Singh v Owners Strata Plan No 11723

Ground 1 18 Ground 1 is in substantially similar terms to ground 1 of the original notice of appeal, which was struck out for reasons set out in [44] to [45] in Singh (No 3). The appellant has seemingly sought to address the problems with his original pleading by reformulating the ground and adding a lengthy narrative. The lengthy narrative also seems to draw on some elements of grounds 2, 3, 5 and 10 of the original notice of appeal, all of which were struck out. 19 In my view, far from clarifying the proposed ambit of this ground of appeal, the proposed amendments add to the confusion and uncertainty which affected the original grounds of appeal which were struck out. The lengthy and largely unintelligible narrative compounds the problem of the failure to identify any appellable error. I should add that Mr Singh was not able to overcome these problems in his oral submissions. I invited him repeatedly to identify the amounts which he alleges are incorrect in the creditor's petition and default judgment. I found his answers to be unintelligible and illogical. Moreover, they bore no relationship to many of the matters set out in the written narrative to ground 1. Of particular significance, however, Mr Singh accepted that there was an underlying debt which, he said, he was prepared to pay as long as he was given the "correct figures" and that they were proven. Mr Singh gave the impression that he expected the Court to in effect conduct a detailed review of the correctness of the amounts in the relevant documents. He seemed not to grasp that, for leave to be granted, he needed to identify an appellable error in the Federal Magistrate's findings or reasons. 20 Even if it were possible to divine from the meandering narrative what are the alleged erroneous amounts and why it is said that they are wrong, the appellant has failed to identify any appellable error in Smith FM's findings or reasons. His Honour's central reasoning in rejecting the ground was that he saw no good reason to go behind the certificate of judgment in the Local Court (see [11] of his Honour's reasons for judgment). His Honour was fortified in that view by the fact that, even if there was some arithmetical error in the amounts, he would not go behind the judgment to investigate their calculation where there was no contest from the appellant that there was in fact a real underlying debt upon which the bankruptcy proceedings could properly be based (see [12] of his Honour reasons for judgment). 21 His Honour's approach to these matters is entirely consistent with the Full Court's decision in Olivieri v Stafford (1989) 24 FCR 413 at 422-424 per Beaumont J and at 430-432 per Gummow J. The central question is not whether the amount in the creditor's petition or default judgment is wrong and should be reduced but rather whether there is a debt upon which the bankruptcy proceedings can be founded. The appellant accepted in oral argument that there was such a debt, but he challenged the correctness of the amount. Ground 1 discloses no appellable error in respect of the approach taken by the Federal Magistrate in respect of this issue. I refuse leave.

Ground 2 22 This proposed ground appears to relate to a failure to obtain an assessment of the default judgment and it substantially reflects ground 8 of the original notice of appeal (which was struck out). But the specific content of the ground is far from clear. The uncertainty is neither removed or reduced by the accompanying narrative. Despite the reference to Smith FM having "erred on facts", the ground identifies no such appellable error. In my view, leave should not be granted in respect of this proposed ground.

Ground 3 23 This proposed ground of appeal substantially reflects ground 4 (and also possibly ground 3) of the original notice of appeal, which were struck out for reasons stated in [47], [49] and [50] of Singh (No 3). In my view, that reasoning applies equally here. The appellant has failed to identify any arguable appellate error and I refuse leave.

Ground 4 24 This appears to be a fresh ground of appeal which relates to an alleged denial of procedural fairness by the District Court. It appears that the issue was not agitated before the Federal Magistrate. As Smith FM found in [16], Mr Singh had ample opportunity to rectify any procedural unfairness he suffered in the Local Court in the proceedings he brought in the District Court. That is particular so when, as his Honour noted at [16], Mr Singh was given a further opportunity by Delaney DCJ to formulate intelligible grounds of appeal. He sought to avail himself of that opportunity but failed in his endeavour. I can see no basis for any appellable error in this matter insofar as Smith FM's judgment is concerned. I refuse leave.

Ground 5 25 This proposed ground substantially reflects ground 12 of the original notice of appeal, which was struck out for reasons set out in [58] of Singh (No 3). That reasoning applies equally to the proposed replacement ground. I refuse leave.

Ground 6 26 This appears to raise a fresh ground of appeal. In its current form it identifies no appellable error on the part of Smith FM. According to the narrative which accompanies the proposed ground, it appears to relate to [23] of Smith FM's reasons, in which his Honour found that the appellant and his wife had not attempted to present a case concerning the discretion to decline to make a sequestration order under s 52(2)(a) of the Bankruptcy Act 1966 (Cth), by showing that they are able to meet their debts. 27 In his narrative accompanying this proposed ground of appeal, the appellant makes the following statement: In para 56 of Affidavit filed in Federal Magistrate Court with BR FORM 5 opposing Creditors Petition ability to meet debts is submitted "So the sole purpose of applicant is to build unnecessary pressure on respondents in respectable jobs with enough liquidity without contesting the Default Judgment in Court of Law." 28 It appears that that material has been extracted from [56] of the appellant's affidavit affirmed 8 November 2011 and filed on that day in the Federal Magistrates Court. But far from providing any evidentiary basis contradicting Federal Magistrate Smith's finding that the appellant had not presented a case demonstrating that he was able to meet his debts, the extract from the affidavit is nothing more than an assertion or submission. The extract does not constitute evidence in support of an assertion of solvency. There is simply no evidentiary basis for ground 6. It is doomed to fail. I refuse leave in respect of it.

Ground 7 29 This ground substantially reflects grounds 4, 6, 7 and 9 of the original notice of appeal. All those grounds were struck out for reasons given in [49] and [50] of Singh (No 3). In my view, that reasoning applies equally to proposed ground 7. I refuse leave. 30 I should also add that in determining to refuse leave I have taken into account the High Court's decision in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 ("Aon"). That decision clearly establishes that there is no automatic right to amend pleadings merely because proposed amendments raise arguable issues and there is no prejudice which is not compensable by costs. The just resolution of proceedings remains the paramount purpose which should guide the consideration of the proposed amendments (see Aon at [98]). It was also made clear in Aon that other relevant factors in considering an application for amendment is the nature and importance to the party seeking those amendments. 31 In refusing leave to amend the notice of appeal, I have taken into account the nature and importance of the proposed amendments to Mr Singh (bearing in mind the adverse consequences for him of the sequestration order being made), but I consider that this consideration is outweighed by other considerations. Not the least of those other considerations is the fact that none of Mr Singh's proposed grounds of appeal identify an appellable error on the part of Smith FM. In my opinion, Mr Singh has had adequate opportunity to formulate proper and arguable grounds of appeal, but he has failed to do so. 32 Mr Singh was afforded an opportunity to present arguable proposed grounds of appeal and obtain leave to amend his notice of appeal. He belatedly availed himself of that opportunity but, for reasons given above, such leave has been refused. Having regard to the difficulties which Mr Singh has in expressing himself intelligibly and coherently I regret to say that I have no confidence that he could present arguable and appropriately formulated grounds of appeal. Although, of course, each case needs to be looked at individually, the following observations of Mansfield J Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 at [13] also apply here: In my judgment there is no prospect, giving Mr Zambini by a further opportunity to amend his notice of appeal, that he would be able to do so in a way which complies with O 52 r 13(2)(b). That is not simply because I have reached the view that he is unable to express himself in terms which would satisfy that rule. It is also because, as a result of his various responses to the motion referred to above, there is no apparent ground of appeal which might be arguable even if properly expressed. It is plain not simply that O 52 r 13(2)(b) has not been complied with, but that there is no prospect of it being complied with. It is also plain Mr Zambini is unable to express any error on the part of the learned judge at first instance which might give him an arguable prospect of the appeal succeeding, nor to express any error of law on the part of the Tribunal in its decision-making process. 33 Accordingly, for all these reasons, leave to amend the notice of appeal is rejected. 34 Before proceeding to deal with the respondent's interlocutory application, it is convenient if I say something further regarding the matters raised in the appellant's email dated 25 October 2012 and, in particular, to some of the matters referred to in [9] above. The appellant seems to be suggesting that he has been prejudiced and distracted by the interlocutory applications filed since he commenced his appeal. He refers to the "large number" of interlocutory applications filed by the respondent. The true position is that the appellant himself is responsible for filing the interlocutory applications which are the subject of my decisions in Singh (No 1) and Singh (No 2). The respondent filed the two interlocutory applications the subject of Singh (No 3) and also the interlocutory application which is the subject of this judgment. 35 I shall now consider the respondent's interlocutory application for summary dismissal of the appeal.

Summary of respondent's submissions 36 The respondent relies upon the following relevant provisions of the Act and the 2011 Rules in support of its interlocutory application to have the appeal summarily dismissed. 37 First, ss 25(2B)(ba) and (bb) of the Act confer certain powers on a single Judge or a Full Court in exercising the Court's appellate jurisdiction. They are relevantly in the following terms: (2B) A single judge (sitting in chambers or in open court) or a Full Court may: … (ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order that an appeal to the Court be dismissed for: (i) failure to comply with a direction of the Court; or (ii) failure of the appellant to attend a hearing relating to the appeal; or … 38 Secondly, r 36.74 of the 2011 Rules provides: Application to dismiss appeal (1) A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following: (a) comply with a direction of the Court; (b) comply with these Rules; (c) attend a hearing relating to the appeal; (d) prosecute the appeal. (2) An application under subrule (1) must be served on the appellant: (a) at the appellant's address for service; or (b) personally. 39 Moreover, the respondent relies upon authorities such as Van Reesema v Giameous (1979) 27 ALR 525; Goldie v The Commonwealth of Australia [2004] FCA 973; Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28; Shirreff v Beck Legal Pty Ltd (No 3) [2011] FCA 604 and SZISM v Minister for Immigration and Citizenship (2007) 158 FCR 292 as elucidating the relevant principles relating to the exercise of those powers. 40 Those principles may be summarised as follows: (a) the power to dismiss an appeal for want of prosecution must not be lightly exercised. Even where an appellant is doing little to prosecute an appeal, every effort should be made to have the appeal heard and determined in a manner which is consistent with the interests of the other parties and the public interest in the administration of justice; (b) failure to comply with rules which are designed to ensure that an appeal can be heard in a timely and organised manner may justify dismissal of the proceedings, but that will necessarily depend on the facts and circumstances of each individual case as well as a consideration of other interests which are relevant to the proper administration of justice; (c) an unexplained frequent and persistent failure to comply with directions may result in an appeal being dismissed. It is relevant, in this context, to take into account case management considerations of the kind raised by s 37M of the Act; (d) another relevant consideration is the prejudice to the respondent of the appellant's failure to prosecute an appeal in a timely and efficient way; and (e) the clear purpose of the relevant provisions in the Act and the 2011 Rules empowering summary dismissal of an appeal is the efficient dispatch of Court business. 41 The respondent relies upon a long list of failures on the appellant's part to comply with the 2011 Rules and the Court's directions. That list includes the following matters: (a) failure to serve the original notice of appeal on the respondent; (b) failure to briefly, but specifically, state grounds in the original notice of appeal; (c) failure to serve the respondent with the appellant's interlocutory application filed 2 May 2012; (d) failure to serve a copy of the index to Part A and Part B of the appeal papers as directed by the Registrar on 28 June 2012; (e) failure to file and serve a complete copy of the appeal book, contrary to the Registrar's directions dated 28 June 2012; (f) failure to serve a copy of the appellant's interlocutory application filed 3 August 2012; (g) failure to serve a copy of the appellant's brief outline of submissions in relation to the respondent's amended notice of objection to competency; (h) failure to serve an outline of submissions or chronology in respect of the appeal contrary to the orders made by Justice Emmett on 18 July 2012; and (i) failure to serve a copy of the appellant's outline of submissions in relation to the respondent's interlocutory application filed 5 October 2012. 42 The respondent further submits that the appellant has not adduced any admissible evidence explaining his numerous failures to comply with the 2011 Rules and various Court directions. Nor has he demonstrated that he is in a position to rectify the failures so that the appeal can proceed on 5 November 2012. 43 The respondent also submits that the appeal should be dismissed for want of prosecution. At present, there are no grounds of appeal to be determined by the Court because the notice of appeal was struck out in its entirety. Furthermore, the appellant has failed to obtain leave to amend in respect of his recent proposed amended grounds of appeal. The respondent also relies upon the fact that it is prejudiced by the appellant's conduct of the appeal and his repeated failure to comply with relevant requirements. The debt owed to the respondent continues to accrue and, as at 22 October 2012, was approximately $125,000 i.e. almost double the amount set out in the creditor's petition which formed the basis for the sequestration order made by Smith FM. 44 The respondent also draws attention to the fact that the appellant is yet to submit a statement of affairs to the trustees of his bankrupt estate. It submits that the rights of creditors could be prejudiced as the trustees are unable to identify all of the appellant's creditors. It further submits that the prejudice both to it and to other creditors, coupled with the inefficient use of the Court's resources caused by the appellant's repeated failure to comply with Court directions and the 2011 Rules, are factors which support the appeal being dismissed for want of prosecution.

consideration 45 In my view, this is an appropriate case to dismiss the appeal under either or both ss 25(2B)(ba) and (bb) of the Act. 46 First, as is evident from the list described above, the appellant has repeatedly failed to comply with Court directions and relevant requirements of the 2011 Rules. The appeal has now been on foot for six months yet, as I observed in [61] of Singh (No 3), 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. Nor has Mr Singh complied with paragraph 3 of Justice Emmett's orders dated 18 July 2012, which included orders for finalising the appeal book and filing and serving an outline of submissions and chronology in accordance with practice notes APP2 and CM2. 47 Although Mr Singh did not attend to these matters before the directions hearing held on 23 October 2012, he did take some steps immediately prior to the hearing on 25 October 2012. Those steps are described in [9] above. His application for leave to amend the grounds of his notice of appeal has been refused. Accordingly, as matters stand at present, there are no grounds in his notice of appeal and many other steps need to be taken before any appeal would be ready for hearing. 48 Furthermore, I accept the respondent's submission that Mr Singh has not demonstrated that he is in the process of taking steps to rectify his past non-compliance. 49 Mr Singh included a "request" in paragraph 9 of his document dated 22 October 2012 that the Court should set aside the sequestration order on the basis of the "facts on record" (whatever they might be). In the alternative, Mr Singh appears to seek further time for him to raise what he describes as "serious grounds inconvenient to Respondent". He makes yet a further request that the sequestration order be stayed. Finally, as is apparent from the terms of paragraph 10 of his document as set out in [5] above, he seeks some sort of clarification as to "how the Court is able to justify (against own submissions of Respondent/Creditors Petitioner) the amount claimed in Creditors Petition for passing the sequestration order". 50 Each of these matters illustrates how the Court can have no confidence in the appellant's capacity to have the matter ready for hearing on 5 November 2012 (or, perhaps, at any time). Plainly, the Court is not in a position to set aside the sequestration order based simply on what the appellant describes as the "facts on record" and in the absence of an adequate notice of appeal. The appellant has had ample opportunity to produce a proposed notice of appeal which is in accordance with the relevant requirements (see my observations above in [32]). Moreover, the appellant has adduced no material to support an adjournment. Further, the appellant's request that the sequestration order be stayed ignores the fact that a similar application by him was heard and dismissed in Singh (No 1). The appellant has advanced no new material or argument to support any such order being made, nor did he seek leave to appeal that earlier decision. 51 The appellant's request for "clarification" as to how the Court is able to justify the amount claimed in the creditor's petition is self-evidently inappropriate. 52 Finally, although I consider that some weight should be given to the fact that the appellant is self-represented, I consider that it is strongly outweighed by the other matters referred to above. In this context I respectfully agree with the following observations of Lord Justice Maurice Kay sitting in the Court of Appeal in England and Wales in Tinkler v Elliott [2012] EWCA Civ 1289 at [32] (when dealing with the question whether a litigant in person had acted "promptly" upon learning that a default judgment had been entered against him): I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person "did not really understand" or "did not appreciate" the procedural courses open to him for months does not entitle him to extra indulgence. Even if one factors in Mr Elliott's health problems, the evidence shows that between April and July 2010 he was active in this litigation. The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far. 53 For all these reasons, I consider that this is an appropriate case to make an order dismissing the appeal under s 25(2B)(bb) for failure to comply with the Court's directions. 54 I also consider that this is an appropriate case in which to make such an order under s 25(2B)(ba) for want of prosecution. As I have found above, the appellant has frequently and persistently failed to comply with Court's directions. Although it appears that he wants his appeal to proceed, he has demonstrated a lack of commitment to having the appeal ready for hearing in an orderly and efficient way. In my view, he has failed to provide an acceptable explanation for his delinquency in prosecuting the appeal. I do not consider that his lack of legal representation provides a sufficient explanation for his delinquency. 55 The appellant's conduct causes prejudice not only to the respondent, but also to other litigants in the Court's list who wish to have their appeals heard and determined as soon as the Court's resources allow. 56 In my view, having regard to the particular circumstances here, this is an appropriate case in which to dismiss the appeal for want of prosecution. 1. The appellant's application for leave to amend the notice of appeal is dismissed. 2. The notice of appeal filed on 24 April 2012 is dismissed under both ss 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) for want of prosecution and failure to comply with the Court's directions. 3. The appeal scheduled to be heard on 5 November 2012 is vacated. 4. The appellant is to pay the respondent's costs of and incidental to the interlocutory applications the subject of these proceedings and also of the appeal. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.