FEDERAL COURT OF AUSTRALIA

Rana v University of Adelaide (No 2) [2008] FCA 941

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 application for an extension of time within which to appeal from the orders made on 7 April 2008 be dismissed.

2.         The draft notice of appeal filed on 24 April 2008, and in particular paragraph 5 of that draft notice of appeal, be treated as the notice of appeal from the orders made on 7 April 2008.

3.         The notice of appeal of 24 April 2008, insofar as it relates to the orders of 7 April 2008 dismissing the appellant’s proceeding against the third respondent, be dismissed.

4.         The appellant pay the third respondent’s 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 an application by the University of South Australia for summary judgment in respect to a notice of appeal filed on 24 April 2008.  The University of South Australia was the third respondent in a proceeding brought by the appellant in which all respondents made an application for summary judgment pursuant to s 31A of the Federal Court Act 1976 (Cth) (the Act).  On 17 March 2008 I dismissed the proceeding against the first, second, fourth and fifth respondents and entered judgment in their favour.  On 7 April 2008 I dismissed the proceeding against the third respondent and entered judgment in its favour.  The orders made on 7 April 2008 finally disposed of the proceeding against all respondents.

2                          On 24 April 2008 the applicant sought an extension of time within which to file a notice of appeal from the orders made on 7 April 2008.  For reasons which I have given earlier today, in my opinion the applicant did not need an extension of time within which to bring proceedings because he was still within time pursuant to O 52 r 6 of the Federal Court of Australia Rules 1979 (Cth).  He advised me that he had filed a draft notice of appeal on the advice of the Registry, having intended to file a notice of appeal.  The third respondent properly accepted that explanation and agreed that because the orders made on 7 April 2008 must have been a final judgment (Jefferson Ford v Motor Company of Australia Limited [2008] FCAFC 60) that I should treat so much of the notice of appeal which was filed on 24 April 2008 as a complaint about the orders made on 7 April 2008 as the notice of appeal in this proceeding.

3                          I therefore indicated, for reasons I gave earlier today, that I would so treat paragraph 5 of the notice of appeal on 24 April 2008 as the sole ground of appeal from my decision made on 7 April 2008.

4                          The third respondent, who was the only party to that appeal, then sought an order for summary judgment pursuant to s 25(2B)(aa) of the Act and asked me as a single judge to rule on that application.  I have power pursuant to s 25(2B)(aa) to hear the application and I have done so.  The ground of appeal in the notice of appeal is:

His Honour dismissed the matter concerning the 3^rd respondent on the grounds that the appellant did not turn up to Court in time and His Honour felt that the appellant had falsified emails as alleged by the respondent and the matter had no basis of claim to succeed arising illegality. However, the truth was the respondent served three affidavits at 6 AM of 7/4/2008 and the hearing before His Honour Lander J was at 9:30 AM.  The appellant went to his friend’s house to type the reply to those affidavits and then had to be signed by a JP in the Federal Court.  However, on the way to Court he became involved in a car accident and was in Court at 9:45 AM and by this time, the matter was dismissed with costs on an indemnity basis as fraud was alleged.  The appellant further seeks to have the whole judgments of His Honour Lander J based on denial of natural justice, being unfair and

5                          A number of things need to be observed.  First it is right, as the ground of appeal says, that the matter was heard in Mr Rana’s absence.  When the matter was called on at 9.30 am he did not attend.  He was called in the precincts of the court.  There was no explanation for his non-attendance and, upon the application of the third respondent, I proceeded to hear the matter.  I heard the matter on its merits.  In doing so I did not rely on the affidavits referred to in the ground of appeal, but in fact relied upon affidavits of Ms McIver and Mr Dronfield.  Those affidavits supported the findings which I made, which were that the University was not responsible for the publication of the email which was relied upon for the cause of action.  I dismissed the matter on the merits.

6                          The sole issue raised in the proceeding against the third respondent is whether Ms McIver had sent an email which contained a number of false statements which would give rise to a cause of action in favour of the appellant.  I found that she had not, for the reasons which I gave on 7 April 2008.  In doing so, as I say, I did not rely upon the affidavits to which reference is made in the ground of appeal.

7                          Nothing has been put to me today which would suggest that the decision at which I arrived, which was that on the undisputed facts the appellant had no reasonable prospect of successfully prosecuting the proceeding against the third respondent, was in any way tainted with error.

8                          In my opinion, as there are no facts contrary to those upon which I relied for the purpose of my decision, the appellant has no reasonable prospect of prosecuting the appeal and the appeal should be summarily dismissed.  There will be an order that the notice of appeal of 24 April 2008 insofar as it is an appeal against my decision of 7 April 2008, and in which the third respondent is the respondent, stand dismissed.

9                          There will be an order that the appellant pay the third respondent’s costs on an indemnity basis.

Associate:

Dated:         17 June 2008