FEDERAL COURT OF AUSTRALIA

Cull v Singh [2024] FCA 258

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), the respondent be prohibited from instituting or continuing to prosecute, in any registry of the Federal Court of Australia, any proceedings without leave of this court.

2.    The respondent pay the applicants’ costs of and incidental to the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The Federal Court of Australia Act 1976 (Cth) (the “FCA Act”) provides for the making of what are known as “vexatious proceedings orders”. Such orders are available in circumstances where a person may be said to have frequently instituted or conducted “vexatious proceedings” in Australian courts or tribunals: FCA Act, s 37AO.

2    The applicants, as trustees of the bankrupt estate of the respondent, Mr Singh, move for relief in the form of vexatious proceedings orders. In particular, they seek orders as follows, namely:

(1)    pursuant to s 37AO(2)(b) of the FCA Act, that Mr Singh be prohibited, without first obtaining the court’s leave, from instituting any further proceedings in the court;

(2)    pursuant to s 37AO(2)(a) of the FCA Act, that certain extant proceedings in this court be dismissed or stayed; and

(3)    alternatively to paragraph 2, pursuant to s 37AO(2)(a) of the FCA Act, that the respondent be prohibited from continuing to prosecute certain extant proceedings, save with the court’s leave.

They also seek an order for costs.

3    In support of the application, the applicants rely upon three affidavits sworn by Innis Anthony Cull on (respectively) 29 August 2022, 3 February 2023, and 26 April 2023. In short compass, the evidence that has been led goes to the unusually large number of proceedings that Mr Singh has commenced in this court, in the Supreme Court of New South Wales and in the New South Wales Civil and Administrative Tribunal (“NCAT”). It will be necessary later to make observations about that corpus of litigation and the individual matters that comprise it; but, for now, it suffices to observe that they are said, collectively, to demonstrate what is said to be Mr Singh’s tendency to engage courts and tribunals (and other parties) in meritless litigation that often involves extravagant and incompetent contentions, generally pursued in aid of relitigating issues that have previously been decided against him.

4    For the reasons that follow, I am satisfied that Mr Singh is a person who has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, such that it is appropriate to make orders against him under s 37AO. Before exploring the frankly bewildering array of matters that have led me to that baseline conclusion, something should be said about the statutory framework that is engaged and the principles that regulate its application.

THE STATUTORY FRAMEWORK

5    Section 37AO of the FCA Act identifies the criteria upon satisfaction of which the grant of a “vexatious proceedings order” is conditioned. Relevantly, it provides as follows:

37AO Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

Note:    Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

…

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

(d)    a person who has a sufficient interest in the matter.

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) or (b) is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

6    Section 37AM of the FCA Act contains a number of relevant definitions, namely:

37AM Definitions

(1)    In this Part:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a)    for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

(b)    for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

…

(d)    for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceeding:

(a)    in relation to a court—has the meaning given by section 4; and

(b)    in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

proceedings of a particular type includes:

(a)    proceedings in relation to a particular matter; and

(b)    proceedings against a particular person.

vexatious proceeding includes:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

vexatious proceedings order means an order made under subsection 37AO(2).

…

RELEVANT LEGAL PRINCIPLES

7    The principles regulating relief under s 37AO(2) of the FCA Act are well established and were not in dispute.

8    In Fuller v Toms (2015) 234 FCR 535, 545 [31] (Besanko, Logan and McKerracher JJ), the Full Court described the purpose of s 37AO:

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. …

9    Colvin J expanded upon those observations in Ogbonna v CTI Logistics Limited (No 6) [2022] FCA 615 (“Ogbonna”). Relevantly, his Honour observed (at [3]-[5]):

The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3] (Perram J), approved in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] (Beazley P; Emmett JA and Sackville AJA).

It is an extreme measure and the exercise of the power should be approached accordingly: Soden v Kowalski [2011] FCA 318 at [35] (Stone J), as endorsed in Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159; (2011) 198 FCR 153 at [58].

The requirement for frequency in instituting or conducting vexatious proceedings must first be met before the statutory power to make any order of the kind described arises. Frequently is a relative term. Therefore, in evaluating whether there has been frequent conduct of the required kind, account must be taken of the nature of the litigation being considered. The requirement connotes a lesser test than its predecessor which required proceedings to have been conducted 'habitually and persistently'. Significantly for present purposes 'the Court may find that a person has instituted or conducted proceedings 'frequently' even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person': as to these matters see Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 at [33]-[34] (Besanko, Logan and McKerracher JJ), whilst noting the divergence in views in application that may arise, as is evident from the reasoning in Mohareb v Palmer (No 2) [2020] NSWCA 324.

10    In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (“Gargan”), Perram J—albeit addressing an ancestral regime pre-dating the provisions that are engaged presently—enumerated a series of principles (at [2]-[12]) to which the court should be alive when contemplating relief akin to a vexatious proceedings order:

… First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.

Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.

Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.

Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.

Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.

Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.

Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.

Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.

Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).

Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.

Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.

11    In assessing whether proceedings instituted or maintained by a litigant might qualify as “vexatious proceedings” (as defined), it is not necessary for the court to make findings about any facts or matters therein in issue. Rather, the court may take account of the record relevant to each such proceeding—in particular, court documents, submissions, orders and any reasons given in support—and, having done so, may make an assessment as to its character: Ogbonna, [23] (Colvin J); see also the comprehensive analysis of the caselaw on this point in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30, [41]-[64] (Wheelahan J).

MR SINGH’S LITIGATION HISTORY

12    As the analysis that follows lays bare, Mr Singh has been involved in a wide array of proceedings in this court, the Supreme Court of New South Wales and the NCAT. That involvement spans at least the last six years. The evidence that was led in the present matter appears not to represent a comprehensive breakdown of all the matters that Mr Singh has commenced; but, as will be seen, there is unquestionably a body of work that suffices for the purposes of the relief that is here sought.

13    As best as can be ascertained, one of the complaints that have spawned the litigation in which Mr Singh has engaged dates back to a dispute about a residential tenancy agreement into which Mr Singh entered in July 2020. In Lekhwar v Singh [2022] NSWCATCD 108 (hereafter “Lekhwar v Singh”), the Consumer and Commercial Division of NCAT made the following observations about that dispute (at [3]-[45]):

On 27 July 2020, Jaimin Babushankarsinh Yadav (Mr Yadav) and Divya Yadav (Mrs Yadav) as the landlords and Mr Singh and Ms Kaur as the tenants entered into a residential tenancy agreement in respect of [premises] for a period of 12 months commencing on 27 July 2020 at a rent of $400.00 per week and a rental bond of $1,600.00 (the residential tenancy agreement). On page 1 the “Landlord’s agent details” are specified as being Vady Pty Ltd trading as Fortis Real Estate (Fortis). On page 3 there are blank boxes “Yes” and “No” adjacent to the question “Does the tenant give express consent to the electronic service of notices and documents?” and a specified email address (referred to as the Singh email address).

On 7 April 2021, Mr and Mrs Yadav as the vendors and Mr and Mrs Lekhwar as the purchasers entered into a contract for sale of land in respect of the property subject to existing tenancies.

On 6 May 2021, Messrs Cull and Rambaldi were appointed as the joint and several trustees of the bankrupt estate of Mr Singh.

On 23 June 2021, Mr and Mrs Lekhwar as the landlords served a termination notice in the form issued by the Real Estate Institute of New South Wales dated 23 June 2021, signed by the landlords’ agent Yoginder Sharma, and addressed to the tenants stated to be Mr Singh and Ms Kaur, requiring them to give vacant possession of the premises on 26 July 2021 (the 23 June 2021 termination notice). The first page records that the grounds other than “End of Fixed Term – section 84” have been struck through. The second page records that the notice was served on the tenants by sending it by email to the Singh email address and was signed by the landlords’ agent Yoginder Sharma under the words “Signature of person serving notice”.

The following other proceedings between Mr and Mrs Lekhwar and Mr Singh and Ms Kaur in relation to disputes about the residential tenancy agreement have been commenced in the Tribunal as at 9 June 2022:

(1)    proceedings RT 21/32134 (the RT 21/32134 proceedings);

(2)    proceedings RT 21/36269 (the RT 21/36269 proceedings);

(3)    proceedings RT 21/38704 (the RT 21/38704 proceedings);

(4)    proceedings RT 21/47463 (the RT 21/47463 proceedings);

(5)    proceedings 2021/00332235 (the 2021/00332235 proceedings);

(6)    proceedings RT 22/05789 (the RT 22/05789 proceedings);

(7)     proceedings RT 22/21758 (the RT 22/21758 proceedings).

Arising out of decisions made by the Tribunal in relation to disputes about the residential tenancy agreement Mr Singh or Mr Singh and Ms Kaur have commenced the following proceedings in the Supreme Court of New South Wales:

(1)    proceedings 2021/00255522 (the 2021/00255522 proceedings);

(2)    proceedings 2021/00291230 (the 2021/00291230 proceedings);

(3)    proceedings 2021/00328613 (the 2021/00328613 proceedings);

(4)    proceedings 2022/00082479 (the 2022/00082479 proceedings);

(5)    proceedings 2022/00148475 (the 2022/00148475 proceedings);

(6)    proceedings 2022/00148604 (the 2022/00148604 proceedings).

The RT 21/32134 proceedings

On 26 July 2021, Mr and Mrs Lekhwar as the first and second applicants commenced the RT 21/32124 proceedings against Mr Singh and Ms Kaur as the first and second respondents by filing an application form (the RT 21/32124 application), which specified the Singh email address as the email address of Mr Singh and in which:

(1)    they sought the following orders:

“Section 87 - A termination order where the tenant has breached the residential tenancy agreement

Section 105 - A termination order where a tenant has given a termination notice and not vacated”

…

On 24 August 2021, the Tribunal constituted by General Member Pirina made the orders (the 24 August 2021 orders) including:

“2. The applicant landlords are granted leave to seek an order for termination, pursuant to s 84 of the Residential Tenancies Act 2010 (NSW).

3. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 31-Aug-2021.”

…

On 9 November 2021, the Tribunal constituted by Senior Member Charles relevantly made the following orders (the 9 November 2021 orders):

2. By consent, the Residential Tenancy Agreement is terminated in accordance with: - s 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term.

…

11. The proceeding constituted by the application in file no RT 21/32134 continues as the Landlords' claim for rent arrears; otherwise, the Landlords' second application (file no RT 21/36269) and the Tenants' application (file no RT 21/38704) are dismissed.

The RT 21/36269 proceedings

On 25 August 2021, Mr and Mrs Lekhwar as the first and second applicants commenced the RT 21/36269 proceedings against Mr Singh and Ms Kaur as the first and second respondents by filing an application form in which they sought relief under ss 87, 95 and 187 of the RT Act. The application form specified the Singh email address as the email address of Mr Singh.

On 9 November 2021, the Tribunal dismissed the RT 21/36269 proceedings pursuant to order 11 of the 9 November 2021 orders.

The RT 21/38704 proceedings

On 12 September 2021, Mr Singh and Ms Kaur as the first and second applicants commenced the RT 21/38704 proceedings against Mr and Mrs Lekhwar as the first and second respondents by filing an application form in which they sought relief under s 11 of the RT Act. The application form specified the Singh email address as the email address of Mr Singh.

On 9 November 2021, the Tribunal dismissed the RT 21/38704 proceedings pursuant to order 11 of the 9 November 2021 orders.

The RT 21/47463 proceedings

On 19 November 2021, Mr Singh and Ms Kaur as the first and second applicants commenced the RT 21/47463 proceedings against Mr and Mrs Lekhwar as the first and second respondents by filing an application form in which they sought relief under ss 11 and 187 of the RT Act. The application form specified the Singh email address as the email address of Mr Singh.

On 9 February 2022, the Tribunal constituted by Senior Member Ellis SC dismissed the RT 21/47463 proceedings.

The 2021/00332235 proceedings

On 22 November 2021, Mr Singh and Ms Kaur as the first and second appellants commenced the 2021/00332235 proceedings against Mr and Mrs Lekhwar as the first and second respondents by filing a notice of appeal in which they appealed against the 9 November 2021 orders.

On 16 May 2022, the Appeal Panel constituted by Principal Member Suthers and Senior Member Durack SC made orders and published their reasons for decision: Singh v Lekhwar [2022] NSWCATAP 158 (the 16 May 2022 Appeal Panel decision). In the 16 May 2022 Appeal Panel decision the Appeal Panel relevantly made the following orders:

“(3) The appeal is allowed.

(4) The orders made by the Tribunal on 9 November 2021 the subject of this appeal, namely orders 1, 2, 3, 4, 5, 6 and 7 are set aside.

(5) Proceedings RT 21/32134 be remitted to the Tribunal for re-determination insofar as those proceedings seek orders in relation to possession of the residential premises the subject of these proceedings, including any order for termination of a residential tenancy agreement between the parties.

(6) Mr Singh’s trustee(s) in bankruptcy is/are made a party to proceedings RT 21/32134.”

The RT 22/05789 proceedings

On 9 February 2022, Mr Singh and Ms Kaur as the first and second applicants commenced the RT 22/05789 proceedings against Mr and Mrs Lekhwar as the first and second respondents by filing an application form in which they sought relief under s 187 of the RT Act. The application form specified the Singh email address as the email address of Mr Singh.

On 4 April 2022, the Tribunal constituted by Senior Member Ellis SC relevantly made the following orders:

“ …

3. The application for disqualification for bias is rejected.

4. The application is dismissed.”

The RT 22/21758 proceedings

On 16 May 2022, the Tribunal renumbered the RT 21/32124 proceedings as the RT 22/21758 proceedings following their remittal by the Appeal Panel.

…

The 2021/00255522 proceedings

In September 2021, Mr Singh as the plaintiff commenced the 2021/00255522 proceedings against the Tribunal, Mr Lekhwar and Mrs Lekhwar as the first, second and third defendants by filing a summons in which he sought judicial review of orders 2 and 3 of the 24 August 2021 orders.

On 1 October 2021, Rothman J dismissed the summons.

The 2021/00291230 proceedings

On 13 October 2021, Mr Singh as the plaintiff commenced the 2021/00291230 proceedings against the Tribunal, Mr Lekhwar and Mrs Lekhwar as the first, second and third defendants by filing a summons in which he appealed against orders 2 and 3 of the 24 August 2021 orders.

The 2021/00328613 proceedings

On 18 November 2021, Mr Singh as the plaintiff commenced the [2021/00328613] proceedings against the Senior Member Charles, Mr Lekhwar and Mrs Lekhwar as the first, second and third defendants by filing a statement of claim in which he claimed damages against Senior Member Charles for fraud and “public malficence”.

On 10 June 2022, Garling J delivered a judgment: Singh v Charles [2022] NSWSC 743 (the 10 June 2022 Supreme Court judgment). In the 10 June 2022 Supreme Court judgment Garling J made the following orders (the 10 June 2022 Supreme Court orders):

“(1) Order, pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005, that the plaintiff’s Statement of Claim filed on 18 November 2021 be dismissed as against the first defendant.

(2) Order that the plaintiff pay the first defendant’s costs of the proceedings, including the Notice of Motion filed on 31 January 2022.

(3) List the balance of the proceedings before the Common Law Registrar at 9am on 20 June 2022.”

The 2022/00082479 proceedings

On 22 March 2022, Mr Singh as the plaintiff commenced the 2022/00082479 proceedings against Dominique Anne Carroll, Daniel Joseph Mckinnon, Complete Legal and Conveyancing, Mrs Lekhwar, Mr Lekhwar and Suzanne Gainsford-Holland as the first to sixth defendants by filing a statement of claim in which he claimed damages arising out of their involvement in the RT 21/32124 proceedings.

The 2022/00148475 proceedings

On 23 May 2022, Mr Singh and Ms Kaur as the first and second plaintiffs commenced the 2022/00148475 proceedings against Mr Lekhwar, Mrs Lekhwar, Messrs Cull and Rambaldi, the Tribunal, Deputy President Harrowell, Senior Member Ellis SC, Principal Member Suthers and Senior Member Durack SC as the first to eighth defendants by filing a summons in which they sought various orders including the 20 May 2022 orders be set aside, and Deputy President Harrowell, Senior Member Ellis SC, Principal Member Suthers and Senior Member Durack SC cease to have any involvement “in this matter”.

The 2022/00148604 proceedings

On 23 May 2022, Mr Singh and Ms Kaur as the first and second plaintiffs commenced the 2022/00148604 proceedings against Mr Lekhwar, Mrs Lekhwar, and the Tribunal as the first to third defendants by filing a summons in which they sought various orders including an order that all orders made by Principal Member Suthers and Senior Member Durack SC be set aside.

14    The tribunal went on (at [46]-[82]) to consider the subject matter of the dispute that was specific to the instant proceeding before it. It is helpful to replicate some of the observations that were made in that respect:

The history of the two proceedings

On 25 May 2022, Mr and Mrs Lekhwar as the first and second applicants commenced proceedings RT 22/23153 (the RT 22/23153 proceedings) against Mr Singh and Ms Kaur as the first and second respondents by filing an application form (the RT 22/23153 application), which specified the Singh email address as the email address of Mr Singh and in which:

(1)    they sought the following orders:

“Section 84 - A termination order at the end of the fixed term Section 187(1)(i) - A termination order or an order for the possession of premises”

(2)    they provided the following reasons for these orders:

“A termination order was sent by an agent and the date for the termination order was 26/07/2021, under section 84. The tenant did not move out of the property and another termination order was made for 14/09/2021. The tenant did not move out of the property once again. Since the 07/08/2021, only 2 weeks of rent was paid totalling to $1034.34. There is still a remaining of $18,965.66 until the 21/05/2022. We would like the tenant to move out as he has been dragging this matter along for too long and has now declared bankruptcy, even though multiple appeals and even a lawyer was hired. The tenant's wife has a restaurant opened under her name and the tenant is still claiming bankruptcy. There has been a major financial impact to us and has caused us to be unable to pay rent to the house we are currently residing in right now. If there is no decision made, we have no other choice but to go into our home ourselves, as they may be a eviction or termination order coming from my real estate agent. We would like a decision to be made as soon to be made, please.”

…

On 28 May 2022, Mr and Mrs Lekhwar as the first and second applicants commenced proceedings RT 22/23685 (the RT 22/23685 proceedings) against Mr Singh and Ms Kaur as the first and second respondents by filing an application form (the RT 22/23685 application), which specified the Singh email address as the email address of Mr Singh and in which:

(1)    they sought the following orders:

“Section 93 - A termination order due to undue hardship Section 187(1)(i) - A termination order or an order for the possession of premises”

(2)    they provided the following reasons for these orders:

“NOT PAID RENT SINCE 01/08/2021 ONLY 2 WEEKS RENT PAID , THE RENT IS $400 PER WEEK. WE SEEKING termination orders immediately, notice has given the tenant under 84 fixed terms, tenant not vacated the premieres we are in financial hardship and many health issue as this matter was in tribunal since 26/07/2021 tribunal not solve this issues in 11 months how ever they asked us to file fresh new application. we provided all evidence to related to our matter in previously”

…

The hearing

On 9 June 2022, the hearing of the RT 22/21758 proceedings, the RT 22/23153 proceedings and the RT 22/23685 proceedings took place. …

…

I then dismissed the RT 22/21758 proceedings as the landlords withdrew the RT 21/32124 application.

…

…When I asked Mr Singh to confirm that he received the documents at 6.28 pm, he answered “Yes”. I then admitted the documents into evidence. Mr Singh then denied that he had answered my question and said that Mr Lekhwar had answered the question.

Mr Singh then made an application that I disqualify myself on the ground of apprehended bias, and made submissions in support of the application. I dismissed the application and indicated that I would provide reasons in my decision.

Mr Singh then made an application that the two proceedings be adjourned, and made submissions in support of the application. I dismissed the application and indicated that I would provide reasons in my decision.

…

The application for disqualification

…

Notwithstanding the disavowal by Mr Singh, he was clearly alleging actual bias on my part. Mr Singh adduced no evidence of prejudgment on my part or that I had been influenced by Deputy President Harrowell.

…

The application for an adjournment

Mr Singh in substance made the submission that he had not had time to respond to the landlords’ evidence because he had not received it in support of his application for an adjournment of the two proceedings. Mr Singh did not identify the nature of the evidence he proposed to adduce in response to the landlords’ evidence.

15    Ultimately, the tribunal was persuaded to determine the two proceedings before it adversely to Mr Singh.

16    The Supreme Court of New South Wales has also recently had occasion to consider various proceedings involving Mr Singh (albeit proceedings that appear to be unrelated to those that are the subject of analysis above). In Singh v Singh; Singh v RCMO Pty Limited; Singh v Sharma; Singh v Murphy; Singh v Armstrong; Singh v Tidball [2023] NSWSC 280, Beech-Jones CJ at CL provided a summary as follows (at [1]-[79]):

Listed for hearing before me today are a series of notices of motion seeking, amongst other relief, the summary dismissal of five proceedings of which Mr Gurjit Singh is the plaintiff.

…

In December 2021, Ms Kaur and Ms Mehroke signed a written residential tenancy agreement in respect of premises in Elizabeth Crescent, Kingswood (the “premises”). The owners of the premises were Mr Umeshr Sharma and Mrs Krish Sharma (the “owners”).

By March 2022, it appears that Ms Kaur and Ms Mehroke had ceased paying rent. However, the premises were not vacated. Thereafter, three sets of proceedings under the Residential Tenancies Act 2010 (NSW) (the “RT Act”) were commenced in the Civil and Administrative Appeals Tribunal ("NCAT"). On 11 April 2022, proceedings RT22/15982 were commenced seeking termination of the residential tenancy agreement by reason of the refusal to pay rent. As I understand it, the application was filed by RCMO Pty Ltd (“RCMO”) on behalf of the owners. RCMO is the owners' agent. On 13 May 2022, another such application was filed, being proceedings RT22/00021195. On 3 June 2022, an application was filed in the name of Mr Singh and Ms Kaur, commencing proceedings RT22/00024873. Those proceedings sought orders under s 11 of the RT Act and an order for a reduction in the rent payable.

On 8 June 2022, the presiding member of NCAT, Member Gardner, ordered the removal of Mr Singh as a party to the proceedings and the addition of Ms Mehroke as an applicant. By his various proceedings, and in his oral submissions in this Court, Mr Singh has expressed great disgruntlement with that decision. As I understand it, he says he was a party to the residential tenancy agreement via some form of oral variation.

Although it is not entirely clear, it seems that on 15 June 2022, Member Gardner published orders which, inter alia, upheld the owners' claim and decided that the residential tenancy agreement was terminated immediately, with possession to be given to the owners. In his oral submissions in this Court, Mr Singh also expressed disgruntlement with what happened thereafter in terms of the opportunity that was given to himself, Ms Kaur and Ms Mehroke, to put on material in opposition to the various relief that was to follow from that point.

The order for possession was suspended until 8 July 2022, with a corresponding order that required the payment of a daily occupation fee until vacant possession was provided (see annexure A to Kaur v Sharma [2022] NSWCATAP 336).

On 7 July 2022, a notice of appeal was filed in the name of Mr Singh, Ms Kaur, and Ms Mehroke. On 11 July 2022, an Appeal Panel of NCAT stayed the order for possession on condition that the arrears of rent were paid.

On 13 July 2022, the Appeal Panel ordered the removal of Mr Singh as a party to the appeal but allowed him to represent Ms Kaur and Ms Mehroke. Again, in his oral submissions in this Court, Mr Singh expresses disgruntlement with this order on the basis that he contends he was a party to the residential tenancy agreement and should have been a party to the proceedings at first instance.

On 27 October 2022, the Appeal Panel dismissed the appeal and lifted the stay of the order for possession (Kaur v Sharma [2022] NSWCATAP 336). On 15 November 2022, the Appeal Panel extended the time in which the owners could apply for a warrant for possession (Kaur v Sharma (No 2) [2022] NSWCATAP 360).

As I understand the position, notwithstanding this lack of success in NCAT, Ms Kaur and Ms Mehroke continued to occupy the premises, at least for a period. Further, the affidavit material read on the various applications before me today has revealed that Mr Singh’s trustee in bankruptcy has disclaimed any interest in pursuing any of the proceedings that are before the Court.

In addition, it is necessary to note that in July 2021, Mr Singh was a tenant of another property in Kingswood. In Singh v Charles [2023] NSWSC 245 at [17] (“Singh v Charles”) Garling J noted the effect of a pleading by Mr Singh in that case, which was to the effect that on 23 June 2021, Mr Singh was allegedly the subject of an invalid notice of termination, which led to other proceedings in NCAT concerning those premises.

Proceedings Number 2022/00346122

On 17 November 2022, a summons was filed in the name of Mr Singh, Ms Kaur, and Ms Mehroke, naming the owners; Mr Michael Tidball, being the Secretary of the Department of Communities and Justice; Ms Tracey, Hall being the Sheriff of New South Wales; and NCAT as defendants. The relief sought included orders quashing the order granting an extension of the time in which to apply for a warrant of possession that had been granted by the Appeal Panel of NCAT on 15 November 2022. The relief sought also included an order restraining NCAT from issuing a warrant for possession.

On 8 February 2023, Cavanagh J summarily dismissed these proceedings (Singh v Tidball supra). His Honour held that the proceedings were an abuse of process because the principal relief sought was to restrain NCAT from a writ of possession which had no utility in that, even if NCATs orders of 15 November 2022 were quashed, the same orders could simply be made by NCAT for the issue of another warrant (at [47]). His Honour also added that there was no reason why the defendants, other than the owners, had to be joined to the proceedings (at [56]). His Honour concluded that Mr Singh had no standing to be a party to the proceedings, as he was not at least a written signatory to the residential tenancy agreement.

Proceedings Number 2022/184500

On 24 June 2022, a summons was filed in this Court naming Mr Singh, Mr Kaur and Ms Mehroke as plaintiffs. This summons commenced proceedings number 2022/184500. It is notable that the proceedings were filed when proceedings were at least before or between NCAT at first instance and the proceedings in the Appeal Panel.

The summons named nine defendants. The first three defendants were RCMO and its two principals, Mr Sarvjot Singh and Mr (or Ms) Narinder Sharma (collectively the “agents”). The fourth to fifth defendants were the owners. The sixth and seventh defendants were two members of NCAT, including the member who determined the three matters at first instance. NCAT was the eighth defendant and the Principal Registrar of NCAT (the “Registrar”) was the ninth defendant. The summons sought an order that the “appeal” be allowed, declarations that NCAT had no jurisdiction to hear the three proceedings at first instance and orders restraining the two members and the Registrar from further dealing with the matter.

…

Proceedings Number 2022/00133947

On 2 May 2022, proceedings number 2022/00133947 were commenced by the filing of a summons in this Court. An amended summons was filed on 22 August 2022. At that time, the appeal brought by Mr Singh, Ms Kaur and Ms Mehroke was pending before the Appeal Panel. The amended summons names Mr Singh and Ms Kaur as plaintiffs. It names the agents as the first three defendants and the owners as the fourth and fifth defendants. The relief sought seeks to set aside a notice of termination of the residential tenancy agreement issued by Mr Sarvjot Singh dated 21 March 2022. It somehow seeks to set aside a document described as a "condition report", seeks declarations that the starting date for the lease is contrary to law and what the appropriate market rental is for the premises. The summons also seeks orders that Sarvjot Singh and Narinder Sharma are not fit and proper persons to be real estate agents.

…

Submissions and Determination in Proceedings Number 2022/184500 and 2022/00133947

…

Mr Singh’s lengthy and detailed written submissions addressed his complaints about the approach of NCAT at first instance. His submissions were replete with allegations that in various respects NCAT lacked jurisdiction and that both the NCAT members, the agents and owners acted in bad faith. Mr Singh also contended that the NCAT decisions at first instance were void for various reasons citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11. He submitted that it was far more preferable to have one forum, namely the Supreme Court, determine all the issues that he sought to raise including those concerning the fitness and propriety of the real estate agents. He submitted that his bankruptcy did not preclude him from seeking judicial review and, as noted, contended that he was a party to the residential tenancy agreement and that NCAT wrongly refused to determine that.

During his submissions, the Court directed Mr Singh’s attention to whether or not these two sets of proceedings were futile, having regard to the fact that they were filed while an appeal was pending before the Appeal Panel and that the Appeal Panel has now ruled on the appeal.

…

In circumstances where the decision made by NCAT at first instance has now been the subject of an appeal and affirmed on appeal, there is no utility in this Court conducting judicial review of the first instance decision of NCAT. Such an exercise would be futile because the operative position is as declared by the Appeal Panel. Otherwise, even though in parts the summonses in both proceedings use the language of judicial review, many parts of the summonses seek to reagitate the factual merits of NCAT's decision including such matters as the appropriate rental. In these circumstances, the summonses must be dismissed as futile.

…

Proceedings Number 2022/00196452

On 5 July 2022, a statement of claim was filed commencing proceedings 2022/00196452. It named two plaintiffs, Mr Singh and Ms Kaur. The first three defendants are the agents. The fourth and fifth defendants are the owners. The sixth defendant is Member Gardner, and the seventh defendant is the Registrar. As against the first five defendants, that is the agents and the owners, prayer 1 of the statement of claim seeks damages for the tort of intentional infliction of emotional distress and exemplary damages as well as damages for economic and non-economic loss. Prayer 7 of the statement of claim seeks damages from Member Gardner for economic and non-economic loss for the tort of misfeasance in public office and intentionally inflicting emotional distress. Prayer 8 seeks damages from the Registrar for economic and non-economic loss without specifying any cause of action. The balance of the relief sought seeks various orders in relation to the residential tenancy agreement.

The statement of claim pleads various facts in relation to the course of the residential tenancy. It also pleads various acts of Member Gardner and the Registrar in the course of dealing with the proceedings at first instance in NCAT. Two things should be noted. First, the pleadings are only verified by Mr Singh and not by Ms Kaur. Second, the pleading is clearly embarrassing. It does not come close to pleading the material facts necessary to establish the causes of action identified in the prayers for relief.

…

In relation to judicial immunity of NCAT members, sch 2, cl 4 of the NCAT Act provides:

"A member has, in the exercise of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court."

This provision is a complete answer to the claim against Member Gardner. That this is so was pointed out in the clearest possible terms to Mr Singh as long ago as 10 June 2022 by Garling J in summarily dismissing other proceedings he purported to bring against an NCAT member in respect of that member's decision concerning the other premises to which I referred earlier (Singh v Charles). In that decision, Garling J explained that a complaint that a superior court judge acted outside their jurisdiction does not defeat a claim for judicial immunity (Singh v Charles at [31]). Despite this, it is clear that Mr Singh simply does not accept that he cannot sue a superior court judge for the tort of misfeasance in public office arising out of the performance of their functions. It is a repeated theme of the litigation to which I refer. In the present context, all the conduct of Member Gardner that is pleaded in the statement of claim concerns the performance of the functions and powers of that member’s office as a member of NCAT.

A similar principle known as derivative immunity requires the dismissal of the proceedings against the Registrar (see Wentworth v Wentworth [1999] NSWSC 317 at [43]−[44]). Again, a review of the statement of claim confirms that all the complaints about the Registrar’s conduct concern the performance of her functions as the Registrar of NCAT. In any event, no cause of action is pleaded against her at all. It follows that the proceedings against Member Gardner and the Registrar must be dismissed.

…

So far as Mr Singh's bankruptcy is concerned, the relevant effect of ss 58 and 116 of the Bankruptcy Act 1966 (Cth) is that, generally, his right to bring proceedings in respect of property vests in the trustee in bankruptcy, although there is an exception if the proceedings are for damages for compensation for personal injury (see Singh v Carroll [2023] NSWSC 245 at [52]−[54]). The statement of claim contains a mixture of claims for pecuniary loss and what is said to be emotional distress. It is clear that at least significant parts of the claim are not maintainable by Mr Singh as a bankrupt. However, this only highlights the two remaining problems with the statement of claim, being its lack of verification by Ms Kaur and its form.

…

It follows from what I have stated the proceedings against the sixth and seventh defendants, that is, Member Gardner and the Registrar, will be summarily dismissed. The proceedings against the first five defendants, i.e. the agents and the owners, will not be summarily dismissed, but the statement of claim will be struck out. …

…

Proceedings Number 2022/00325836

On 1 November 2022, a statement of claim was filed in this Court commencing proceedings 2022/00325836. Mr Singh is named as the only plaintiff. The first defendant is described as “Lee Armstrong”. However, the balance of the pleading makes it clear that is intended to be a reference to her Honour Justice Lea Armstrong, President of NCAT and a judge of this Court. The second to fourth defendants are all members of NCAT. The fifth defendant is the Registrar (of NCAT). The sixth defendant is the Registrar of the Court of Appeal of this Court, Jerry Riznyczok. The seventh and eighth defendants are the owners. The ninth defendant is Mr Sarvjot Singh. The 10th and 11th defendants are Manoj Babu and Neil Lawyers, whom I understand are the legal practitioners who have appeared for some of the defendants at some point. The 12th defendant is the State of New South Wales.

…

On 16 November 2022, an amended statement of claim was filed. The amendment included the amount claimed to the sum of $3 million. It sought an order setting aside an NCAT order made on 15 November 2022, a stay of a warrant, and included various paragraphs complaining about NCAT decisions made after the original statement of claim was filed.

…

It follows from what I have already determined that the claim of judicial immunity and derivative judicial immunity must be upheld and the claims against the second to sixth defendants must be dismissed. In addition, Registrar Riznyczok has the same immunity as a judge of the Supreme Court in the exercise of his judicial functions (see Judicial Officers Act 1986 (NSW), s 44C). Armstrong J has the same immunity in respect of the exercise of her functions as the president of NCAT and that extends to the performance of her “ministerial duties” (Judicial Officers Act, ss 44A and 44B). In any event, the contention that, as the President of NCAT, her Honour owes a duty of care to someone in Mr Singh's position is manifestly hopeless.

Of itself, that is sufficient to dispose of the proceedings against those defendants. However, I otherwise note that the claim of misfeasance in public office is embarrassingly pleaded and, for the reasons given in relation to the earlier pleading, most, if not all, of it cannot be sustained given that Mr Singh is a bankrupt. Further, there does not appear to be any basis for the claim against the State, but in any event that must fall with the claims against Armstrong J, the NCAT members, the Registrar (of NCAT) and Registrar Riznyczok. In those circumstances, it is not necessary to deal with the claim of abuse of process.

Other than judicial immunity, the same points apply in relation to the case against the remaining defendants (that is, the owners, their solicitors, and Mr Sarvjot Singh). It does not appear that any real case is pleaded against them, and that conclusion would warrant it being struck out. Further, I will not allow Mr Singh to replead. Given his bankruptcy status, what appears to be his lack of interest in the premises, and the difficulties experienced with this litigation to date, the proper course is to dismiss the proceedings in its entirety.

Proceedings Number 2022/00185767

On 26 June 2022, a statement of claim was filed in this Court commencing proceedings number 2022/00185767. Mr Singh is named as the first plaintiff and Ms Kaur is named as the second plaintiff. The pleading is verified by Mr Singh but not by Ms Kaur. The first seven defendants are New South Wales police officers. The 13th defendant is the State of New South Wales. The 14th to 21st defendants are either members of NCAT or the Registrar (of NCAT).

Prayer 1 of the statement of claim recites that it seeks from the police officers and other public office-holders general damages, aggravated damages, exemplary damages for economic and non-economic loss in respect of the causes of action in misfeasance in public office, false arrest, excessive and unwarranted use of force, unlawful direction to leave the property, unlawful entry into the premises under possession of the plaintiff, and conspiracy. The prayers for relief also include various declarations concerning the occupation of premises in Jamison Road, Penrith and assertion that various defendants perverted the course of justice in the course of a tenancy dispute conducted in NCAT.

As best as I can ascertain, the statement of claim appears to allege that on 25 June 2022, various police officers trespassed at premises in Jamison Road, Penrith. It seems that they were there to seek execution of some form of order for possession of the property. As I understand it, the police officers are said to be liable for their entry into the property and the NCAT members are said to be liable for the various proceedings that led to whatever order the police officers were enforcing. The statement of claim pleads the various acts of the NCAT members and the Registrar in the proceedings from August 2021 to June 2022.

The eighth defendant to the proceedings appears to be a power company. The 9th and 10th defendants appear to be the owners of that property, the 11th defendant appears to be their real estate agent and the 12th defendant appears to be their company. As I understand, it is alleged that they illegally arranged to change locks, eject the plaintiff from the property and transfer an electricity account in the days prior to the police attending.

…

It follows from what I have already stated that the statement of claim is clearly embarrassing. There is no attempt to identify which defendants are liable for which tort and which actions of each defendant are said to make up each tort.

…

The operation of [s 9B of the Law Reform (Vicarious Liability) Act 1983 (NSW)] is relatively clear; unless the Crown communicates that it will not indemnify the police officer, then the relevant claimant is prohibited from joining the individual officer to the proceedings. There is no suggestion that such a communication has been made.

It follows from the above that the proceedings against the NCAT members and the Registrar must be dismissed on the basis that they have judicial immunity. Further, the balance of the statement of claim in its entirety, including against the other defendants, must be struck out. It is clearly embarrassing. Further, it follows from what I have just stated in relation to s 9B of the Law Reform (Vicarious Liability) Act that the police officer defendants must be removed as parties.

…

Other Proceedings

As noted, listed for directions today is proceedings that were initially commenced in the Court of Appeal on 2 March 2023 against Mr Tidball and the various other defendants seeking judicial review of parts of the decisions made by the Appeal Panel. The proper course with those proceedings is to stand them over to the further date, which is 18 May 2023, to allow the parties to consider these reasons.

Further, from the material filed on Mr Singh's behalf, it became evident that he has a number of other proceedings outstanding in this Court. Three warrant mention. One is proceedings 23/00049063, in which Mr Singh sues Cavanagh J, Rothman J, Bell CJ, the Premier and the Prime Minister. Another is proceedings number 2022/2477/88 in which Mr Singh sues, inter alia, a judge of the Federal Circuit Court and a judge of the Federal Court. Third, it is evident from the material that Mr Singh has filed another proceeding against a judge then of the Federal Court who, as I understand it, made the sequestration order. All of these matters raise obvious concerns about the Court’s processes being abused.

17    Beech-Jones CJ at CL then considered whether it would be appropriate to make a vexatious proceedings order (or its equivalent under New South Wales legislation) against Mr Singh. On that front, his Honour made the following observations (at [82]-[99]):

Vexatious Proceedings

The multitude of cases commenced by Mr Gurjit Singh over the last 18 month[s] appears to have a number of vexatious qualities. At this point it suffices to note six of them.

First, a number of them either are, or appear to be, mostly manifestly hopeless.

Second, the proceedings appear to be commenced with Mr Singh having what may have been a legitimate disgruntlement with his treatment in NCAT, but they have expanded from that beyond all proportion to his original complaint.

Third, it appears that each time that Mr Singh is subject to a ruling that he disagrees with, he then commences proceedings in which he personally sues the tribunal member or judicial officer who has ruled against him.

Fourth, it appears that he takes no real cognisance of any attempt by the various judicial officers to point out the fundamental flaws in all the proceedings he commences.

Fifth, Mr Singh appears to be proceeding with impunity in that as a bankrupt he is not deterred by any costs order.

Sixth, for the reasons I have already outlined, Mr Singh appears to be attempting to carry on proceedings on behalf of others and, in effect, entangle them in the vexatious proceedings he has commenced.

…

Unless an interlocutory order is made, it seems to me inevitable that Mr Singh will continue to file proceeding after proceeding against the owners, against NCAT members, against judges and all and sundry with whom he disagrees…

…

The interlocutory order that I will make will operate until further order. It will preclude Mr Singh from commencing any proceedings in this Court, including a criminal proceeding, without obtaining the leave of a judge of the Court.

…

Consistent with what I have stated, I also recommend that the Attorney General consider making an application for a vexatious proceeding order in relation to Mr Singh.

…

Henceforth, Ms Kaur and Ms Mehroke will have to take their own course if they wish to assume the risks and obligations of being a plaintiff. The interests of justice require that Mr Singh not be permitted to conduct proceedings on their behalf, including appearing (Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230).

18    Mr Singh has also brought a number of applications in federal courts, including this one. Most pertain in some way to his bankruptcy.

19    On 29 January 2020, for example, Mr Singh commenced proceeding NSD 96 of 2020, by which he sought to have set aside a bankruptcy notice with which he had been served. That notice related to judgment debts that Mr Singh was said to owe to creditors Ghulam Akbar Khan, Samina Khan and Fobupu Pty Ltd. The application to have it set aside failed: Gleeson J held that there was “no reason to question the existence of the debts that [were] the subject of the relevant judgments”: Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886, [79].

20    Mr Singh appealed (the appeal proceeding became matter NSD 788 of 2020). He sought to challenge Gleeson’s J judgment on various alleged errors of fact and/or law, which the full court on appeal summarised as follows (in Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14, [6] (Rares, Farrell and Stewart JJ)):

Those points can be further summarised as follows, being, namely:

(1)    her Honour erred in allowing the creditors to elect on which of two bankruptcy notices he had challenged in the proceeding below they wished to proceed (the election issue),

(2)    the bankruptcy notice could not have been validly based upon decisions of NCAT because they were not able to be registered as, and were not, final judgments (the final judgment issue),

(3)    her Honour erred in rejecting his claim that he had a cause of action to recover money on the set-off he asserted (the set-off issue),

(4)    neither of Dr Ghulam Khan or Dr Samina Khan had contributed to, or paid any part of, the costs the subject of the judgment debts, and Fobupu did not have the legal capacity to cause the bankruptcy notice to be issued because the judgment debts were owed to the trust and, therefore, none of them was a creditor entitled to cause the bankruptcy notice to be issued in their names (the capacity issue),

(5)    her Honour erred in failing to seek further information about what he said were pending proceedings in the Supreme Court in which he sought to challenge the orders of NCAT, including those on which the two judgment debts were based (the information issue),

(6)    the bankruptcy notice should have been set aside because of the creditors’ bad faith (the bad faith issue),

(7)    the bankruptcy notice was defective because of the failure to include any Australian business number, or ABN, of the creditors in it (the ABN issue),

(8)    her Honour erred in failing to go behind the judgment debts (the genuine debts issue), and (9) her Honour erred in not allowing Mr Singh to put on further submissions following the conclusion of the hearing (the further submissions issue).

21    That appeal failed. In a unanimous decision, their Honours held (at [26]-[56]):

The election issue

…

It follows that the primary judge was correct to require the creditors to make the election they did. No injustice has been identified or is apparent from her Honour having adopted the course that she did, nor is it clear what submissions Mr Singh could have made, had her Honour granted leave to him to do so, following the making of the election after the conclusion of the hearing as he had sought.

The final judgment issue

…

There is nothing before us to suggest that there was any reason why execution on the first and second judgments could not have occurred against Mr Singh’s assets. They were final judgments, enforceable according to their tenor. Thus, Mr Singh’s argument on the final judgment issue must be rejected.

The set off issue

…

It follows that her Honour was entitled not to be satisfied that Mr Singh (as opposed to any of his companies) had a relevant entitlement to withhold money, or a legally recognisable claim that he could enforce against the creditors, or one or more of them, to make out that he had a right to claim a set-off, cross-claim or cross demand under s 40(1)(g). For these reasons, Mr Singh’s second challenge to her Honour’s decision fails.

The capacity issue

…

For those reasons, even if Fobupu was acting in its capacity as trustee in whatever dealings Mr Singh asserts it had with him or his companies[, it] was the only person in law that could be the lessor and the tenant had to pay rent to Fobupu.

The information issue

Given that the two judgments in the Local Court have not been stayed, there was no reason for her Honour not to act on those as final judgments. Mr Singh has put nothing before us by way of evidence about any matter that could suggest that her Honour erred in not seeking further information.

The bad faith issue

Mr Singh asserted that the creditors had acted in bad faith, or that there had been some form of abuse of process. We are wholly unable to understand any basis on which that assertion could be established on the material before her Honour.

The ABN issue

Mr Singh argued that the bankruptcy notice was defective in substance because it did not include an ABN. However, the prescribed form for a bankruptcy notice under reg 4.02 of the Bankruptcy Regulations 1996 (Cth) requires the inclusion of the creditor’s name, and either an ABN or an Australian company number, or ACN. As counsel for the creditors pointed out in his submissions, the ACN of Fobupu is included in the bankruptcy notice. Accordingly, the bankruptcy notice complied with the requirements of the Regulations and did not need to include an ABN. This challenge must be rejected.

The genuine debts issue

Next, Mr Singh argued that her Honour erred in failing to go behind the judgment debts. Having regard to the reasons that her Honour gave, and the authorities to which she referred in Rafidi [2020] FCAFC 26 at [13]–[14], this argument had no basis. Moreover, there was nothing suggestive of any conduct such as would entitle the Court to go behind the two judgment debts for costs, which were awarded by NCAT after, as Mr Singh acknowledged, he had had every opportunity to make submissions and address, first, NCAT on the making of each order and, secondly, the costs assessor on the quantification of the costs. This ground must be rejected.

The further submissions issue

For the reasons we have given, her Honour was entirely correct to require the creditors to make the election, which they did, and was entitled to proceed as she did.

Mr Singh had no right, once her Honour had reserved her decision, to make any submissions following the conclusion of oral argument in the hearing.

22    After commencing the above appeal but before judgment was handed down, Mr Singh brought proceedings against Fobupu Pty Ltd and its directors, Dr Ghulam Khan and Mrs Samina Khan. By that proceeding (NSD 1392 of 2020), he sought reimbursement for amounts paid by way of rent under a tenancy. That claim appears to have been founded upon what he asserted was some kind of right to withhold or retain rent payments.

23    Stewart J was moved to strike out Mr Singh’s 61-paragraph statement of claim. En route to doing so, his Honour identified 11 material allegations that might have been said to sustain a cause of action, but held (Singh v Khan [2021] FCA 140, [10]):

On the basis of those allegations I am unable to discern that the applicant has a reasonable cause of action against each of the respondents. I raised this with the applicant in the first case management hearing and gave him the opportunity to try to explain the cause of action. As with the previous courts, I was unable to properly understand it despite asking several questions by which I sought to have the cause of action elucidated.

24    Mr Singh was given leave to re-plead his statement of claim. He did so. The respondents sought to have the amended version struck out. On 5 May 2021, Stewart J held (Singh v Khan (No 2) [2021] FCA 463, [4]-[5]):

Leaving aside the question of whether a reasonable cause of action is pleaded, there are a number of respects in which the statement of claim is objectionable. They include:

(1)    the pleading of evidence: paragraphs 9, 10, 21–27 and 42;

(2)    averments that do not make grammatical sense and therefore lack intelligible meaning: paragraphs 11 and 41;

(3)    averments that are evasive or ambiguous, or likely to cause prejudice, embarrassment or delay: paragraphs 12, 14–15, 16–20, 28–33, 35, 43, 58–59, 65–66, 73, 74 and 126;

(4)    averments about other proceedings in respect of which it is not made clear why they are relevant, or how they are relied on in the present case: paragraphs 36–40, 46–53 and 130; and

(5)    the pleading of case law: paragraphs 60 and 61.

From the number of paragraphs affected by those identified problems, it is apparent that the statement of claim is riddled with pleading objections such as to warrant that it be struck out. Most of the objections are the same as, or along the lines of, the objections to the first statement of claim. Whether or not the applicant should be given the opportunity to plead again, taking into account that he is self-represented, will depend on whether a tenable cause of action is discernible in the confusing morass of what he has pleaded.

25    Stewart J went on to set out the “core underlying facts” as his Honour perceived them, “…supplemented by clarification given by the applicant at the hearing”. In that regard, his Honour observed (Singh v Khan (No 2) [2021] FCA 463, [6]):

(1)    The applicant’s company, Anmol Holdings Pty Ltd, and the third respondent, Fobupu Pty Ltd, entered into a lease of certain premises in October 2006, Anmol being the lessee and Fobupu being the lessor.

(2)    Fobupu did not have an Australian Business Number (ABN) and did not provide invoices for rent, or if it did provide invoices they did not reflect an ABN or a valid ABN.

(3)    Anmol paid rent in cash.

(4)    The purpose of the lease was to conduct an enterprise, namely a restaurant.

(5)    The payment of rent by Anmol was done by the applicant on Anmol’s behalf, and the applicant was ignorant when he paid rent that Anmol as payer was under a legal obligation to withhold a proportion of the rent (about 47%) as withholding tax under s 12-190 of Sch 1 of the Taxation Administration Act 1953 (Cth) (TAA53)…

…

(6)    Fobupu did not declare the rental received from Anmol and the applicant as income to the Commissioner of Taxation, and the applicant knew that all along as he had been informed of it by Dr Khan, the first respondent and a director of Fobupu.

(7)    In February 2012, Anmol was deregistered and the applicant took over as lessee and continued paying rent in the same circumstances of mistake of law until November 2017.

(8)    From November 2017, Fobupu provided tax invoices for rent to the applicant which cited an ABN although, to the applicant’s knowledge, the ABN was not valid or was the ABN of a different entity.

(9)    The applicant knew from that time that he had a withholding tax obligation in respect of each rental payment.

(10)    Payment of rent in those circumstances continued through to 2019.

(11)    In 2018, the applicant self-declared to the Commissioner that he had not withheld withholding tax on the rent that Anmol or he paid to Fobupu but the Commissioner has not yet made any claim against the applicant for such withholding tax whether by way of assessment, amended assessment or otherwise.

(12)    The total amount that should be withheld is approximately $550,000, of which approximately $315,000 was in the period before the applicant became the lessee (i.e., 2006-2012) and $42,000 was in the period after the applicant knew that he had a withholding tax obligation and that the ABN on Fobupu’s tax invoices was incorrect.

26    From this, Stewart J identified three potential causes of action in Mr Singh’s submissions, namely “…set-off, money had and received having been paid under a mistake of law, and constructive trust”: Singh v Khan (No 2) [2021] FCA 463, [7].

27    As to “set-off”, Stewart J held (at [8]):

To plead a set-off is to raise a defence rather than to assert a cause of action: Piccone v Suncorp Metway Insurance Ltd [2005] FCAFC 260; 148 FCR 437 at [14] per Dowsett, Jacobson and Greenwood JJ. The alleged set-off therefore provides no foundation to the claim sought to be asserted. …

28    Stewart J then considered whether Dr and Mrs Khan were properly respondents to the action before him, and held (at [10]):

There is no basis disclosed as to why Dr and Mrs Khan would be liable to the applicant. The payments in question were for rent payable to the lessor. The lessor was, throughout the relevant period, Fobupu. …

29    As to payments made by Mr Singh while his company, Anmol Holdings Pty Ltd, was the lessee (that is, prior to February 2012), Stewart J held (at [14]):

…The applicant seems to wish to say that all the payments made over time would have been appropriated first to discharge the genuine rental obligations and that the current claim is a subsequent claim to which only the later rental payments would be appropriated, ie, all of which were paid after he became lessee. That only has to be stated to demonstrate that it makes no sense. The withholding obligation was that of the payer, ie, the lessee, and if it exists it arose on each payment being made. There is no basis to apply the rule that payments are appropriated to the oldest debt first so as to conclude that the applicant can make the claims for the period when Anmol was the lessee.

It follows that the statement of claim should be struck out Insofar as it asserts a claim for the period prior to February 2012. As no reasonable cause of action can be pleaded in respect of that period, no leave should be given to replead it.

30    As to the argument concerning the existence of a constructive trust, Stewart J held (at [19]-[20]):

The point is that either the Commissioner gets the money from Fobupu through Fobupu’s tax obligations or, if it is withheld by the applicant as payer, from the applicant. If the applicant recovers from Fobupu then the repayment will be impressed with a constructive trust in favour of the Commissioner: see KAP Motors Pty Ltd v FCT [2008] FCA 159; 168 FCR 319 at [41]-[42] per Emmett J which is discussed further below. Thus far, despite the passage of two and a half years since the applicant self-disclosed to the Commissioner, the Commissioner has not pursued the applicant.

In those circumstances, it is hard to see what unconscionable conduct there is that might justify the imposition of a constructive trust on the overpayments in favour of the applicant. There is no justification for the intervention of equity.

31    As to the argument of money had and received having been paid under a mistake of law, Stewart J held (at [30]):

In the present case, the applicant is in the position of the dealers in KAP Motors [in KAP Motors Pty Ltd v FCT (2008) 168 FCR 319]. It is no answer to the applicant’s case that any recovery by him will be impressed with a trust in favour of the Commissioner. It does however point to the pointlessness of the applicant’s case; any recovery by him will not accrue to his estate. He will hold it as trustee, and if it turns out that he does not have to pay it to the Commissioner, perhaps because the Commissioner has recouped the requisite income tax from Fobupu, he will be under obligation to repay it to Fobupu.

32    Thus, Stewart J determined to strike out Mr Singh’s pleading, but granted him leave to file a new statement of claim by 31 May 2021 to plead only a money-had-and-received claim against Fobupu Pty Ltd covering the period February 2012 to November 2017.

33    Shortly thereafter, Mr Singh’s bankruptcy intervened. On 6 May 2021, a sequestration order was issued by what was then known as the Federal Circuit Court of Australia. As history records, the applicants in the present matter (Messrs Cull and Rambaldi) were appointed as the joint trustees of Mr Singh’s bankrupt estate.

34    Mr Singh challenged that order by means of an appeal commenced in this court on 23 May 2021. That proceeding—NSD 465 of 2021—was allocated to his Honour, Justice Bromwich.

35    On 3 February 2022, Mr Singh filed in NSD 465 of 2021 an interlocutory application seeking that Bromwich J disqualify himself from that proceeding on the ground of actual bias. His Honour dismissed that application on 7 February 2022.

36    On 16 February 2022, Mr Singh attempted to file, also in NSD 465 of 2020, a further interlocutory application seeking a declaration and an annulment of his bankruptcy. In a case management hearing on 18 February 2022, Bromwich J refused to allow the filing on the grounds that the relief was not relief that the court could grant in the exercise of its appellate jurisdiction.

37    The hearing of the appeal that was the subject of matter NSD 465 of 2021 (that is to say, Mr Singh’s appeal from the sequestration order by which his bankruptcy commenced) proceeded before Colvin J on 3 February 2023. Formally, it proceeded upon 10 grounds of appeal; however, Mr Singh’s written submissions were not arranged by reference to those grounds. By taking account of Mr Singh’s grounds, written submissions and oral submissions, his Honour identified the main contentions advanced by Mr Singh as follows (Singh v Khan [2023] FCA 76, [23]-[25]):

(1)    the primary judge erred in refusing to allow Mr Singh to cross-examine the deponent to the Affidavit of Debt;

(2)    the primary judge erred in refusing to hear Mr Singh’s interlocutory application;

(3)    the primary judge, in substance, failed to discharge his judicial function;

(4)    the reasons given by the primary judge were inadequate;

(5)    the primary judge erred in giving leave to amend the date of the act of bankruptcy in the creditors’ petition;

(6)    the primary judge erred in making the sequestration order because the evidence was that the date of bankruptcy was 5 May 2020;

(7)    the primary judge erred in making the sequestration order when Fobupu did not petition as trustee for a trust;

(8)    the primary judge erred in failing to go behind the judgment and concluding that s 86 of the Legal Profession Uniform Law Application Act did not suspend the operation of the cost assessor’s determination;

(9)    the primary judge erred in failing to go behind the judgment and concluding that there was a setoff of the kind put to Gleeson J;

(10)    the primary judge erred in failing to go behind the judgment and concluding that there was some issue with the way the costs had been assessed in circumstances where there was not a contested hearing concerning the assessment of the costs in which Mr Singh was allowed to participate;

(11)    there was some significance to the three interlocutory applications that had been before Senior Member Simon;

(12)    there was some significance to be given to the fact that NCAT could only make cost orders in exceptional circumstances; and

(13)    the primary judge failed to provide written reasons until after the appeal was commenced.

I do not include in this list the various allegations about apprehended bias, partiality and lack of independence on the part of the primary judge, members of NCAT or other judges because there was no evidentiary basis for any such claim and no logical explanation for the general assertions advanced…

I also do not include in the list the bald claims that false statements have been made by lawyers acting on Mr Khan’s behalf in other proceedings concerning the cost assessment. They also lacked any proper evidentiary foundation. Finally, I do not include in the list complaints raised in the appeal as to statements allegedly made by Mr Khan in NCAT. These are new allegations not apparent from the submissions advanced to the primary judge. Their nature and significance is not entirely clear and there was no evident connection between the alleged false statements and the cost order that resulted in the assessment that came to be the subject of the Local Court judgment. In all those circumstances, they are not arguable and need not be considered.

38    Colvin J dismissed the appeal. In doing so, his Honour addressed Mr Singh’s contentions as follows (at [29]-[64]):

(1) Refusal to allow cross-examination

…

…it has not been demonstrated that any forensic purpose would have been served by the cross-examination. For those reasons, the ground concerning cross-examination does not demonstrate a basis upon which the appeal should be allowed.

(2) Refusal to allow Mr Singh’s interlocutory application

…

Mr Singh has not advanced any reason as to why, in the above circumstances, there was error in the approach of the primary judge.

(3) Failure to discharge judicial function

…

It is the case that the primary judge referred to ‘the circumstances in which the judgement relating to outstanding rent was obtained’ in his reasons. This was not accurate. … Nothing turned upon the precise nature of the proceedings in NCAT.

The error has not been shown to infect the reasoning of the primary judge.

(4) Inadequacy of reasons

…

The reasons given by the primary judge did not identify or address the thrust of a number of the arguments of Mr Singh. They did not deal with whether there was any significance in his claims that he had not been able to participate in the process by which the costs were assessed, that the judgments had been obtained ex parte and that he was pursuing a challenge to the cost assessment in the Supreme Court. Nor did it address his allegations to the effect that there had been some form of misconduct in the course of the Supreme Court proceedings.

However, it is not sufficient for Mr Singh to demonstrate inadequacy in the reasons. Rather, in cases of insufficiency in reasoning by the primary judge, the appeal court is entitled to consider the merits and may itself decide the matter: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444 (Meagher JA). In the present case, the points made by Mr Singh fell into two categories. First, general allegations of some form of misconduct in the Supreme Court proceedings in which he sought to challenge the costs assessment. Those allegations lacked any particularity. Otherwise, the merits of the contentions advanced by Mr Singh did not depend upon contentious matters of fact about which findings were required to be made by the primary judge. In those circumstances, it was necessary for Mr Singh to demonstrate that there was legal merit in one or more of the contentions that he advanced as to why the primary judge ought to have gone behind the judgment. As is explained in these reasons, none of the contentions advanced by Mr Singh in the appeal have any merit. Therefore, this is not a case in which the inadequacy of the reasons should cause this Court to overturn the decision.

(5) Leave to amend the date of bankruptcy

…

…It was not suggested that the amendment gave rise to any prejudice to Mr Singh. It was entirely appropriate to make the amendment. No error has been demonstrated.

Relatedly, much was made by Mr Singh of the fact that the Affidavit of Debt sworn by Mr Khan had a type written date of 5 May 2021, but a handwritten date as part of the jurat of ‘5.4.2’. On the basis of evidence adduced in the appeal, I was satisfied that the affidavit was the Affidavit of Debt that was before the primary judge and I received the affidavit in the appeal on that basis.

(6) The date of bankruptcy

…

…The claim made as to the date of bankruptcy not being correct seems to relate to the affidavit evidence as to the date of bankruptcy being when there was a failure to comply with the bankruptcy notice, but not allowing for the extension. For reasons that have been given, the primary judge was correct to allow for the extension of the time for compliance in determining the date of bankruptcy.

(7) The failure by Fobupu to state that it petitioned as trustee for a trust

The contention that Fobupu was required to bring the petition as trustee was advanced before Gleeson J as a reason why the bankruptcy notice should be set aside. Her Honour explained that the judgments relied upon did not identify the cost orders in NCAT as having been obtained by Fobupu in its capacity as trustee. For reasons given by her Honour (upheld by the Full Court) the point was without merit.

(8) Section 86 of the Legal Profession Uniform Law Application Act

…

Even assuming that Mr Singh did seek some form of review within time, in order to provide a basis for the Court to exercise its discretion to go behind the judgment he needed to demonstrate some merit in the basis for seeking such an assessment that could result in the reduction of the debt below the statutory minimum for which a petition may be presented. He presented no basis for such a contention before the primary judge or on appeal. …

…

(9) The setoff

…

…[I]n the absence of any articulation as to why the reasoning by Gleeson J was incorrect or some other point that had not been addressed by her Honour there was no basis to support the exercise of the discretion [not to go behind the judgments relied upon to support the creditors’ petition]. There was no such articulation by Mr Singh.

…

(11 [sic]) The three interlocutory applications that had been before Senior Member Simon

…No submission was advanced by Mr Singh as to why these matters might mean that the cost order (and subsequent assessment) might be impugned. Nor was it explained why the primary judge was in error by reason of some matters concerning those applications. …

(12) NCAT could only make cost orders in exceptional circumstances

The bald submission was advanced that NCAT could only make cost orders in exceptional circumstances. Otherwise, it was not suggested that the cost orders were not made within the confines of the discretion entrusted to NCAT. The submission does not establish appellable error.

(13) Failure to provide written reasons

It was alleged that there was a delay in the provision of settled written reasons. Any such delay is less than desirable: EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304. However, it is not a basis upon which to impugn the decision of the primary judge. The appeal was commenced in time and written reasons are available.

39    The following day, Mr Singh filed an amended statement of claim in a proceeding that he appears to have earlier commenced in the Supreme Court of New South Wales (namely, matter 2023/00030478). It is not clear when that proceeding was commenced, nor what was its purpose. What is clear, though, is that, by the amended pleading, Mr Singh sought to add, as the seventh, eighth and ninth defendants in that action, Colvin J (personally), the Prime Minister, Mr Albanese, and the then-Premier of New South Wales, Mr Dominic Perrottet. Gleeson J was an existing defendant. Amongst other things, Mr Singh sought relief for misfeasance in public office, declaratory relief concerning the limits of the New South Wales Parliament’s legislative powers and the constitutionality of the Bankruptcy Act 1966 (Cth), and relief based on allegations of racial discrimination (which he appeared to direct to at least one of the judges of this court).

40    The contentions contained within that amended pleading are difficult to comprehend. What is open to comprehension is extravagant and scandalous, and its replication here is beneath the dignity of the court. I need say nothing further about it.

41    Mr Singh has also commenced actions against the trustees of his bankrupt estate. On 9 September 2021, he commenced proceeding NSD 948 of 2021. That application stated (errors original):

[T]he Applicant claims Jurisdiction of Federal Court of Australia Act 1976 s19-s23 and Bankruptcy act 1966 – Schedule2 Insolvency Practice Schedule (Bankruptcy) clause 90-15 unless otherwise stated,

1)    Declaration that appeal 2018/278850 is not property vested in the Trustee pursuant to s 58 of the Bankruptcy Act 1966

2)    Declaration that process 2019/198124 is not a property vested in the Trustee pursuant to s 58 the Bankruptcy Act.

3)    Whether the whole Remuneration of $26,906 for the period 6 May 2021 to 27 June 2021 is for the necessary work properly performed by the trustee in relation to the administration? [Insolvency Practice Schedule (Bankruptcy)]

4)    Pursuant to FEDERAL COURT RULES 2011–RULE 1.34 Extension of time to apply.

42    That application (NSD 948 of 2021) was also docketed to Bromwich J. On 23 June 2022 (and following a series of case management hearings), his Honour ordered that the matter be stood over pending the outcome of the appeal commenced in matter NSD 465 of 2021.

43    There have been other proceedings that Mr Singh has commenced in this court as well. On 11 November 2021, he filed a notice of appeal (which became matter NSD 1221 of 2021) from the judgment of Adamson J of the Supreme Court of New South Wales in Singh v Khan [2021] NSWSC 1093. Mr Singh asserted that an appeal lay “in accordance with Boensch v Pascoe [2016] NSWCA 191 under Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) section 7(5)”, and sought various orders, naming Dr Khan, Mrs Khan, Fobupu Pty Ltd, the Secretary of the Department of Communities and Justice, Anthony Dicembre (the solicitor who had acted for Dr Khan, Mrs Khan and Fobupu Pty Ltd), Ryan Brown (a barrister), Karen Jones (then a registrar of the Supreme Court of New South Wales), Karen Smith (the Crown Solicitor for New South Wales), and his trustees in bankruptcy as respondents. The notice of appeal listed 17 separate grounds including that the “Supreme Court denied the appellant his right to have [a] fair hearing”. Amongst other things, Mr Singh again sought orders to set aside the bankruptcy notice with which Gleeson J and the full court (dealing with an appeal from her Honour’s judgment) had already addressed (see above, [19]-[21]).

44    It is necessary to say something about the subject matter of the judgment from which Mr Singh sought to appeal. In her reasons for judgment, Adamson J outlined as follows (at [1]-[6]) the nature of the application that was before her:

Introduction

Two notices of motion were listed for hearing together in this matter. The first was filed on 23 July 2021 on behalf of Ghulam Khan, Samina Khan and Fobupu Pty Ltd (the defendants). It seeks, first, a stay of the proceedings by reason of the statutory prohibition in s 60(2) of the Bankruptcy Act 1966 (Cth) and, second, an order that the plaintiff’s notice of motion filed on 13 July 2021 be dismissed on the grounds the plaintiff does not have standing to bring the motion or continue the proceedings. Gurjit Singh (the plaintiff), by notice of motion filed on 12 August 2021, seeks review of the Registrar’s directions to list the defendants’ notice of motion for hearing prior to determination of his notice of motion filed on 13 July 2021.

Although the issues in dispute do not, ultimately, require detailed consideration of what led to the notices of motion, it is necessary to give some context to the disputes between the parties, if only to appreciate the parties’ respective submissions. Accordingly, before turning to the motions, I propose to summarise the background to the present applications.

Background facts

The proceedings in the New South Wales Civil and Administrative Tribunal

Proceedings in the Consumer and Commercial Division

On 18 December 2017, the plaintiff commenced proceedings in the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal (NCAT). He sought orders concerning retail lease premises which were the subject of a lease entered into between Fobupu Pty Ltd, as lessor, and Amnol Holdings Pty Ltd, as lessee. The plaintiff was the guarantor of the lessee’s obligations. On 6 March 2018, Senior Member Simon made directions for the matter which was listed for hearing on 14 May 2018. The directions required the parties to provide to each other, and to NCAT, copies of all documents on which they proposed to rely for the hearing. A direction was also made that a failure by a party to provide documents in accordance with the directions may result in the party not being permitted to rely on the documents without leave. On 21 March 2018, the plaintiff sought leave to appeal to the Appeal Panel against these orders. Subsequently, on 6 April 2018, the plaintiff applied to vacate the hearing date. Further directions were made by the Deputy President of the Consumer and Commercial Division of NCAT on 17 April 2018 which required the parties to file and serve by 26 April 2018 a statement of the orders they sought in the proceedings, together with evidence relied upon. The Deputy President stood the matter over to 27 April 2018.

Proceedings in the Appeal Panel

On 18 April 2018, Principal Member Harrowell, sitting as the Appeal Panel, heard and determined the plaintiff’s application for leave. His reasons for decision amounted to 15 pages. His conclusions and orders were as follows:

“It seems to me in those circumstances there is no basis which has been established that would warrant leave in the present case. I might add to those comments that that is particularly so having regard to the fact that the orders which have been appealed were made on 6 March 2018, and it is clear from the information that has been provided to the Appeal Panel that those orders were in fact varied to extend time on 29 March 2018 and were subject to the further review on 17 April 2018. There is no material before the Appeal Panel that would suggest that those extensions of time were inappropriate or not sufficient. More particularly, however, no appeal has been lodged in relation to those orders, and even if an appeal had been lodged, those orders seem somewhat to have been taken over by the orders on 17 April 2018 made by the Deputy President.

In those circumstances the Appeal Panel is not satisfied that leave to appeal should be granted. Accordingly the Appeal Panel makes the following orders:

1.    Leave to appeal the decision made on 6 March 2018 is refused.

2.    The notice of appeal is otherwise dismissed.”

On 25 May 2018, the Appeal Panel ordered the plaintiff to pay the defendants’ costs of the proceedings on the ordinary basis. The defendants applied for the costs to be assessed. On 24 September 2019, NCAT made a further costs order against the plaintiff, which it ordered to be paid in the gross sum of $1,400.

The proceedings in this Court

By summons, which was filed in this Court on 11 September 2018, the plaintiff seeks leave to appeal against the decision of the Appeal Panel of NCAT to refuse leave to appeal. As referred to above, an amended summons was filed on 23 November 2018. The plaintiff explained at the hearing before me on 26 August 2021 that he also challenged the costs order made against him by NCAT and did so on the basis that s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) limited NCAT’s power to award costs in proceedings before it to cases where it was satisfied that there were “special circumstances” warranting an award of costs.

45    Adamson J held (at [55]) that:

The proceedings in this Court were commenced before the plaintiff became bankrupt. Thus, s 60(2) of the Act applies. By operation of s 60(2), the proceedings were stayed automatically on and from the date of the sequestration order, being 6 May 2021, unless and until the trustees elected in writing to prosecute or discontinue them. The trustees were notified of the proceedings, at the latest, on 14 July 2021. By operation of s 60(3), the trustees are deemed to have abandoned them. Accordingly, the plaintiff does not have standing to prosecute the proceedings in his own name. Thus, he has no standing to prosecute his notices of motion filed on 13 July 2021 and 12 August 2021 respectively, which ought, accordingly, be dismissed. The defendants are entitled to the relief claimed in their notice of motion filed on 23 July 2021.

46    Mr Singh’s appeal from that judgment (that is, the appeal in matter NSD 1221 of 2021) found its way into the docket of Bromwich J. As he did in matter NSD 948 of 2021 (indeed, at the same time), his Honour resolved to stand the matter over pending the outcome of the appeal that was commenced in matter NSD 465 of 2021.

47    The judgment of Adamson J is not the only judgment of the New South Wales Supreme Court that Mr Singh has sought to appeal (or attempt to appeal) to this court. On 15 February 2022, he filed a notice of appeal (which became matter NSD 92 of 2022) from what he said was a judgment of the Supreme Court of New South Wales “given on 10 Feb[ruary] 2022 by Justice David Davies in 2018/278850”.

48    That proceeding, as it happens, had been the subject of a permanent stay order that Adamson J granted as part of the suite of relief that followed from her Honour’s judgment in Singh v Khan [2021] NSWSC 1093 (referred to above).

49    There was, however, another matter in the New South Wales Supreme Court—matter 2021/227850—that was the subject of a judgment of Davies J on 10 February 2022, namely: Singh v Secretary, Department of Communities and Justice [2022] NSWSC 78.

50    Regardless, Mr Singh named as respondents to his “appeal” the Secretary of the Department of Communities and Justice, as well as Mr  Dicembre, his trustees in bankruptcy, Dr Khan, Mrs Khan, Fobupu Pty Ltd and Brendan Bellarch (an employee of the Department of Community and Justice).

51    In his judgment of 10 February 2022, Davies J set out the background relevant to proceeding 2021/227850 as follows (at [1]-[7]):

Pursuant to costs assessments arising out of proceedings in the New South Wales Civil and Administrative Tribunal, judgments were entered in Fairfield Local Court on 16 October 2019 for $1,591.00, and on 17 October 2019 for $26,551.98. After a letter of demand 8 December 2019 was not complied with by the plaintiff, a bankruptcy notice was served on the plaintiff by the judgment creditors (the fifth, sixth and seventh defendants herein). The bankruptcy notice was challenged by the plaintiff, but it was upheld by Gleeson J on 25 June 2020 (Singh v Fobupu Pty Ltd [2020] FCA 886), with an appeal against her Honour’s decision being dismissed by the Full Federal Court on 3 February 2021 (Singh v Fobupu Pty Ltd [2021] FCAFC 14), with the result that an act of bankruptcy on the part of the plaintiff occurred on 25 June 2020.

Subsequently a creditor’s petition was filed by the judgment creditors, and on 6 May 2021 a sequestration order was made against the plaintiff. The trustees appointed were Innis Cull and Gess Rimbaldi from Pitcher Partners (the third and fourth defendants herein).

On 4 May 2021, two days before the sequestration order, the plaintiff applied for a review of the costs assessment.

In the course of considering whether the review application by the plaintiff was lodged within time, the Manager, Costs Assessment, Mr B Bellach (“the Manager”), said this in an email sent to the plaintiff, the solicitor for the judgment creditors and the trustees in bankruptcy on 13 May 2021:

However, the issue of whether Mr Singh has standing to seek the review application has arisen through the appointment of the Joint Bankruptcy Trustees. With their appointment pursuant to orders made by the Federal Court, Mr Singh cannot continue this cause of action, instead that decision rests with the Joint Bankruptcy Trustees.

Their response is now sought to clarify, if, this review application in (sic) being pursued, with that response being required by 7 June 2021. Upon receipt of their response this matter will be further considered. Please note thou (sic), if no response is received from the Bankruptcy Trustee’s (sic) the MCA will presume the review application is not being pursued and will take steps to close this file.

On 8 June 2021 Mr Cull, for the Trustees, wrote to the Manager saying:

I wrote to notify the Court that have (sic) not made an election in writing to prosecute or discontinue the Application within the prescribed time frame. Pursuant to s 60(3) of the BA the proceeding is therefore deemed to have been abandoned by me.

On 10 June 2021, the Manager then wrote to the various parties including the plaintiff, informing them of the correspondence from the plaintiff’s Trustees in Bankruptcy saying:

With that in mind it would appear that the [Manager, Costs Assessment] cannot proceed with [the plaintiff’s] review application given [the plaintiff] does not seem to have standing to pursue it himself and, as it has been abandoned under the Bankruptcy Act.

Having said that, steps have been taken to close the file.

On 10 August 2021, the plaintiff filed a summons seeking judicial review of the decision of the Manager dated 13 May 2021. The summons does not make reference to the decision of the Manager of 10 June 2021. He seeks that the decision of 13 May 2021 be set aside and asks that the application for review be remitted to the Manager for determination according to law.

52    Davies J held (at [26]):

Since the plaintiff has no locus standi to bring the present proceedings, he does not have a reasonable cause of action in the sense that he has no right to have the decision of the Manager reviewed. His claim for judicial review must necessarily fail.

53    On 28 April 2022, Mr Singh filed an interlocutory application in his “appeal” (that is, in matter NSD 92 of 2022) for summary judgment.

54    Matter NSD 92 of 2022 was also the subject of case management before Bromwich J. As he did in matters NSD 948 of 2021 and NSD 1221 of 2021, his Honour on 23 June 2022 resolved to stand over matter NSD 92 of 2022 pending the outcome of NSD 465 of 2021.

55    It is apparent that the summary of proceedings just completed is not exhaustive. Nonetheless, it is convenient at this juncture to switch attention to the criteria that regulate the grant of the relief that is now sought. Two questions arise for the court’s consideration: first, could the court be satisfied that Mr Singh is somebody who has frequently instituted or conducted proceedings; and, second, do those proceedings qualify as vexatious proceedings for the purposes of s 37AO of the FCA Act?

ARE MR SINGH’S PROCEEDINGS FREQUENT?

56    As Colvin J observed in Ogbonna (at [5]), frequency is a relative term. It requires that account “be taken of the nature of the litigation being considered”.

57    It is apparent from the lengthy summary above that the matters that Mr Singh has commenced over recent years can loosely be grouped into the following categories, namely:

(1)    proceedings concerning his bankruptcy, which include:

(a)    matter NSD 96 of 2020, being his unsuccessful application to set aside a bankruptcy notice (above, [19]);

(b)    matter NSD 788 of 2020, being his unsuccessful appeal from that unsuccessful application (above, [20]); and

(c)    matter NSD 465 of 2021, being his unsuccessful appeal from the sequestration order that made him a bankrupt (above, [34]);

(2)    proceedings concerning his reimbursement claim, amongst which is matter NSD 1392 of 2020, being his application for reimbursement of rental payments, in which his pleading was twice struck out (above, [23]-[24]);

(3)    proceedings regarding the power of the trustees of his bankrupt estate to prosecute other, extant matters, which include:

(a)    matter NSD 948 of 2021, being his as-yet undetermined application for declaratory relief as to:

(i)    whether the continuation of proceedings in the NSW Supreme Court was a matter that vested in the trustees of his bankrupt estate; and

(ii)    the trustees’ remuneration,

(above, [39]);

(b)    matter NSD 1221 of 2021, being his as-yet undetermined “appeal” from the judgment of Adamson J of the Supreme Court of New South Wales (above, [43]);

(c)    matter NSD 92 of 2022, being his application seeking to “appeal” from the judgment of Davies J of the Supreme Court of New South Wales (and also for summary judgment therein—above, [47]).

58    Given the extensive array of matters that Mr Singh has commenced over a relatively short period of time (approximately four years), there can be no doubt (and I find) that he qualifies as somebody who has “frequently” instituted proceedings in Australian courts or tribunals.

ARE MR SINGH’S PROCEEDINGS VEXATIOUS?

59    The applicants submit that various themes emerge from the proceedings that Mr Singh has prosecuted over recent years, including that:

(1)    before this court, Mr Singh has persisted with a contention that has been decided against him previously, namely that his bankruptcy was improperly brought about by a petitioning creditor (Fobupu Pty Ltd) that, in truth, was not one of his creditors;

(2)    Mr Singh has filed numerous unsuccessful interlocutory applications, applications for leave to appeal, and made persistent attempts to relitigate issues;

(3)    in the New South Wales Supreme Court, Mr Singh has consistently commenced and maintained proceedings for which he did not have standing;

(4)    Mr Singh maintains the ambitious submission that s 60(2) of the Bankruptcy Act 1966 (Cth) did not operate so as to stay proceedings that he had commenced (including because of the supposed effect of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth));

(5)    Mr Singh has twice (and impermissibly) sought to appeal decisions of the Supreme Court of New South Wales to the Federal Court of Australia;

(6)    Mr Singh has filed two judicial review applications against a registrar of this Court; and

(7)    in the Supreme Court of New South Wales, Mr Singh has filed a statement of claim alleging misfeasance in public office, tortious conspiracy, fraud and collateral abuse of process.

60    At the hearing before me, Mr Singh asserted that he had not engaged in vexatious litigation. He maintained that his conduct amounts to no more than legitimate and reasonable attempts to vindicate rights that he perceives he has been denied—in particular, he submits that s 7 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) was the only source of redress by which he could have the unfavourable judgment of Adamson J reviewed.

61    Mr Singh observed—on any view, correctly—that the making of vexatious proceedings orders would place significant restrictions on his access to justice.

62    He further contended that, to the extent that questions might arise about the availability or appropriateness of any of the relief for which, by his various actions, he has moved, that is something that could and should be addressed by way of ordinary litigation processes. He flatly denied that he had a tendency to relitigate issues that have been decided against him.

63    Somewhat tangentially, Mr Singh contends that he was “railroaded” by the sequestration order by which his bankruptcy commenced. He maintains that that order was founded on misinformation, and had the effect of dismissing his other proceedings.

64    There is little if any evidence to suggest that, by commencing the actions that he has, Mr Singh has been motivated by anything other than a genuine belief that his rights have been infringed and that he is entitled to relief. Mr Singh appears honestly to believe that he was entitled to relief under the Residential Tenancies Act 2010 (NSW). His appeals from the Tribunal were likely founded in a genuine belief that the law had not been applied correctly. His proceedings against members of the NCAT may have been founded on the belief that that was proper procedure, and that the NCAT members had in fact engaged in public malfeasance. Mr Singh’s attempts to set aside the bankruptcy and sequestration orders are likely the product of a genuine belief that those orders should never have been made, and that the trustees’ decision to abandon his litigation constitutes an unresolved injustice.

65    Nonetheless, whether or not Mr Singh’s actions qualify as vexatious is a matter that stands to be assessed independently of his subjective motivations or purposes. Vexatiousness may lie just as equally in the hopelessness of the causes that he has routinely prosecuted: Ogbonna, [24] (Colvin J).

66    I have no hesitation in accepting that the proceedings that Mr Singh has frequently instituted qualify as vexatious proceedings for the purposes of s 37AO of the FCA Act. Indeed, there is no serious basis upon which to conclude otherwise. As the applicants have identified, the body of litigation that Mr Singh has commenced since 2017 is unmistakeably typified by vexatious hallmarks. Consider:

(1)    Mr Singh’s causes of action have routinely advanced untenable propositions that are either inadequately drawn or upon which he has no reasonable prospect of succeeding (or both), including:

(a)    seeking damages against a senior member of NCAT for fraud and public malfeasance;

(b)    bringing proceedings against parties, their legal representatives, and members of NCAT or the judiciary for their involvement in previous proceedings determined adversely to Mr Singh;

(c)    making baseless applications for recusal on the grounds of actual or apprehended bias as a result of unfavourable in-hearing interactions;

(d)    bringing proceedings against members of the executive government that have no discernible relation to his claims;

(e)    making applications that have no utility;

(f)    commencing proceedings for which he very clearly has no standing;

(g)    making spurious allegations that the NCAT lacked jurisdiction to hear matters; and

(h)    relying on pleadings that do not plead material facts sufficient to establish maintainable causes of action;

(2)    Mr Singh has displayed an unmistakeable tendency to relitigate matters that have been decided adversely to him, such as:

(a)    repeatedly asserting that tax invoices issued to him by Fobupu Pty Ltd did not comply with relevant tax legislation or the law of trusts;

(b)    repeatedly commencing proceedings seeking, in effect, to have his bankruptcy set aside; and

(c)    repeatedly asserting that Fobupu Pty Ltd was not properly a creditor for the purposes of the process by which he was made a bankrupt; and

(3)    Mr Singh has routinely responded to his losses by commencing extravagant and self-evidently unmaintainable actions, often against judicial officers personally.

67    In those respects at least, Mr Singh has exhibited a tendency to commence and maintain proceedings that very plainly constitute abuses of court process (both this court and the Supreme Court of New South Wales) and/or proceedings that are prosecuted without reasonable grounds.

68    That tendency reflects in the proceedings that remain extant in this court. I say so conscious that they have not been the subject of comment to that effect by the judicial officers to whom they have been allocated; nonetheless, even upon only the most cursory reviews of the record, it is impossible to arrive at any other impressionistic assessment.

69    On that front, it is unnecessary to look beyond the nature of matter NSD 948 of 2021. It strikes as a very good example of Mr Singh’s tendency to prosecute contentions that are unmaintainable. There, Mr Singh seeks (amongst other things) declaratory relief as to whether proceedings on foot in the Supreme Court of New South Wales amounted to “property [that] vested in the [t]rustee pursuant to s 58 of the Bankruptcy Act 1966”. On any view, Mr Singh’s quest is misguided and foredoomed to failure. There has never been a suggestion that proceedings on foot in the Supreme Court of New South Wales might qualify as property that vests with a trustee upon bankruptcy pursuant to s 58 of the Bankruptcy Act 1966 (Cth). Rather, the proceedings in question were stayed as an ordinary incident of s 60. Mr Singh’s claim to the declaratory relief that he seeks is self-evidently hopeless.

DISPOSITION

70    In my judgment, the court should not abide Mr Singh’s very clear tendency to endlessly litigate contentions that are manifestly hopeless. A vexatious proceedings order under s 37AO of the FCA Act would, of course, serve as an extreme measure that would deprive Mr Singh of recourse to the enforcement of law through this court, which is otherwise his right. The drastic nature of the remedy, though, can be moderated somewhat by introducing the requirement of leave: that is, by permitting the pursuit of claims in respect of which Mr Singh first obtains the court’s leave.

71    That is the course that I will take. Satisfied, as I am, that Mr Singh has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, I will grant relief pursuant to s 37AO(2) of the FCA Act prohibiting Mr Singh from instituting or continuing to prosecute proceedings in this court unless he first obtains from it leave to do so.

72    There is no reason why the usual order for costs ought not to be made and it will be.

Associate:

Dated:    22 March 2024