issue the Notice were not themselves judgments or final orders for the purpose of the Bankruptcy Act.
2. The position with respect to the Official Receiver is as clear as that against the first and seventh defendants. The Official Receiver has a statutory power to issue bankruptcy notices if it is satisfied of certain matters. Here, the Official Receiver in the exercise of that power determined that they were so satisfied and issued the Bankruptcy Notice. I note that the Bankruptcy Notice was the subject of challenge in the proceedings heard by the first defendant. It was concluded in those proceedings, and on appeal, that the Bankruptcy Notice was valid and had been properly issued.
3. It follows that these proceedings against the second defendant are a further attempt to establish that which has already been rejected by the decision of the first defendant and the judgment on appeal from that decision. The consequence of those judgments is that it is not open to the plaintiff to maintain an attack on the issuing of the Bankruptcy Notice by the second defendant.
4. That is so for two reasons: first, that issue has been determined finally against the plaintiff and the validity of the Bankruptcy Notice is no longer open to challenge; secondly, these proceedings attempt to re-argue matters that, if they were not advanced in the first proceedings before the first defendant and on appeal, ought to have been. The plaintiff is estopped from raising those matters now.
5. Accordingly, because it is not open to the plaintiff to challenge the validity of the Bankruptcy Notice, these proceedings are vexatious, disclose no reasonable cause of action, and constitute an abuse of the process of this Court as those terms are used in the UCPR. As I have earlier said, this is a clear case where I should accede to the Motion on behalf of the second defendant that the proceedings be summarily dismissed.
6. I order that the proceedings against the Second Defendant are summarily dismissed.
7. I move now to consider the proceedings against the three lawyers.

Claims against the Third Defendant

1. The Amended Statement of Claim seeks to articulate a cause of action against the third defendant with respect to two matters: first, the plaintiff claims that the third defendant witnessed, as he was entitled to do, the signature of Dr Khan on an affidavit; secondly, that he wrote a date, 5 April 2021, which, it is claimed, was not a true and correct date. The plaintiff disputes the correctness of that date. He pleads that he wrote to the third defendant "to verify the date of the affidavit sworn by [Dr Khan] but there [were] no clear answers by [the third defendant]". Accordingly, there is an assertion that the third defendant acted in bad faith by failing to confirm the date, and seemingly by failing to respond clearly to the question posed. It is asserted in the pleading that this is a breach of the relevant professional conduct rules applicable to solicitors.
2. It is quite clear that the plaintiff's Amended Statement of Claim pleads no available or reasonable cause of action against the third defendant. The pleading does not raise any cause of action known to the law, much less a cause of action which would give rise, as is claimed in the relief, to the payment of a significant sum of money by way of damages for economic and non‑economic loss as a result of the solicitor's actions. The bringing and maintenance of the claim against the third defendant is, in those circumstances, vexatious and oppressive. Its maintenance is an abuse of the process of the Court. It is again a clear case in which proceedings should be summarily dismissed.
3. I order as against the third defendant those proceedings be summarily dismissed.

Claims against the Fourth and Fifth Defendants

1. The fourth and fifth defendants are the lawyers who acted for the judgment creditor in the proceedings brought by the plaintiff on appeal from the judgment of Street FCCJ in making the sequestration order. It is to be recalled that those appeal proceedings were those heard by the seventh defendant. The conduct of the fourth and fifth defendants is not actually particularised in any rational way in the Amended Statement of Claim, nor is the cause of action articulated properly.
2. As against the fourth defendant, the only allegation pleaded in the Amended Statement of Claim is that he acted for the judgment creditors in the proceedings before the seventh defendant. Nothing is said about the conduct of the fourth defendant. Nothing is said about anything he did or failed to do. There is simply an assertion that his conduct breached the relevant professional conduct rules applicable to barristers, but it is not said how that occurred.
3. Insofar as the fifth defendant is concerned, it is said in the Amended Statement of Claim that, in the course of the hearing of the appeal before the seventh defendant, "the fifth defendant [bullied] and intimidated [the plaintiff] from making his submissions and presenting its case according to his wishes and understanding". No further particulars on that statement are provided. What is plain, however, from the content of that allegation, is that what is being alleged relates to the conduct of the fifth defendant in court whilst he appeared for the Khan defendants.
4. The claim against the fourth defendant fails. No cause of action is articulated let alone a reasonable cause of action.
5. In addition, as I have previously determined, a person in the position of the plaintiff here lacks standing to seek declarations that legal practitioners, such as the fourth and fifth defendants, have been in breach of the relevant professional conduct rules: see Huang v Attapallil (No.2) [2017] NSWSC 1382 at [125]-[126].
6. Furthermore, each of the fourth and fifth defendants are entitled to an advocate's immunity from suit for their actions in representing their clients in the course of the relevant appeal. The advocates' immunity applies to allegations of negligence, intentional torts, and breaches of statute: see D'Orta‑Ekanaike v Victoria Legal Aid (2005) 223 CLR 1 and Leerdam v Noori (2009) 255 ALR 553 at [145].
7. Accordingly, this is another example of a clear and demonstrably hopeless case in which it is appropriate to make an order for summary dismissal.
8. I order that the claims against the fourth and fifth defendants be summarily dismissed.

Claims against the sixth defendant

1. As I have earlier mentioned, the sixth defendant was the Principal Registrar of the Tribunal and was the officer responsible for issuing the formal record of the costs order in favour of the Khan defendants against the plaintiff, which ultimately gave rise to a judgment in the sum of $1,591. The Amended Statement of Claim alleges that the sixth defendant had no jurisdiction to issue the relevant order and asserts, without particulars, that the sixth defendant engaged in the conduct maliciously, thereby acting in bad faith with malicious intent.
2. These claims relate to the costs order in favour of the judgment creditors, which ultimately led to the subsequent Bankruptcy Notice and the sequestration order. If the plaintiff wished to contend that the costs order was invalid, then he should have made that argument in each of the subsequent proceedings brought by the plaintiff challenging the related Bankruptcy Notice and sequestration order. If the plaintiff did not make the argument at that time, then he is estopped from now making it.
3. Accordingly, the Court is confronted, insofar as the claims against the sixth defendant, with an argument that must be taken to have completely failed in the proceedings dealing with the Bankruptcy Notice and the sequestration order. If it was not argued in those proceedings, it should have been.
4. In summary, there is simply no cause of action pleaded against the sixth defendant which is known to the law. Even if one could conceive of a cause of action, it would have, or should have, already been dealt with in the proceedings dealing with the Bankruptcy Notice and the sequestration order.
5. As well, I note that the sixth defendant is the seventeenth defendant in other proceedings brought by the plaintiff, in which almost identical allegations are made against her. The maintenance of similar claims against the same defendant in separate proceedings is, on its face, an abuse of process of the Court.
6. The proceedings against the sixth defendant are an abuse of process of the Court and could not possibly succeed. As with the other defendants, this is a clear case where there should be a summary dismissal.
7. Accordingly, I order the proceedings against the sixth defendant be summarily dismissed.

Claims against the Eighth and Ninth Defendants

1. Finally, I turn to the claims against the new, substituted eighth and ninth defendants, being the Commonwealth of Australia and the State of NSW. The plaintiff pleads various prayers for relief against these defendants. These prayers for relief are somewhat unfocused. The plaintiff seeks declarations that the NSW Parliament and the Commonwealth Parliament have no legislative authority, that various items of legislation or legislative instruments are invalid or ultra vires, and that the eighth and ninth defendants failed in their obligations under international covenants. The plaintiff also seeks damages from the eighth defendant.
2. The first thing that must be said is that the content of the pleadings does not support any entitlement to that relief. The pleadings against the eighth and ninth defendants commence with this statement: "I wonder that if this is happening with me right now in 2023…". The plaintiff then proceeds to make scandalous allegations about the conduct of the seventh defendant. Further, the pleading asserts that if the Commonwealth of Australia is not able to provide basic human rights to Australians, then the whole integrity of the common law is put in jeopardy.
3. The balance of these paragraphs are expressed in scandalous terms. There is no basis for the allegations of the kind which are made in paragraphs [86]-[94] of the Amended Statement of Claim. The nature of those allegations, their contents, their irrelevance, their unfocused nature, and the absence of any demonstrable reasonable cause of action articulated in those paragraphs, satisfies me that the proceedings are vexatious, that no reasonable cause of action is disclosed against the eighth or ninth defendants and that any attempt by the plaintiff to pursue such action, even if the matters were re-pleaded, is doomed to fail. I have concluded that this action insofar as the eighth and ninth defendants are concerned, is an abuse of the process of the Court, and it must also be summarily dismissed.
4. I order that the claims against the eighth and ninth defendants be summarily dismissed.

Conclusion

1. In summary, for the reasons that I have given, I regard the entirety of these proceedings as being of a kind which warrants summary dismissal. In those circumstances, each of the Motions insofar as they seek summary dismissal pursuant to r 13.4 of the UCPR, succeed. It is unnecessary to determine the balance of the alternative relief sought in those Motions other than with respect to the dismissal or joinder of necessary parties.

Orders

1. Accordingly, I make the following orders: 1. Order that the whole of the proceedings be summarily dismissed. 2. Order that insofar as the Notices of Motion brought by each of the parties referred to earlier are not specifically dealt with, that they be otherwise dismissed. 3. Order the plaintiff to pay the costs of each of the defendants.

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