Singh v Khan

1. [1]

   In the Common Law Division, the appellant Gurjit Singh sought leave to appeal from a decision given by the Appeal Panel of the New South Wales Civil and Administrative Tribunal (“NCAT”). On 30 August 2021, consequent upon a hearing on 26 August 2021, Adamson J made orders as follows: [1]

2. [2]

   By Notice of Appeal filed on 31 August 2021, the appellant appeals, purportedly as of right, to this Court. On 22 September 2021, the Registrar noted that the subject appeal appeared to be incompetent, directed the appellant to serve submissions on competency by 3 November 2021, and stood the proceedings over for further directions on 8 November 2021, adding that “[a]ny [m]otions can be made returnable” on 8 November 2021. Two issues as to competency were adverted to by the Registrar: first, whether the appeal, involving as it did the effect of a provision of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”), lay only to the Federal Court; and secondly, whether the appeal was one which required leave, which has not been sought.

3. [3]

   The appellant served submissions contending that the appeal was competent. Notwithstanding the Registrar’s direction as to motions, no motion was filed by any respondent for dismissal of the appeal as incompetent. Neither respondent made any submission as to the jurisdictional issue. Both submitted that leave to appeal was required, but did not elaborate that submission.

Background

1. [4]

   The appellant commenced proceedings in the Consumer and Commercial Division of NCAT on 18 December 2017, seeking relief in respect of a retail lease between the third respondent Fobupu Pty Ltd as lessor and Amnol Holdings Pty Ltd as lessee, under which he guaranteed performance of the obligations of the lessee. On 6 March 2018, a senior member of NCAT made directions requiring the parties to provide to each other and to NCAT copies of all documents on which they proposed to rely for the hearing, which was appointed for 14 May 2018, and indicated that failure to provide documents in accordance with that direction could result in the party(s) not being permitted to rely on the documents without leave. On 21 March 2018, the appellant sought leave to appeal to the Appeal Panel of NCAT against those directions, and subsequently applied to vacate the hearing date. A Deputy President of the Tribunal made further directions on 17 April 2018 requiring the parties to serve, by 26 April 2018, a statement of the orders they sought and the evidence relied on, and adjourned the proceedings to 27 April 2018. On 18 April 2018, a principal member of NCAT, sitting as the Appeal Panel, refused leave to appeal from the directions made on 6 March 2018. The appellant was subsequently ordered to pay the costs of the opposing parties. [2]

2. [5]

   By Summons filed in the Common Law Division on 11 September 2018, the appellant sought leave to appeal from the decision of the Appeal Panel. An Amended Summons was filed on 23 November 2018. On 26 April 2019, Harrison AsJ dismissed Notices of Motion filed by the appellant on 15 October 2018 and 20 December 2018, with costs. [3]

3. [6]

   On 3 June 2019, the appellant filed a Notice of Motion, which was made returnable on 13 June 2019, by which he sought to challenge the orders and directions made by Harrison AsJ on 26 April 2019. The opposing parties did not appear on the return date, and it was not clear whether they had been served. The matter was adjourned for directions on 25 July 2019, when the opposing parties appeared but the appellant did not, and the proceedings were then further adjourned to 8 August 2019. The Registrar noted that a letter pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 13.6, would be sent to the appellant, informing him that his motion of 3 June 2019 would be dismissed if there was no appearance on 8 August 2019.

4. [7]

   On that occasion, when the matter came before the Registrar, a medical certificate had been received from the appellant, who did not appear. An order was made, pursuant to UCPR, r 13.6, dismissing not merely the appellant’s Notice of Motion, but the entirety of the proceedings. There were subsequent proceedings before registrars in which the question of whether or not the proceedings had been dismissed was disputed, but those events are superseded by the effect of the appellant’s bankruptcy, which is described below.

5. [8]

   As a result of the filing of certificates of assessment of the costs orders made by NCAT, deemed judgments of the Local Court against the appellant were entered for $1,591 (on 16 October 2019) and $26,551.98 (on 17 October 2019). On 9 April 2020, an application by the appellant to set aside those judgments was dismissed by a Magistrate. The appellant applied on 4 May 2021 for review of the assessment of costs, but on 6 May 2021 a sequestration order was made against the appellant in the Federal Circuit Court on the basis of the Local Court judgments. That sequestration order followed the service of a bankruptcy notice on 9 December 2019, an unsuccessful application to set it aside which was dismissed by Gleeson J (when her Honour was a judge of the Federal Court) on 25 June 2020, [4] the filing of a creditor’s petition on 6 July 2020, the dismissal of an appeal against Gleeson J’s decision by the Full Federal Court on 3 February 2021, [5] and the hearing of the creditor’s petition on 25 June 2021. The appellant has appealed from the sequestration order, and for present purposes I assume that that appeal remains pending, as it was at the time of the judgment under appeal.

6. [9]

   On 13 July 2021, the appellant filed a motion for review of the Registrar’s orders of 8 August 2019 dismissing the proceedings, and sought the listing of the Summons for further directions. The opposing parties moved for orders staying the proceedings and dismissing the appellant’s motion of 13 July 2021, in reliance on Bankruptcy Act, s 60, which relevantly provides as follows:

7. [10]

   On the opponents’ stay motion, the judgment under appeal records that the appellant argued that the proceedings were not stayed, inter alia, because the Court had no jurisdiction to grant or declare a stay, since bankruptcy is within the exclusive jurisdiction of the Federal Court. [6] The primary judge held that the proceedings did not involve the exercise of jurisdiction “in bankruptcy”, and that the Court had jurisdiction to determine the effect of Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”), s 60, on the proceedings. Her Honour concluded: [7]

The jurisdictional issue

1. [11]

   The first issue is whether, as the present appeal involves consideration of the effect of Bankruptcy Act, s 60, this Court is deprived of jurisdiction by Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (“Cross-vesting Act”), s 7(5).

2. [12]

   Section 7 of the Cross-vesting Act relevantly provides that an appeal from a judge of a State Supreme Court involving a matter arising under an Act specified in the Schedule can be brought only to the Full Federal Court:

3. [13]

   The Schedule refers to the Bankruptcy Act.

4. [14]

   The appellant invoked the primary judge’s conclusion that the case did not involve exercise of jurisdiction “in bankruptcy” so as to be a “special federal matter”, as if this were dispositive of this question. However, contrary to the appellant’s submission, in holding that the Court had jurisdiction to determine the effect of Bankruptcy Act, s 60, on the proceedings, her Honour was deciding a different question to that which arises under s 7(5). The question decided by her Honour was whether the proceedings involved the exercise of jurisdiction “in bankruptcy”. That was relevant because the exercise of jurisdiction “in bankruptcy” is a “special federal matter” for the purposes of the Cross-vesting Act, by reason that:

   1. (1)

      Judiciary Act 1903 (Cth) (“Judiciary Act”), s 39B(1A)(c), provides that the Federal Court has original jurisdiction in any non-criminal matter arising under Commonwealth legislation;

   2. (2)

      The Bankruptcy Act is Commonwealth legislation;

   3. (3)

      By Bankruptcy Act, s 27(1), “the Federal Court and the Federal Circuit Court have concurrent jurisdiction in bankruptcy” – which means in “proceedings under or by virtue of” the Bankruptcy Act [8] – which is exclusive of the jurisdiction of all courts (other than the jurisdiction of the High Court under s 75 of the Commonwealth Constitution or the jurisdiction of the Family Court under ss 35 or 35A of the Bankruptcy Act);

   4. (4)

      Because it is exclusive, jurisdiction in bankruptcy is not invested in State courts by Judiciary Act, s 39(2); and

   5. (5)

      As such, a matter involving exercise of jurisdiction in bankruptcy is a matter that is within the original jurisdiction of the Federal Court under Judiciary Act, s 39B, and a matter in respect of which the Supreme Court of a State would not, apart from the Cross-vesting Act, have jurisdiction, within s 3(1)(e) of the Cross-vesting Act. [9]

5. [15]

   However, there is a distinction between the concept of jurisdiction “in bankruptcy” and “a matter arising under” the Bankruptcy Act for the purposes of Cross-vesting Act, s 7(5). Not all “matters arising under” the Bankruptcy Act are “proceedings under or by virtue of” (emphasis added) the Bankruptcy Act so as to involve exercise of jurisdiction “in bankruptcy”. [10] The Federal Court has exclusive jurisdiction “in bankruptcy” (which is concerned with applications authorised by the Bankruptcy Act, such as creditors’ petitions, applications for annulment, and applications to recover preferences), but the State courts have concurrent jurisdiction (pursuant to Judiciary Act, s 39(2)), to determine matters arising under the Bankruptcy Act other than those falling within the Federal Court’s exclusive jurisdiction. The definition of a “special federal matter” does not catch matters arising under Commonwealth legislation in respect of which jurisdiction is not exclusively conferred on a federal court, because jurisdiction in such matters is invested in State courts by Judiciary Act, s 39(2), and they are therefore matters in respect of which the Supreme Court of a State would have jurisdiction apart from the Cross-vesting Act.

6. [16]

   Thus her Honour’s decision that the proceedings did not involve jurisdiction “in bankruptcy” is not determinative of whether, for the purposes of s 7(5) of the Cross-vesting Act, a matter for determination in the appeal is a matter arising under the Bankruptcy Act.

7. [17]

   The concept of a “matter arising under an Act” in s 7(5) of the Cross-vesting Act is the same as that of a “matter … arising under any laws made by the Parliament” in s 76(ii) of the Commonwealth Constitution. [11] In that context, it is established that a “matter” connotes an entire justiciable controversy. [12] While there is a recognised distinction between a matter that arises under a Commonwealth statute and one which merely involves the interpretation of a Commonwealth statute, [13] in CGU Insurance Ltd v Blakeley, the High Court elaborated on the classical statement of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett that “a matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law”, [14] as follows (footnotes omitted): [15]

8. [18]

   Thus a matter may be said to arise under a Commonwealth statute if that statute provides a defence to the claim. While I have considered whether a stay can be distinguished in this respect from a defence, I have concluded that it cannot. It must follow that if a Commonwealth statute is deployed, in answer to a claim, to contend that the proceeding is stayed, the matter arises under federal law. It must further follow that, although when these proceedings were instituted, they had no federal element, once the appellant became a bankrupt and Bankruptcy Act, s 60, was enlivened, it became a matter arising under the Bankruptcy Act.

9. [19]

   However, that the appeal involves a matter arising under the Bankruptcy Act is not in my opinion conclusive of itself of the question whether s 7(5) of the Cross-vesting Act is engaged so as to deprive this Court of jurisdiction in the appeal, though on a literal construction, without regard to context, it might at first sight appear so. Section 7 is to be construed in the context of the Act as a whole, which is concerned with the cross-vesting of jurisdiction. Its long title is “An Act relating to the cross‑vesting of certain jurisdiction”. The preamble is as follows:

10. [20]

    The Explanatory Memorandum for the Jurisdiction of Courts (Cross-vesting) Bill 1987 (Cth) contains the following in respect of s 7 (emphasis added): [16]

11. [21]

    The Second Reading Speech of the Attorney-General Mr Lionel Bowen included the following (emphasis added): [17]

12. [22]

    In my judgment, the purpose of s 7 is to make provision in respect of the appropriate appellate court for appeals from a judgment of a first instance court which has been exercising cross-vested jurisdiction – not where the first instance court is, otherwise than in the exercise of cross-vested jurisdiction, considering the effect of a law of the Commonwealth. This is clear from the context of s 7 in the Act in which it is contained, and made all the plainer by the Explanatory Memorandum and the Second Reading Speech, which clarify that s 7 was intended to prevent cross-vesting from undercutting the exclusive character of the Full Federal Court’s appellate jurisdiction under the scheduled Acts. It was not intended to require that an appeal from a State Supreme Court exercising jurisdiction invested by Judiciary Act, s 39(2), independently of cross-vesting, could be brought only to the Full Federal Court.

13. [23]

    In this case, the primary judge was not exercising cross-vested jurisdiction. Her Honour was not exercising the ordinary jurisdiction of any court other than that of the Supreme Court of New South Wales. Her Honour was not exercising any power granted by the Bankruptcy Act. If any federal jurisdiction was involved, it was invested by Judiciary Act, s 39(2), independently of cross-vesting. As in my view her Honour was not exercising cross-vested jurisdiction at all, s 7(5) is not engaged. I therefore decline to hold that the appeal is incompetent for want of jurisdiction.

The leave issue

1. [24]

   The second potential objection to competency is that the judgment appealed from is interlocutory, so that an appeal lies only by leave.

2. [25]

   Although it has been held that an order staying proceedings on the ground that they are an abuse of process because the point raised is res judicata is a final judgment, [18] many orders which have apparently final effect but do not involve a judgment on the merits are, for present purposes, regarded as interlocutory, including an order striking out a claim on the ground that it discloses no reasonable cause of action and staying or dismissing further proceedings, [19] an order dismissing proceedings for want of prosecution, [20] and an order summarily dismissing proceedings under UCPR, r 13.4, and its equivalents. [21]

3. [26]

   On those authorities, were the orders under appeal orders staying the proceedings, I would not have hesitated to hold that they were, for present purposes, interlocutory. However, some cause for reservation was occasioned by the circumstance that they were expressed – and, in the circumstances that they simply recognised the automatic effect of Bankruptcy Act, s 60, rather than involving an exercise of the Court’s own power to stay proceedings, rightly so – not as orders but as declarations, and it has often been said that there is no such thing as an interlocutory declaration. [22]

4. [27]

   A number of cases – many from the Full Court of the Federal Court – now recognise that there are circumstances in which a declaratory judgment may not be a final judgment for the purposes of appellate provisions such as Supreme Court Act 1970 (NSW) (“SCA”), s 101(2)(e). [23] The issues were discussed by Finkelstein J in Warramunda, in which his Honour expressed the view that a declaration can only be final and conclusive, but acknowledged that he was bound by overwhelming higher authority to the contrary. [24] While I agree that there cannot be an interlocutory declaration in the sense of one expressed to be “until further order”, that is not conclusive of the question whether the order is, for the purposes of SCA s 101(2)(e), “an interlocutory judgment or order”. In Jess & Jess, the Full Court of the Family Court held that leave to appeal was required from a declaratory order which was not a conclusive declaration as to the respective rights and liabilities of the parties but more akin to a finding of fact. [25] In the context of a provision such as s 101(2)(e), the test is whether the order is a conclusive declaration of the respective rights and liabilities of the parties.

5. [28]

   The orders under appeal, though expressed as declarations, do not declare conclusively the rights and liabilities of the parties in such a manner such as to qualify them as final orders. They are, for the purposes of SCA, s 101(2)(e), interlocutory in character, so that leave to appeal is required.

6. [29]

   Having regard to that conclusion, I do not need to consider the submission raised by the respondents that leave might also be required on the basis that it was not apparent that in excess of $100,000 is presently in issue. [26]

Conclusion

1. [30]

   For the foregoing reasons, the appeal is not incompetent for want of jurisdiction, but it is incompetent as it requires leave, which has neither been sought nor granted. As I indicated during the course of the hearing, if I reached the conclusion that leave was required, the appropriate order would involve allowing the appellant an opportunity to file an application for leave to appeal. Such an application would now be out of time, so that an extension of time would also be required.

2. [31]

   The Court therefore orders that:

   1. (1)

      Unless by 3 December 2021 the appellant has filed an application for leave to appeal, including for an extension of time in which to do so, the appeal be dismissed with costs.

   2. (2)

      The proceedings are adjourned to 6 December 2021 before the Registrar for further directions.