FEDERAL COURT OF AUSTRALIA

Rana v Commonwealth of Australia [2013] FCA 189

THE COURT ORDERS THAT:

1.    The proceeding commenced by the originating application under the Australian Human Rights Commission Act 1986 (Cth) filed by the applicant on 17 November 2011 be dismissed.

2.    Pursuant to r 6.02 the applicant be ordered not to start or continue any other proceeding in the Court against the respondent, without leave of the Court, relating to documents filed, or sought to be filed, by the applicant in any registry of the High Court of Australia in relation to:

2.1    any application or purported application for relief in respect of the judgment pronounced by the Court on 20 October 2008 in proceeding No SAD 48 of 2008;

2.2    any application or purported application for relief in respect of the judgment pronounced by the Full Court on 21 November 2008 in proceeding No SAD 83 of 2008 (an appeal from the judgment pronounced by the Court on 17 June 2008 in proceeding No SAD 111 of 2007);

2.3    any application or purported application for special leave to appeal from the judgment pronounced by the Full Court on 17 June 2011 in proceedings No  SAD 202 of 2010 and SAD 203 of 2010.

3.    The applicant pay to the respondent costs of and incidental to the proceeding on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BACKGROUND

1    The proceeding relates to three applications filed, or sought to be filed, by the applicant in the Registry of the High Court of Australia:

1.    an application for an order to show cause dated 3 November 2008 (First HCA Application) seeking constitutional relief in respect of the judgment in Federal Court proceeding No SAD 48 of 2008: Rana v Goldney (No 2) [2008] FCA 1553 (First FCA Proceeding);

2.    an application for an order to show cause dated 5 January 2009 (Second HCA Application) seeking constitutional relief in respect of the judgment in Federal Court proceeding No SAD 83 of 2008: Rana v Commonwealth of Australia [2008] FCAFC 192 (Second FCA Proceeding); and

3.    an application filed on 7 July 2011 (Third HCA Application) seeking leave to appeal to the High Court from the judgment pronounced by Marshall, Tracey and Flick JJ in Federal Court proceedings SAD 202 of 2010 and SAD 203 of 2010: Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80 (Third FCA Proceeding).

2    The First and Second HCA Applications were not accepted for filing by staff in the Melbourne Registry of the High Court when the applicant attempted to file them. Instead, the applicant was told that, because an order had been made on 13 August 2008 sequestering his estate under the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act), he would need to produce confirmation that the Official Trustee in Bankruptcy (the Trustee) consented to the particular proposed High Court applications before the First and Second HCA Applications would be accepted for filing.

3    The applicant had already unsuccessfully applied to this Court for judicial review of the High Court Registry’s handling of the First and Second HCA Applications: Rana v Musolino [2009] FCA 1050 (the ADJR Proceeding). Finn J dismissed that application relevantly stating at [4]:

… any decisions taken by the Registrar in relation to the acceptance or otherwise of material for filing in the High Court, even where potentially amenable to review under the AD(JR) Act; see Tait v Harris [2003] FCA 446; are not ones in relation to which I should make any determination. Such matters, which involve the conduct of the High Court’s own officers in the discharge of their duties, are, in my view, ones for that Court itself properly to determine.

4    In that case, the substantive issue was in relation to certain proceedings in this Court, commenced by the applicant whilst he was a bankrupt, which had then been discontinued by the Trustee. It was whether the Trustee’s decisions under s 178 of the Bankruptcy Act should be set aside. If they were, then the Trustee’s decision to discontinue an earlier High Court application should also be reviewed: see at [5].

5    The proceedings in this Court which were in issue in the ADJR Proceeding included:

(a)    The First FCA Proceeding: the judgment in the First FCA Proceeding refused an application for an extension of time to appeal from an earlier decision of the Court in that proceeding which was found to be clearly correct: at [26].

The earlier decision was Rana v Goldney [2008] FCA 463 which summarily dismissed the applicant’s claim as an abuse of the process of the Court. That, in turn, was because the same issue had been litigated and resolved adversely to the applicant only a short time before: see at [2] and [5].

In the ADJR Proceeding, it was noted that the Trustee had made no decision in relation to the First FCA Proceeding, so no ground for impugning any such decision existed: see at [15] and [16].

(b)    the Second FCA Proceeding: at first instance, in Rana v Commonwealth of Australia [2008] FCA 907, a judge of the Court dismissed the applicant’s attempts to set aside decisions of a delegate of the Director of Personnel of the Army of 5 and 28 April 2005 that, at the time of the applicant’s discharge from the Australian Army on 13 July 1982, grounds did not exist whereby he could have been discharged because of physical or mental incapacity to perform his duties, and consequently the Army records showing the reason for his discharge would not be altered. Those decisions had been unsuccessfully attacked in earlier decisions of the Court at first instance: Rana v Chief of Army [2005] FCA 1283 and on appeal: Rana v Chief of Army Staff (2006) 90 ALD 474. The primary judge concluded that the proceeding was brought for improper and collateral purposes, and was an abuse of process: at [61]-[63].

The Full Court dismissed an appeal from that decision: Second FCA Proceeding.

In the ADJR Proceeding, it was again noted that because the Trustee had played no role in the Second FCA Proceeding, no decision of the Trustee could be impugned.

6    In addition, the primary judge in the ADJR Proceeding concluded that the proceeding in the High Court which the Trustee had discontinued was for the Trustee to conduct, and not for the applicant, as it was not seeking to vindicate or establish a “personal wrong or injury” for the purposes of s 116(2)(g) of the Bankruptcy Act. Consequently, the Trustee’s decision to discontinue it was unimpeachable: at [45] and [47]. The nature of the action is described at [23]. The decision in this Court which was the subject of that High Court proceeding is Rana v University of Adelaide [2008] FCA 365.

7    That proceeding in the High Court is different from the HCA Applications the subject of this proceeding.

8    On 14 May 2010, an application for leave to appeal the judgment in the ADJR Proceeding was dismissed by a judge of this Court in Rana v Musolino [2010] FCA 476. It was relevantly stated at [2]:

… The primary judge correctly held (and it does not appear to be the subject of challenge in this application) that the proceeding against [Ms Musolino] was incompetent.

9    On 20 May 2011, I dismissed a further application seeking a declaration that the applicant had a right independent of the Trustee to seek special leave to appeal to the High Court from the judgment referred to in [4]: Rana v Official Trustee in Bankruptcy [2011] FCA 504. I said at [16]:

The first claim is for a declaration that the applicant has the right to seek special leave to appeal from the High Court of Australia in respect of the decision of McKerracher J in Rana v Musolino [2010] FCA 476. The character of the proceeding about which the applicant seeks to invoke the jurisdiction of the High Court has already been decided by Finn J in Rana v Musolino [2009] FCA 1050 and affirmed by McKerracher J in Rana v Musolino [2010] FCA 476. The applicant is attempting to have those decisions reviewed through a back door. Moreover, he has not gone any distance at all to show that those decisions are erroneous. In my view, the applicant is not entitled to the relief sought. It is not necessary to explore in any detail the circumstances in which, generally speaking, declaratory relief might be granted. This Court does not have the power to direct that a proposed proceeding in the High Court be accepted by a Deputy Registrar of the Court. …

10    A little over a month later, on 29 June 2011, the applicant lodged an electronic complaint (the AHRC Complaint) with the Australian Human Rights Commission (AHRC) alleging disability, age and racial discrimination in relation to the High Court’s handling of the First and Second HCA Applications.

11    The Third HCA Application was accepted for filing on 7 July 2011, but the applicant was told that it would be treated as an application for special leave to appeal from the judgment in Federal Court proceeding No SAD 203 of 2010 (part of the Third FCA Proceeding), and that he should file a separate application, and pay a separate $100.00 filing fee in respect of that judgment in respect of Federal Court proceeding No SAD 202 of 2010, which he also sought to challenge.

12    The Full Court of this Court in the Third FCA Proceeding had heard together and dismissed two applications by way of appeal by the applicant from a decision of the Administrative Appeals Tribunal firstly affirming a decision of the Military Rehabilitation and Compensation Commission (MRCC) of 2007 in turn affirming a decision of Comcare that the applicant was not entitled to compensation for paranoid schizophrenia allegedly caused by his Army service, and secondly affirming a decision of the MRCC also in 2007 that the applicant was not entitled to compensation for stress-induced paranoid schizophrenia and diabetes also allegedly caused by his Army service. The two applications were heard together, but separate orders were made; hence the High Court required two separate applications by the applicant.

13    The applicant then sent a written complaint dated 8 July 2011 to the AHRC alleging that Deputy Registrar Musolino of the High Court “would not process” his application for special leave to appeal from the judgment in Federal Court proceeding No SAD 202 of 2010 (part of the Third HCA Application) and that his human rights were thereby “breached by a federal government agency”.

14    The AHRC appears to have treated the written complaint dated 8 July 2011 as part of the AHRC Complaint initially filed in electronic form on 29 June 2011. However, the delegate of the President of the AHRC formally refused a request by the applicant for leave to further amend the AHRC Complaint to include an allegation (the Abandonment Allegation) that Deputy Registrar Musolino rejected the Third HCA Application after it was deemed abandoned under Rule 41.10.4.1 of the High Court Rules 2004 (Cth) (High Court Rules).

15    The deemed abandonment of the Third HCA Application resulted from the applicant’s failure to file two additional copies of his written case, draft notice of appeal and all of the documents filed under Rule 41.01.2 of the High Court Rules within the 28 day time period prescribed by Rule 41.10.3(c) of the High Court Rules. The applicant was warned of the consequences of not filing those documents a number of times before the prescribed 28 day period expired on 4 August 2011.

16    The day before the 4 August 2011 deadline, Deputy Registrar Musolino sent an email to the applicant relevantly stating:

… whether you choose to comply with the requirements of the High Court Rules is a matter for you. However, if you do not, then please be aware that the application for special leave will be deemed abandoned by operation of the High Court Rules for failure to comply with all of the requirements by 4 August 2011.

17    The applicant responded by email later the same day relevantly stating:

You go to hell and I will sue you personally and Commonwealth of Australia not only in this matter but also in SAD 48 and 111 for which you refused to process my papers for writs or special leave, and those were matters for personal injury and I did not need permission or consent from Official Trustee in Bankruptcy.

18    It should be noted that the Trustee had also informed the applicant that, given the character of the decisions of the MRCC, the applicant’s causes of action that were the subject of the Third FCA Proceeding did not vest in the Trustee, as they fell under s 116(2)(g) of the Bankruptcy Act.

19    On 5 August 2011, the HCA received a letter dated 3 August 2011 from a delegate of the President of the AHRC asking for a response to the AHRC Complaint. An attachment to that letter summarised the allegedly discriminatory conduct (Relevant Conduct) to which the AHRC Complaint was directed as follows:

Please comment on Mr Rana’s claims that he has been subjected to unlawful discrimination on the grounds of his disability, race and age, in that, Ms Rosemarie Musolino, Deputy Registrar, and Ms Denise Weybury, Deputy Registrar, refused to accept his application to seek leave to appeal to the High Court of Australia and further made comments to him:

a.    That he is a ‘lazy, geriatric, Asian ethnic’; and

b.    That he is a ‘Neil and Nott’ which Mr Rana understood to depict him as a ‘crazy and imbecile person’ and

c.    That he is a ‘lunatic’ and had ‘no legal right’.

20    That letter accurately reflects and represents the terms of the AHRC Complaint so far as it concerns Deputy Registrars of the High Court. The claims of discrimination were said to have prevented the applicant getting “equal opportunity to access to court” and to have aggravated his paranoid schizophrenia and diabetes type 2, and “loss of opportunity to take job overseas’.

21    The summary of the Relevant Conduct referred to the alleged conduct and statements of Deputy Registrar Musolino and Deputy Registrar Weybury (collectively, the Relevant Staff) of the Melbourne Registry of the High Court. No suggestion was made that the applicant was complaining about anyone other than the Relevant Staff.

22    The Chief Executive and Principal Registrar of the High Court wrote a letter to the President of the AHRC dated 5 August 2011 which relevantly stated:

…

Mr Rana’s latest interaction with the Melbourne Office of the HCA Registry of the High Court of Australia concerns his most recent application for special leave, which was accepted by the Registry (contra a claim in the attachment to Ms Ball’s letter). However, he has not complied with the High Court Rules 2004 in the provision of required documentation.

The officers of the Court who were mentioned in Mr Rana’s complaint deny making the comments described in the attachment to Ms Ball’s letter. I deny his allegation that there has been disability, race or age discrimination in the High Court Registry’s dealings with him.

23    The AHRC Complaint was subsequently terminated by a delegate of the President of the AHRC on 27 October 2011 under s 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) on the ground that she was satisfied there was no reasonable prospect of the matter being settled by conciliation.

THE CURRENT PROCEEDINGS

24    The applicant initiated this Application on 17 November 2011 under s 46PO(1) of the AHRC Act together with an associated Statement of Claim (collectively, the Initiating Documents).

25    Following a directions hearing on 16 December 2011, the applicant was given leave to file and serve an Amended Application and an Amended Statement of Claim (the Amended Documents). He filed the Amended Documents on 9 January 2012. On 19 March 2012 the applicant was given leave to file and serve a Further Amended Application and a Further Amended Statement of Claim (the Further Documents). He filed the Further Documents on 4 April 2012.

26    On 11 May 2012, the respondent applied to summarily dismiss the claim, and to have the principal application declared vexatious, and for other orders. That application was supported by a substantial affidavit, pointing out certain issues raised by the respondent. Those matters were also addressed in a lengthy letter to the applicant of 27 April 2012. They were also explained in the respondent’s Outline of Submissions of 28 May 2012.

27    There is some significance, explained below, to the sequence and content of those documents, and the applicant’s responsive material.

28    In opposition to the respondent’s motion, the applicant relied upon his affidavit of 19 January 2012. That affidavit was to support his request for leave to amend the Amended Documents, and to support his motion to dismiss the claim of the respondent that his claims should be summarily dismissed. In response to the respondent’s material, the applicant filed on 8 June 2012 an Outline of Submission and a further affidavit (the June Affidavit). On 15 October 2012, he filed a document entitled “Highlights for Oral Submission”.

29    On 26 October 2012, the applicant filed a further interlocutory application in the following terms:

1.    The interlocutory application of the respondent be dismissed for being vexatious, scandalous and for being also an abuse of process under s 31 of the Federal Court Act.

2.    The applicant should be given favourable summary judgment for denial of natural justice of procedural process by the respondent’s various agencies.

3.    Whether HH Mansfield J should disqualify himself in this matter as per His Honour’s involvement with this applicant’s two matters re: Google Australia and Deakin University are per summary dismissal based oriented (i.e. final or interlocutory in nature that impinges this applicant’s rights in this matter).

30    That application was supported by an affidavit of 26 October 2012. It is a short affidavit, of nine paragraphs with two exhibits: a short medical report of a doctor from Bhutan to a consultant psychiatrist in Adelaide, dated 23 October 2012, and “an affidavit to the sexual abuse done by DLA Piper at the request of the Deputy Minister”, apparently a copy of an affidavit of the applicant to the Inquiry by DLA Piper to the Minister of Defence. It comprises seven paragraphs with a number of annexures.

31    The applicant also filed a further affidavit of 7 December 2012, exhibiting a letter from DLA Piper by way of preliminary response, and saying that the apology by the Defence Minister in Parliament had satisfied him. The applicant did not submit that any of that material was directly relevant to the subject proceeding, although he made reference to it.

Disqualification

32    As I indicated in the course of submissions, I do not propose to decline to hear and determine this application.

33    For present purposes, it is sufficient to refer to the recent decisions of the High Court in Johnson v Johnson (2000) 201 CLR 488 at [11]; and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [19]. Those cases say that, in respect of an assertion of apprehended bias by prejudgment, the test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is to decide.

34    The applicant is a frequent litigant in this Court. Apart from the two matters referred to in his interlocutory application, I (and other judges based in South Australia) have heard and determined a number of other claims brought by the applicant. In none of the reasons for judgment in matters I have heard have I made any comments which might reasonably suggest to the informed objective observer that I might not bring to the resolution of this proceeding an independent mind, or might not determine the present interlocutory issues on their merits. The applicant’s oral contentions did not suggest that.

35    Rather, as he put in oral submissions, familiarity may breed contempt. The fact that he is a frequent litigant means that I (and other judges) have some general familiarity with the applicant, and of the issues he has raised in other proceedings. That is not a reason for thinking this claim, or the particular interlocutory issues now under consideration, might not be addressed on their merits. Nor is there anything arising from the judgments in the two proceedings referred to in his interlocutory application: Rana v Google Australia Pty Ltd [2013] FCA 60; Rana v Deakin University [2013] FCA 59 which could reasonably lead to that view. Those judgments were delivered after submissions on the current issues were completed.

36    Indeed, as was observed by the High Court in Bienstein v Bienstein (2003) 195 ALR 225 at [35]-[36], a judge should not recuse himself or herself from hearing a particular case without there being a proper and substantial reason for doing so.

37    In my view, no such reason has been made out.

Respondent’s Contentions

38    The respondent’s contentions on the summary dismissal aspect of its application are in the following steps:

1.    This Court has no jurisdiction to entertain the application itself because:

(a)    the unlawful discrimination allegations in the Further Documents must be the same as, or the same in substance as, the Relevant Conduct (that is, the conduct alleged in the AHRC Complaint) by reason of s 46PO(3) of the AHRC Act, and they are not; and

(b)    the negligence allegations cannot be entertained because the discrimination allegations are “colourable” only, and so the negligence allegations must stand independently as being within the jurisdiction of the Court, and they do not do so.

2.    The claims as expressed in the Further Documents have no arguable merit in the light of the material before the Court because:

(a)    on their face, they could not reasonably succeed;

(b)    they are vexatious and an abuse of process, having regard to previous proceedings brought by the applicant; and

(c)    they do not disclose any reasonable prospect of success on the material before the Court.

39    Before the Court can enter summary judgment against an applicant under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), it is required to make a practical judgment as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded simply because the Court has formed the view that an applicant is unlikely to succeed on the factual issues: see Spencer v Commonwealth (2010) 241 CLR 118 (Spencer) at [25].

40    However, as s 31A(3) of the FCA Act makes clear, certainty of failure (ie a proceeding being “hopeless” or “bound to fail”) need not be demonstrated in order to show that an applicant has no reasonable prospect of prosecuting an action: see Spencer at [56]. Rather, full weight must be given to the expression “no reasonable prospect of success” as a whole. The Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. The power to dismiss an action summarily is not to be exercised lightly. However, the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes: Spencer at [60].

41    In Pickering v Centrelink [2008] FCA 561, McKerracher J made the following useful observations at [27] about when a proceeding is frivolous, vexatious and/or an abuse of process:

In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 434, although the majority (Allsop and Conti JJ) reached a different ultimate conclusion, there is, with respect, a helpful collection of authorities by Gray J on ‘frivolous’ at [16]-[22] from which it may be concluded that if, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable, it is frivolous. A matter is also frivolous when it is without substance or groundless or fanciful: Bullen & Leake Precedents of Pleadings (1975) 12th ed, p 145. However such matters will only be struck out when it is so obviously frivolous that to put it forward, would be an abuse of the process of the court: Young v Holloway [1895] P 87. The words ‘frivolous’ or ‘vexatious’ are used either separately or in conjunction, or interchangeably with the expression ‘abuse of the process of the court’: Young v Holloway [1895] P 87 at 90-91.

42    Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.

43    It has also been pointed out that “vexatiousness” is a quality of the proceeding rather than a litigant’s intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”: Re Vernazza [1960] 1 QB 197 at 208.

44    In Rogers v The Queen (1994) 181 CLR 251, Mason CJ at 256 observed that the concept of “abuse of process” had two aspects, namely:

… first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.

45    In Rogers v The Queen at 286, McHugh J relevantly said that an abuse of process usually fell into one of three categories, namely where:

(1)    the Court’s processes are invoked for an illegitimate purpose;

(2)    the use of the Court’s procedures is unjustifiably oppressive to one party; or

(3)    the use of the Court’s procedures would bring the administration of justice into disrepute.

46    In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ said at 393 that the jurisdiction to stay proceedings that are an abuse of process:

… extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.

Their Honours gave the following examples of abuse of process:

(1)    Where the proceedings can be clearly seen to be foredoomed to fail.

(2)    Where the Court in which the proceedings are instituted, is in all the circumstances, a clearly inappropriate forum.

(3)    Where, notwithstanding that the circumstances do not give rise to an estoppel, the continuance of the proceeding would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

CONSIDERATION

47    I do not consider it necessary to decide whether the contentions of the respondent about the extent of the Court’s jurisdiction are correct. The Court has jurisdiction over a matter under s 46PO(1) of the AHRC Act. The allegations in the Further Documents on their face invoke that jurisdiction. Whether they extend beyond the unlawful discrimination in the AHRC Complaint can readily be addressed and necessarily so to decide whether the claims by the applicant in those two sources are the same, or in substance the same.

48    To the extent that the Further Documents in substance go beyond the AHRC Complaint, clearly the Court then may not inquire whether the alleged discriminatory conduct was engaged in, because the limitation in s 46PO(3) must be given effect to. So, put shortly, beyond the unlawful discrimination alleged in the AHRC Complaint, the applicant cannot succeed by securing, or potentially by securing, any finding of such alleged conduct: see eg Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; Crvenkovic v La Trobe University [2009] FCA 374.

49    As noted above, the President of the AHRC by her delegate refused to amend the AHRC Complaint made on 29 June 2011 in terms of the letter of the applicant of 8 July 2011, so the Abandonment Allegation is not part of the AHRC Complaint.

50    I have referred above at [19] to the substantive content of the AHRC Complaint. The reference to a “Neil and Nott” apparently is a reference to Neil v Nott (1994) 68 ALJR 509. It is not immediately apparent to me why that reference arises in relation to the applicant. It concerned an application out of time by a widower for provision from his wife’s estate when she had not provided for him. The extension of time required to make the application was granted by the High Court in the particular circumstances.

51    It is obvious that the alleged discriminatory conduct in the Initiating Documents, the Amended Documents and the Further Documents extend well beyond the terms of the AHRC Complaint. In fact, the substantive content of the AHRC Complaint is not expressed in any of those three sets of documents.

52    The allegations in the Initiating Documents focus on the proposed HCA Applications as being vexatious and an abuse of process, and the applicant being a bankrupt instituting vexatious proceedings. They also include assertions that the High Court Registry could not understand the applicant’s papers “based on his thick Indian accent over the phone on more than two occasions”, and allegedly commented that he was engaging in “lunatic Asian behaviour over the phone” and that he was engaging in “vexatious, disabled Asian man’s trouble making” and was “a known paranoid schizophrenic” and a “trouble maker between 2008 and 2011”.

53    In the Amended Documents, similar substantive allegations are made, possibly extended by assertions that the Relevant Staff referred to the applicant’s “lunatic paranoid schizophrenic Asian behaviour over the phone” or his “lunatic geriatric paranoid schizophrenic behaviour over the phone” and that the Relevant Staff know of his disabilities of paranoid schizophrenia and diabetes type two and of his age.

54    In the Further Documents, some similar substantive allegations are made. In addition, for the first time, the applicant asserts that on 9 December 2008, a “most upset” Deputy Registrar Musolino stated to the applicant over the phone:

You are Asian geriatric and for such an age you should show wisdom and so far you have failed to show any such positivism, and instead you have been pestering me and my staff, and multiple inferior course with vexatious claims based on your lunacy and idiocy that encompasses your alleged paranoid schizophrenia.

and further that the applicant rang Deputy Registrar Weybury (in relation to the Second HCA Application) on 5 February 2009 and that he had a “heated argument” with her as she agreed with what the applicant claims Ms Musolino said in the Alleged Statement, and repeated those comments on 9 February 2009, 18 November 2009 and 9 February 2010.

55    The Court’s role first is to consider whether the Further Documents plead, and are capable of sustaining, allegations of unlawful discrimination which are the same or substantially the same as those the subject of the AHRC Complaint.

56    In my view, they are not. In particular, the Alleged Statement in the Further Documents bears no substantive comparison with the content of the AHRC Complaint. Nor do the other particulars provided in the Further Documents.

57    That is sufficient to lead to the conclusion that the applicant’s claims of discrimination have no real prospect of succeeding because the Court, on the primary application, could not make findings that the alleged discriminatory conduct had occurred. They are not the same, or substantially the same, as the Relevant Conduct alleged in the AHRC Complaint.

58    However, there are additional reasons why, in my view, the applicant has no real prospect of succeeding on his claims of unlawful discrimination.

59    The next is that, on the material before the Court, he would be unable to establish the facts as he alleges them to be. That conclusion does not represent a finding that the applicant is deliberately untruthful. Nor is it, on the other hand, a finding on the balance of probabilities about what in fact occurred. It is a finding that the applicant has no real prospect of establishing the discriminatory conduct on the part of the Relevant Staff that he alleges. In the first place, in relation to the First and Second HCA Applications, their written responses and (as the applicant acknowledged in his submissions) their oral responses concerned the need for the Trustee to provide some acknowledgment (as was given in respect of the Third HCA Application) that the subject matter of the claim was not property which was part of the applicant’s estate divisible among his creditors because it fell within s 116(2)(g)(i) of the Bankruptcy Act.

60    That starting point of the Relevant Staff was, at least, a reasonable one having regard to the nature of those claims. It is not necessary to determine if it was necessarily a correct one. The point is that the context of the alleged refusal to accept those two applications does not of itself suggest unlawful discriminatory conduct.

61    Then it is necessary to take into account that the Relevant Staff accepted for filing the Third HCA Application. The only apparent reason why that application then was not pursued is the applicant’s failure to comply with the High Court Rules. Had he done so, that matter would have followed the procedural course prescribed in the High Court Rules. It was the applicant’s failure to do so, and not any alleged discriminatory conduct, which meant that the application was abandoned by operation of the High Court Rules. Moreover, the contemporary correspondence indicates that in proper (and non-offensive and non-discriminatory) terms the applicant was informed of the requirements of those Rules and the consequences of failing to comply with them. The applicant could not, in that light, successfully show that that proceeding was disposed of by reason of unlawful discriminatory conduct on the part of the Relevant Staff.

62    The contemporary records of communications with the applicant in relation to the First and Second HCA Applications reveal equally proper terms are used. I note too the inherent improbability of either of the Relevant Staff each engaging in more or less the same discriminatory conduct on separate occasions, and each of them persistently engaging as individuals in such conduct over a period of communications.

63    So, if the applicant were to have any real prospect of succeeding, he would have to present cogent evidence in support of his allegations. Without making any finding about his subjective truthfulness, in this instance it is apparent that overall such evidence as he might give could not have that degree of cogency. I note the following objective matters:

(1)    the differences between the terms of the AHRC Complaint and the allegations in the Applicant’s Documents;

(2)    the differences between the terms of the allegations in the Initial Documents, the Amended Documents and the Further Amended Documents; and

(3)    the evolving details of the dates of the alleged communications.

Particulars of those dates were provided in the Amended Documents, but they were then significantly altered in the Further Documents (that is, between 9 January 2012 and 4 April 2012). The applicant accepted in oral submissions that the dates were altered because the respondent had pointed out that seven of the twelve dates referred to in the Amended Documents must have been incorrect either because the High Court Registry was not open on those dates or in one case because that date did not exist.

The applicant’s June Affidavit said that he stood by the originally pleaded dates (para 6(v)), although they had been changed in the Further Documents. That affidavit also exhibited a letter of one David Botin dated 5 November 2011 apparently to the Australian Federal Police. It is in the following terms:

I was in Ranjit Rana’s home, and listened to all conversations via his extension phone in matters: Patricia M Tragaur phone call 24/11/2008, R. Mussolino 9/12/2008, 18/2/2009, 19/22009. Then again Patricia M Tragauer on 3/2/2009. Then further with D. Weybury on 3/2/2009, 5/2/2009, 9/2/2009. Lastly matters concerning R. Musolino on 29/8/2011, 14/8/2008 and 13/9/2011.

I vouch the affidavit of Mr. Ranjit Rana concerning the above cited by me dates. I am willing to come from Nepal to testify on all matters providing to bear my costs.

The applicant could not explain how the dates in that letter corresponded only with the dates in the Further Documents. Nor could he explain what “affidavit” the letter refers to: it does not refer to either of the affidavits of the applicant filed in this proceeding, nor to the Initiating Documents (at one point the applicant suggested Mr Botin saw a draft of the Statement of Claim or a draft of his affidavit of 19 January 2012, but he did not persist in that).

In the end, the applicant could not explain how Mr Botin in November 2011 was able to vouch for an affidavit of his, or how Mr Botin knew the dates which the applicant did not allege until the Further Documents. The applicant in his oral submissions ultimately said that he did not know what was in Mr Botin’s mind or how he got those dates for his letter.

(4)    the timing of the allegations of discriminatory conduct: the allegations were not made until the AHRC Complaint of 29 June 2011, notwithstanding that the alleged conduct in relation to the First and Second HCA Applications occurred in 2008 and 2009, and the applicant’s email communications with the High Court Registry during those years makes no allegation of unlawful discriminatory conduct on the part of the Relevant Staff, but disagrees with the views of the High Court Registry that the consent of the Trustee to the institution of those two applications was necessary.

64    Overall, although I do not find that Mr Botin’s letter is a forged document created by the applicant to show a genuine and real factual dispute (as was submitted by the respondent), I conclude that the objective matters to which I have referred mean that the applicant has no real prospect of proving that the Relevant Staff did engage in the unlawful discriminatory conduct alleged in the Further Documents. I think such evidence as he has presented to support those allegations has no reasonable prospect of being accepted for the reasons given in the face of the objective facts.

65    Indeed, the applicant said in his reply submissions, his concern is that – in his view – he was entitled to have made the First and Second HCA Applications without providing the consent (or a facilitating letter) from the Trustee, and it was not correct for the High Court Registry to have declined to accept those documents for the reasons given by the Relevant Staff. It may well be that the real position is as simple as a difference of views on that matter. I do not have to decide that.

66    There is a further reason why I consider that this proceeding should be summarily dismissed. It is that, in the light of previous proceedings, the current proceeding is an abuse of the process of the Court. I point out that it is the character of the proceeding, rather than the motivation of the applicant, which is the indicator of whether a proceeding is vexatious.

67    The applicant has already unsuccessfully sought to challenge the refusal of the Relevant Staff to accept for filing the First and Second HCA Applications. The details of those proceedings are referred to at [2] to [10] above. The applicant is really trying again to litigate the way in which the High Court Registry dealt with the First and Second HCA Applications. Although that is now done under the labels of alleged unlawful discrimination, and negligence, there is no reason given why those allegations could not have been made earlier and addressed in the earlier proceeding. In my view, it is oppressive to the respondent to be confronted with the serial challenges to the way in which the First and Second HCA Applications were handled by the High Court Registry. The fact that the applicant is trying to get through another door – by means of the pleaded causes of action – to attack that conduct when he has already done so unsuccessfully was already the occasion of comment in the passage referred to at [10] above.

ORDER UNDER r 6.02 OF THE FEDERAL COURT RULES 2011

68    The respondent seeks a determination that this proceeding is a “vexatious proceeding” within the meaning of that term in the Dictionary in Schedule 1 to the Federal Court Rules 2011 (Cth) (Federal Court Rules) because it is an abuse of the process of the Court. Consequently, the respondent seeks orders under r 6.02 of the Rules ordering the applicant not to continue the proceeding or to start or continue any other proceeding in the Court against the respondent, without leave of the Court.

69    The distinction between r 6.02 of the Federal Court Rules and the rules which applied before the 2011 Federal Court Rules commenced was addressed in Seidler v University of New South Wales (No 3) [2011] FCA 1330 by Perram J who relevantly stated at [11]-[13]:

One thing which is immediately apparent is that the former rule required, for its enlivenment, a litigant who commenced vexatious proceedings ‘habitually, persistently and without reasonable grounds’. Over a long period of time that expression was the subject of considerable judicial exegesis one recent example of which is Stone J’s decision in Soden v Kowalski [2011] FCA 318.

That requirement, whatever its content, no longer appears as a jurisdictional prerequisite to the making of an order under the new rule. The power in r 6.02 arises simply where a vexatious proceeding, as defined, is commenced.

The discretion which arises is unconfined other than by the subject matter, purpose and scope of the Federal Court Rules: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. It would be a mistake to seek to put a gloss on the terms of the rule. It is relevant, however, to observe that r 6.02 is headed ‘Vexatious Proceedings’ and is itself found in a part headed ‘Court Supervision of parties and other persons’. This tends to suggest that the function conferred, like that of the former O 21 r 1, is a protective one; designed not to punish but to shield other litigants and the Court itself from being adversely affected by wasteful and misconceived processes: see Jones v Skyring (1992) 109 ALR 303 at 312 per Toohey J. Although the definition of a ‘vexatious proceeding’ is broad enough to encompass every proceeding which can be characterised as an abuse of process, I do not think that it was intended that the power might be exercised on every occasion that an abuse of process is identified as having occurred. What is called for instead is a commonsense and practical assessment of whether the litigant in question poses such a risk to the proper and orderly administration of justice that a curtailment of the important civil right to litigate is warranted. The circumstances in which that serious conclusion may be reached are myriad but at least one reliable marker may be a refusal on the part of a litigant to accept the principle of finality of litigation. It is only by a wilful neglect of that significant principal that a litigant who has lost a case on more than one occasion can continue in his or her litigious endeavours. Very often, therefore, a refusal to accept the outcome of a case by the commencement of fresh proceedings initiated as if the original, but unsuccessful, proceedings had never occurred is an indicator that protective intervention by the Court may be necessary.

70    In my view, the material shows that the applicant has refused to accept the principle of finality of litigation by commencing this proceeding after losing the earlier proceedings referred to at [2] to [10] above. It is not necessary to repeat what has been discussed at length above.

71    Having regard to my conclusions, I propose to make orders under r 6.02 of the Federal Court Rules to prevent the applicant, without leave of the Court, from instituting any further proceedings against the respondent relating to the matters the subject of the First, Second and Third HCA Applications. I point out that the orders have that limited scope of operation, and do not relate to other proceedings before the Court by the applicant.

Other Matters

72    In the circumstances, it is not necessary to consider the respondent’s alternative contention that the Further Documents fail to disclose a reasonable cause of action, are scandalous or vexatious, are likely to cause prejudice, embarrassment or delay, or are otherwise an abuse of process for the purposes of rr 16.21(a)-(b), (d)-(f) of the Federal Court Rules.

73    I observe that the applicant has already had three opportunities to plead his case in the light of the respondent’s observations about the deficiencies in each attempt. If those complaints of the respondent were made out, it may well be that the time would have been reached where the Court would have concluded that the applicant should have more adequately pleaded his case, and would have refused leave to further amend the Further Documents. However, it is not necessary to consider the pleadings as expressed in the Further Documents for that purpose.

74    I note that the respondent has taken the view that it is appropriate, for the purposes of this matter, to assume that the Relevant Staff were undertaking administrative duties in relation to the conduct complained of by the applicant concerning the HCA Applications, so that the respondent is a proper respondent to this proceeding: see s 26, High Court of Australia Act 1979 (Cth).

75    Finally, there is the question of costs. Clearly, the costs of the proceeding should be payable by the applicant to the respondent. The respondent seeks an order that its costs be recovered on an indemnity basis.

76    The Court may make orders as to costs pursuant to s 43 of the FCA Act. The power, which is discretionary, must be exercised judicially. Within this general discretion, it is accepted that costs ordinarily follow the event, with the result that a successful litigant receives costs in the absence of special circumstances justifying some other order: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234.

77    There is no rigid demarcation between the circumstances in which the usual order as to party and party costs is made and the circumstances in which it is appropriate to award indemnity costs. As was pointed out by Hill J in John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201 at 203:

… care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed: Colgate Palmolive at 233; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991) per French J at p 8; Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993) per Davies J at p 6. In each case it will be necessary to look at the particular facts and circumstances to see whether an exercise of discretion to order costs on an indemnity basis is warranted.

See also Colgate-Palmolive v Cussons (1993) 46 FCR 225 at 232-234 when Sheppard J considered several authorities on the question of indemnity costs and set out six applicable principles or guidelines, which were in turn referred to by the Full Court in Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at pp 152-153. In that case, at 156-157, Cooper and Merkel JJ held (referring to the principles set out by Sheppard J in Colgate-Palmolive v Cussons):

In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable:

(a)    the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course;

(b)    the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the Court in departing from the usual course;

(c)    whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis.

78    In this matter, the material shows that the respondent gave the applicant explicit warning about the deficiencies in the proceeding and the consequences of requiring the respondent to bring a formal motion for dismissal. It did so with precision. It has succeeded in making out the matters about which it gave notice. The applicant has put the respondent to considerable expense and effort, notwithstanding that warning and in circumstances where he was trying to attack conduct which, in earlier proceedings, he had already unsuccessfully attacked.

79    In those circumstances, while the Court is generally more reluctant to order indemnity costs against a self-represented litigant, in my view this is an appropriate matter in which to exercise the discretion to award costs on an indemnity basis. That is of course not to punish the applicant, but rather to fully compensate the respondent for the expenditure it has unreasonably been subjected to in responding to the proceeding.

Associate:

Dated:    12 March 2013