FEDERAL COURT OF AUSTRALIA

Rana v University of Adelaide [2008] FCA 940

RANJIT SHAMSHER JUNG BAHADUR RANA v UNIVERSITY OF ADELAIDE, REPATRIATION COMMISSION, UNIVERSITY OF SOUTH AUSTRALIA, AUSTRALIAN GOVERNMENT SOLICITOR and CHIEF OF ARMY

SAD 47 of 2008

LANDER J

17 JUNE 2008

ADELAIDE

THE COURT ORDERS THAT:

1.         The applicant’s application for an extension of time within which to appeal against the order made on 17 March 2008 be dismissed.

2.         The applicant pay the first, second, fourth and fifth respondents’ costs on an indemnity basis.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                          This is application by Mr Rana for an extension of time within which to appeal from orders made by me on 17 March 2008 in which I dismissed his proceeding against four respondents pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Act).  The proceeding which was dismissed was commenced early in 2008 against the respondents to this application.  As my reasons of 17 March 2008 show, Mr Rana has previously brought proceedings against those respondents which, in due course, led to settlements.  The proceeding which I dismissed against four of the five respondents to that proceeding on 17 March 2008 arose out of a medical report given by Professor Goldney subsequent to the settlement of the earlier proceedings.

2                          I reached the conclusion in my reasons of 17 March 2008 that the proceeding had to be dismissed against the four respondents on the ground that there was no reasonable prospect of the applicant prosecuting the proceeding: s 31A of the Act.  On 8 April 2008 the applicant filed an application for an extension of time to seek leave to appeal from that decision.  At the same time, the applicant applied for leave to appeal from orders which I made on 7 April 2008 dismissing the proceeding against the remaining respondent, again pursuant to s 31A of the Act on the ground that there was no reasonable prospect of the applicant prosecuting the proceeding against that remaining respondent.

3                          The application for an extension of time and for leave to appeal first came before me on 22 April 2008 when I brought to the applicant’s attention the decision of this Court in Jefferson Ford Pty Ltd v The Ford Motor Company of Australia Ltd [2008] FCAFC 60.  At that time, the applicant indicated that he might seek to set aside the orders made by me on 7 April 2008 on the basis that he was not able to be present because he was involved in a motor vehicle accident on that morning: O 35 r 7.  On 24 April 2008 the applicant applied for an extension of time in which to file and serve a notice of appeal from the judgments of the Federal Court given on 17 March 2008 and 7 April 2008 in Adelaide.  I assume from that application he has abandoned any application to set aside the orders made on 7 April 2008 in favour of pursuing appeals from those orders.

4                          When the matter came on before me this morning, Mr Rana asked for an order dismissing his application for leave to appeal from my decision made on 7 April 2008.  He has proceeded, I think, on the basis that the decision of the Full Court in Jefferson Ford Pty Ltd v Motor Company of Australia Limited [2008] FCAFC 60 entitles him to appeal against both the orders made on 17 March 2008 and 7 April 2008 as of right.  He therefore has pursued the application for an extension of time within which to appeal from the orders made on both 17 March 2008 and 7 April 2008.  I pointed out to him that when he made his application on 24 April 2008 for an extension of time within which to appeal from the orders made on 7 April 2008, he was still within time under O 52 r 6 of the Federal Court of Australia Rules 1979 (Cth) (the rules) to bring an appeal and no extension of time was necessary.

5                          He answered by saying that he had filed a draft notice of appeal on 24 April 2008 and, in those circumstances, had complied with the rules in relation to the orders made on 7 April 2008, and that the notice of appeal ought to stand as the appeal from those orders.  Mr Martin, who appeared for the University of South Australia, which is the only respondent concerned with those orders, accepted that if Mr Rana had a right of appeal then he had exercised that right by filing the notice of appeal which is entitled “Draft Notice of Appeal”.  He did not question Mr Rana’s explanation that when Mr Rana came to file his notice of appeal he was advised by the Registry to file a draft notice of appeal.

6                          Mr Rana’s explanation appears to be correct because the document is typed as a notice of appeal but has been amended in handwriting by someone by including the word “draft”.  I therefore treat the draft notice of appeal as the notice of appeal from my orders of 7 April 2008.  Only one ground of the draft notice of appeal is relevant to those orders and that is ground 5.  I therefore treat ground 5 as the ground of appeal from my orders made on 7 April 2008.  Because those orders finally disposed of the proceeding against all respondents and in accordance with Jefferson Ford Pty Ltd v Motor Company of Australia Limited [2008] FCAFC 60, Mr Rana apparently has an appeal as of right.

7                          The remaining respondents opposed any extension of time within which to appeal from my orders of 17 March 2008.  In doing so, Mr Roder, who appeared for the first respondent, and Mr Prince, who appeared for the second and fourth respondents, argued that my orders made on 17 March 2008 could not amount to a final judgment because those orders dismissed the proceeding only against four of the five respondents.  They argued that Gordon J’s reasons in Jefferson Ford Pty Ltd v Motor Company of Australia Limited [2008] FCAFC 70 meant that the orders made on 17 March 2008 are interlocutory and not final and that leave would be required, and no appeal lies as of right.

8                          I must, of course, follow any decision of the Full Court of this Court.  The proceeding with which I am presently concerned highlights the difficulty of the application of Jefferson Ford Pty Ltd v Motor Company of Australia Limited [2008] FCAFC 60 and the difficulty in determining what might be a final judgment and what is an interlocutory judgment.  In particular, it is difficult to understand how a judgment against four of the five respondents, pursuant to s 31A of the Act dismissing the proceeding against all those respondents, would be interlocutory, but when a judgment is delivered against the fifth of the five respondents that judgment is final.  However, that seems to be the effect of the decision in Jefferson Ford Pty Ltd v Motor Company of Australia Limited [2008] FCAFC 60.

9                          If then Mr Roder and Mr Prince are right in their contentions, Mr Rana ought to have applied for leave to appeal from my orders of 17 March rather than sought to file a notice of appeal.  It may, however, be better to decide this matter on the merits and on the substance of the application rather than on the procedural niceties which arise out of Jefferson Ford Pty Ltd v Motor Company of Australia Limited [2008] FCAFC 60.  Mr Rana has filed an affidavit in support of his application for an extension of time within which to appeal which he swore on 24 April 2008.  In that affidavit he raises these matters: first, that he has been feeling unwell since an alleged assault upon him on 17 April 2008; secondly, that he was involved in a motor vehicle accident on 7 April 2008 and was suffering stress as a result of that accident; and thirdly, that a report of Dr Tony Davis, psychiatrist, of 10 April 2008, shows that he is suffering from a paranoid personality disorder and paranoid psychosis.

10                        He says for those reasons he was unable to attend to either an application for leave to appeal from my orders of 17 March 2008 or to file a notice of appeal.  The respondents contend that none of the grounds are made out in fact.  It must be observed that the assault, which he alleges occurred on 17 April 2008, occurred after the time within which the appeal needed to be brought and, in that sense, cannot be relevant as to why he did not file the notice of appeal within time.

11                        It might be best to explain why there was some delay between 17 March and 24 April 2008.  The motor vehicle accident occurred on 7 April, which was the day upon which I dismissed the proceeding against the fifth respondent.  Other proceedings, and in particular the application for leave to appeal from my decisions which I dismissed this morning, showed that Mr Rana appeared in the Court late for the hearing, but on 7 April.  He also appeared at court on 8 April for the purpose of filing documents.  I accept the respondents’ contention that, in those circumstances, the motor vehicle accident does not seem to have interfered with his ability to attend to Court proceedings.

12                        The report of Dr Tony Davis of 10 April does, as Mr Rana contends, indicate that it is Dr Davis’ opinion that Mr Rana suffers from a paranoid personality disorder and a paranoid psychosis.  It is clear also from that report, as an abundance of proceedings in this Court also shows, that Mr Rana has been suffering from those complaints for many years.  There is nothing in Dr Davis’ report which indicates that anything specific happened between 17 March 2008 and 7 April 2008, or 24 April 2008, which would explain his failure to bring the appeal within time.

13                        I think, however, again, it would be better to address the substance of the matter.

14                        I would refuse the extension, not because of the unexplained delay but because, in my opinion, the proceeding which I dismissed on 17 March 2008 was manifestly doomed to fail because it did not identify any cause of action against the four respondents for whom I gave judgment on 17 March 2008.  Mr Rana has not indicated on this application any error in my decision.  Rather, he has relied upon my failure to allow him to amend his statement of claim to address the shortcomings which the respondents identified at the hearing on 17 March 2008.  Mr Rana did not apply at any time prior to the judgment in favour of the four respondents to amend his statement of claim.  Thus it is not right to say that I should have ordered him to amend the statement of claim.  He has not shown on this appeal how he would have amended the statement of claim so as to avoid the judgment which was entered against him.  But, in any event, judgment was not entered against him because of some failure in the pleading to identify a cause of action.  Judgment was entered against him because, manifestly, in the manner in which the proceeding was presented, he had no claim against any of those four respondents.  He could not have, in my opinion, amended his statement of claim so as to cure those defects.

15                        For those reasons, I would dismiss the application for an extension of time within which to appeal against my orders made on 17 March 2008.

Associate:

Dated:         17 June 2008