Are orders of judges of the Supreme Court, including of the Court of Appeal, amenable to review under s 69 of the Supreme Court Act, 1970 (NSW)?

Singh v State of NSW; Singh v Lekhwar [2021] NSWCA 260 (18 October 2021)

Intro:-

Mr Gurjit Singh has filed two summonses in the Court of Appeal seeking judicial review of Supreme Court Orders. The first was filed on 23 September 2021 and is directed to a decision made by Beech-Jones J on 14 September 2021. The second was filed on 1 October 2021 and is directed to a decision of Rothman J of the same day. Both of the decisions in the Common Law Division were made in a single proceeding, which is Mr Singh’s challenge to orders made by NCAT.

Facts:-

On 14 September 2021, Beech-Jones J made the following directions:

“THE COURT DIRECTS that:

(1) The third, fourth and fifth defendants to the summons be removed and replaced by the New South Wales Civil and Administrative Tribunal (NCAT).

(2) The Notice of Motion filed 14 September 2021 be returnable before the Registrar on Thursday, 16 September 2021.

(3) The plaintiff serve a copy of the Notice of Motion on the first and second defendants by email and advise them that the Motion is returnable before the Registrar on Thursday, 16 September 2021.”

Subsequently there were two directions hearings before registrars and a hearing before Campbell J. In oral submissions today Mr Singh has expressed some dissatisfaction with Campbell J, but no proceedings have been commenced relating to anything that his Honour did.

On 1 October 2021, Rothman J made the following orders:

“The Court Orders:

1. There is no arguable proposition for apprehended bias;

2. The summons is dismissed;

3. The plaintiff shall pay the costs of the defendant if any on an indemnity basis.”

The proceedings on their first return date in the Court of Appeal came before the Registrar. The Registrar made the following orders on 11 October 2021, which is last Monday:

“ORDERS MADE BY THE COURT

1. Note the Summons appears to be incompetent on the basis of Penson v Titan National Pty Ltd [2015] NSWCA 404.

2. Note that the applicant does not intend to substitute a leave application for the Summons.

3. Stood over to 18/10/2021 to show cause why the Summons should not be dismissed. as being incompetent.

4. The question of the substitution of the Secretary of Department of Communities and Justice for the fourth Respondent is stood over to 18/10/2021.

5. Registry notify parties.”

Subsequent to those orders, Mr Singh has filed a four page submission dated 17 October 2021 explaining why he contends that this Court has jurisdiction to hear and determine the matter, notwithstanding that he has proceeded by way of summons seeking judicial review.

Issue:-

The only question today is a pure question of law. It is whether Mr Singh by way of summons filed in the supervisory jurisdiction of the Supreme Court, rather than by way of summons seeking leave to appeal, can properly bring his complaints about both of those decisions. Mr Singh has made it abundantly clear that he does not wish to have the summonses that he has filed treated as applications for leave to appeal. 

Consideration:-

The point raised by the Registrar is a very straightforward one. The decision on which it is based, Penson v Titan National Pty Ltd [2015] NSWCA 404, is short and recent and a decision of the Court of Appeal constituted by Meagher, Gleeson and Simpson JJA. One point in that decision was whether Ms Penson, who appeared in person, had commenced within time, and that was determined favourably to her. Another point, on which Mr Singh relies, is that Ms Penson was seeking relief pursuant to s 69 of the Supreme Court Act from two decisions of the Court of Appeal constituted by, as it happens, Ward JA and me. Unlike Ms Penson, Mr Singh seeks to challenge decisions of judges sitting in the Common Law Division.

The paragraph of present relevance is para 8, and that provides as follows:

“Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69. Ms Penson’s application in this respect is misconceived and should be dismissed.”

It will be seen that the Court of Appeal constituted by three judges there stated that orders of judges of the Supreme Court are not amenable to review under s 69. It may be that there are exceptions to the universal proposition stated by the Court of Appeal, for example if a judge of the Supreme Court is exercising a function conferred upon him or her personally which is an administrative function. But there is no suggestion that that is the case at present. Beech-Jones J made orders altering the constitution of the proceedings, removing some parties from the proceedings and joining NCAT. Rothman J heard and determined an application that he disqualified for bias and then heard and determined the summons.

I take the view that I have no choice in the application today. As the Registrar indicated a week ago, the decision of this Court constituted by three judges in Penson v Titan holds, in a way that binds me, that Mr Singh’s processes do not validly engage this Court’s jurisdiction. It is plain from what was said in McGinn v Cranbrook School [2015] NSWCA 378 at [5] that a single Judge of Appeal has power to exercise the powers of the Court of Appeal to dismiss a proceeding for want of jurisdiction. That is the course that I am bound to follow in light of the authorities which I have mentioned.

Conclusion:-

For those reasons, in each of proceeding 2021/00282536 and 2021/00271771, I dismiss the summons for judicial review filed by Mr Singh.