Singh v Super City Home Loans Pty Ltd - [2012] FCA 83 - FCA 2012 case summary — Zoe

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Singh v Super City Home Loans Pty Ltd

[2012] FCA 83

Federal Court of Australia|2012-02-14|Before: Adam P, Katzmann J

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Source facts

Court

Federal Court of Australia

Decision date

2012-02-14

Before

Adam P, Katzmann J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

The application for summary dismissal 59 Section 31A(2) of the FCA Act gives the Court the power to give judgment for a respondent if it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding against the respondent. Subsection (3) stipulates that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. After noting the terms of s 31A, his Honour discussed the relevant principles, referring at length to the judgment of the High Court in Spencer v The Commonwealth (2010) 241 CLR 118 ("Spencer"). 60 The primary judge observed that there were "three broad strands" to the case that Mr and Mrs Singh wanted to run. The first was that they were the victims of misrepresentation and non-disclosure. The second was that they were victims of unconscionable conduct. The third was that the various contracts they entered as part of the refinancing transactions effected in June 2007 were unjust within the meaning of the NSW Code and the Contracts Review Act 1980 (NSW) ("Contracts Review Act") and should be reopened and adjusted. 61 His Honour shortly disposed of the second two strands before turning to the first. 62 His Honour said that Mr and Mrs Singh had not explained the unconscionable conduct, nor pleaded material facts which might arguably support such a case. He observed that the evidence on which they proposed to rely did not disclose one. 63 As for the unjust contracts case, his Honour found that Mr and Mrs Singh were unable to plead such a case because the finding of the CTTT was binding on them and the present respondents who were also respondents to the application in the CTTT, and they were estopped from arguing otherwise. 64 With respect to the claims Mr and Mrs Singh made that they were the victims of misrepresentation and non-disclosure, his Honour identified a number of flaws in their case. He noted that: (a) they were under urgent financial pressure to secure additional finance to pay out the settlement with Mr Carver and the difficulties they had in meeting their other financial commitments; (b) they had no funds of their own to pay out Mr Carver; (c) their business was in need of an injection of working capital; (d) their financial position was such that they had little, if any, capacity to deal with "mainstream bank lenders" and were forced to deal with lenders whose terms would be more onerous and costly; (e) they recognised they would have to deal with one or more finance brokers and intermediaries if loan funds were to be made available quickly; (f) they appreciated they would have to refinance the mortgage they had with Royal Guardian Mortgage Corporation Pty Limited (which was secured over a vacant block of land they purchased in Green Valley in 1997) ; (g) they also appreciated that the cost of refinancing the mortgage might be substantial, but it was a cost they had to weigh against the known penalty of not paying out Mr Carver promptly and their need for additional funds for their business; (h) before they finally committed to refinancing, they knew precisely the costs of accepting the refinancing and knew and understood the terms of the two new loans to which they intended to commit and, although they may not have appreciated them when they started dealing with Super City, the full extent of the fees and charges for which they would be liable were progressively revealed to them. (i) they had not pleaded a reliance case against any of the respondents based on the proposition that, when they committed to refinancing, they were induced to do so by any contravening or unlawful conduct on the part of any of the respondents and their evidence did not support such a case. 65 His Honour then observed (at [133(i)]): The simple fact was that the applicants were desperate to refinance because of the Carver settlement (for which none of the present respondents was responsible) and because of their otherwise precarious financial position. They had very few options for doing so. They did their best to procure the necessary refinancing at a cost which, to their mind, was justified when compared with the cost of not paying out Mr Carver promptly. This was a judgment which they made at the time. They hoped to refinance yet again within a year of May/June 2007. There is no allegation in the pleadings or suggestion in the evidence that the applicants could have procured the necessary refinancing from any other source. In fact, they did refinance in September 2008, although under the pressure of being in default at that time under the mortgages to the Kremnizer clients and Lawteal. 66 His Honour noted the disastrous position in which Mr and Mrs Singh found themselves but attributed their problems to the fact that they overcommitted themselves in order to purchase the Londonderry property back in 2002. In this way, his Honour found they were the authors of their own misfortune. He explained that they had to settle with Mr Carver. Doing nothing was not an option for them. They did not suggest that cheaper finance was available to them and there was no evidence to support any such suggestion. His Honour also said that the evidence did not suggest that they could not service the loans from the Kremnizer clients and Lawteal. He noted that for the period of the loans they made regular payments as required. He found that they were unable to connect their grievances against the respondents to any financial loss they had suffered after June 2007. He said that this was the fundamental reason why the proceeding had no reasonable prospects of success. 67 For all these reasons, his Honour held, the Singhs were not only not entitled to summary judgment (one of the orders sought in the notice of motion his Honour directed the registrar not to accept for filing) but had no reasonable prospect of successfully prosecuting the proceeding and it should therefore be dismissed under s 31A. He then went on to deal with the arguments on the strike-out motion, although it was strictly unnecessary to do so, and to explain why those arguments would have had to succeed and why the Singhs would not have been granted leave to re-plead.

[5]

Should leave be granted? 75 Mr Singh relied on evidence contained in three affidavits affirmed on 29 June 2011, 6 July 2011 and 2 August 2011. In the affidavit of 6 July Mr Singh merely stated that he relied on the evidence in the 29 June affidavit. 76 Much of what Mr Singh said in the 29 June affidavit was the subject of objection. In substance the objections fell into three categories: first, that what was said was not evidence, but a submission, secondly, that the evidence was "fresh", that is to say, it was not before the primary judge, and thirdly, that it was not relevant. 77 Much of the 29 June affidavit was argumentative and I received the passages to which objection was taken on this basis as a submission only. 78 The Law Society submitted that paragraphs 3 to 8 of the 2 August affidavit, and the evidence annexed to it, should be rejected. The other respondents objected to the whole of that affidavit. 79 The evidence Mr Singh tendered against the 17th to 19th respondents included a letter from the Law Society's Professional Standards Department dated 1 May 2009 recommending summary dismissal of complaints pursuant to s 511(1)(b) of the LPA on the ground that it was misconceived. The other evidence consisted of a publication of the Law Society entitled "Complaints Process Information", six further letters from the Society's Professional Standards Department, a letter from J Teesdale declining to provide pro bono assistance for want of reasonable prospects of success, and the Articles of Association of the Law Society of New South Wales. In one of those letters, dated 30 June 2009, the Professional Standards Department explained to Mr Singh that no investigation had taken place to date because the author was unable to elicit from the material supplied a clear, cogent and appropriate complaint about Mr Kremnizer". In particular, the letter noted, the material supplied to the Law Society did not disclose any complaint which, if proved, could amount to professional misconduct or unsatisfactory professional conduct. Ultimately, the Law Society dismissed the complaint against Mr Kremnizer pursuant to s 511(1)(a) of the LPA because Mr Singh failed to provide information and/or documents requested of him by its Professional Standards Department. On 11 February 2010 Mr Singh was so advised in writing and sent a brochure prepared by the Legal Services Commissioner explaining how to apply for a review and the outcomes a review might deliver. 80 The remaining documents annexed to the 2 August affidavit consisted of an affidavit from Mr Carter, the solicitor for Ginelle, sworn in the Supreme Court proceedings, and the documents annexed to his affidavit, three letters from the Law Society's pro bono solicitor, a transcript of a successful adjournment application of the Singh's motions in the Ginelle proceedings, an exchange of correspondence between Mr Singh and the Chief Executive Officer of the Law Society showing the refusal of his application for pro bono assistance, and company searches of several respondents. 81 The Law Society submitted that the new evidence should not be admitted because Mr Singh did not comply with r 36.57 of the current Rules (which apply to a step in the proceeding taken on or after 1 August 2011 - see r 1.04(2)), the evidence would not change the result and Mr Singh did not provide an adequate explanation for why it was not tendered below. 82 The submission conflates the position on a leave application with the position on an appeal. Rule 36.57 only applies to appeals, not to applications for leave to appeal. The documents are admissible to show the evidence that would be the subject of an application for the Court to receive further evidence on appeal in the event that Mr Singh were to obtain leave to appeal and I received them into evidence on this basis. Even so, on this application it was incumbent on Mr Singh to show why the evidence was not tendered below and what effect it would have had on the outcome. This he did not do. No evidence was proffered about either of these matters. 83 When pressed for an explanation as to why the material was not tendered at first instance, Mr Singh claimed that when he and his wife lost their house "things were moved in all directions and for that particular - and the weather was very bad and I had no opportunity of looking through all the boxes and things to establish these documents". 84 I regard this explanation as inadequate. After all, copies of the documents could have been obtained from the Law Society. 85 Mr Singh submitted that this material was very important to his appeal. He said in his written submissions in reply that the new evidence exposes the conduct of the 18th and 19th respondents as misleading and deceptive. He did not explain why and I am at a loss to see how any of this material advances his case. The documents show what the Law Society did; they do not disclose that it did anything actionable. 86 Two factors tell in Mr Singh's favour. The delay is not inordinate. And no question of prejudice arises. But that is not the end of the matter. Although in any application for an extension of time the question of prejudice is obviously relevant, mere absence of prejudice is not enough. Legislative time limits are not to be ignored. An application will only be granted if it is proper to do so: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J, cited with approval in Parker v The Queen [2002] FCAFC 133 at [6]. 87 Mr Singh is seeking an indulgence from the Court. He bears the burden of persuading the Court that it should grant his request. Where a case is not arguable or is hopeless, the application will be refused, basically because it would be futile to grant it: Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[4] per Brennan CJ and McHugh J and at [66] per Kirby J. Mr Singh, who argued the case for himself, referred to Jackamarra in his oral submissions but some of the passages he emphasised suggest that he may have misunderstood the nature of the proceedings before the Court. In Jackamarra their Honours distinguished between the approach to be taken in an application for an extension of time to lodge an appeal and an application for an extension for time to take a step in prosecuting the appeal where the appeal has already been lodged. In the former case Brennan CJ and McHugh J emphasised that the respondents have a vested right to retain the judgment and to grant the application would put at risk that right where, their Honours accepted, it was relevant to consider whether there was an arguable case. Here, Mr Singh did file a notice of appeal but, for the reasons I have already indicated, it was incompetent. His position is therefore analogous to the former case, not the latter (as he seemed to think or as his submissions suggested). 88 There was no evidence to explain the delay. Mr Singh submitted in effect that it was attributable to a mistake or misconception on his part that he had an appeal as of right. He described it as "a technical error", based on the absence of any reference in the judgment to it being interlocutory. That is unsurprising, however. It is the effect and nature of the order which gives it this character. I take this to be Mr Singh's explanation, despite the absence of evidence to this effect. That would be an acceptable explanation, but it is not, in my view, a special reason. 89 A special reason within the meaning of O 52 r 15(2) of the Rules is merely a circumstance that takes the case out of the ordinary run of cases (Jess v Scott (1986) 12 FCR 187 at 195; Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [5] per Jessup J, with whom Gyles and Besanko JJ agreed). Still, neither Mr Singh's submissions in chief nor those in reply attempted to identify any circumstance that would do so. Indeed, Mr Singh did not address the question of special reasons at any point, despite the written and oral submissions of several respondents that he had not demonstrated their existence. 90 In Wolcott v Davis (1984) 4 FCR 124 ("Wolcott") at 128 Muirhead J said that it could seldom be said that a failure by a solicitor to file an appeal in time due to ignorance or negligence, as opposed to fortuitous circumstances such as sickness or accident, constituted special reasons. In Perry v Comcare [2006] FCA 481 at [8] Kiefel J, following Wolcott, held that a solicitor's ignorance of the time limit would not amount to a special reason. It might be argued that more is expected of a solicitor than a litigant in person but I agree with Buchanan J, who said in Lin v Rail Corporation New South Wales [2011] FCA 546 at [8], that a mistake of the very kind Mr Singh claims to have made would be insufficient in many cases to justify an extension of time, although in that case an extension of time was not opposed. I note that Mr Singh reads English, is not unintelligent, has some experience of the operation of the courts and the processes of appeal, and has demonstrated a capacity to research the law for himself. In my view, his mistake or misconception does not amount to a special reason for the purpose of O 52 r 15(2) of the Rules. 91 A similar approach was taken to the comparable rule in the Supreme Court (General Civil Procedure) Rules 1996 (Vic) (r 56.02(3), which spoke of "special circumstances" rather than "special reasons"). Cf. Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429 at [5] per Chernov JA, [58] and [72] per Hansen AJA, where the Court did not accept that a failure by a litigant in person to consider the possibility of judicial review was a special circumstance. Mr Singh did not profess ignorance of the time limit or the availability of review, merely ignorance of the fact that the time limit applied in his case. But it is an error of a similar kind. His claim, in substance, is a claim of ignorance of the law. Without more, that is not enough to amount to a special reason. To conclude otherwise would be tantamount to excusing a vast number of unrepresented litigants from compliance with the rules. I do not believe that that was the intention of the rule. 92 In any case, for the following reasons, I am not satisfied that there is sufficient doubt attending the primary judge's decision to justify a grant of leave in the event that an extension of time were to be granted.

[7]

The question of procedural fairness (draft ground 2) 94 Mr Singh submitted that the primary judge denied him procedural fairness. 95 Although the submissions went much further, the evidence relied upon to support the contention appears in Mr Singh's affidavit of 29 June 2011. In it he states that at the hearing on 21 April 2011: (a) The primary judge allowed counsel for the various respondents who appeared to respond to his submissions but did not allow him to reply to theirs. He also states that his Honour did not give him the opportunity to respond to the submissions of the first eight respondents filed after the hearing. (b) Counsel for the fourth and fifth respondents (the Bleier Corporation and Mr Bleier) and for the sixth to eight respondents (Mr Kremnizer, Shloomp and Baccus) conceded that the Singhs had an arguable case. (c) Counsel for the ninth and tenth respondents (Mr Hickey and Lawteal) submitted that the Singhs had a case under s 52, but not against Mr Hickey as he was only an employee of Lawteal. (d) Counsel for the first to tenth respondents conceded the Singhs had an arguable case and made no submissions in support of their motions for summary dismissal and therefore the Singhs believed that the respondents were not pressing them. In his written submissions filed on 10 August 2011 Mr Singh asserted that Mr Reid (who appeared below for the first five respondents) and Mr Rogers (who appeared below for the sixth to eighth respondents) "technically withdrew" their notices of motion for summary dismissal together with their applications for security for costs. (e) His Honour did not inform Mr Singh that he had already prejudged the case and that the submissions of counsel for the first ten respondents "have no standing and that he will make the decision on an INDEPENDENT GROUND". (f) In written submissions, Mr Singh contended that his Honour made up his mind on 2 March 2011 or earlier to dismiss the proceeding, so that it could not be said that a fair-minded lay observer might reasonably apprehend that he brought an impartial mind to the resolution of the question he was required to decide on 21 April 2011. 96 None of these contentions has any merit. The primary judge made no order for the filing of written submissions. Some of the respondents provided him and Mr Singh with an outline of submissions on the morning of the hearing. One sent them to Mr Singh two days earlier. Mr Singh did not complain to his Honour about this. Nor did he ask for time to consider them. Each of the respondents spoke to their written submissions and Mr Singh was given an opportunity to respond to them. 97 The various statements Mr Singh made to the effect that counsel accepted that the Singhs had an arguable case and did not pursue their motions for summary dismissal are plainly wrong. Mr Singh conceded at the hearing that he might not have heard counsel correctly, although he did not withdraw his allegations. The transcript of the hearing before the primary judge reveals that Mr Reid sought and was given leave to file in court a notice of motion seeking summary dismissal of the claims against the first three respondents, handed up written submissions in support of the application for summary dismissal brought by the fourth and fifth respondents (the Bleier respondents) and otherwise adopted the submissions made by Mr Rogers, who appeared for the sixth to eight respondents (Mr Kremnizer, Shloomp and Baccus). Mr Rogers said: I don't wish to be heard at any length at all, save only to say this, that there is a necessary tension between, on one hand as appears in this written submission, seeking to strike out pleadings by reason in large measure of the embarrassment point and failure to disclose a cause of action, and on the other hand saying that there is no reasonable prospect of success. It presents a difficulty for a defendant in my position, saying we can't quite identify the case which is being pleaded against us but 98 The transcript then records the following exchange: HIS HONOUR: Well, that's quintessentially a case that has no reasonable prospects of success, isn't it? MR ROGERS: If one looks at the pleading that is certainly so. If one allows, as might be thought to be appropriate, such expansion as fell from Mr Singh today, then one can actually resolve the tension, and that is the point I was really coming to, that if we're only based on the pleadings I would not be urging upon your Honour anything other than the strike-out. In light of what Mr Singh has said today, we would say that on either view he can't succeed. He seems to fall into the ordinary category of someone who has refinanced, not really - and I say this uncritically - not really understood the basis upon which he might have a complaint, but feels aggrieved, and that is not a case which has any reasonable prospects the way it has been articulated this morning. For those reasons, your Honour, we would say that your Honour would dismiss the proceedings pursuant to section 31A or else in the alternative, deal with the matter as I've outlined in the submission. 99 Mr Kelly, who appeared for the ninth and tenth respondents (Mr Hickey and Lawteal) said: My primary application is to strike out, but if your Honour were persuaded that there might be an arguable case by the applicants, and your Honour granted leave to re-plead, I concede it's probably not appropriate at the present time to seek to have the proceedings dismissed. If your Honour weren't persuaded that the matter could properly be re-pleaded, then I would press the application to dismiss as well. 100 In written submissions in reply Mr Singh submitted he challenged Mr Zipser's advice and was denied the opportunity to do so. The submission is contradictory. Mr Singh contended that his Honour did not conduct a fair hearing of his January notice of motion in that he "misled himself on his own orders of 9 February 2011 and Rule 35A of Federal Court Rules to let off the Eleventh to Nineteenth Joinder Respondents and then used Mr Zipser's ADVICE to Legal Aid to let off the First to Tenth Respondents". This submission also has no merit. It finds no support in any of the material before me. 101 Mr Singh explained in oral submissions that the claim of prejudgment relates to the case against the first ten respondents. He indicated that is based on the fact that when his Honour came onto the bench to hear the motions the first thing he asked Mr Singh about was the joinder motion. In particular, Mr Singh pointed to a question that his Honour asked him (recorded at p 5 of the transcript) as to why he wanted to join the last three respondents. The question was doubtless asked because the basis for the joinder application was far from obvious in circumstances where no document was provided to the Court which cast any light on the roles of these additional parties, let alone the basis for the joinder. His Honour's question was entirely innocuous. The claim of prejudgment is without foundation. 102 In the result, the proposed ground of breach of procedural fairness is doomed to fail.

[8]

The allegations that the evidence was misrepresented (draft grounds 3 and 4) 103 The primary judge noted that the evidence was untested and that it was reasonably clear that some of the facts would be disputed. His Honour said he would not attempt to resolve any disputes as to the facts. His Honour's summary of the facts was largely taken from Mr Singh's affidavit affirmed on 14 December 2010 and an affidavit of Mr Bleier affirmed on 16 March 2011. He said that it should be regarded as a summary in which the Singhs' evidentiary case is articulated in the most favourable light possible. Despite this, Mr Singh submitted that his Honour misapprehended some important facts concerning his and his wife's financial position. In particular, he submitted that his Honour was wrong when he stated that he and his wife had no funds of their own to pay out Mr Carver. In oral argument, when asked where the money to pay out Mr Carver was, Mr Singh replied: My son was supposed to get married in August, your Honour, and Indian marriages are very huge, huge weddings. 104 What this had to do with the issue is obscure. Mr Singh did not say that he and his wife expected to come into money as a result of the wedding (or, indeed, that there was in fact a wedding). When asked whether there was any evidence before the primary judge to show that the Singhs had funds of their own to pay out Mr Carver, Mr Singh replied: I told him from this table. 105 Mr Singh also submitted that the findings his Honour made concerning the flaws in his misrepresentation case were themselves grossly flawed because the Bleier Mortgage Corporation and Mr Bleier do not say that they organised the loan for the settlement of the case against Mr Carver. That is, however, beside the point. 106 The written submissions relied on paragraphs 22 to 25 of the affidavit filed on 29 June 2011 but they amount to no more than submissions, as Mr Singh effectively conceded (at p 36 of the transcript). 107 Mr Singh then drew attention to his loan application form completed on 7 May 2007 and pointed to the value of the Green Valley property ($350,000), with a mortgage of $200,000. But the point his Honour was making concerned available funds. To get the benefit of the discounted settlement figure in the Carver proceeding, the Singhs had to pay $95,000 by 14 May 2007 or $97,500 by 28 May 2007. The loan application disclosed the Singhs had no money in the bank. There was no evidence to show that the funds were otherwise available to them, at least without selling the property, and there was no evidence that they had any intention to sell the property. Before the primary judge Mr Singh in fact conceded that he did not have the money and needed to refinance in order to pay out Mr Carver. The following exchange appears in the transcript of the argument on 21 April 2011: HIS HONOUR: Mr Singh, do you accept that in the circumstance you've found yourself, in a month or two or so before May 2007, that you did need to refinance from somewhere in order to set out (sic) the Carver problem? MR SINGH: Yes, we needed money to refinance. HIS HONOUR: You needed to refinance. MR SINGH: Yes. 108 Mr Singh also submitted that his Honour misrepresented the evidence given by Mr Bleier. In substance his complaint is that his Honour's statement that Mr Bleier's evidence was uncontroversial is wrong. There are two problems with this submission. First, his Honour did not say that the evidence was uncontroversial. At [25] his Honour said: The only affidavit read and relied upon by any of the respondents which addressed any of the events of 2007 was the affidavit of Mr Bleier affirmed on 16 March 2011. Mr Bleier's affidavit contains material which I expect will be largely uncontroversial. [Emphasis added.] 109 His Honour then went on to explain that Mr Bleier described the business of Bleier MC and recounted the steps taken in the 2007 transactions in which Bleier MC was involved. This brings me to the second problem with Mr Singh's submission. Mr Singh contended that the statement in the last sentence of this passage is "[as] erroneous and controversial as Mr Bleier's affidavit". But the affidavit did describe the business of the Bleier Mortgage Corporation and it did recount the steps taken in the 2007 transactions in which the corporation was involved. His Honour did not say anything about the accuracy of the account and it is not apparent that his Honour had regard to anything said in that affidavit that did not accord with what Mr Singh said in his.

[9]

Misrepresenting the law to dismiss the proceedings (draft ground 5) 110 The only written submission that could be said to relate to this proposed ground of appeal is the submission that the primary judge "misapplied the legal principle set by the High Court in Spencer". The only argument put in support of this submission was that his Honour's fact finding was "unjust and inequitable". Without more, at least, that would not amount to a misrepresentation of the law or to a misapplication of legal principle. 111 In oral submissions Mr Singh drew attention to the passages in his Honour's judgment where his Honour referred to the allegation in the statement of claim that the mortgage contracts were unjust within the meaning of the Consumer Credit Code and the Contracts Review Act. Mr Singh said his point was that the Contracts Review Act does not apply to the transaction. (This was a surprising submission in the light of the fact that the Singhs referred to the Act in paragraph 3 of their application.) Rather, he argued, the ASIC Act applies. 112 The application did seek "relief/damages" under ss 12GF and 12GM of the ASIC Act. His Honour did not consider the application of this Act. Yet, as will be seen, that omission is of no consequence. 113 The section of the ASIC Act Mr Singh mentioned in argument was s 12BC, which relevantly defines the circumstances in which a person is taken to have acquired particular financial services as a consumer: (1) For the purposes of this Division, unless the contrary intention appears, a person is taken to have acquired particular financial services as a consumer if, and only if: (a) … (b) …; or (c) if the services were acquired for use or consumption in connection with a small business (see subsection (2)) and the price of the services exceeded the prescribed amount--the services were of a kind ordinarily acquired for business use or consumption. 114 "Small business" is defined in subs (2) to include a business employing fewer than 20 people. 115 It is, to say the least, curious that Mr Singh should rely on this provision when the affidavit on which he relied in the application before the primary judge disputed that the loans were sought for business purposes, attacked the documents that contained declarations to that effect as false, made serious allegations against anyone who had (or may have had) something to do with the declarations, and included the following two paragraphs: [169] I say that the PREDOMINANT LOAN PURPOSE was not Business, it was for Personal purpose. [170] Business was designated to remove Consumer Credit Code. 116 In his written submissions in chief Mr Singh submitted that there were serious contraventions of the ASIC Act (along with the Corporations Act, the TPA, the Fair Trading Act 1987 (NSW), the Consumer Credit Administration Act, the Consumer Credit Code (NSW) and the LPA) but did not indicate what those contraventions were. 117 In written submissions in reply Mr Singh referred to s 12CB of the ASIC Act, which provides that a person must not, in trade or commerce, in connection with the supply or possible supply of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable. It applies to financial services of a kind ordinarily acquired for personal, domestic or household use. Mr Singh submitted that the first eight respondents changed their evidence, and their conduct "by their own admission" is unconscionable within the meaning of s 12CA(1) and 12CB. With the exception of Mr Bleier and the Bleier Mortgage Corporation, however, none of those respondents put on any evidence. None of them made any admissions. 118 Whilst his Honour did not deal with any possible contravention of the ASIC Act, he did deal with the substance of it. That is because he dealt with Mr and Mrs Singh's allegations that the respondents had engaged in misleading or deceptive conduct, that their behaviour was unconscionable and that the Singhs had suffered loss or damage by reason of it. 119 In these circumstances, the failure to consider the application of the ASIC Act would not warrant the Court reconsidering the judgment. Nor would substantial injustice result if leave were refused. 120 There is nothing in his Honour's reasons to support draft ground 5.

[10]

The result was unjust and foreordained (draft ground 6) 121 Mr Singh argued that, for the reasons advanced in support of the other grounds and because there is "overwhelming evidence of impropriety", his Honour's decision was "plainly unreasonable or unjust" and "demands appellate intervention". 122 I reject the argument. There was no overwhelming evidence of impropriety. Rather, there were repeated assertions of wrongdoing, unsupported by evidence. 123 In his written submissions in reply Mr Singh submitted that no item of his January motion received any judicial analysis at all, although in oral argument he limited his complaint to the first nine prayers. 124 The joinder issue aside, the January notice of motion, it will be remembered, sought orders against Mr Kremnizer, his company, Shloomp, and its employed solicitors and agents that they had contravened the LPA, an order against Mr Safi for breaching the Solicitors' Rules, and orders against Baccus, Lawteal, their employees and agents etc., and all the other solicitors who acted for all parties to the effect that they engaged in conduct to "void the operation of the NSW Consumer Credit Code", and orders declaring "Null and Void and of No Effect" certain documents executed by Mr and Mrs Singh. 125 The primary judge said at [21] of his reasons that he would determine in the judgment the claims for relief made by the Singhs in the January and February notices of motion and he did so, by dismissing them. 126 His Honour dealt with some of the matters raised in the January notice of motion at [8] of his reasons. There his Honour said: The documents at L2 (pp 171-212) of the Annexures to Mr Singh's affidavit sworn on 16 December 2010 which are referred to in par 8 of the applicants' Notice of Motion comprise the Loan Offer dated 22 May 2007 made to the applicants by Baccus Investments Limited (Baccus), which is the eighth respondent; the Loan Offer dated 22 May 2007 made to the applicants by Lawteal Seconds Pty Ltd (Lawteal), which is the tenth respondent; and other documents associated with those loan offers. Those other documents include the statutory declarations and other declarations made by the applicants on 23 May 2007 under the Code for the purposes of those loan offers. All of these declarations were witnessed by Mr Safi. There is no suggestion that the applicants did not make and sign these declarations. Those declarations stated that: … the credit to be provided to [the applicants] is to be applied wholly or predominantly for business or investment purposes (or for both purposes). 127 Otherwise, it does seem that his Honour did not deal with the orders sought in paragraphs 1 to 9 of the January notice of motion. There was, however, no evidence to support the declarations sought. Mr Safi and the unnamed solicitors to whom order 7 was directed were not parties to the proceeding and no application was made that any of them be joined. In any case, a notice of motion was an inappropriate vehicle through which to agitate these matters. Furthermore, the notice of motion had no independent life. As I indicated earlier in these reasons, once the proceeding was dismissed, any interlocutory proceeding fell with it. 128 In all the circumstances there is no utility in granting Mr Singh leave to appeal from the dismissal of this notice of motion. 129 In written submissions in reply Mr Singh also complained that on 2 March 2011 the primary judge refused the notice of motion for discovery (this was the (third) notice of motion signed on 28 February 2011) and that the registrar did not allow him to file a submission requesting his Honour to disqualify himself from the hearing. The submission raised three issues: whether there is any evidence of bias (actual or apprehended), whether Mr Singh had been denied procedural fairness and whether his Honour's direction was in any event reviewable. 130 On the question of bias Mr Singh cited the High Court's decision in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [104] per Heydon, Kiefel and Bell JJ where their Honours restate the rule enunciated in cases such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 that a judge not sit to hear a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in dispute. 131 Mr Singh submitted that his Honour made up his mind on 2 March 2011 or earlier to dismiss the proceeding, and that from the evidence before the Court, it cannot be said that a fair minded lay observer might reasonably apprehend that his Honour brought an impartial mind to the resolution of the questions he was required to decide on 21 April 2011. The submission involved a reformulation of the test. Whether or not this reformulation makes a difference, however, nothing presented to me - either by way of submission or evidence - provides any basis for concluding that his Honour exhibited bias (whether actual or apprehended) against Mr Singh. 132 His Honour's direction was made pursuant to O 46 r 7A(2)(b) of the Rules, which provided that a registrar may seek the direction of a judge about whether a document should or should not be accepted for filing where the registrar considers the document on its face or by reference to any other document submitted for filing with it to be an abuse of the process of the Court, frivolous or vexatious. 133 Insofar as it concerned the existing respondents, the notice of motion sought discovery of the full names and addresses of two individuals for the purpose, the affidavit in support stated, of issuing a subpoena to them to give evidence. Otherwise, it sought discovery from non-parties either under O 15 r 1 or in one case (Westpac) under O 15A rr 3, 6 and 8 for the purpose of obtaining evidence for use at the hearing on 21 April 2011. It was plainly misconceived and rightly rejected. It was an abuse of process. It invoked the rules of discovery for ulterior purposes. 134 In any event, a direction by a judge to the registrar to refuse to accept a document for filing is not a judgment, and leave to appeal lies only against interlocutory judgments. The decision is administrative in character and there is no requirement that the aggrieved party be heard. See Bizuneh v Minister for Multicultural and Indigenous Affairs (2003) 128 FCR 353; Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 at [20]. Accordingly, the application is in this respect incompetent.

[12]

The challenge to the decision refusing leave to add the 11th to 19th respondents 137 Insofar as the applications concern the disposition of the joinder motion there are several reasons why it must be dismissed. 138 In the first place, the FCA Act precludes appeals from such decisions. That means that it would be futile to grant the applications. Section 24 relevantly provides: (1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine: (a) appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court; … (1AA) An appeal must not be brought from a judgment referred to in paragraph (1)(a) if the judgment is: (a) a determination of an application of the kind mentioned in subsection 20(3); or (b) a decision to join or remove a party, or not to join or remove a party; or (d) a decision to adjourn or expedite a hearing or to vacate a hearing date. [Emphasis added.] 139 For completeness I should point out that s 20 of the FCA Act deals with the exercise of original jurisdiction. Subsection (1) provides that, except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge. Subsection (3) sets out the kind of applications that must be heard and determined by a single Judge, unless a Judge directs that the application be dealt with by a Full Court or the application is made in a proceeding that is already assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application. 140 The Full Court considered the operation of s 24(1AA) in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [13]-[19]. It did say (at [17]) that subs (1AA) precluded appeals from decisions of a single judge only in matters where the original jurisdiction of the Court is to be exercised by a Full Court. But that remark must be read in context. The context was an application caught by the terms of s 20(3). An application to join a party is not an application of the kind mentioned in s 20(3). It is referred to in s 20(5) along with a variety of other procedural orders and directions. 141 The Explanatory Memorandum accompanying the Access to Justice (Civil Litigation Reforms) Bill 2009 (Cth) confirms that the purpose of the section was to remove the right to appeal for minor interlocutory decisions including a decision to join or remove a party. 142 Thirdly, the joinder application concerns a matter of practice and procedure. Appellate courts exercise particular caution in reviewing a decision pertaining to practice and procedure: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [34]. In such a case, as the High Court explained in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177, citing In re the Will of F B Gilbert (dec'd) (1946) 46 SR (NSW) 318 at 323: if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. 143 Fourthly, a decision about whether or not to join a party is a discretionary decision. That is apparent from the terms of O 6 of the Rules. See, too, Apotex Pty Ltd v Les Laboratoires Servier (No 4) (2010) 89 IPR 274 at [8] and Universal Music Australia Pty Ltd v Cooper [2004] FCA 78 at [6]-[7]. Consequently, the judgment on the joinder application could only be overturned for error of the kind described in House v King (1936) 55 CLR 499. Mr Singh has not shown that his Honour erred in the way in which he disposed of the joinder application. His Honour referred to the relevant rules and legal principles. Mr Singh does not suggest his Honour was in error in the rules he cited or the principles he applied. Nor has he demonstrated he has an arguable case that his Honour erred in the way in which he applied them. 144 The basis for proceeding against these parties was not articulated in the notice of motion or in the affidavit filed in support of it. In circumstances where Mr and Mrs Singh never submitted a draft amended statement of claim or showed they could plead against the proposed additional respondents causes of action with any reasonable, prospects of success, his Honour's refusal to grant the orders they sought is beyond criticism. Mr Singh submitted that the Rules do not require an amended statement of claim to be filed. That is true. But that is only because an amended statement of claim cannot be filed without the leave of the Court. If leave is to be sought to file an amended statement of claim, the Court must be apprised of the terms of the amendment before it can be expected to exercise its discretion to grant the application. 145 Mr Singh has never explained why he has a case against the 11th to 16th respondents. In the submissions filed in this application he merely submitted that they were registered first mortgagees who "participated with" the first ten respondents and are equally responsible for the loss and damage he and his wife have suffered. He did not identify any cause of action, let alone the material facts supporting it, that he wished to make out. 146 The order sought to join the Law Society recited that the Society had: contravened Section 179 to 185 of the Corporations Act 2001, contravened Memorandum of Articles of Association, and Legal Profession Act 2004 and Regulations… 147 What the Society is alleged to have done remains a mystery. In other words, the way in which they contravened the various provisions was not explained. In his written submissions Mr Singh merely stated that the Law Society contributed to the Singhs' loss and damage. 148 In any event, as his Honour observed, there is a statutory bar that precludes the bringing of a claim, at least one that arises out of the handling of the complaint against Mr Kremnizer. Section 730 of the LPA relevantly provides that: No liability is incurred by: … (b) the Law Society or the Law Society Council, or their committees … … or an employee or agent of, or a person acting at the direction of, any of them for anything done, suffered or omitted to be done in good faith in the exercise, or purported exercise, of a function under this Act. 149 There is no question that the Law Society acted in the exercise, or purported exercise, of a function under the LPA and Mr Singh did not argue otherwise. It was dealing with Mr Singh's complaints against Mr Kremnizer. The complaints had been referred to the Law Society Council for investigation by the Legal Services Commissioner under s 526(2) of the LPA. The decision it made was made under s 511(1)(a) of the LPA. No allegation has been made of want of good faith and none of the material submitted in support of the application to add it as a respondent is capable of supporting such an allegation. 150 In the case of Mr Roberts and Mr Zipser, the order seeking to have them joined recited that they had contravened the Legal Aid Commission Act 1979 (NSW), the TPA, the LPA and the Legal Profession Regulations 2005 (NSW) and practice rules and "their own Memorandum and Articles of Association". At first instance Mr Singh handed up submissions which included allegations to the effect that Mr Zipser's written advice to the Legal Aid Commission amounted to misrepresentation in that he gave the advice without examining the evidence presented to him at the conference and that he "aided and abetted in denying the Applicants proper Legal Representation and Justice". Putting aside the pleading issues this presents, there is no material capable of establishing that either Mr Zipser or Mr Roberts acted otherwise than in accordance with their professional obligations.

Parties

Applicant/Plaintiff:

Singh

Respondent/Defendant:

Super City Home Loans Pty Ltd

Legislation Cited (16)

Federal Court Rules 1979(Cth)

Legal Profession Act 2004(NSW)s 730

Consumer Credit Administration Act 1995(NSW)

Trade Practices Act 1974(Cth)

Consumer Credit Administration Amendment (Finance Brokers) Act 2003(NSW)

Australian Securities and Investment Commission Act 2001(Cth)

Supreme Court (General Civil Procedure) Rules 1996(Vic)

Corporations Act, the TPA, the Fair Trading Act 1987(NSW)

Legal Profession Regulations 2005(NSW)

Federal Court of Australia Act 1976(Cth)ss 31A, 20, 24

Federal Court of Australia Rules 1979(Cth)

Federal Court Rules 2011(Cth)rr 1.04(2), 36.57

National Consumer Credit Protection Act 2009(Cth)

Corporations Act 2001(Cth)

Contracts Review Act 1980(NSW)

Legal Aid Commission Act 1979(NSW)

Cases Cited (30)

FCR 187 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 Lin v Rail Corporation New South Wales [2011] FCA 546 Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429 Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 Parker v The Queen [2002] FCAFC 133 Perry v Comcare [2006] FCA 481 Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156 Spencer Deighton v Telstra Corporation Ltd [1997] FCA 1568 Universal Music Australia Pty Ltd v Cooper [2004] FCA 78 Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 Wolcott v Davis (1984) 4 FCR 124

REASONS FOR JUDGMENT 1 The applicant, Balbir Singh, and his wife, Prem, are in a parlous financial state. After defaulting on their obligations under a loan agreement with a finance company, they have been divested of most, if not all, of their assets. In an application filed in this Court in November 2010, they attributed their losses to the conduct of ten other companies and individuals who had been involved in providing earlier loans to them. They later applied to join an additional ten respondents. 2 The primary judge refused their joinder application and, on the motions of the first to tenth respondents, summarily dismissed the entire proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"): Singh v Super City Home Loans Pty Ltd [2011] FCA 646. Now, by an amended notice of motion filed on 6 July 2011, Mr Singh seeks leave to appeal that decision. As the application for leave was filed outside the time prescribed by the Federal Court Rules 1979 (Cth) ("the Rules"), he also applies for an extension of time. These rules have since been superseded by the Federal Court Rules 2011 (Cth) ("the current Rules") but the current Rules did not come into operation until 1 August 2011. 3 Mrs Singh is not a party to these applications. On 2 November 2010, before the proceeding was instituted, a sequestration order was made against her estate: Deputy Commissioner of Taxation v Singh [2010] FMCA 849. Her appeal against that order was dismissed on 8 August 2011: Singh v Deputy Commissioner of Taxation [2011] FCA 889. 4 For the reasons that follow I have concluded that the applications should be refused and the amended notice of motion dismissed.

Cited By (2)

Atieh v Civil Aviation Safety Authority

Visscher v Teekay Shipping

The background to the application to join the 17th to 20th respondents 33 To understand the application to join the 17th to 20th respondents it is necessary for me to say something about proceedings the Singhs brought elsewhere. The following summary is derived from the judgments in those proceedings. 34 On 6 February 2009 Ginelle filed a statement of claim in the NSW Supreme Court seeking possession of the Londonderry property and repayment of a mortgage debt incurred by Mr and Mrs Singh. In their defence Mr and Mrs Singh pleaded that the loan was governed by the NSW Code in that it was for personal and domestic purposes within the meaning of s 11 of the Code. Ginelle later applied for summary judgment against the Singhs. 35 On 25 February 2009 Mr and Mrs Singh filed a claim in the Consumer, Trader and Tenancy Tribunal of New South Wales ("CTTT") against Super City, the Paharis, the Bleier Mortgage Corporation, Baccus and Lawteal. 36 On 9 June 2009 Mr and Mrs Singh signed short minutes of order in which they agreed to pay Ginelle in accordance with a schedule of payments in default of which Ginelle was to cause judgment to be entered and to proceed to enforce the judgment. Hoeben J made orders in accordance with those short minutes. The schedule was not met. Consequently, on 1 December 2009 judgment was entered in Ginelle's favour and the Court gave Ginelle leave to issue a writ of possession over the Londonderry property. The writ was issued on 2 February 2010 and the Sheriff issued a notice to the Singhs to vacate the premises by 16 March 2010. 37 On 1 March 2010 Mr Singh filed a notice of motion seeking to have set aside the judgment of 1 December 2009 and the agreement of 9 June 2009 and to stay the execution of the writ. 38 The motion was heard by Latham J on 8 and 9 March 2010 at which time the Singhs were represented by counsel. Her Honour dismissed the motion with costs. She noted the instructions apparently given to their counsel that the Singhs disputed that the words "re-financing business loan" were written by them. The words the Singhs disputed appeared in a Consumer Credit Code Declaration they signed on 17 September 2008. At the time they were represented by Lincoln Kelly, solicitor, of Noel F Bracks & Company. The declaration was in the following terms and the signatures of Mr and Mrs Singh were witnessed by Mr Kelly. We declare that the credit to be provided to me by the credit provider is to be applied wholly or predominantly for business or investment purposes (or for both purposes), namely; (here insert in mortgagor's handwriting the purpose of the loan) Refinancing business loan 39 A warning appeared in bold letters underneath the declaration. It stated that it was important not to sign the declaration unless the loan was wholly or predominantly for business or investment purposes, otherwise the signatory could lose the protection of the NSW Code, which confers power on the Court to reopen unjust transactions. I interpolate that s 11(3) of the Code makes such a declaration ineffective for the purposes of the section if the credit provider or any other relevant person who obtained the declaration from the debtor "knew, or had reason to believe, that at the time the declaration was made, the credit was in fact to be applied wholly or predominantly for personal, domestic or household purposes". 40 Two days later the Singhs also signed a letter of offer made on Ginelle's behalf by its solicitor, James Carter. That letter noted that, as the loan appeared to be "predominantly for business purposes it would not be regulated by the Credit Act" and that Ginelle only lends on unregulated transactions. It was to this end, Mr Carter explained in the letter, that Ginelle required a declaration as to business intent and recited that the mortgagor (the Singhs) represented to the mortgagee (Ginelle) that the funds were predominantly for business or investment purposes and not predominantly for personal purposes. 41 The signed documents were forwarded by Mr Kelly to Ginelle's solicitors along with, amongst other things, a signed acknowledgment by Mr and Mrs Singh that they had received independent legal advice regarding the loan and security documents and, after receiving that advice, had freely and voluntarily signed the documents. 42 There was no evidence before Latham J that the Singhs had not written the words italicised above or anything to suggest that Mr and Mrs Singh did not agree with the terms of the agreement reached on 9 June 2009, the subject of the short minutes of order. As the judgment obtained on 2 December 2007 was entirely in accordance with those terms, her Honour held there was no reason to set it aside. See Ginelle Pty Limited v Singh [2010] NSWSC 579. 43 In March or April 2010 Mr Singh applied to the Legal Aid Commission for legal aid to appeal the judgment of Latham J and also to prosecute the CTTT proceedings. On 16 April 2010 the Commission granted aid for the limited purpose of obtaining legal advice on these matters. The Commission assigned Mr Roberts to prepare and submit a brief to counsel for an advice as to whether Mr and Mrs Singh had reasonable prospects of success in the two proceedings, what orders were likely to be made and "the likely quantum" that would be obtained. Mr Roberts briefed Mr Zipser to provide this advice. 44 Mr and Mrs Singh and Mr Roberts conferred with Mr Zipser on 30 April 2010. Mr Zipser provided his advice on 4 May 2010. The advice was annexed to Mr Singh's affidavit of 22 February 2011 in support of the February joinder motion. In the advice Mr Zipser summarised the various proceedings, carefully considered the various points of claim in the CTTT proceedings, and stated he was unable to say that they had reasonable prospects of success. In relation to the Court of Appeal proceedings he said that he asked the Singhs to explain the error in Latham J's decision. He noted that Mr Singh initially said there was a denial of natural justice but could not articulate the act or omission said to constitute the denial. He then said that Mr Singh contended that her Honour should have set aside the 9 June 2009 agreement. Noting the absence of evidence upon which her Honour could have done so, Mr Zipser concluded that the Singhs had no prospects of success in the Court of Appeal. He confirmed his advice to them in conference that they were at risk of adverse costs orders if they proceeded, and his concern that they would have no assets or money left if they continued to be involved in litigation. He invited them to further consider his observations. 45 The Commission then declined any further grant of aid on the ground that the application failed the merit test. Mr Roberts sent a letter to Mr and Mrs Singh describing their disputes, setting out the purpose of the conference with Mr Zipser and confirming that legal aid had been refused. 46 On 5 May 2010 Mr Singh approached the duty judge in the Supreme Court seeking the same orders the subject of the summons before Latham J, and also seeking to add as defendants Ginelle's solicitor and counsel. That, too, was dismissed: Singh v Ginelle Pty Ltd [2010] NSWSC 442 per Palmer J. 47 The following day, 6 May 2010, a senior member of the CTTT heard the Singhs' application. Four days later, the senior member published his decision, dismissing the application for want of jurisdiction: Singh v Bleier Mortgage Corporation Pty Ltd (Commercial) [2010] NSWCTTT 194. The jurisdictional issue arose because of the statements in the credit code declarations signed by Mr and Mrs Singh that the loans were for predominantly business purposes. The senior member found that the declarations were valid and were signed before the credit contracts were made. He rejected a submission that Mr and Mrs Singh had no idea what they were signing. 48 Mr and Mrs Singh unsuccessfully appealed to the NSW Court of Appeal against the decisions of Latham and Palmer JJ: Singh v Ginelle Pty Ltd [2010] NSWCA 310. Applications for special leave were dismissed by the High Court on 6 April 2011, on the ground that there was no reason to doubt the correctness of the Court of Appeal's decision in each case: Singh v Ginelle Pty Ltd [2011] HCASL 71; [2011] HCASL 72. 49 Mr Singh complained to the Legal Services Commissioner of New South Wales about Mr Kremnizer. The Commissioner referred the complaint to the Council of the Law Society for investigation. The complaint itself was not put before the primary judge nor included in the five lever arch folders filed on this application. The Law Society recommended to the Commissioner that the complaint be dismissed. Evidently, the Singhs had also applied for pro bono legal assistance from the Law Society in respect of the Ginelle and CTTT proceedings. The Law Society rejected the application on the ground that there were no reasonable prospects of success. 50 No draft proposed amended application or statement of claim was presented to the primary judge articulating the claims against any of the proposed additional respondents.