FEDERAL COURT OF AUSTRALIA

Singh v Secretary, Department of Employment and Workplace Relations

[2008] FCA 1061

MOHINDER SINGH v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

VID 1217 OF 2006

MIDDLETON J

11 JULY 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By notice of motion dated 10 June 2008, the applicant seeks orders that:

·                    the security for costs order made in this proceeding, which I will later refer to, be discharged and that the Registrar release the sum of $10,000 to the applicant; and

·                    the Full Court decision and the decision of Weinberg J at first instance be set aside.

2                     In this proceeding, on 9 February 2007, Sundberg J made an order for security of costs.  The order provided that the applicant lodge the sum of $10,000 with the Registrar of this Court, and that:

…all or part of such sum to be released to the respondent following and in accordance with any order for costs in favour of the respondent.

3                     On 22 November 2007, an order was made by the Full Court of this Court dismissing the appeal that was brought before the Full Court with costs in favour of the respondent.  The applicant sought special leave to appeal this Full Court order to the High Court of Australia and, on 15 May 2008, this application was dismissed.

4                     The applicant has filed material in support of the notice of motion which I have considered.  In essence, what the applicant seeks is the return of $10,000.  Further, in effect, it is said that the decision of the Full Court and of Weinberg J should be aside because, as I understand it, they were mistaken and based upon fraud.

5                     Accordingly, the application being heard now by a single Justice is really for the discharge of the security for costs order or the security itself.  Of course, it could not be part of my role to set aside a decision of the Full Court.  In essence, the argument is that because of the fraud or the mistakes in the decision of the Full Court, the security should be released to the applicant.

6                     It seems to me clear that the matters raised by the applicant today have already been considered by Weinberg J and by the Full Court and, it appears, by the High Court of Australia as part of a special leave application.  Even if empowered, I see no basis for setting aside the decision of the Full Court or Weinberg J on any of the material that has been put before me.

7                     In relation to the security for costs order made by Sundberg J, O 35 r 7(2) provides for the setting aside of a judgment or order after the order has been entered in a number of very limited circumstances.  In my view, none of those circumstances has been made out by the applicant on the material or in light of the submissions made before me today.

8                     Further, I see no reason to vary or discharge that order.  The Full Court dismissed the applicant’s appeal with costs.  The Full Court decision and the decision of Weinberg J stand until set aside.  The order of Sundberg J will apply according to its terms.

9                     I should indicate that it has been drawn to my attention that the applicant is an undischarged bankrupt and, pursuant to the Bankruptcy Act 1966 (Cth), this would normally provide that the property of a bankrupt vests in the official receiver.  I say nothing more about this particular matter or as to the standing of the applicant in this case.

10                  Having regard to the reasons I have set out above, I will dismiss the application with costs.

Associate:

Dated:         11 July 2008