D J Singh v D H Singh & Anor

On 30 June, 1–3 July and 8 September 2015, I heard relatively complex proceedings relating to the Estate of the late Douglas John Singh. The complexity of those proceedings resulted partly from the fact that there were several overlapping proceedings. Those proceedings included proceedings 2013/141437 (“Probate Proceedings”) in which, inter alia, Mr David Singh filed a “Second Cross-Claim amended 10 September 2014 Statement of Cross-Claim” which brought multiple claims for relief, including a claim for provision under the Succession Act 2006 (NSW). I also heard proceedings brought by Mr David Singh (2013/338156) (“Further Proceedings”) in which he brought, inter alia, a similar claim for provision under the Succession Act, as well as two other proceedings brought by other claimants who also brought claims under the Succession Act. As I noted, in my judgment delivered on 2 October 2015 ([2015] NSWSC 1457) at [11], Mr Smart, who appeared as Counsel for Mr David Singh in the proceedings, narrowed his claims in both the Cross-Claim in the Probate Proceedings and in the Further Proceedings to four matters, the fourth of which was a claim for provision for Mr David Singh under the Succession Act.

I addressed Mr David Singh’s claim for provision under the Succession Act, both in his Cross-Claim in the Probate Proceedings and in his separate claim in the Further Proceedings, in my judgment at [139] – [162], I observed, at the conclusion of that part of the judgment, that:

Mr David Singh also did not succeed in respect of the other submissions put by his Counsel, so as to support any other order in his favour in the Further Proceedings. When I delivered judgment, I made orders dismissing Mr David Singh’s Cross-Claim in the Probate Proceedings, including his claim for provision under the Succession Act. On 2 November 2015, I made further orders in a form agreed between the parties to give effect to my judgment which provided for costs in respect of, inter alia, the Further Proceedings brought by Mr David Singh.

Mr David Singh appealed from my judgment, filing a Notice of Intention to Appeal on 30 October 2015 and a Notice of Appeal on 18 January 2016. On 22 August 2016, Simpson JA ordered that the appeal be dismissed by reason of issues as to compliance with directions made in respect of the conduct of the appeal. By a further judgment delivered on 13 February 2017 ([2017] NSWCA 15) three judges of the Court of Appeal (Beazley P, Macfarlan JA and Emmett AJA) set aside Simpson JA’s order. In the course of their judgment, the Court of Appeal observed (at [2]) that I had concluded that the claim by Mr Singh for provision pursuant to Chapter 3 of the Succession Act should be dismissed “although no formal order to give effect to that conclusion appears to have been made”. That proposition appears to be correct in respect of Mr David Singh’s separate claim in the Further Proceedings, although Mr David Singh’s corresponding Cross-Claim in the Probate Proceedings had been dismissed by my orders made when I delivered judgment on 2 October 2015. The Court of Appeal observed that an application needed to be made to me to make a formal order to give effect to my decision on Mr Singh’s family provision application.

By email dated 28 February 2017, the solicitors for the Defendants in the Further Proceedings wrote to my Associate requesting that such an order be made, in terms that might have seemed uncontroversial given the Court of Appeal’s observation that such an application should be made, as follows:

By email sent at my request on 1 March 2017, my Associate invited Mr David Singh to make written submissions as to whether such an order should be made, as follows:

Mr David Singh responded by email sent on 12 March 2017. Mr Singh submitted, first, that he objected to the relevance of the second paragraph of Ms Chapman’s email dated 28 February 2017 which referred, as I noted above, to his appeal against my earlier decision, and stated that matter was currently before the Court of Appeal. Mr Singh submitted that:

Mr Singh advised that he also objected to the first sentence of the first paragraph of my Associate’s email allowing an opportunity for submissions, which (as I noted above) had stated that:

Mr Singh submits that:

It seems to me that a judge at first instance can read published decisions of the Court of Appeal, including in respect of appeals from decisions of that judge. In this case, as I noted above, the Court of Appeal’s decision points to the need to make a formal order in respect of the disposition of the Probate Proceedings. I accept, of course, that judges must remain impartial and unbiased. I do not accept that knowledge of the Court of Appeal’s observation that an application needed to be made to me to make such an order can give rise to any relevant lack of impartiality or actual or apprehended bias in respect of the question whether to make an order to give effect to the determination of the relevant matters in my judgment.

Next, Mr Singh indicates that:

The approach I adopted in respect of submissions reflects no more than the fact that the Defendants sought to have an order made, on the apparent basis that it would give effect to the findings in my judgment, and no further submissions were necessary to explain that application or its basis. There is no disadvantage to Mr Singh in the fact that he was given an opportunity to make detailed written submissions in opposition to such an order, if he wished to do so, that was not afforded to the Defendants.

Mr Singh also objects to the words “and the corresponding order already made in the Probate Proceedings” in the second paragraph of the email from my Associate dated 1 March 2017 and submits that:

I accept that Mr Singh’s claim for provision under the Succession Act in the Further Proceedings was brought in separate proceedings from his claim for provision under the Succession Act in the Cross-Claim in the Probate Proceedings, although those proceedings were heard together, the same evidence was relied on in both claims, Counsel who appeared for Mr Singh advanced the same submissions in respect of both claims and I dealt with those submissions in both matters together in my judgment. It seems to me that those claims in the two proceedings are not independent, in that the determination of the claim in one of the proceedings on the merits necessarily determined the other. To put that proposition another way, Mr Singh could not conceivably fail in the Cross-Claim under the Succession Act in the Probate Proceedings and succeed in the claim under the Succession Act in the Further Proceedings or vice versa, particularly where he relied on the same evidence and his Counsel advanced the same submissions in respect of both claims. It seems to me that the result in this claim in the Further Proceedings is consequential upon the result in the corresponding claim in the Cross-Claim in the Probate Proceedings, and vice versa, because both claims were put on the same basis.

Finally, Mr Singh apologised for a suggested delay in making submissions and explained the reason for that delay. No criticism of Mr Singh was made by the Defendants or the Court in respect of any suggested delay as to these submissions and no such apology was necessary. Mr Singh made his submissions within the period which had been allowed for those submissions.

I am satisfied that a further order should be made dismissing the Further Proceedings number 2013/338156, since that is the necessary consequence of the findings I had made in the judgment and the orders I had already made in respect of Mr David Singh’s corresponding Cross-Claim in the Probate Proceedings, number 2013/141437, and of the fact that Mr Singh did not succeed in any of the claims ultimately pressed by his Counsel at the hearing. Accordingly, I order that proceedings 2013/338156 be dismissed. Orders have already been made, with the agreement of the parties, as to the costs of those proceedings.