Singh v Harrowell & Ors

For the purposes of this judgment, it is convenient to divide the defendants into four groups. Each group has filed its own motion for the summary disposal of the plaintiff’s claims against them. For the reasons that follow, the Court has determined that the plaintiff’s claims should be permanently stayed in their entirety and recommends that the Attorney-General consider an application for a vexatious proceeding order against the plaintiff.

The plaintiff has made various claims for declaratory relief and sought damages for multiple torts allegedly committed by the defendants. For the reasons set out below, those claims are unsustainable. In summary, there are three reasons for this conclusion:

Given the hopeless nature of the allegations, as well as the vexatious and oppressive effect any continuation of these proceedings would have on the defendants, the Court has determined that it is necessary to exercise its extraordinary power to issue a permanent stay.

Furthermore, the defendants have, in this and in other proceedings, incurred considerable expense in defence of claims made by the plaintiff which are patently unfounded. This is an abuse of the Court’s processes, abuse which is likely to continue unless the plaintiff’s right to bring proceedings is curtailed, including to take any further steps such as an appeal or application for leave t appeal from the orders made to give effect to these reasons. To protect the Court’s processes, the Court will of its own motion order that the plaintiff can take no further steps in these proceedings (including in relation to an appeal) without the leave of a Judge of the Court.

I will also recommend that the Attorney-General considers bringing an application to make a vexatious proceeding order against the plaintiff. To enable time for that consideration to occur, I will refer these proceedings to the Chief Judge at Common Law to be dealt with other matters involving the plaintiff that are already being case managed by his Honour.

The plaintiff is Mr Gurjit Singh (Mr Singh), who appeared for himself. Mr Singh has been involved in a protracted series of disputes in NSW Civil and Administrative Tribunal (NCAT), the Supreme Court, and Federal Court. Mr Singh seeks to impugn the conduct of persons during, and in relation to, those proceedings.

The first group of defendants (the Khan Group), for whom Mr E.A.J. Hyde of Counsel appeared, comprises:

The second group of defendants (the Officials Group), for whom Mr R. Lee of Counsel appeared, comprises:

The third group of defendants (the Dicembre Group), for whom Mr D. Glamcevski, solicitor, appeared, comprises:

The fourth group comprises of the seventeenth defendant only, Mr Ryan Brown of Counsel (Mr Brown), for whom Ms E. Steer of Counsel appeared. At various times Mr Brown has appeared for members of the Khan Group, instructed by Mr Dicembre, against Mr Singh.

It is also necessary to record for completeness that, within the statement of claim filed on 28 January 2022 (the SOC), Mr Singh made several allegations concerning Kim Rosser and Kay Ransome who, at the relevant time, held office in NCAT. Neither, however, is a defendant in these proceedings.

The notices of motion resolved by this judgment (the motions) were filed for Mr Brown on 13 April, for the Khan and Dicembre Groups on 14 April, and the Officials Group on 19 April 2022.

On 6 July 2022, written submissions were provided by the Officials Group in support of their motions.

On 23 August 2022, Registrar Walton made orders that the defendants file and serve written submissions by 2 September 2022. On 30 August 2022 supplementary written submissions were provided by the Officials Group, on 2 September 2022 both the Khan Group and Mr Brown provided written submissions, and on 5 September 2022 the Dicembre Group provided written submissions.

On 16 September 2022, the motions were listed for hearing before me on 13 February 2023. Mr Singh was ordered to file and serve written submissions by 4 November 2022. No such submissions were forthcoming.

On 7 February 2023, I convened a directions hearing, at which Mr Singh appeared remotely. During the hearing, I noted that Mr Singh had not provided written submissions and asked him whether he wished to rely upon written submissions. Mr Singh declined, stating that he wished to rely upon oral submissions only (Tcpt, 7 February 2023, p 5 (5)-(25)):

At the hearing on 13 February 2023, before the luncheon adjournment, it became apparent that Mr Singh was having difficulty presenting his submissions adequately and was unlikely to finish his submissions within the allotted time. To provide Mr Singh with an opportunity to address the defendants’ submissions, the Court enquired whether Mr Singh wished to have additional time to make written submissions (Tcpt, 13 February 2023, p 55(1)-56(15)):

After the luncheon adjournment, Mr Singh indicated that he wished to make written submissions. It was thought, on balance, that it would assist the parties and Court to be provided with a written outline of Mr Singh’s submissions (Tcpt, 13 February 2023, p 57(10)-(30)):

While the Court assented to this course, it was reiterated to Mr Singh that, in granting him a further period to make written submissions, the Court was affording him a substantial indulgence (Tcpt, 13 February 2023, p 60(44)-61(7)):

The hearing was initially adjourned until 31 March 2023, however, was further postponed to 3 April 2023, because Mr Singh requested further time to make his written submissions. Between 6 and 31 March 2023, the Court received four separate sets of written submissions from Mr Singh.

On 24 March 2023, in separate proceedings, Beech-Jones CJ at CL made interlocutory orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) that Mr Singh “shall not commence or institute any further proceedings in this Court without first obtaining the leave of a Judge of the Court”: Singh v Singh; Singh v RCMO Pty Limited; Singh v Sharma; Singh v Murphy; Singh v Armstrong; Singh v Tidball [2023] NSWSC 280 (the March Judgment) at [106].

At the hearing on 3 April 2023, Mr Singh attended by phone and declined to supplement his written submissions by way of oral argument. At the conclusion of the hearing, the Court noted that, if the Court accepted the position of the applicants that the proceedings should be stayed or dismissed, the Court would, under its inherent jurisdiction, make an order (similar to that of Beech-Jones CJ at CL) that Mr Singh would require leave of the Court to take further steps in these proceedings. Subsequently, Mr Singh was informed that, if he wished to make submissions opposing such an order, he had until 11 April 2023 to serve and file them. No submissions were forthcoming.

Mr Singh’s claims relate to a protracted series of disputes, which began in late 2017 and continue. For the purposes of this judgment, it is necessary only to describe those proceedings which are referred to in the SOC. However, it is important to note that not all proceedings involving Mr Singh and the seventeen named defendants are set out in the following history of litigation.

On 18 December 2017, Mr Singh applied to NCAT seeking to extend the term of a lease granted to Anmol Holdings Pty Ltd — a company associated with Mr Singh which is now deregistered — based on an alleged oral agreement. The application was made against Fobupu, the owner of the Kingswood property, and Mr Ghulam Akbar Khan and Mrs Samina Khan, who were the company’s directors.

On 23 January 2018, Mr Charles made an interlocutory order, restraining Fobupu, Mr Ghulam Akbar Khan, and Mrs Samina Khan from terminating the lease on the Kingswood property, on the condition that Mr Singh continued to pay monthly rent while proceedings were on foot.

On 6 March 2018, Ms Simon made directions for copies of the documents that parties wished to rely upon be provided to NCAT. Mr Singh sought leave to appeal Ms Simon’s directions, and on 18 April 2018, Mr Harrowell refused the plaintiff leave to appeal: Singh v Fobupu Pty Ltd [2018] NSWCATAP 127. On 25 May 2018, Mr Harrowell gave reasons for this decision and ordered the plaintiff to pay the defendants’ costs.

On 17 August 2018, Mr Singh filed a summons in this Court to appeal the decision to refuse leave to appeal Ms Simon’s directions made by Mr Harrowell on 18 April 2018.

This summons was dealt with by Harrison AsJ on 26 April 2019 in amalgamated proceedings. It is dealt with below under the heading “Interim Stay Application”.

On 9 and 24 September 2019, Mr Harrowell made further costs orders in NCAT against Mr Singh.

On 19, 20 and 23 July, and 26 October 2018, Mr Goldstein heard Mr Singh’s substantive application seeking to extend the term of the lease of the Kingswood property.

On 31 October 2018, Mr Goldstein made orders restraining Fobupu, Mr Ghulam Akbar Khan, and Mrs Samina Khan, from repossessing the premises while proceedings were underway, on the condition that Mr Singh continued to pay rent.

On 14 November 2018, Mr Singh made an application to NCAT concerning the restraint order. The application sought, in effect, to relieve Mr Singh of the obligation to pay rent under the orders made by Mr Goldstein on 31 October 2018.

On 27 November 2018, Mr Goldstein dismissed Mr Singh’s application in NCAT.

On 6 December 2018, Mr Singh lodged an appeal, in NCAT, seeking a review of the orders made by Mr Goldstein on both 31 October and 27 November 2018. Mr Singh also sought a stay of Mr Goldstein’s restraint order made on 31 October 2018.

On 14 December 2018, the Appeals Panel made preparatory orders for Mr Singh’s appeal and granted a stay of the substantive proceedings, subject to another order restraining Fobupu from repossessing the premises, on the condition that Mr Singh would pay the requisite amount of rent.

On 11 January 2019, Fobupu applied to the Appeals Panel to lift the stay of proceedings and dissolve the order restraining Fobupu from repossessing the premises, because Mr Singh had not complied with the conditions of the order made by the Appeals Panel on 14 December 2018.

On 1 February 2019, Mr Harrowell, sitting as the Appeals Panel, lifted the stay of proceedings and dissolved the order restraining Fobupu from repossessing the premises: Singh v Fobupu Pty Ltd [2019] NSWCATAP 34.

On 27 February 2019, in the substantive proceedings, on the application of Fobupu, Mr Goldstein ordered that Mr Singh surrender the Kingswood property for failing to comply with his orders. Mr Singh then lodged an appeal both to NCAT and the Supreme Court. Button J dismissed Mr Singh’s appeal to the Supreme Court that day.

On 1 May 2019, Principal Member Rosser and Senior Member Ransome, sitting as the NCAT Appeals Panel, refused Mr Singh’s appeal from the decision of Mr Goldstein made on 31 October and 27 November 2018: Singh v Fobupu Pty Ltd [2019] NSWCATAP 111.

On 21 January 2020, Mr Harrowell and Senior Member Robertson, sitting as the NCAT Appeals Panel, dismissed the appeal from the decision of Mr Goldstein made on 27 February 2019: Singh v Fobupu Pty Ltd [2020] NSWCATAP 11.

On 15 October 2018, Mr Singh filed a notice of motion in this Court seeking an interim stay of the substantive NCAT proceedings, and on 21 November 2018, Mr Singh filed a further notice of motion seeking an interim stay of the substantive NCAT proceedings.

On 27 November 2018, Adamson J refused Mr Singh’s applications for an interim stay of the substantive NCAT proceedings.

On 20 December 2018, Mr Singh again filed a notice of motion seeking an interim stay of the substantive NCAT proceedings.

On 26 April 2019, Harrison AsJ dealt with the three notices of motion filed by the plaintiff, as well as the summons filed by Mr Singh to appeal the decision of Mr Harrowell, made on 18 April 2018, to refuse leave to appeal against Ms Simon’s directions. Harrison AsJ dismissed all three notices of motion and stood over the summons, filed on 17 August 2018, to 31 October 2019 for further directions before the Registrar: Singh v Khan; Singh v Fobupu Pty Ltd [2019] NSWSC 485.

On 20 May 2019, Mr Goldstein made orders dismissing the substantive proceedings and ordering that Mr Singh pay the costs of the Khan parties.

On 3 June 2019, Mr Singh filed a notice of motion, returnable on 13 June 2019, to challenge Harrison AsJ’s decision to dismiss the notices of motion. On 13 June 2019, a directions hearing was held on Mr Singh’s motion. As Mr Singh had not notified the respondents to the motion, it was adjourned to 25 July 2019.

On 25 July 2019, a directions hearing was held. Mr Singh failed to appear and the hearing was adjourned to 8 August 2019. On 8 August 2019, the Registrar (Ms Jones) dismissed the notice of motion to challenge Harrison AsJ’s decision, as well as the balance of proceedings, because Mr Singh had again failed to appear.

On 31 October 2019, the Registrar (Mr Riznyczok) adjourned the summons, which had been stood over by Harrison AsJ from 26 April 2019, by consent of the parties to 20 February 2020. At the hearing, Mr Singh appeared, as did Mr Brown, who appeared for the Khan Group.

On 20 February 2020, the directions hearing was held by the Registrar (Ms Jones) with respect to the summons that had been stood over by Harrison AsJ. Ms Jones noted the balance of proceedings had been dismissed on 8 August 2019 with the result that the matter was closed.

On the 16 and 17 October 2019, on application by the Khan Group and on the basis of the two costs orders made in NCAT on 25 May 2018 and 24 September 2019 by Mr Harrowell, the Local Court entered two judgments against Mr Singh naming Fobupu as creditor. On 9 December 2019, the Khan Group served on Mr Singh a bankruptcy notice, which required Mr Singh to pay Fobupu as creditor.

On 16 March 2020, Mr Singh filed a notice of motion in the Local Court seeking to set aside the Local Court judgments. On 9 April 2020, Tsavdaridis LCM dismissed Mr Singh’s notice of motion.

On 25 June 2020, Gleeson J (then a judge of the Federal Court) dismissed Mr Singh’s application to the Federal Court to challenge the bankruptcy notice: Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886.

Mr Singh appealed Gleeson J’s decision and, on 3 February 2021, the Full Court (Rares, Farrell and Stewart JJ) dismissed the appeal: Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14.

On 6 July 2020, several of the Khan Group filed a creditor’s petition in the then Federal Circuit Court seeking a sequestration order based on Mr Singh’s non-compliance with the bankruptcy notice.

On 6 May 2021, Street J made a sequestration order against Mr Singh: Khan v Singh [2021] FCCA 950. Mr Singh has since appealed this decision, however, there is no evidence before this Court as to what has happened in that appeal.

The defendants adopt one another’s submissions. Therefore, the relevant legal principles outlined in what follows may be treated as relating to all parties, except where reference is made to a particular party.

In the various motions, the following relief is sought, either: (1) Mr Singh’s claims should be dismissed under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); (2) struck out under rule 14.28 of the UCPR; or (3) permanently stayed under section 67 of the Civil Procedure Act 2005 (NSW).

The defendants collectively submit the Court is empowered to order this relief on three grounds: (a) Mr Singh is a bankrupt, and therefore, has no standing to bring his claims; (b) Mr Singh has not adequately pleaded his case; and (c) the claims Mr Singh alleges are an attempt to relitigate issues already decided in previous proceedings. The Officials Group raise a further ground: (d) that Mr Singh’s actions are not maintainable against the Officials Group because they have the benefit of judicial immunity.

Rule 13.4 of the UCPR includes:

The presumption, which must be displaced by the defendants, is that the plaintiff is entitled to have his case go to trial. For the Court to exercise its jurisdiction to dispose of proceedings summarily, the case against the plaintiff must be very clear. Once it appears that a real question of fact or law is to be determined, the Court will not be justified in summarily dismissing the proceedings: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91-92 (Dixon J).

A claim which is inadequately pleaded will disclose no reasonable cause of action. Moreover, because such a claim has no prospect of success, it will also constitute an abuse of process (see Hassan v Iemma [2008] NSWSC 1476 [45]). In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129, Barwick CJ stated the relevant test:

In determining whether a statement of claim could not possibly succeed, the defendants must show that the plaintiff’s pleadings, taken at their highest, nevertheless cannot establish the alleged cause of action. In doing so, the defendants must accept the truth of the facts pleaded in the plaintiff’s statement of claim. Moreover, the defendants must adopt the “ranges of meaning of the assertions of fact in the statement of claim which those assertions are reasonably capable of bearing”: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW),14 March 1991, unrep).

Given the exceptional nature of the power to dispose of proceedings summarily, it will not be appropriate to do so where pleadings are merely ill expressed. As Kirby P stated in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-7 (Hope and Samuels JJA agreeing):

Hence, in order to justify the exercise of the Court’s powers, the pleadings must be “so bad that no legitimate amendment could cure the defect”: Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 942 (Cross J).

Furthermore, proceedings may be dismissed as an abuse of process where those proceedings are an attempt to re-litigate issues which have already been determined in previous proceedings: Reichel v Magrath (1889) 14 App Cas 665. In such circumstances, parties are estopped from raising issues which have already been determined. Importantly, as Dixon J (as he then was) stated in Blair v Curran (1939) 62 CLR 464 at 531-2:

Issue estoppel is, therefore, distinct from res judicata. Issue estoppel relates to those legal elements, and corresponding factual matters, of a cause of action which are necessary to establish (or not establish) the cause. It is only these essential issues of law and fact, and not those which are ancillary to establishing the case, which parties are estopped from denying. Whereas res judicata relates to the very cause of action itself which, once it passes into judgment, cannot be reopened. Dixon J (as his Honour then was) explained the distinction (Blair v Curran (1939) 62 CLR 464 at 532):

Rule 14.28 of the UCPR includes:

There is considerable overlap between the principles that apply to summary dismissal and the principles that apply to the striking out of pleadings. Both may be invoked where no reasonable cause of action is disclosed or where there is an abuse of the court’s processes. Therefore, the principles I have set out above — which relate to inadequate pleadings and the re-litigation of issues which have already been determined — may be taken to apply equally to the Court’s power to strike out pleadings.

Pleadings will be an embarrassment where they are “unintelligible, ambiguous, inconsistent, confusing or contain irrelevant allegations”: Hassan v Iemma [2008] NSWSC 1476 at [51] (Norrish AJ). Similar to the Court’s power of summary dismissal, if defective pleadings can be cured by amendment, the court should grant leave to do so: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-7 (Kirby P). Furthermore, the case to strike out pleadings must be a clear and obvious one: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91-92 (Dixon J).

Proceedings may be permanently stayed under section 67 of the Civil Procedure Act 2005 (NSW):

The principles relating to the exercise of the Court’s jurisdiction to stay proceedings are well settled. I respectfully adopt and apply this summary by Bell P, as the Chief Justice then was, in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 (“Moubarak”) at [71].

A further category of case where a stay might be granted is where a stay will prevent an abuse of process: Jago v District Court (NSW) (1989) 168 CLR 23 at 25 (Mason J); Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937 at 944 (Cross J).

Mr Singh seeks damages for three torts which, he alleges, have been committed against him. These are misfeasance in public office, conspiracy, and collateral abuse of process.

Mr Singh also claims damages for “fraud”. While fraud is an element of numerous actions, it does not itself constitute an independent action for damages. That being so, at several paragraphs in the pleading Mr Singh refers to alleged “dishonest” conduct of the parties. The defendants have taken these references, along with the references to fraud, to refer to the tort of deceit. In an attempt to construe Mr Singh’s pleadings in their best light, the Court will also proceed on this basis.

Mr Singh also seeks declarations that Mr Harrowell, Mr Brown and Mr Dicembre “brought the administration of justice into disrepute”, and that Ms Jones perverted the course of justice. Declaratory relief must be based on a recognisable cause of action. Declaratory relief cannot be granted with respect to it “[bringing] the administration of justice into disrepute”, because no such action exists.

Furthermore, while perverting the course of justice is an offence under s 319 of the Crimes Act 1900 (NSW), it is not something in relation to which the Court would give declaratory relief. First, the offence is a serious indictable offence, and the proper course is for the matter to be determined in criminal proceedings. Second, there are no civil rights or liabilities which are contingent on a finding that Ms Jones perverted the course of justice. Therefore, there is no utility in such a declaration being made. Furthermore, Mr Singh advances no pleading in support of this claim. On this basis alone, the proposed declaration may be summarily disposed of on the basis that no reasonable cause of action is disclosed. This leaves Mr Singh’s various claims for damages, to which I now turn.

Mr Singh’s submissions are, with the greatest of respect to him, not easy to follow. They do not adequately engage with the legal issues raised in the motions, nor do they respond to the arguments made by the defendants. Most notably, Mr Singh’s has made no submissions in response to the argument that he does not have standing to bring his various claims because of his bankruptcy. Similarly, Mr Singh has made no submissions with respect to whether judicial immunity precludes him from continuing his claims against the Officials Group.

Where Mr Singh has made submissions that, if construed generously, relate to issues raised in this proceeding, I will address them under the relevant heading below. However, it is convenient first to deal with two fundamental defects in Mr Singh’s submissions.

First, Mr Singh seems to suggest that, because the defendants deny the allegations made against them, the onus of proof has shifted onto the defendants. He further suggests that, in the absence of a request for particulars by the defendants, it was unnecessary for him to specify any particulars. In both cases, Mr Singh criticises the defendants for not engaging adequately with the specific allegations he has made against them. For instance, he is critical of the fact that the defendants have not proffered any evidence to counter his claims.

These submissions betray a basic misunderstanding about the Court’s present task. What is being determined is not whether the plaintiff has in fact proven his case, but whether on the pleadings the plaintiff could prove his case. Pleadings must detail the essential facts upon which the plaintiff’s cause will be pressed. It is not necessary, at the stage of pleading, that these facts be proven. All that is necessary is that the pleaded facts are capable of giving rise to a cause of action. The purpose of pleadings is to put the defendant on notice of the allegations being made against them and to give them an opportunity to respond. Not only are Mr Singh’s submissions wrong as propositions of law, they are contrary to this fundamental purpose.

Second, Mr Singh submitted that he has been, and is likely to be, treated unfairly on the basis that he is a self-represented litigant and does not speak English as his first language:

Throughout his submissions, Mr Singh further asserted that the NSW Court system was racially prejudiced and that he would suffer discrimination as a result. The following extract is illustrative of the general tenor of these submissions:

I do not doubt that it is Mr Singh’s perception that our courts and tribunals are systemically racist. I also do not doubt that Mr Singh believes that his numerous failures in this Court are a result of the injustices he perceives. These matters are beyond the scope of these reasons and it is not my role to say any more about them. They are wholly irrelevant to the issues of law raised on the motions. However, insofar as the conduct of the proceedings before me is concerned, the Court has given Mr Singh more than ample opportunity to respond to the motions (see [15]-[22] above) and his arguments, to the extent they are relevant and comprehensible, are addressed in what follows on their merits.

The defendants submit that, by virtue of Mr Singh’s bankruptcy, he does not have standing to bring the causes of action which he asserts. Instead, the defendants contend, those causes of action are vested in the trustee of his bankrupt estate, and therefore, the proceedings have no prospect of success, constituting an abuse of the Court’s process.

The property of a bankrupt is vested in their trustee by operation of s 58 of the Bankruptcy Act 1966 (Cth):

Section 5(1) the Bankruptcy Act defines “Property” under the Act to mean:

This broad definition of “Property” in s 5(1) includes choses in action: Samootin v Shea [2010] NSWCA 371 at [74] (Campbell JA; Beazley and Hodgson JJA agreeing).

Section 116(1)(b) of the Bankruptcy Act provides:

Therefore, by operation of ss 58(1) and 116(1)(b) of the Bankruptcy Act, any chose in action that accrues to a bankrupt is property divisible among the creditors and vested in the trustee. This, however, is subject to several exceptions in s 116(2) of the Bankruptcy Act. Property that falls under an exception is not divisible among the bankrupt estate’s creditors, and therefore is not vested in the trustee. Consequently, it is a right which may be exercised by the bankrupt. Section 116(2)(g) includes:

The question is therefore whether the pleaded cause of action falls under the relevant exception. In Samootin v Shea [2010] NSWCA 371 at [79], Campbell JA expounded the test as follows, in a passage which I respectfully adopt:

The defendants argue that Mr Singh’s bankruptcy is a complete answer to the SOC. They submit that Mr Singh’s claims for damages do not fall within the section 116(2)(g) exemption, because the damages claimed are consequential on damages suffered by the plaintiff arising from a series of legal disputes relating to the plaintiff’s asserted interest in the Kingswood property. In support of this contention, the defendants rely on Mannigel v Hewlett Phelps [1991] NSWCA 186 (“Mannigel”).

In that case, the plaintiff, who at the relevant time was a bankrupt, brought several claims against their solicitor “for damages for loss of credit, for mental distress, inconvenience and for injury to their physical and mental health”: Mannigel at 2. The question for the Court was whether the damages claimed were for personal injury or wrong, and therefore, whether the plaintiff had standing to bring the claims. Handley JA, with whom Kirby P and Meagher JA agreed, held that while the damages claimed were particularised in a way that appears to assert damages for personal injury, the “claims were consequential upon alleged breaches of professional duty owed to them by the defendants in relation to the purchase of the land and the contract by the vendor to erect a dwelling house on it” (Mannigel at 2). On this basis, “[t]he plaintiff’s claims for damages… were not claims ‘without reference to their rights of property’ within the principle stated by Dixon J. On the contrary those claims were consequential on damages to the plaintiff’s financial and property interests as a result of alleged breaches of professional duty by the solicitors”.

The defendants contend that Mr Singh’s various claims for damages, including for “non-economic loss” and “medically diagnosable” emotional distress, are claims that, similar to Mannigel, are consequential on damages to Mr Singh’s financial and property interests, which he suffered on account of the lengthy series of legal disputes which Mr Singh has been involved in relating to his interest in the Kingswood property.

Alternatively, the defendants argue that Mr Singh’s bankruptcy offers a partial answer to the SOC. More specifically, they contend that the damages claimed by the plaintiff for conspiracy and deceit relate only to pecuniary loss, and therefore are actions vested in the trustee.

First, the defendants contend, quoting Brooking J in Ansett Transport Industries (Operation) Pty Ltd v Australian Federation of Air Pilots (No 2) [1991] 2 VR 636, that the “gist” of the tort of conspiracy is “actual and substantial pecuniary loss”. Hence, the defendants assert that conspiracy is a cause which could only be vested in the trustee.

Second, the defendants similarly argue that the tort of deceit is a cause concerned only with pecuniary loss. In aid of this point, the defendants rely upon Magill v Magill (2006) 226 CLR 551 (“Magill”), in which Gummow, Kirby and Crennan JJ observed, with respect to the tort of deceit, that “applications outside a commercial or economic setting are rare and the action is mainly associated with pecuniary loss” (Magill at [117]). On this basis, the defendants contend that Mr Singh’s various claims for deceit are necessarily vested in the trustee.

The Court accepts the defendants’ submissions that Mr Singh’s bankruptcy provides a complete answer in their favour on the motions. By virtue of Mr Singh’s bankruptcy, the various claims for tortious damages that Mr Singh has brought are vested in the trustee of his bankrupt estate. The “economic and non-economic loss” that Mr Singh contends he has suffered arise out of his numerous failures in legal disputes concerning his interest in the Kingswood property, including the subsequent loss of this interest and resulting bankruptcy. The damages Mr Singh claims, therefore, cannot be said to be without reference to his proprietary interest. It follows that the various claims for tortious damages arising out of this interest do not fall under the statutory exception and Mr Singh has no standing to bring them.

It is, therefore, unnecessary to address the defendants’ submissions as to whether Mr Singh’s bankruptcy provides a partial answer in the defendants’ favour.

Although Mr Singh’s bankruptcy provides a sufficient reason for the Court to grant summary relief to the defendants, if this view is wrong, the Court further concludes that Mr Singh’s SOC fails on the additional grounds that it has been pleaded inadequately and seeks to relitigate issues already determined in previous proceedings.

The SOC is confusing and vague. It is difficult to discern precisely what assertions are being made and to whom they are directed. For the most part, Mr Singh’s pleadings amount to little more than an allegation that a tort has been committed against him. The pleadings are so deficient that, in regular circumstances, it would be unnecessary to attempt to elucidate the specific allegations made by Mr Singh. As the defendants have rightly submitted, Mr Singh has failed to address any of the specific elements relating to each of the causes of action he presses. On this basis alone Mr Singh’s SOC may be summarily dealt with by the Court. However, noting that Mr Singh is a self-represented litigant, the Court will attempt to construe the SOC in its best light and explain why his several claims must fail.

I now turn to the specific allegations contained in the SOC.

The principles relating to the tort of misfeasance in public office are well settled. I respectfully adopt the summary of North and Rares JJ in Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 at [97]:

Mr Singh claims damages for misfeasance in public office against all members of the Officials Group, except the Attorney-General. To this end, Mr Singh contends that certain decisions made by members of the Officials Group were made knowingly in excess of power with intent to cause Mr Singh harm. Mr Singh impugns the conduct of the defendants in relation to the following decisions:

The Officials Group submit that Mr Singh’s various claims for public misfeasance are not adequately pleaded.

First, the defendants submit that no specific loss or harm, resulting from allegedly tortious conduct of the various members of the Officials Group, is pleaded by the plaintiff. Mr Singh made no submissions in answer to this contention.

Second, although Mr Singh asserts that he has suffered psychiatric trauma, the defendants submit that he failed to plead any specifically recognisable psychiatric injury. Again, Mr Singh made no submissions in response to this.

Third, the defendants contend that malice has not been pleaded and furthermore that, under rule 15.4 of the UCPR, a pleading which alleges malice must particularise the facts on which the party making the pleading relies. They argue that no specific instance of malice has been particularised. Replying to this point, Mr Singh argued that an unauthorised decision made with knowledge that it would cause harm is made maliciously.

Fourth, the defendants submit that none of the decisions that Mr Singh has referred to in his pleadings has been held to be invalid, nor have they been successfully appealed, therefore, misfeasance in public office has not been adequately pleaded. The defendants further contend that Mr Singh’s various allegations of public misfeasance constitute an attempt to relitigate issues which have already been determined in earlier proceedings. In response, Mr Singh argued that a successful appeal is not a prerequisite to bring an action for tortious damages.

Mr Singh does not plead any specific financial or physical damage which he has incurred as a result of the alleged misfeasance. Nor does he plead any particular psychiatric injury. On this basis, his claims for misfeasance in public office against the Officials Group are inadequately pleaded. While this is sufficient to dispose of Mr Singh’s claims for misfeasance in public office, the Court also accepts the defendants’ submissions on the other two points.

Mr Singh is correct to assert that malice may be imputed where a public officer acts knowingly in excess of power: see Northern Territory v Mengel (1995) 185 CLR 307 at 344-5 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ)). However, even if the decisions made by members of the Officials Group were unauthorised (which, as I discuss next, was not the case), the SOC contains no particulars relating to what the Officials Group did, or did not, know with respect to the exercise of their decision-making power. Therefore, in this respect, the SOC is inadequately pleaded.

The defendants are correct to point out that none of the decisions Mr Singh impugns, all of which have been the subject of an appeal by Mr Singh, have been found to have been made in excess of power. By impugning these decisions, Mr Singh is attempting to relitigate issues that have already been determined. That is an abuse of process.

The elements of the tort of deceit were summarised by Gummow, Kirby and Crennan JJ in Magill at [114]:

Mr Singh alleges that all defendants in the Officials Group, except Ms Kenna and Ms Aquilina, have engaged in conduct which he believes is dishonest and fraudulent. As explained above, the Court treats these as allegations of tortious deceit.

Mr Singh further claims that on 27 November 2018 Mr Dicembre knowingly made false submissions to Adamson J which, Mr Singh contends, resulted in Adamson J finding against him, thus adversely impacting his personal and financial circumstances (SOC[50]-[52]).

Mr Singh claims that on 9 September 2019 Mr Brown and Mr Harrowell engaged in deceitful conduct. Mr Singh asserts that both Mr Brown and Mr Harrowell had initially offered mediation. However, when Mr Singh subsequently asked for mediation, Mr Harrowell refused the application. Mr Brown then applied for costs and Mr Harrowell made the costs order against him (SOC[60]-[62]).

Mr Singh claims that, on 31 October 2019, Mr Brown deceived him by encouraging Mr Singh to sign Short Minutes of Order adjourning the proceedings to 20 February 2020. While it is difficult to discern from the SOC any specific act of fraud that Mr Brown is supposed to have perpetrated against Mr Singh with respect to the Short Minutes of Order, at the very least, he seems to assert it was Mr Brown’s intention to have the proceedings dismissed rather than adjourned. This accusation is hopeless. The effect of the signed Short Minutes of Order was to adjourn the hearing to 20 February 2020, which is what occurred. The proceedings were then discontinued at the hearing on 20 February 2020 on the basis that the Registrar noted that proceedings had already been dismissed on 8 August 2019. Whatever Mr Brown’s intentions, the decision of the Registrar on 20 February 2020 had nothing to do with the circumstances surrounding the signing of the Short Minutes of Order (SOC[64]-[67]).

It is submitted by the defendants that Mr Singh has not adequately pleaded the elements of the tort of deceit. Mr Singh made no submissions in reply to this.

For a plaintiff to assert deceit successfully, the plaintiff must have suffered damage as a result of their reliance on the defendant’s deceitful conduct. Other than Mr Singh’s general claim for damages for economic and non-economic loss caused by the defendants’ tortious acts at [1] of the SOC, Mr Singh does not particularise any specific damages in respect of any of the instances of fraud he alleges. On this basis alone, the pleadings are inadequate. Moreover, there are no pleadings which specifically address whether any of the alleged deceitful conduct was intentional on the part of the defendants. Mr Singh’s claims for deceit are therefore inadequately pleaded.

I respectfully adopt the summary of the elements of collateral abuse of process set out by Bell P (as the Chief Justice then was) in Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245:

Mr Singh claims that Ms Sarah Khan has engaged in collateral abuse of process, in which she used her “legal skills” — by “giving instructions” to her solicitor and counsel — for the improper purpose of protecting her father from the consequences of a substantial tax liability (SOC[31]).

Mr Singh claims that Mr Ghulam Khan, Mrs Samina Khan and Fobupu engaged in collateral abuse of process by instituting, with the aid of Mr Dicembre and Mr Brown, bankruptcy proceedings against Mr Singh for an improper purpose — a purpose not readily identifiable from the SOC — which caused Mr Singh harm by triggering his bankruptcy (SOC[42]-[47]]).

Mr Singh claims that Mr Dicembre instituted “a process” for the award of costs against Mr Singh for an improper purpose — again, not readily discernible from the SOC — in proceedings “AP 18/15303”. It must be noted that those proceedings were an appeal, initiated by Mr Singh, against an interlocutory order of Ms Simon made on 6 March 2018 that was determined by Mr Harrowell on 25 May 2018. The award of costs was made against Mr Singh, who lost the appeal (SOC[48]-[49]).

Mr Singh claims that Mr Brown sought costs against him, during proceedings on 9 September 2021, for an improper purpose — a purpose which was one “other than to indemnify his clients” (SOC[57]-[59]) — which led directly to his bankruptcy.

It was first contended that the tort of collateral abuse of process cannot lie against any of the defendants, except Mr Ghulam Khan, Mrs Samina Khan and Fobupu, as none have instituted proceedings against Mr Singh. This is plainly correct. Mr Singh makes no reference in the SOC to any proceedings instituted by persons other than Mr Ghulam Khan, Mrs Samina Khan and Fobupu. The claims for collateral abuse of process against all other defendants are thus inadequately pleaded. This leaves only the claim, at [121], that Mr Ghulam Khan, Mrs Samina Khan and Fobupu committed a collateral abuse of process when they instituted bankruptcy proceedings against Mr Singh.

The defendants submit that this claim fails because it identifies no collateral purpose. Instead, it is asserted that the purpose of instituting the bankruptcy proceedings was precisely to have Mr Singh declared a bankrupt. Mr Singh made no submissions in reply to this submission. I accept the defendants’ submissions as plainly correct. In Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366; [2013] UKPC 17 Lord Sumption observed (emphasis added):

There is nothing in Mr Singh’s pleadings to suggest that Mr Ghulam Khan, Mrs Samina Khan and Fobupu instituted the bankruptcy proceedings for any reason other than to have the plaintiff declared a bankrupt. Far from being a purpose “wholly extraneous” to the relief sought, this was the very point of the proceeding. Mr Singh’s claim for collateral abuse of process against these defendants is also inadequately pleaded.

Mr Singh did not specify in his SOC whether he sought damages for conspiracy by lawful or unlawful means. As will become apparent, whether the Court proceeds on either basis will not alter the outcome. However, given Mr Singh’s repeated claims that the decisions against him were made in excess of power and the reference in the pleadings to an “unlawful” costs order, the Court has assumed that Mr Singh seeks damages for the tort of conspiracy by unlawful means.

Menzies J defined the tort in Williams v Hursey (1959) 103 CLR 30 at 122 as:

Mr Singh alleges the Attorney-General, Mr Anzer Khan, and Ms Sarah Khan entered into a conspiracy against Mr Singh. More specifically, it is said that the Attorney-General, in league with Mr Anzer Khan and Ms Sarah Khan, sought to influence the proceedings heard by Mr Goldstein on 20 May 2019 (SOC[27]-[30]), the same day as a dinner of the Muslim Legal Network, at which the three defendants referred to were in attendance.

Mr Singh alleges that Ms Sarah Khan, Mr Anzer Khan, Mr Dicembre, Mr Ghulam Khan, Mrs Samina Khan, Fobupu, and Mr Harrowell entered into a conspiracy to harm Mr Singh by procuring an unlawful costs order against him and to end Mr Singh’s litigation against several of the Khan parties (SOC[39]).

Mr Singh claims that Mr Brown, Mr Riznyczok, and Ms Jones entered into a tortious conspiracy to delist Mr Singh’s summons at or around the hearings which took place on 31 October 2019 and 20 February 2020 (SOC[40]).

Mr Singh claims that Mr Brown, Mr Ghulam Khan, Mrs Samina Khan, Fobupu, and Mr Goldstein entered into a conspiracy to harm Mr Singh by coercing him to make a payment into a trust which, he alleges, does not exist (SOC[41]). This presumably refers either to the hearing on 31 October 2018, at which Mr Goldstein made orders requiring Mr Singh to continue to pay rent while proceedings were on foot, or the hearing on 20 May 2019, at which Mr Goldstein dismissed proceedings and ordered Mr Singh to pay the Khan parties’ costs.

The defendants submit that the elements of the tort have not been adequately pleaded. Mr Singh made no submissions in reply. Specifically, the defendants’ contend that damages have not been particularised. As Lord Diplock stated in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 188, “[t]he gist of [the tort of conspiracy] is damage to the plaintiff”. On this basis, I accept the defendants’ submissions. Mr Singh has not particularised any loss or damage resulting from any of the alleged conspiracies asserted in the SOC. This is sufficient to conclude that Mr Singh’s various claims for tortious conspiracy are inadequately pleaded for want of particularised damages.

In summary, all of Mr Singh’s claims are either inadequately pleaded or an attempt to relitigate issues that have previously been determined. This, together with Mr Singh’s lack of standing, provides a basis upon which to deal with the proceedings summarily.

Under the principle of judicial immunity, no action is maintainable ‘against judges for acts done in the course of hearing or deciding cases which come before them’: Rajski v Powell (1987) 11 NSWLR 522, 537 (per Priestley JA; Hope JA agreeing) quoting Aickin J in Durack v Gassior (High Court of Australia, 13 April 1981, unrep). This immunity from civil liability is conferred on judges, not for their private advantage, ‘but for the protection of judicial independence in the public interest’: Fingleton v The Queen [2005] HCA 34 [38] (Gleeson CJ).

In determining whether a judge’s act attracts judicial immunity, there is a distinction between those acts made within jurisdiction and those made outside of jurisdiction: Sirros v Moore [1975] QB 118, 132-7 (Lord Denning MR). In cases where the relevant act is made within jurisdiction, the immunity is absolute. Whereas, in cases where the relevant act is made outside of jurisdiction, the immunity is qualified and extends only to bona fide acts: Rajski v Powell (1987) 11 NSWLR 522, 538 (per Priestley JA; Hope JA agreeing). In those circumstances, as Kirby P (as he then was) stated in Attorney-General for New South Wales v Agarsky (1986) 6 NSWLR 38 at 40, an ‘[a]ction is not maintainable where judicial officers act in good faith in the performance of their judicial duties’ (emphasis added). Section 44A of the Judicial Officers Act 1986 (NSW) broadens judicial immunity to circumstances where a judge is performing ministerial duties.

The defendants submit that, by way of legislative grant, the first to eighth defendants fall under the protection of judicial immunity. This is plainly correct. Section 44C of the Judicial Officers Act extends judicial immunity to Registrars, including Mr Riznyczok and Ms Jones. It further extends to ‘any other officer of a court’ when such a person is ‘performing the duties of a judicial officer (including ministerial duties)’. This includes Ms Kenna, who is the Prothonotary Director, and Ms Aquilina, who is the Senior Client Services Officer and Chief Clerk, as their duties are ancillary to the judicial function.

The immunity also extends to members of NCAT. Under Schedule 2 clause 4 of the Civil and Administrative Tribunal Act, a member of NCAT has, ‘in the exercise of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court’. Under section 9 of the Civil and Administrative Tribunal Act, the relevant ‘members of the tribunal’ to which the immunity extends include ‘principal members’ and ‘senior members’ of NCAT. Thus, Mr Harrowell, Mr Charles, Ms Simon, and Mr Goldstein all also benefit from judicial immunity.

All of the acts of these defendants which Mr Singh impugns occurred in the exercise of their official roles. Furthermore, none of the impugned decisions were made outside of jurisdiction and, even if they were, there is nothing in the pleadings which suggests any of the decisions were not bona fide. Therefore, the first eight defendants benefit from judicial immunity as against Mr Singh’s various claims and, as such, all of these claims are bound to fail.

On 31 March 2023 (the date originally fixed for the resumed hearing of the motions), Mr Singh purported to give notice to the Attorney-General of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). His covering submission said this was “triggered” by the March Judgment. The effect of the notice was that Mr Singh sought an adjournment of the current proceeding, pending determination of the constitutional question which he raised.

The essence of Mr Singh’s constitutional argument seems to be that the refusal of the Court to waive his filing fee was unconstitutional. Mr Singh contends that the Australian Constitution gives effect to the rule of law in Australia, the rule of law requires that persons have access to justice, and that the failure to waive his filing fee limited his access to justice:

At the hearing on 3 April 2023, the Crown Solicitor made the following submissions (Tcpt, 3 April 2023, 3(37)-4(49)):

I accept those submissions. The notice Mr Singh has produced has no legal merit. His argument is premised on legal principles that apply to issues of statutory interpretation, not constitutional validity. It can be inferred from the fact that the notice has been produced at the eleventh hour that it is an attempt by Mr Singh to delay this Court’s decision in this proceeding. This constitutes an abuse of process.

I now turn to the relief sought by the defendants.

In oral argument, Mr Hyde made submissions to the effect that the Court would be justified in taking the exceptional course of permanently staying the proceeding. He put this on the basis that, not only are Mr Singh’s claims hopeless, but to allow them to continue would be oppressive to his clients, who have already been put to great expense, and have been “pursued relentlessly through many jurisdictions and many proceedings” (Tcpt, 13 February 2023, 21(4-5)).

With reference to the principles summarised by Bell P (as the Chief Justice then was) in Moubarak (see [71] above) the Court accepts Mr Hyde’s submissions and will grant a permanent stay of proceedings on the grounds that a continuation of this proceeding would be vexatious and oppressive to the defendants for the following reasons.

First, Mr Singh’s various claims are hopeless. Second, as is evident from the extensive litigation history, it is unlikely that Mr Singh will cease appealing, or at least impugning, the numerous decisions which have been made against him. Mr Singh has relentlessly pursued the defendants in this proceeding and in other proceedings. It seems Mr Singh has initiated this proceeding, not on its legal merit (of which there is none that I am able to discern), but on the basis that he feels personally victimised by the justice system. Unless Mr Singh’s right to continue this proceeding is made conditional upon leave of the Court, it is highly likely that the defendants will continue to be unfairly burdened by Mr Singh’s baseless claims.

Furthermore, I respectfully adopt the following observations made by Beech-Jones CJ at CL in the March Judgment, which were made regarding Mr Singh’s conduct in relation to several other proceedings in this Court. Evidence of all of these proceedings is before me in these proceedings and his Honour’s observations are pertinent to whether a stay should be granted in this matter:

The first to fifth “vexatious qualities” noted by the Chief Judge apply with equal force to the proceedings before me. His Honour’s observations support the conclusion that I have reached in [146] above, that it would be vexatious and oppressive to allow the proceedings to continue. For that reason, the Court will exercise its exceptional jurisdiction to order that the proceeding be permanently stayed.

I have already noted that at the conclusion of the March Judgment, Beech-Jones CJ at CL made an interlocutory order precluding Mr Singh from commencing any further proceedings in this Court without leave. His Honour also recommended that the Attorney-General consider an application for a vexatious proceeding order with respect to Mr Singh. That proceeding is to return to the Chief Judge on 18 May 2023 where, if the Attorney-General wishes to pursue the application, a final order may be sought declaring Mr Singh to be a vexatious litigant: March Judgment at [96]-[97]. Based on the findings that I have made about Mr Singh’s conduct in this proceeding, under the inherent power of the Court, I respectfully join in the Chief Judge’s recommendation that the Attorney-General consider making an application for a vexatious proceeding order with respect to Mr Singh.

I have already recorded (see [22] above) that Mr Singh did not take up the opportunity to make any submissions as to why I should not make orders similar to those in the March Judgment restraining his ability to take any further steps in these proceedings. Mr Singh is already subject to the Chief Judge’s order in relation to commencing any new proceedings in this Court. I will therefore confine myself, and for reasons identical to those of the Chief Judge, to making an interlocutory order restraining Mr Singh from taking any further step in these proceedings, including the filing of an appeal or an application for leave to appeal from the orders I will make, without the leave of a Judge of the Court.

For the purpose of dealing with any application which may be made by the Attorney-General, I will stand these proceedings over to Beech-Jones CJ at CL on 18 March 2023 to be case managed with Mr Singh’s numerous other proceedings returnable on that day.

The orders of the Court are: