Singh v Lekhwar

NCAT Consumer and Commercial|2022-03-31

Outline

Following the determination of applications of the applicant and the respondent on 9 February 2022, the applicant lodged this application on that day. After considering (and granting) the respondent's application for leave to be legally represented and considering (and rejecting) the applicant's request for the Tribunal member to disqualify himself, the Tribunal determined that the applicant had no standing to commence or continue this application. It was therefore not necessary to consider whether the issues raised by the applicant in this application could and should have been raised in his earlier application.

History of the proceedings

On 9 February 2022 the applicant commenced these proceedings against the respondents, seeking orders under s 187(1)(d) and s 187(1)(e) of the Residential Tenancies Act 2010 (the RTA). On 14 February 2022 a notice was issued to advise the parties that the application was listed on 8 March 2022, for conciliation and directions.
On that occasion, the applicant complained that he had not had time to consider the preliminary issues which the Tribunal considered needed to be addressed. As a result, directions were made to enable written submissions to be lodged and the application was stood over to 31 March 2022.

Hearing

At the hearing, which was conducted using audio-visual link (AVL) facilities due to the COVID-19 pandemic, the applicant was self-represented, and Ms Carrol sought leave to represent the respondents.
As Ms Carrol had submitted an affidavit to which the applicant objected, it was disregarded. The applicant did not take up the opportunity to lodge written submissions. There being no written submissions, it remained to hear oral submissions on each of the issues identified at the hearing on 8 March 2022.

Issues

Four issues required consideration: 1. the respondents' request for leave to be legally represented, 2. the applicant's request that the Tribunal member disqualify himself on the grounds of apprehended bias and actual bias, 3. whether the applicant's bankruptcy affected these proceedings, and 4. whether the matters which the applicant raises in these proceedings could and should have been raised in his earlier proceedings (RT 21/47463).

Legal representation

Ms Carrol briefly submitted that this application raised complex issues and facts and that it would be difficult for the respondents to deal with them to an extent that fairness suggested the Tribunal should grant leave for the respondents to be legally represented.
The matters which the applicant raised in opposing this application may be summarised as (1) that Ms Carrol had filed an affidavit and it was not appropriate for either an application or a question of law to be made in an affidavit, (2) that her current status was that she was not permitted to work without being supervised, (3) that she does not have the requisite skills, (4) that she failed to identify the complexity, (4) that she made no submissions in relation to the issue of the applicant's bankruptcy, and (5) that granting her application for leave to represent the respondents would trigger an application for disqualification based on actual bias.
Considerations relevant to whether to allow a party to be legally represented, were summarised as follows in Rodney v Stricke [2018] NSWCATAP 136 at [88]: 1. the complexity of the issues raised for determination; 2. the capacity of the individual seeking leave to be represented to understand and effectively participate in the proceedings in a manner that allows them a reasonable opportunity to be heard; 3. the need to ensure that there is no material imbalance between the parties; 4. the need to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and 5. whether it is appropriate in all the circumstances to give leave to a particular person, including an Australian legal practitioner.
In WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30 at [69] the relevant considerations were said to be: 1. The applicant's capacity to understand the nature of the proceedings and the issues for determination. 2. The applicant's ability to understand and communicate effectively in the language used by the Tribunal. 3. The legal and factual complexity of the case. 4. The importance of the decision to the applicant's liberty or welfare.
Having considered the submissions of the parties, the Tribunal considers the following aspects of these proceedings warrant a grant of leave for the respondents to be legally represented: 1. the legal issues raised by the applicant being an undischarged bankrupt, 2. the legal issue raised by the question of whether the matters raised in this application could and should have been raised in the applicant's previous application, 3. by reason of those matters, this application has greater complexity than would normally be the case in proceedings relating to a residential tenancy, 4. the limited ability of the respondents to understand and communicate in English, and 5. by reason of that matter, the respondents' ability to understand the issues requiring consideration, even if they have the benefit of an interpreter.

Disqualification for bias

There were two aspects to this application: (1) a claim of actual bias if the respondents were granted leave to be legally represented, and (2) an allegation of apprehended bias.
The latter aspect was said to be based on what should be an adversarial system being changed to an inquisitorial system by reason of matters being raised by the Tribunal member at the outset of the hearing on 8 March 2022. Reference was made to the summary of the judicial process in Re Nolan, ex parte Young [1991] HCA 29 by Gaudron J at [8] and to the test set out in Ebner (referred to below).
It was also contended that the matters raised by the Tribunal required fair notice and that the issues raised on 8 March 2022 were raised by the Tribunal member. Further, that the sound of the keyboard from the Tribunal member making notes indicated that selective notes were being taken.
The applicant's contention was that a reasonable person would form the view that the Tribunal was not acting in an independent manner and was not bringing an impartial mind to a determination of the proceedings.
Ms Carrol did not make any submissions on this issue.
The test for determining whether a judge or a Tribunal member should disqualify himself or herself by reason of apprehended bias is objective: "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson [2000] HCA 48 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; applied in many cases, including Michael Wilson & Partners Ltd v Nicholls [2011] 244 HCA 48 and Charisteas v Charisteas [2021] HCA 29.
The application of the test requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; secondly, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits: Ebner at [8]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed: Ebner at [8]; Charisteas at [11].
In this case, four issues arose at the hearing on 8 March 2022. The Tribunal raised the issues of whether the applicant being an undischarged bankrupt had any impact on the proceedings and whether this application raised matters that could and should have been raised in the applicant's previous application. The applicant raised the issue of bias, and the respondent raised the issue of legal representation.
To the extent that the disqualification application is based on the applicant being an undischarged bankrupt being raised by the Tribunal at the outset of the hearing on 8 March 2022, that is a matter which goes to whether the Tribunal has jurisdiction to consider the application. The identification of issues going to jurisdiction is a practice regularly followed in Tribunal proceedings since the Tribunal is a creature of statute needs to ensure it has jurisdiction to deal with the subject matter of the application. A consideration of the reasons published by Tribunal members reveals there is in most, if not all cases, a consideration of the question of whether the Tribunal has jurisdiction.
If the Tribunal proceeds in circumstances where it does not have jurisdiction then not only will be a waste of time and money for both the parties and the Tribunal, but the orders made will not have any effect. Accordingly, it is desirable to consider any issue going to jurisdiction at the outset of the proceedings.
Likewise, identification of the potential application of what is commonly referred to as Anshun estoppel is a matter better raised at the outset rather than at the conclusion of the hearing. Even if that issue is not determined at the outset of the proceedings, at a directions hearing, it is clearly preferable for that issue to have been raised so that the applicant is on notice of a potential impediment to his application.
As the Tribunal was doing no more than following standard procedure, any suggestion that raising jurisdiction reflected apprehended bias is rejected. The Tribunal is required, by s 36 of the Civil and Administrative Tribunal Act 2013, to seek a just, quick, and cheap resolution of the real issues in the proceedings and that guiding principle is not achieved by permitting proceedings to continue without the early identification of issues, either party a party or by the Tribunal.
It does not appear that any fair-minded lay observer would consider that a Tribunal member who raised any issue or issues going to jurisdiction at the outset of a directions hearing would not bring an impartial mind to the issues which had to be decided.
As to the suggestion that the noise of a Tribunal member's use of a computer keyboard would cause a reasonable observe to apprehend bias, that submission is rejected on the basis that the noise created by using a keyboard the result of numerous factors including the length of the submissions, the speed with which those submissions are made, whether the "mute" key has been used by the Tribunal member, and whether handwritten notes are being taken in relation to some of the submissions.
The submission that issues should not be raised without fair notice overlooks the fact that, after issues were raised on 8 March 2022, the applicant was given more than three weeks in which to lodge written submissions and about two hours at hearing listed for three hours to make oral submissions.
It is difficult to see how there is a logical connection between the matters upon which the applicant based his allegation of apprehended bias and any fear that the application would not be determined on its merits.
The suggestion that actual bias would be established by a decision to grant leave for legal representation in a matter involved legal issues not commonly raised arise and in which the respondents require the use of an interpreter to understand English, let alone legal issues, is rejected on the basis that there were clear grounds for that decision to be made on the merits.
Accordingly, the disqualification application is rejected.

Applicant's bankruptcy

In brief submissions on this issue, Ms Carrol submitted that the applicant was made bankrupt on 6 May 2021 and that the Bankruptcy Act 1966 (Cth) vested his right to sue in his trustee in bankruptcy.
The applicant, who did not dispute that he had been declared bankrupt on 7 May 20921, made oral submissions on this issue which included the following propositions: 1. It was s 58 and not s 116 of the Bankruptcy Act that was relevant. 2. It was up to Ms Carrol to go to the Federal Court to assert that the applicant's right to sue was vested in his trustee in bankruptcy. 3. Whether the applicant's right to sue is vested in his trustee in bankruptcy involves Federal jurisdiction. 4. This action involves after acquired property that is covered by s 58(6). It is convenient to here note that s 58(6) does no more than define after acquired property. 5. There is a question of whether this chose in action is one that is divisible among his creditors. 6. The Tribunal cannot exercise Federal jurisdiction, with reference being made to Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7 and Attorney General for New South Wales v Gatsby [2018] NSWCA 254. 7. The word "proceedings", which appears in s 116(b), is defined in the Bankruptcy Act to mean proceedings under that Act. 8. That the claim he makes in this application falls within the exception created by s 60(4).
The impact of the Bankruptcy Act 1966 on legal proceedings in a court or tribunal depends on whether legal proceedings are commenced before or after a person becomes bankrupt.
As to proceedings commenced before a person becomes bankrupt the position is as follows.
Section 60 of the Bankruptcy Act is set out in full below:

Stay of legal proceedings (1) The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit: (a) discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or (b) stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor: (i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or (ii) in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt; and, in a case where the debtor is imprisoned or otherwise held in custody in consequence of the non-payment of a provable debt or of a pecuniary penalty referred to in subparagraph (i) or in consequence of his or her refusal or failure to comply with an order referred to in subparagraph (ii), discharge the debtor out of custody. (2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. (4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or (b) the death of his or her spouse or de facto partner or of a member of his or her family. (4A) Notwithstanding paragraph (1)(b), this section does not empower the Court to stay any proceedings under a proceeds of crime law. (5) In this section, action means any civil proceeding, whether at law or in equity.

By reason of s 60(2), proceedings commenced before a person becomes bankrupt are stayed until the trustee makes an election in writing. If no such election is made, s 60(3) operates to deem those proceedings to have been abandoned. However, 60(4) creates an exception permits a bankrupt to continue proceedings which fall with either paragraph (a) or paragraph (b) of that subsection.
As to proceedings commenced after a person becomes bankrupt the position is as set out below.
In the Bankruptcy Act, s 58 is in the following terms: Vesting of property upon bankruptcy - general rule (1) Subject to this Act, where a debtor becomes a bankrupt: (a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and (b) after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in then Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee. … (6) In this section, after-acquired property, in relation to a bankrupt, means property that is acquired by, or devolves on, the bankrupt on or after the date of the bankruptcy, being property that is divisible amongst the creditors of the bankrupt.
The Bankruptcy Act 1966, section 5 defines "property" to mean: real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.
Faulkner v Bluett [1981] FCA 3 is authority for the proposition that property, as defined in s 5, includes the right to sue. Since property divisible among the bankrupt's creditors includes the ability to commence legal proceedings, after a person is declared bankrupt that can only be done by his or her trustee since that right to sue is part of the property that vests in that trustee.
It is also noted that s 116 of the Bankruptcy Act provides: Property divisible among creditors (1) Subject to this Act: (a) all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge; and (b) the capacity to exercise, and to take proceedings for all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge. … is property divisible amongst the creditors of the bankrupt.
Although, during his submissions, the applicant suggested he needed time to consider s 116 as he had not had time to consider it, and the Tribunal waited while he did so, it is to be noted that the applicant was the plaintiff in Singh v Khan [2021] NSWSC 1093 in which judgement was delivered on 30 August 2021 and in which s 116 was considered.
In that decision, at [43], it was recorded that the present applicant had submitted to the Supreme Court that those proceedings were not stayed because: 1. this Court has no jurisdiction to grant, or declare, a stay since bankruptcy is within the exclusive jurisdiction of the Federal Court;
It was held, in that case, that the Supreme Court did have jurisdiction to make a stay order and such an order was made, together with an order dismissing the present applicant's notices of motion on the basis that he had no standing to pursue those motions.
That outcome reflects the difference between initiating proceedings filed in the Supreme Court before the commencement of a bankruptcy and initiating proceedings filed after that date: as the proceedings were commenced before to the commencement of the bankruptcy they were stayed while the notices of motion, filed after the commencement of the bankruptcy, were dismissed on the basis that the applicant had no standing to pursue those requests for orders of the court.
The position in the Tribunal in relation to proceedings initiated prior to the commencement of the bankruptcy is as follows.
Decisions such as Dalton v Qantas Airways Ltd [2020] NSWCATCD 2 (Dalton) at [46], and the cases cited therein, make it clear that the Tribunal is not entitled to exercise jurisdiction in a federal matter. The principles as to what constitutes a federal matter, were set out in Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 at [22] and those principles were summarised in Dalton, at [47].
As a result, for the Tribunal to permit an application lodged before the commencement of bankruptcy to proceed would be to permit the applicant to do something he is not entitled to do by reason of section 60 of the Bankruptcy Act without the written election of his trustee in bankruptcy. However, it could be said that the Tribunal cannot stay the proceedings, as required by that section, since it is not entitled to exercise jurisdiction in a Federal matter.
In that case the appropriate order for the Tribunal to make in such circumstances would be, as was done in Dalton, to decline jurisdiction as it has no jurisdiction to hear, determine, or makes orders.
It is noted that Part 3A of the Civil and Administrative Tribunal Act 2013 provides for the applicant to seek leave of a court to be able to pursue such an application. It is a matter for an applicant who initiated proceedings prior to the commencement of bankruptcy to consider whether to seek such leave.
Alternatively, it could be said that the stay applies by reason of the operation of the provisions of the Bankruptcy Act. While the Tribunal considers the former view preferable, it is not necessary to decided that point in this case.
On the other hand, when a person who is bankrupt commences proceedings while he or she is an undischarged bankrupt, it appears there is no entitlement to do so with the result that the applicant before the Tribunal has no standing to commence the proceedings. That is a status which arises from the operation of the Bankruptcy Act and does not require the Tribunal to exercise a power under that Act.
In relation to this application, the judgement in Singh v Khan [2021] NSWSC 1093, at [19] and at [23], records that a sequestration order was made against the applicant's estate on 6 May 2021 in the Federal Circuit Court. As it was commenced on 9 February 2022, this application was commenced after the commencement of the applicant's bankruptcy.
As a result, the subject application is governed by s 58, not by s 60, with the result that the applicant did not have standing to commence these proceedings and does not have standing to continue them. If the cause of action upon which the applicant seeks to rely arise before the commencement of his bankruptcy, s 58(1)(a) applies. If the cause of action upon which the applicant seeks to rely arise before the commencement of his bankruptcy, s 58(1)(b) applies.
The question becomes whether, in circumstances where the Tribunal does not have jurisdiction, does it have jurisdiction to decide whether it has jurisdiction? It has been held by the Court of Appeal that the Tribunal has the authority to decide whether the claims made to it are within its limited jurisdiction. That was said to be so on the basis that the Tribunal's decision is anterior to the exercise of federal jurisdiction and grounded in its implied jurisdiction to determine whether it has authority to decide a matter: Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213.
It is noted that, if there was an arguable question which required the Tribunal to consider and/or apply any provision in the Bankruptcy Act then the appropriate order for the Tribunal to make would be to decline s to deal with the application. Either way, this application cannot be permitted to proceed which is why the question of the impact of the applicant being an undischarged bankrupt needs to be determined at the outset of the proceedings.

Prior proceedings

There have been prior proceedings between these parties. Relevant to this application, on 7 February 2022 two applications were heard and determined: an application by the present applicant (RT 21/47463) and a residual aspect of an application of the present respondents (RT 21/32134).
Two of the three requests for orders in the previous application of the present applicant were requests for orders under s 187(1)(a) and s 187(1)(f) of the RTA, the third being a request for an order under s 11 of the RTA. Only that third request, for an order declaring that the RTA does not apply, was pursued on 7 February 2022. That request was unsuccessful.
In the reasons delivered on 9 February 2022, it was noted that the s 11 issue had been raised by the present applicant in earlier proceedings (RT 21/38704) which had been dismissed but it was presumed, in favour of the applicant, that the earlier application had been withdrawn with the result that it was not being raised as an issue for a second time.
Simply stated, the earlier application sought orders under paragraphs (a) and (f) of section 187(1) while this application seeks orders under paragraphs (d) and (e) of section 187(1). The fact that the applicant also sought a declaration under section 11 of the RTA in the earlier proceedings did not prevent him from raising the matters now raised as is evident from him raising other aspects of section 187 in those proceedings.
It is common for parties to raise seemingly inconsistent matters be making claims in the alternative. In other words, the applicant was entitled to contend that the RTA did not apply and, in the alternative, seek orders in case there is a determination that the RTA does apply.
In the application now under consideration, under the heading "Reasons for the Order/s", the applicant began by saying: "The cause of action arose on 9 Nov 2021 when the tenant came across the reasons of Graham Ellis SC." Plainly, that date should have read 9 February 2022. Even if that was the case, that does not alter the fact that the applicant could have brought all his claims based on section 187(1) of the RTA in his earlier application.
In relation to this issue, Courts and Tribunals take the view that the same issue cannot be raised more than once otherwise litigation would never be finalised. In everyday language, that principle could be summarised by saying 'you cannot have two bites of a cherry'. There are four ways in which this principle can be said to operate.
First, The Latin phrase res judicata is a term used to indicate that a claim has already been decided by another court (or Tribunal) and between the same parties. It arises from a prior decision made by a court or Tribunal. Secondly, estoppel is a rule which prohibits a person from contradicting what was determined in earlier proceedings. It arises from the conduct of the parties. Thirdly, the term issue estoppel goes beyond the outcome as it is used to indicate that a party is prevented from revisiting an issue that has been decided in earlier proceedings.
The fourth concept is usually referred to as Anshun estoppel, because the authoritative decision on that point is that of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, which provides a barrier to raising in subsequent proceedings a matter that could and should have been raised in earlier proceedings.
Thus, by way of summary, a decision in prior proceedings in a court or tribunal not only operates to finalise the issues between the parties raised in those prior proceedings but also acts as a barrier to revisiting in subsequent proceedings, other than by way of appeal, not only the same issues but also issues which could and should have been raised in the earlier proceedings.
The position may be simply stated that court and tribunals do not permit any party to engage in serial litigation by way of instalments or episodes but require all issues relating to the same subject matter between the same parties to be raised in the same proceedings. Indeed, it is usual for the Tribunal to hear and determine an application and cross-application at the same time, as occurred on 9 February 2022 between the parties to these proceedings.
Ms Carrol's only submission on this issue was that the decision of the High Court in Anshun operated to prevent this application being pursued on the basis that the issues it seeks to raise could and should have been raised in earlier proceedings.
The applicant made extensive oral submissions on this issue. However, by reason of the Tribunal's determination in relation to the preceding issue, it is not necessary to either summarise those submissions or to rule on this issue.

Orders

For the reasons set out above, the orders that will be made are as follows noting there is a typographical error in the family name of the second respondent: 1. The name of the second respondent is amended to Vinita Lekhwar. 2. The respondents are granted leave to be legally represented. 3. The application for disqualification for bias is rejected. 4. The application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2022

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