FEDERAL COURT OF AUSTRALIA

Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (No 3) [2011] FCA 1042

THE COURT ORDERS THAT:

1.    The applicant pay the respondents’ costs of the proceeding on an indemnity basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

THE COURT ORDERS THAT:

1.    The Federal Court Rules, as in force immediately before 1 August 2011, apply without modification to the hearing and determination of this application.

2.     Any proceeding instituted in this court by the respondent not be continued without leave of the Court.

3.    The respondent pay the applicants’ costs of the proceeding on a party party basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules

THE COURT NOTES THAT in VID 265 of 2010 the Court ordered that any proceeding instituted in this Court by the applicant not be continued without the leave of the Court.

THE COURT ORDERS THAT:

1.    If leave to continue this proceeding is not granted to the applicant on or before 31 October 2011:

(a)    The application be dismissed.

(b)     The applicant pay the respondent’s costs of the proceeding on an indemnity basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    There are three applications before me. I will briefly describe each.

2    Application VID 265 of 2010 is an application by the Secretaries of the Department of Families, Housing, Community Services and Indigenous Affairs, and the Department of Employment and Workplace Relations, (“the Secretaries”) to have the vexatious litigant sanction applied to Mr Singh pursuant to O 21, r 1 of the Federal Court Rules (as in force prior to 1 August 2011) (“the former Rules”). In relation to that application, I made orders on 27 July 2011 in the following terms:

1.     The Respondent, Mohinder Singh may not institute any proceeding in the Federal Court of Australia without leave of the Court.

2.    This proceeding be relisted on a date to be fixed for the purpose of hearing further submissions from the parties on the question of costs and as to whether an order should be made that any extant proceeding instituted by the Respondent against the Applicants not continue without leave of the Court.

3    Proceeding VID 234 of 2010 is an application in which the applicant, Mr Singh, applied under the Administrative Decisions Review Act 1977 (Cth) (“the ADJR Act”) to set aside a decision of the Administrative Appeals Tribunal. On 27 July 2011, I made orders dismissing that application and reserved my decision on the question of costs. Both of those applications were heard together and my reasons for judgment in relation to both applications are published as Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833 (“my earlier reasons for judgment”).

4    The third application, VID 1106 of 2011 is the only other matter before the Court which, as far as I am aware, involves Mr Singh as an applicant. The application was commenced prior to the making of order 1 to which I have referred above. By that application, Mr Singh seeks an annulment of the sequestration order made against his estate by a Registrar of this Court on 28 February 2008 (“the sequestration order”). On 2 February 2011, I made an order staying that matter until a date not before the date on which the judgment of this Court were given in the other two matters I have referred to: Singh v Secretary Department of Education, Employment and Workplace Relations [2011] FCA 116.

5    I am satisfied that application VID 1106 of 2010 should not continue without the leave of the Court. Mr Singh’s annulment application relies upon his challenge to a decision made by Centrelink on 4 November 1999 by which a debt was raised against Mr Singh and resulted in the sum of $88,633 being compulsory deducted from a judgment debt otherwise payable to Mr Singh. That debt is described at paragraph [4] of my earlier reasons of judgment (“the original debt”). The original debt, as my earlier reasons for judgment outline, was, in one way or another, the subject of numerous challenges brought by Mr Singh in the AAT, the Federal Magistrates’ Court, this Court and also the High Court.

6     In particular, as described in paragraphs [59] to [62] of my earlier reasons for judgment, Mr Singh made a prior application for annulment of the sequestration order. In that application (VID 571 of 2008) before Goldberg J, Mr Singh also challenged the original debt. That application was dismissed by the judge on 29 September 2008 and the judge’s reasons are published as Singh v Secretary, Department of Employment and Workplace Relations [2008] FCA 1463. In my earlier reasons for judgment at paragraph [62], I recorded my view that the proceeding before Justice Goldberg was vexatious. As I described in my earlier reasons for judgment at paragraphs [63] to [68], Mr Singh appealed Justice Goldberg’s decision to a Full Court of this Court. That application was dismissed on 22 May 2009 by Spender, Lander and Flick JJ and the Full Court’s reasons are published as Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59. Mr Singh then sought special leave to appeal to the High Court. On 1 October 2009, that application was dismissed with reasons published as Singh v Secretary, Department of Employment and Workplace Relations [2009] HCASL 194 per Gummow and Kiefel JJ. As stated in my earlier reasons for judgment at paragraph [65] and [68], I was satisfied that both of those proceedings were vexatious.

7    By this second application to annul the sequestration order, Mr Singh, again, seeks to relitigate matters which have already been determined to finality. As my earlier reasons for judgment set out, I am satisfied that each of the elements required by O 21, r 1 of the former Rules were established and that there was no discretionary basis for the Court not to exercise the power there given. As a result, on 27 July 2011, I exercised the power to order that Mr Singh not institute any proceeding without the leave of the Court. I deferred making any further order pursuant to O 21 r 1, that any extant proceeding instituted by Mr Singh not be continued without leave so that I could hear submissions as to the nature of any such proceedings.

8     Having now heard those submissions, including submissions from Mr Singh, and having now identified the nature of the extant proceeding involved, I have come to the view that for the same reasons that I determined that Mr Singh should not be permitted to institute a new proceeding without the leave of the Court, he should not be permitted to continue any extant proceeding without the leave of the Court. I will make an order to that effect in VID 265 of 2010.

9    The former rules were repealed on 1 August 2011 and replaced by the Federal Court Rules 2011 (“the new Rules”). The application made in VID 265 of 2010 was made pursuant to O 21 r 1 of the former rules in a proceeding which commenced before 1 August 2011. The determination of that application is a step which will occur after 1 August 2011. The effect of r 1.04(2) and (3) of the new Rules is that in relation to such circumstances the new Rules apply unless the Court orders that the former Rules should apply. Given that the application for an order that Mr Singh not continue any extant proceeding was made under the former Rules, I consider that the application should be determined under those Rules. Accordingly, in VID 265 of 2010 I will also order that the former Rules apply to the disposition of that application.

10    The usual principle is that costs are awarded to the successful party in the litigation unless there is good reason to do otherwise. No good reason has been demonstrated in relation to any of the three applications before me as to why the successful party in each proceeding should not be awarded its costs. On that basis I will make orders in each application that Mr Singh pay the costs of the successful party.

11    The Secretaries have applied for indemnity costs. Special circumstances must be demonstrated to support an order for indemnity costs. In my earlier reasons for judgment I recorded my determination that VID 234 of 2010 was instituted vexatiously. An order for indemnity costs is appropriate in that proceeding. I am not satisfied that an order for indemnity costs is appropriate in VID 265 of 2010. I am satisfied that if no leave to continue VID 1106 of 2010 were granted and that application were dismissed, indemnity costs should be ordered against Mr Singh. I will say more about that in a moment. I am so satisfied because, for the reasons I have already described, by that application, Mr Singh seeks to relitigate matters already finally determined. In addition, I note that on 2 December 2010 the Secretaries wrote to Mr Singh alerting him that unless he withdrew his application indemnity costs would be sought. Mr Singh did not withdraw the application.

12    I have in mind to make an order in VID 1106 of 2010 which would give Mr Singh an opportunity to seek leave to continue that proceeding and an opportunity for the Court to deal with any application so made. I propose to make orders today that will dismiss the proceeding with costs should any application for leave to continue that proceeding not be granted on or before 31 October 2011.

Associate:

Dated:    6 September 2011