Singh v Owners Strata Plan No 11723

Federal Court of Australia|2012-10-16|Before: Griffiths J

INTRODUCTION 1 The respondent seeks various relief in respect of an appeal which is scheduled to be heard before a single Judge in the Full Court sittings on 5 November 2012. The respondent objects to the competency of the appeal and also seeks summary judgment under either or both ss 25(2B)(aa) and 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). A question also arises as to whether the appeal can proceed on 5 November 2012. 2 It is convenient to set out some background matters before dealing with the applications.

BACKGROUND MATTERS 3 On 24 May 2012, I delivered reasons for judgment dismissing the appellant's application for an order staying a sequestration order pending the hearing of an appeal to this Court (Singh v Owners Strata Plan No 11723 [2012] FCA 538 ("Singh (No 1)"). Those reasons for judgment should be read in conjunction with these reasons for judgment as I will endeavour to avoid duplication. 4 On 14 August 2012, I delivered reasons for judgment dismissing the appellant's interlocutory application filed on 3 August 2012 which sought production of what was described as "assessment certificates" in respect of certain amounts specified in the creditor's petition (Singh v Owners Strata Plan No 11723 (No 2) [2012] FCA 900). The creditor's petition formed the basis for the sequestration order made by Federal Magistrate Smith on 5 April 2012 against the estates of both Mr Singh and his wife, Ms Sarbjit Kaur (see The Owners Strata Plan No 11723 v Singh [2012] FMCA 308). Ms Kaur is no longer involved in the proceedings. 5 On 18 July 2012, the appellant's appeal came before Justice Emmett. His Honour made various orders, including setting the appeal down for hearing before a single Judge in the Full Court sittings commencing 5 November 2012. His Honour ordered that the usual orders as to written submissions and lists of authorities applied. His Honour also granted leave for the respondent to file in Court an amended notice of objection to competency and ordered that that application be listed for hearing before me. 6 On 31 July 2012, I made directions with a view to the amended notice of objection to competency being heard on 5 October 2012. The appellant did not appear at the directions hearing held on that day. The 31 July directions afforded the appellant an opportunity to make whatever application he wished by 3 August 2012 in respect of the directions made in his absence on 31 July 2012. In the event, no application was filed. 7 On 14 September 2012, the respondent filed detailed written submissions in support of its amended notice of objection to competency. 8 On 27 September 2012, the appellant filed a brief document entitled "Documents not received as per Court directions", in which he complained that the respondent's outline of written submissions had not been served at his address for correspondence by the directed date of 14 September 2012. He also included some brief written submissions opposing the amended notice of objection to competency. 9 On 4 October 2012, i.e. the day before the scheduled hearing of the amended notice of objection to competency, the appellant forwarded to the Registry by facsimile a medical certificate issued by a Dr LG Moussa stating that he was unfit to return to work until 7 October 2012. The doctor's medical certificate is difficult to read but seems to suggest that the appellant was suffering from some problem in his lumbar region. The appellant has represented himself throughout the proceedings in this Court (and in other courts, including the proceedings in the Federal Magistrates Court which now give rise to his appeal). In his facsimile forwarding the medical certificate, the appellant said that he was unable to attend the Court hearing on 5 October 2012 "due to unfitness". He asked the Registry to "inform the respondent accordingly". Plainly, this was an inappropriate request. The appellant has the responsibility of ensuring that material which he sends to, or files with, the Court Registry is also served upon the respondent. 10 The Court treated the facsimile as an application to adjourn the hearing. It was evident that the appellant had not sent a copy of his facsimile to the respondent. When the respondent became aware of the matter during the late afternoon of 4 October 2012, it indicated that it opposed any adjournment. The parties were advised by email on 4 October 2012 that the appellant's adjournment application would be heard at 10:15 am on 5 October 2012. The appellant was subsequently asked by email to indicate whether he could participate by telephone. The parties were also notified that they should be in a position to argue at the hearing of the amended notice of objection to competency whether s 31A of the FCA Act applied to the appeal. 11 When the matter came for hearing on 5 October 2012, there was no appearance by the appellant and no response was received to the email described above asking whether he could participate by telephone. 12 Ultimately Mr Radman (who appeared on behalf of the respondent) did not oppose the proceedings being adjourned. The matter was stood over for hearing at 10:15 am on 15 October 2012 and the following orders were made on 5 October 2012: 1. The hearing today is vacated. 2. The hearing of the respondent's amended notice of objection to competency is adjourned and will be heard at 10.15 am on 15 October 2012. 3. By 5 pm today the respondent to file and serve by email any further interlocutory application it wishes to make in respect of the appeal and any such application will be returnable and heard at 10.15 am on 15 October 2012. 4. The respondent to forward to the appellant at 7/33 Bowden Street Harris Park NSW 2150 by express post today: (a) a copy of these orders; (b) any such interlocutory application as referred to in paragraph 3 above; and (c) a copy of its outline of written submissions filed on 14 September 2012. 5. Any written supplementary submissions by the respondent in support of any interlocutory application should be filed and forwarded to the appellant by email and express post by close of business Monday 8 October 2012. 6. Any written submissions which the appellant wishes to rely upon at the hearing on 15 October should be filed and served by close of business Friday 12 October 2012. 13 Prior to the hearing resuming on 15 October 2012, the respondent filed an interlocutory application seeking to have the proceedings "summarily dismissed" under s 25(2B)(aa) of the FCA Act and r 36.11 of the Federal Court Rules 2011 (the 2011 Rules) and, in the alternative, seeking to have the proceedings "summarily dismissed" pursuant to s 31A of the FCA Act on the basis that Mr Singh had no reasonable prospects of successfully prosecuting his appeal. The respondent also filed written supplementary submissions dated 8 October 2012. Finally, the respondent filed an affidavit of Sylvia Quang sworn 5 October 2012 deposing to the fact that, on 14 September 2012, she posted a copy of the respondent's outline of written submissions to the appellant's address. I accept that evidence. 14 On 12 October 2012, the appellant filed a further document bearing that date and also entitled "Documents not received as per Court directions". Again, that document was not served on the respondent. The document, containing 10 paragraphs (which repeated much of the material in the earlier document with the same title, but also adding some new material), made further submissions in support of the appellant's appeal. It included the following paragraph dealing with the appellant's claim that the amount specified in the default judgment was incorrect (i.e. ground 1 of the notice of appeal): The total of the amount mentioned in default judgment is incorrect and involves sanctioning of duplicated standard legal fees and other amounts claimed by Respondents (sic) in the Local Court. These amounts were initially claimed in the Creditors Petition but the Respondents were not able to sustain them once required to provide details in their submission in Federal magistrate (sic) Court on 07 March 2012. It can be verified from these own (sic) submissions of Respondents (sic) on 07 March 2012 giving details on record that the amount mentioned in default judgment and based on which same (sic) claimed in Creditors Petition are incorrect. 15 On 12 October 2012, the appellant also forwarded to the Court Registry a second medical certificate from the same doctor. Again, that document was not served on the respondent. The second medical certificate is dated 11 October 2012 and, while suffering from the same difficulties of legibility as the first medical certificate, seems to suggest that Dr Moussa was certifying that the appellant was suffering from the same lumbar condition and that he would be unable to attend work until 15 October 2012. 16 The appellant did not formally make any application for an adjournment but included a request in his document dated 12 October 2012 to the effect that he should be allowed to proceed with the appeal fixed for 5 November 2012. 17 When the matter was called for hearing on 15 October 2012, there was no appearance by the appellant. The respondent opposed any adjournment. I ordered that the hearing should proceed in circumstances where no formal application for an adjournment had been made, the second medical certificate indicated on its face that the appellant was fit to resume work on 15 October 2012 and the fact that the hearing had already been adjourned once before and time was running short before the substantive appeal was scheduled to be heard on 5 November 2012. 18 Before proceeding to deal with the respondent's various interlocutory applications, it is convenient to say a little more about the different forms of relief sought by the respondent. In particular, it is important to note the difference between striking out a notice of appeal, as opposed to dismissing it. For reasons which I will develop, the Court clearly has the power to dismiss an appeal if it is incompetent or, alternatively, if the requirements of s 31A are satisfied. But while mere pleading deficiencies in the grounds of appeal may warrant the whole or parts of the notice of appeal being struck out, they will almost always be insufficient by themselves to warrant the proceedings being dismissed.

AMENDED NOTICE OF OBJECTION TO COMPETENCY 19 In broad terms, the respondent's objection to the competency of the appeal is based on the proposition that none of the 11 grounds of appeal set out in the notice of appeal raises any appellable error, whether of a legal, factual or discretionary nature. The respondent relies on r 36.72 of the 2011 Rules, which is in the following terms: Notice of objection to competency of appeal 36.72 (1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency: (a) in accordance with Form 125; and (b) that, briefly but specifically, states the grounds of the objection. (2) The appellant carries the burden of establishing the competency of an appeal. (3) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal. (4) If a respondent has not filed a notice under subrule (1), and the appeal is dismissed by the Court as incompetent, the respondent is not entitled to any costs of the appeal. (5) If the Court decides that an appeal is not competent, the appeal is dismissed. 20 The essential basis underlying the amended notice of objection to competency is the allegation that the appellant has failed to identify in his notice of appeal any tenable grounds of appeal, in the sense of identifying how it is said that the Federal Magistrate erred, whether in law, fact or in the exercise of discretion. 21 For reasons which I will now develop, I believe that the respondent may have misconceived the Court's power under r 36.72 to dismiss an appeal for lack of competency. In particular, the respondent seems to have assumed that non-compliance with r 36.01 provides a sufficient basis to have an appeal dismissed for incompetency. 22 It is well established that the Court's appellate jurisdiction involves an appeal by way of rehearing to correct error and not to conduct a de novo hearing (see, for example, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] per Allsop J). 23 The central task of error correction is also highlighted by the need to identify in the notice of appeal the specific grounds relied on in support of an appeal. Rule 36.01 relevantly provides as follows: Form of notice of appeal 36.01 (1) A party who wants to appeal to the Court must file a notice of appeal in accordance with: (a) for an appeal from the Federal Magistrates Court - Form 121; or … (2) The notice of appeal must state: … (c) briefly but specifically, the grounds relied on in support of the appeal; and … (emphasis added). Form 121, which relates specifically to appeals from the Federal Magistrates Court, makes specific provision for grounds of appeal to be identified. 24 The question which arises is whether an appeal is incompetent and liable to be dismissed under r 36.72 if an appellant fails to comply with r 36.01. As noted above, the respondent appears to have assumed that dismissal of the appeal under that provision necessarily follows from a failure by an appellant to set out in a notice of appeal briefly, but specifically, the grounds relied on in support of the appeal. 25 The correct position is set out in the leading judgment of North J (with whom Weinberg and Jessup JJ agreed) in Zegarac v Dellios [2007] FCAFC 58 and is encapsulated in [7] as follows: In my view, it does not follow that a failure to comply with Order 52 Rule 13(2) renders an appeal incompetent. If the notice is incomprehensible or entirely unrelated to the issues dealt with in the judgment, an appeal may be incompetent. Examples relied upon by Mr Nixon are indeed cases of incomprehensibility: Lindsey v Philip Morris Limited [2004] FCAFC 40; Kendrick-Smith v Australian Competition & Consumer Commission [2003] FCAFC 155; Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773. However, in this case the notice of appeal, while prolix and not in compliance with Order 52 Rule 13(2), is not incomprehensible. It is clear from the document as a whole that Ms Zegarac contends that his Honour erred in holding that she had not established that the judgment in the Magistrates Court was obtained by fraud. Thus, the relief sought in paragraph 1 of the motion should be refused. 26 While agreeing with North J's reasons, Jessup J also added at [12] that he thought that the Court "ought to be particularly cautious before it uses r 18 to deal with a Notice of Appeal which is comprehensible, albeit prolix, and unlikely to be regarded as complying with O 52 r 13(2)(b)". Rule 36.01 of the 2011 Rules has replaced O 52 r 13 of the previous Rules and r 36.72 has replaced O 52 r 18. 27 In SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279 at [6], Flick J held that a failure to comply with O 52 r 13(2)(b) did not render an appeal incompetent, citing Zegarac as authority. 28 For completeness, I set out below the terms of O 52 r 18 of the previous Rules as referred to and applied in Zegarac: Competency of appeal 18 (1) A respondent may move on notice at any time for an order dismissing an appeal as incompetent. (2) Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant. (3) If a respondent does not move under subrule (1) but the appeal nevertheless is dismissed by the Court as incompetent, the respondent shall not, unless the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay the appellant any costs of the appeal proving useless or unnecessary. 29 Although Zegarac was directed to the relevant provisions under the previous Rules, I consider that the terms of the 2011 Rules do not require a different approach to be taken on this issue. 30 Such an approach recognises that, while mere non-compliance with r 36.01 is insufficient to render an appeal incompetent, the position may be different if the notice of appeal is also incomprehensible, as is illustrated by the examples of incomprehensibility cited by North J in the passage from Zegarac set out in [25] above. 31 In determining whether one or more grounds of appeal are incomprehensible, I consider that it is appropriate to approach the task as one of determining whether the notice of appeal, as a matter of substance, specifies appellable errors. If it does not, as Flick J observed in SZLQW at [9], it may simply be a question as to whether an order should be made dispensing with any requirement to comply with the Rules, as is permitted under r 1.34 of the 2011 Rules. As his Honour also observed, although compliance with the Rules should not be lightly put aside, compliance should not become an "instrument of oppression". And, while it is appropriate to make some allowance for the fact that a party is a litigant in person, that fact alone cannot provide a basis for the Court exercising a jurisdiction which it does not have.

SUMMARY JUDGMENT UNDER SECTION 25(2B)(aa) 32 As noted above, the respondent also seeks to have the proceedings summarily dismissed under s 25(2B)(aa) of the FCA Act and r 36.11 of the 2011 Rules. That statutory power is relevantly in the following terms: Exercise of appellate jurisdiction 25 … (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may: (aa) give summary judgment; … 33 Rule 36.11 is relevantly in the following terms: Directions 36.11 (1) A party may apply to the Court, constituted by a single Judge, for directions in relation to the management, conduct and hearing of an appeal. (2) Without limiting subrule (1) a party may apply to the Court for an order for the following: … (e) giving summary judgment; … 34 In its supplementary submissions dated 8 October 2012, the respondent cited Collier J's decision in Conde v Hunter [2009] FCA 1016 in support of the proposition that the Court has power under s 25(2B)(aa) of the FCA Act to strike out a notice of appeal which does not disclose any arguable basis for granting the appeal. It is to be noted that the proposition outlined immediately above is narrower than the relief sought by the respondent in that part of its interlocutory application which seeks summary dismissal under s 25(2B)(aa) of the FCA Act (as opposed to striking out). 35 In Conde v Hunter, her Honour took the view that, independently of the Court's power to give summary judgment under s 31A of the FCA Act, there is a power to strike out a notice of appeal if the notice of appeal does not disclose arguable grounds of appeal (see, in particular, at [18]). In that case, her Honour proceeded to strike out the notice of appeal in its entirety in circumstances where her Honour found that none of the appellant's 14 grounds of appeal had any merit. The notice of appeal was struck out as an abuse of process pursuant to s 25(2B)(aa) of the FCA Act. 36 It is significant to note that her Honour did not summarily dismiss the appeal. Her Honour was plainly aware of the distinction between striking out and dismissing an appeal, as is reflected in her Honour's reference in [15] to Tamberlin J's decision in Patten v New Holland Credit Australia Pty Ltd [2006] FCA 1724. In that case, Tamberlin J struck out a notice of appeal in circumstances where his Honour found that it did not disclose any basis which had a reasonable prospect of success, but did not take the further step of dismissing the proceedings on the basis that no reasonable cause of action could be shown.

SUMMARY JUDGMENT UNDER SECTION 31A 37 As noted above, in its interlocutory application the respondent also relied in the alternative on s 31A of the FCA Act. Section 31A is relevantly in the following terms: Summary Judgment 31A (1) … (2) The Court may give judgment for one party against another in relation to the whole or any part of the proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospects of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 38 The power conferred by s 31A of the FCA Act to dismiss a proceeding which has no reasonable prospects applies to appeals, having regard to the definition of "proceeding" in s 4 of the FCA Act (see Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118 and Kowalski v Superannuation Complaints Tribunal [2010] FCA 473). 39 It is now clearly established that the Court's power to give a judgment under s 31A of the FCA Act does not involve "mere pleading points". The nature and scope of that power, together with the difficult issues which can arise with some litigants in person, were conveniently described by Rares J (with whom North and Emmett JJ agreed) in Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 at [43]-[45] as follows: Principles In considering whether to exercise the power to give judgment under s 31A of the Act, the Court is not concerned with mere pleading points. Rather, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [50] (see too Noble Investments Pty Ltd v Southern Cross Exploration NL [2008] FCA 1963 at [34]-[40] per Lander J) the section is concerned with the bringing and defending of proceedings and with substance, not just with form. In Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [19]- [21], French J said: The question which has to be answered in an application for judgment under s 31A is whether the party against whom the application is made has any "reasonable prospect" of successfully prosecuting or defending "the proceeding" or the "part of the proceeding" in issue. That question is not to be answered by a finding that a party's statement of claim or defence fails to disclose a reasonable cause of action or defence. A pleading may be rectified by amendment so as to raise a reasonable cause of action or defence. It follows that a finding that a pleading should be struck out under O 20 does not mean there must be judgment against the party whose pleading it is. There may yet, by amendment, be a reasonable prospect of successfully prosecuting or defending that proceeding. In order to secure judgment under s 31A it must be shown that the party prosecuting or defending the proceeding has no reasonable prospect of success. This judgment can be made, by reference to pleadings, where there is a defect in the pleadings which cannot be cured. Alternatively, it may be a judgment made by reference to evidence put on in support of an application under s 31A which reasonably excludes the possibility that facts essential to the success of the claim or defence will be able to be established. ... Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Section 31A allows for "judgment" or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of Court. ... Proceedings involving parties who represent themselves pose particular difficulties for courts. Self-represented litigants often have little legal training but frequently take considerable effort to try to make themselves familiar with aspects of the law or the Court's procedures which they see as being relevant to their case, with greater or lesser degrees of accuracy. Of course, the judge or Court cannot be placed in the position where any of the litigants before the Court perceive that it is assisting a litigant-in-person in a way which compromises the integrity and impartiality of the hearing. Nonetheless, some forms of assistance, such as suggestions made by the primary judge that an affidavit be filed, can often be appropriate. But where the self-represented litigant has not taken the hint, it may be necessary to remind him or her that the failure to do so may have the consequence that the proceedings will be dismissed. (Footnotes omitted.) 40 I consider that Rares J's description of the nature and scope of the power under s 31A is consistent with the High Court's analysis of the provision in Spencer v The Commonwealth (2010) 241 CLR 118. It is also important not to lose sight of the need to proceed with particular caution before summarily dismissing proceedings. In Spencer at [24], French CJ and Gummow J made the following observations on that issue: The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said: The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried. More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following: Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

CONSIDERATION 41 With those general principles in mind, it is appropriate to now turn and consider each of the grounds set out in the appellant's notice of appeal. For convenience I set out below verbatim the terms of each of those grounds of appeal, save for ground 11 which discloses no identifiable ground of appeal (it is styled "Observations on reasons for judgment (on 17 April 2012)" and comprises 4 pages of commentary on individual paragraphs of the Federal Magistrate's reasons for judgment). My consideration of each of the grounds of appeal is set out immediately below the relevant ground.

Ground 1 1. The total of amount mentioned in default judgment by Honourable Local Court on 06 May 2011 is incorrect. On bringing this to the notice of Honourable District Court during appeal, the Honourable Registrar/Judge sent case file to Local Court alongwith (sic) directing the Applicants to bring same to notice of Local Court. Accordingly the Applicants brought same to the notice of Local Court on 20 February 2012 with no reply received till date inspite (sic) repeated personal visits and requests to expedite. 42 Although this ground of appeal does not in its terms identify any appellable error, it might be assumed in the appellant's favour that he is complaining that the Federal Magistrate erred in granting the sequestration order where there was an arithmetical error in the amount of the default judgment as stated in the certificate of judgment issued by the Local Court. 43 In my view, having regard to the approach in Zegarac, the appellant's failure to comply with r 36.01 in respect of this ground of appeal does not produce incompetency. 44 I dealt with the first ground of appeal in [34] in Singh (No 1). I concluded that Mr Singh had failed to establish that he had an arguable point in respect of Smith FM's analysis or reasons concerning this ground. Those reasons and analysis are set out in [10] to [12] of his Honour's reasons. His Honour deduced (as best he could) that Mr Singh's complaint related to a $60.00 discrepancy between the amount shown in the certificate of default judgment and a letter dated 15 August 2011 which Mr Singh received from the Local Court registry. His Honour concluded that there was "an unexplained discrepancy in the letter from the registry". He concluded that he was not satisfied that this raised any good reason for going behind the amount in the certificate of judgment upon which the bankruptcy notice was based. Furthermore, his Honour accepted the respondent's submission that such a minor discrepancy did not justify going behind the judgment in circumstances where there undoubtedly was a real debt owing upon which the bankruptcy proceedings could properly be based. 45 I set out in [14] above a passage from Mr Singh's submissions dated 12 October 2012 dealing with the first ground of appeal. It is to be noted that Mr Singh contends that the alleged error in the default judgment "involves sanctioning of duplicated standard legal fees and other amounts claimed by Respondents (sic) in the Local Court". This seems to raise different issues to the $60.00 discrepancy referred to above. That apparent change of position by Mr Singh serves to highlight the deficiency in the current pleading of ground 1. As matters stand at present, there is considerable uncertainty as to the meaning of ground 1 (the same could also be said in respect of ground 10, which is related to ground 1). In my view, ground 1 should be struck out as embarrassing. However, I do not consider that this is an appropriate case in which to exercise power under s 31A having regard to the general principles I have outlined above. This applies to all of Mr Singh's grounds of appeal.

Ground 2 2. Summons for transfer of appeal to Supreme Court involving complex issues due to repeated falsification of documents and obtaining default judgment in absence of Applicants already filed on 23 March 2012. 46 As I pointed out in [35] of Singh (No 1), Smith FM carefully considered and rejected this ground for reasons which are set out in [25] to [28] of his reasons for judgment. Furthermore, after that judgment was delivered, Mr Singh's Supreme Court proceedings were heard and dismissed by Adamson J. Accordingly, this ground of appeal has been overtaken by subsequent events and is doomed to fail. It should be struck out.

Ground 3 3. Complaint for initiating criminal proceedings for filing false affidavits already made by Applicants with state investigation agencies. 47 As the respondent contends, ground 3 fails to identify or particularise any appellable error on the part of the Federal Magistrate. It is not evident that the subject matter was even agitated before his Honour. Moreover, Mr Singh has not demonstrated the relevance of the complaint to the appeal. For these reasons, I consider that ground 3 should be struck out.

Ground 4 4. The case filed by managing agent without approval in a general meeting of Owners Corporation in voilation (sic) of Sect 80 D of Strata Scheme Management Act 1996. 48 It is convenient to deal with grounds 4, 6, 7 and 9 together because they all seem to have a common theme, namely that the respondent's managing agents lacked authority to commence and progress the bankruptcy proceedings against Mr Singh. 49 Smith FM dealt with this allegation and concluded that: (a) based on the evidence, the original strata managing agents had the requisite authority to instruct a solicitor to bring the bankruptcy proceedings ([15]); (b) although the respondent voted on 4 March 2011 to terminate the authority of Bright & Duggan Pty Limited as strata managing agents, that termination did not take effect until 4 June 2011 i.e. after instructions had been given to issue the bankruptcy notice. Those instructions were then ratified by the new agents ([21]); (c) the appellant's allegation that Bright & Duggan had produced fabricated agreements and other document containing discrepancies were rejected in light of the Court's acceptance of the two strata title managers' affidavit and oral evidence ([15]); and (d) Bright & Duggan Pty Limited had authority to act on behalf of the respondent in instructing solicitors to initiate bankruptcy proceedings against Mr Singh ([21]). 50 Mr Singh was given an opportunity to demonstrate that grounds 4, 6, 7 and 9 raise an arguable point in respect of the Federal Magistrate's detailed reasoning. As noted above, he filed two sets of written submissions dealing with various aspects of the respondent's interlocutory applications. In my view, he has failed to identify any arguable appellate error in the Federal Magistrate's reasons dealing with these matters as currently pleaded. I consider that these grounds should be struck out.

Ground 5 5. The filing of incorrect Statement of Claim on 06 August 2010 and subsequent falsification of documents to coverup (sic) discrepancies pointed (sic) found to be in major voilation (sic) of legal (sic) Profession Act 2004 Sect 329. 51 This ground of appeal is in substantially similar terms to ground 2 of the appeal in Mr Singh's unsuccessful proceedings before Smith FM. As I noted in [40] of Singh (No 1), the Federal Magistrate dealt collectively with this ground and other grounds raised by Mr Singh relating to internal management matters concerning the body corporate, the retention of strata agents, the conduct of meetings and instructing solicitors. Because of Mr Singh's inability to identify and particularise his complaints in those respects, his Honour dealt with them at a high level of generality and rejected them ([29]). Mr Singh did not advance matters any further before me. I am of the opinion that ground 5 is embarrassing and should be struck out.

Ground 6 6. Termination of services of managing agent Bright & Duggan by written resolution signed by majority in Annual General Meeting of 20 January 2011, who filed this case without approval by Owners Corporation and withdrawl (sic) of case against Applicants with immediate effect. Due to defiant attitude of managing agent Bright & Duggan services again terminated with immediate effect vide resolution in EGM on 04 March 2011. 52 See [48] to [50] above.

Ground 7 7. Production of fabricated Agreement by manging (sic) agent Bright & Duggan in Local Court on 24 March 2011 with lot of discrepancies(haphazard numbering of pages, signed by name neither authorised in resolution nor on Strata Roll) and non (sic) of annexures attached signed/initialed (sic) by any signatory. 53 See [48] to [50] above.

Ground 8 8. Default judgment obtained in absence of Applicants on 06 May 2012 from Registrar Small Claim Division of Local Court even beyond its jurisdiction of $10000 without assessment of huge legal costs claimed and same observed by Honourable Judge District Court in its judgment dated 18 November 2011. 54 I dealt with this ground in [43] to [48] of my reasons for judgment in Singh (No 1). Smith FM gave comprehensive reasons for declining to go behind the default judgment. Mr Singh has failed to identify any arguable appellable error in his Honour's reasons on this issue. Accordingly, ground 8 should be struck out.

Ground 9 9. Bankruptcy proceedings initiated by managing agent (sic) Bright & Duggan on 17 May 2011 whose services already terminated and thus not an authorised creditor. To this affidavits (sic) filed by managing agents on 22 November 2011 were found to be full of contradictions and same brought to notice of Honourable Federal Magistrate (sic) Court through affidavits filed by Applicants. 55 See [48] to [50] above.

Ground 10 10. The amount claimed in creditor petition is over and above the amount mentioned in default judgment and the amount of $ (sic) claimed for hearing on 30 June 2011 is not sanctioned by any Court. 56 This ground does not appear to add anything of significance to ground 1, which I have dealt with above and found to be embarrassing. I consider that the same applies to ground 10. Accordingly, ground 10 is struck out.

Ground 11 11. OBSERVATIONS ON REASONS FOR JUDGMENT (ON 17 APRIL 2012) … 57 Ground 11 does not disclose any appellable error, but rather constitutes a lengthy narrative or commentary on aspects of Smith FM's reasoning. The material is embarrassing and should be struck out.

Ground 12 12. The Honourable Magistrate in Reasons for Judgment has repeatedly in Para 2, 12, 15 and 19 said that the Court discretion to go behind the default judgment even things found incorrect is not exercised in passing this order. For default judgment under appeal in Honourable Supreme Court and also clarification under direction of Honourable District Court to Honourable Local Court on amount of default judgment found incorrect, the bankruptcy proceedings could have been at least put on hold till decision by the Courts which are required to go behind the default judgment. 58 As I pointed out in [53] of Singh (No 1), this ground is difficult to comprehend, but I doubt that it could be described as totally incomprehensible and, therefore, incompetent. I concluded in Singh (No 1) that the ground did not raise any arguable point. Mr Singh has not advanced the matter any further and I now conclude, for the same reasons as I gave in [53] and [54] of Singh (No 1), that ground 12 should be struck out. Even if ground 12 is not totally incomprehensible, I consider that it is embarrassing in its current form and fails to identify any arguable appellable error.

CONCLUSION 59 For all these reasons, I consider that all of the proposed grounds of appeal suffer from various fatal deficiencies and should be struck out. Accordingly, the notice of appeal should be struck out under s 25(2B)(aa) of the FCA Act as an abuse of process and the appellant ordered to pay the respondent's costs. 60 On the issue of costs, although the respondent has not succeeded in respect of its amended notice of objection to competency, there is a considerable overlap between the matters raised by that application as well as the interlocutory application filed on 5 October 2012. I see no reason why the usual rule should not apply, i.e. costs should follow the event, being the respondent's success in having the notice of appeal struck out in its entirety. 61 I have declined to dismiss Mr Singh's appeal but, as matters stand at present, all his grounds of appeal have been struck out. It is a matter for Mr Singh to now urgently determine what course he wishes to take in view of the fact that his appeal is scheduled to be heard next month. It appears that Mr Singh has taken few steps to progress his appeal. No appeal book has been filed even though Part A was required to be filed by 2 August 2012 in accordance with directions made on 28 June 2012 by the Deputy District Registrar. Nor has the appellant complied with paragraph 3 of the orders made by Justice Emmett on 18 July 2012, which included orders for finalising the appeal book and filing an outline of submissions and chronology. These matters will need to be addressed at a directions hearing. If Mr Singh wishes to seek leave to amend his notice of appeal he should prepare a proposed amended notice of appeal and file and serve a copy of it in advance of the directions hearing. It is essential that any such proposed amended notice of appeal identify arguable appellable errors and otherwise comply with the 2011 Rules. 62 In those circumstances, I will list the matter for directions before me at 9:30 am on 23 October 2012 to deal with any application which Mr Singh wishes to make and to determine the future conduct of the matter. Accordingly, I make the following orders: 1. The notice of appeal filed on 24 April 2012 is struck out under s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) as an abuse of process. 2. The amended notice of objection to competency filed 18 July 2012 is dismissed. 3. The appellant is to pay the respondent's costs of its amended notice of objection to competency and its interlocutory application filed 5 October 2012. 4. The matter is listed for directions before me at 9:30 am on Tuesday 23 October 2012. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Federal Court Rules 2011(Cth)r 36.01, 36.11, 36.72

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (18)