FEDERAL COURT OF AUSTRALIA

Rana v Department of Defence [2018] FCA 1642

ORDERS

THE COURT ORDERS THAT:

1.    The title of the respondent be amended to read “Commonwealth of Australia”.

2.    The applicant’s document titled “Proposed submission for disqualification of the judge and final submission” dated 18 February 2018 be accepted for filing.

3.    The applicant’s interlocutory application dated 20 December 2017 for an order that the presiding judge be disqualified for apprehended bias is dismissed.

4.    The respondent has leave to amend its interlocutory application dated 10 November 2017 so as to delete the words “r 6.02 of the Federal Court Rules 2011 (Cth)” and substitute the words “s 37AO of the Federal Court of Australia Act 1976 (Cth)”.

5.    Rule 17.01 of the Federal Court Rules 2011 (Cth) be dispensed with in respect of the respondent’s application to amend its interlocutory application made by written submissions dated 10 November 2017.

6.    Rule 17.01 of the Federal Court Rules 2011 (Cth) be dispensed with in respect of the respondent’s application for an order in terms specified in paragraph 61 of the respondent’s written submissions dated 9 February 2018.

7.    On or before 8 November 2018, the respondent is to file and serve an amended interlocutory application in accordance with the order in paragraph 4.

8.    Pursuant to s 37AO(2)(a) and (b) of the Federal Court of Australia Act 1976 (Cth):

(a)    the originating application is dismissed;

(b)    Mr Ranjit Shamsher Jung Bahadur Rana is prohibited from commencing, or continuing in this Court, whether by himself or by the agency of any other person, proceedings against the respondent, its agents or instrumentalities in connection with his past employment with the Department of Defence.

9.    The applicant is to pay the respondent’s costs of the originating application, including all interlocutory applications made therein, to be agreed or assessed.

10.    The applicant has liberty to apply to vary or revoke the order in paragraph 9, such liberty to be exercised on or before 22 November 2018.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant, Mr Ranjit Rana, was a soldier in the Australian Army between 14 October 1980 and 13 July 1982.

2    In the decades following his discharge from the Army, Mr Rana has pursued a multitude of actions seeking financial compensation and other remedies against the Commonwealth and other persons. This is the latest such proceeding. The Commonwealth is the only named respondent, although Mr Rana seeks to have additional respondents joined.

3    Mr Rana was awarded a relatively modest sum in damages in the mid-eighties. That award was made on the basis that Mr Rana suffered an adjustment disorder, to which his employment was a contributing factor. Mr Rana’s claims for compensation for various other injuries and losses were rejected. Apart from the initial award, Mr Rana has been wholly unsuccessful in his attempts to secure a greater sum in damages, both at the level of administrative decision-making and in legal proceedings.

4    In this matter, the pleaded allegations relate to events that are said to have occurred in the course of or in connection with Mr Rana’s employment with the Department of Defence from 1980 to 1982. The alleged losses are losses for which the Commonwealth of Australia is said to be directly or vicariously liable. Awards of aggravated and exemplary damages are sought, including on the basis that the respondent has applied “hardball tactics from 1985 to now” and has otherwise engaged in “high-handed and/or deliberate” conduct to deprive Mr Rana of his entitlements.

the parties’ APPLICATIONS

Relief sought by the Commonwealth

5    By interlocutory application dated 10 November 2017, the Commonwealth seeks orders in the alternative:

(1)    dismissing the application:

(a)    as incompetent;

(b)    as frivolous, vexatious or otherwise an abuse of process ( see r 26.01(b) and (d) of the Federal Court Rules 2011 (Cth));

(c)    as disclosing no reasonable cause of action (see r 26.01(c)); and

(d)    as proceedings that Mr Rana has no reasonable prospect of successfully prosecuting (see r 26.01(a) and s 31A of the Federal Court of Australia Act 1976 (Cth); or

(2)    striking out the originating application and statement of claim in whole or in part as:

(a)    containing scandalous and/or vexatious material (see r 16.21(1)(a) or (b) of the Rules);

(b)    likely to cause prejudice, embarrassment or delay in the proceeding (r 16.21(1)(d));

(c)    failing to disclose a reasonable cause of action (r 16.21(1)(e)); and

(d)    otherwise constituting an abuse of process of the Court (r 16.21(f)).

6    In addition, by [2.4] of the interlocutory application the Commonwealth sought relief to the effect that the proceedings be dismissed or judgment otherwise entered for the respondent on the basis that:

the proceedings are vexatious proceedings within the meaning of rule 6.02 of the Federal Court Rules 2011

7    By its written submissions dated 9 February 2018, the respondent added some content to that aspect of the application by seeking an order to the effect that Mr Rana “not continue this Proceeding, or commence any proceeding against the Commonwealth in connection with his time in the Army”.

8    Rule 6.02 was substituted in 2013 upon the enactment of Pt VAAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in which s 37AO resides.

9    In its present form (and as at the date that the interlocutory application was filed), r 6.02 provides a mechanism for a person to make a request to the Registrar of the Court for a certificate to the effect that a person named in the request is the subject of a vexatious proceedings order made pursuant to s 37AO of the FCA Act: see also s 37AP.

10    After judgment on the Commonwealth’s interlocutory application was reserved, the Court invited the parties to file further submissions as to whether the Commonwealth’s invocation of r 6.02 of the Rules was in error. The respondent acknowledged that it was. It sought leave to amend the interlocutory application so as to delete the reference to r 6.02 and to insert, in substitution, the words “s 37AO of the Federal Court of Australia Act 1976 (Cth)”.

11    Mr Rana opposed the application to amend on a number of grounds. His submissions are broadly to the effect that the Commonwealth should not be given “another opportunity to re-plead the error of law very late in the matter”, that the amendment would cause him to suffer a “draconian” miscarriage of justice and that the respondent is estopped from asserting that its invocation of r 6.02 was in error.

12    The discretion to permit the amendment is to be exercised in accordance with s 37M(3) of the FCA Act, that is, in a manner that best promotes the overarching purpose of the Court’s civil practice and procedure provisions identified in s 37M(1). Weighing heavily in my consideration is that the dismissal of the application for an order in terms of [2.4] of the interlocutory application in its present form would not prevent the Commonwealth from making a subsequent interlocutory application or indeed amending its own originating application s properly invoking s 37AO of the FCA Act. Also weighing in favour of the grant of leave is the circumstance that the substantive effect of the order sought was clearly foreshadowed to Mr Rana in the respondent’s written submissions, and that the affidavit material relied upon by the respondent (in respect of which Mr Rana has been heard) deals in large part with the criteria conditioning the Court’s power to make the order sought.

13    Mr Rana has been afforded the opportunity to make any further submissions in opposition to an order, under s 37AO of the FC Act, and particularly to address the criteria for making such an order. In all of the circumstances, I do not consider Mr Rana would suffer unfairness by the late amendment to the interlocutory application.

14    I have had regard to Mr Rana’s objection to the amendment being sought in circumstances where the Court, of its own motion, had brought the apparently erroneous reference to r 6.02 to the attention of the parties and sought their submissions in respect of it. I do not consider that circumstance, in and of itself, to justify the refusal of the application for leave to amend. I have otherwise had regard to Mr Rana’s supplementary submissions, including those going to the merits of the application, should leave to amend be granted.

15    In all of the circumstances, it is appropriate to allow the amendment. The claim for relief in [2.4] of the interlocutory application is to be determined in accordance s 37AO(1). It is to be understood as an application for dismissal of the proceedings pursuant to s 37AO(2)(a) of the FCA Act.

16    The order sought in the Commonwealth’s written submissions of 9 February 2018 may be understood as invoking the Court’s jurisdiction to make an order of the kind referred to in s 37AO(2)(b). Such an order has broader implications for Mr Rana than the dismissal of this particular action.

17    I am satisfied that the Commonwealth’s omission to seek an order pursuant to s 37AO(2)(b) on the face of the interlocutory application is not productive of any unfairness to Mr Rana. Mr Rana’s oral submissions, together with this affidavit material and written submissions make it plain that he fully comprehended that the issues to be decided included the question of whether he should be prohibited from commencing a proceeding against the Commonwealth in connection with his time in the Army. Mr Rana made frequent references to the Commonwealth seeking to have him declared a “vexatious litigant”.

18    I will dispense with the requirements of r 17.01 in respect of that discrete application and proceed to determine it on its merits.

Relief sought by Mr Rana

19    Also before the Court is a contention by Mr Rana that I should disqualify myself from determining the Commonwealth’s application or any aspect of the substantive proceeding on the ground of apprehended bias. The parties were informed that reasons in respect of that application would be published at the time that judgment on the Commonwealth’s interlocutory application was delivered.

20    In his supplementary submissions concerning the Commonwealth’s amendment application, Mr Rana stated “Applicant is satisfied no bias has occurred in terms of fairness”. I will conservatively understand that submission to mean that Mr Rana did not seek to contend that my consideration of the Commonwealth’s application to amend the interlocutory application was affected by bias. I will otherwise proceed on the basis that Mr Rana persists with his application for an order that I be disqualified.

SUMMARY OF OUTCOME

21    For the reasons given below, I have determined that, although competent, the originating application constitutes an abuse of process of the Court and that a vexatious proceedings order should be made against Mr Rana of the kind referred to in s 37AO(2)(a) and (b) of the FCA Act.

22    It is unnecessary to decide any remaining issues raised by the Commonwealth’s interlocutory application.

23    I consider there to be no proper basis to disqualify myself from hearing and determining the matters referred to in these reasons. I explain why that is so at [111] – [150] below.

COMPETENCY

24    The respondent’s contention that the proceedings are incompetent rests on the premise that Mr Rana’s claim for compensation is founded wholly upon common law claims in tort. The characterisation of the pleaded causes of action as arising wholly at common law may be accepted. The broad nature of the claims is described elsewhere in these reasons. Mr Rana alleges that his common law claims for injuries occurring prior to 1988 have not been, and cannot be, extinguished by subsequent enactment: statement of claim dated 24 August 2017 (SOC) [37] – [38]; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.

25    The original jurisdiction of this Court includes jurisdiction in any “matter” arising under the laws made by the Commonwealth Parliament: FCA Act, s 19; Judiciary Act 1903 (Cth) s 39B(1A)(c).

26    In Re Wakim; Ex Parte McNally (1999) 198 CLR 511, Gummow and Hayne JJ described the task of identifying a “matter” as follows:

139    The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.

140    … What is a single controversy ‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’. There is but a single matter if different claims arise out of ‘common transactions and facts’ or ‘a common substratum of facts’, notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other ….

(footnotes omitted)

27    The jurisdiction conferred by s 39B(1A)(c) of the Judiciary Act will be attracted if a party to the controversy relies upon a right, immunity or defence that owes its existence to a law of the Parliament: Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at [32] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ). However, the question of whether or not a matter arises under such a law does not in all cases depend upon the form of the relief sought: LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). As the Full Court said in Rana v Google Inc (2017) 254 FCR 1:

A matter will ‘arise under’ a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation – that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Felton v Mulligan (1971) 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Austra;ia) Ltd (1983) 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees (Qld) (No 2) (1997)] 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [45]-[55]. There is a difference, however, between a matter ‘arising under’ a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton at 374, 408-409, 416.

28    The pleadings in this matter are not closed and the Commonwealth’s application for an order striking out the proceedings as incompetent is not supported by an affidavit in which the Commonwealth foreshadows or disavows reliance on any right, immunity or defence. At present there is insufficient information before me upon which the limits of the underlying controversy may be defined.

29    I am nonetheless satisfied that there are at least three bases upon which the jurisdiction of this Court may be attracted, even assuming Mr Rana’s claimed right of damages to have its source in the common law of tort.

30    First, the duty of care alleged to be owed to Mr Rana (essential to his right to sue in tort) owes its existence to an employment relationship created by a law of the Parliament, namely the Defence Act 1903 (Cth). The measure of damages sought by Mr Rana is, on his case, to be calculated by reference to the monetary and other entitlements he would have received as a soldier in the Australian Army employed under that Act.

31    Second, as will be seen, Mr Rana’s claims appear to be founded (in part) upon a breach of a duty of confidence. Although there are pleaded references to a “tort of breach of confidence” (the existence of which may be academically debated) the factual allegations are capable of giving rise to a claim founded in a breach of an equitable obligation not to use or divulge information obtained in circumstances giving rise to a duty to keep the information confidential. Whatever its source, the obligation is said to attach to personal medical information obtained by agents of the Commonwealth (including medical practitioners) pursuant to military orders (SOC [26] - [27], [104(iv)]). Mr Rana alleges that he was obliged, by virtue of those orders, to submit to medical examinations for sexually transmitted diseases. It is also alleged that the Department of Defence dealt with the medical test results purportedly pursuant to a right, duty or interest to prevent the spread of infectious diseases within the armed forces and among the public generally (SOC [102] - [105]), including to Mr Rana’s wife. These latter allegations appear to be anticipatory of a “defence” that Mr Rana might expect will be advanced by the Commonwealth. I am fortified in that view by Mr Rana’s allegation that conduct of certain medical practitioners constituted an abuse of “military medical power” (SOC [103(iv)]). In the absence of a defence filed on behalf of the Commonwealth, it is reasonable to expect that the existence (and content) of any obligation of confidence may fall to be determined by reference to the Defence Act and the legal relationships for which it provides.

32    Third, the immediate controversy between the parties includes (at least) the very controversy sought to be resolved by the Commonwealth on its claim for relief at [2.4] of its interlocutory application (as amended), namely its claim that Mr Rana should be subject to a vexatious proceedings order made pursuant to s 37AO of the FCA Act. If granted, that relief would have the effect of conferring upon the Commonwealth a qualified immunity not only from this present suit, but from certain other suits that may otherwise be commenced against it by Mr Rana. The immunity, if granted, would unquestionably owe its existence to a Commonwealth enactment and would also provide a basis for dismissing Mr Rana’s originating application.

33    As I have said, an order made pursuant to s 37AO is a final order. An application for such an order may be made (as here) within the context of an extant proceeding, or it may be made by the commencement of a separate action. On its proper construction, s 37AO contemplates that an application for a vexatious proceeding order may be commenced in a “proceeding” that is otherwise liable to be dismissed as incompetent. It seems to me that the frequent commencement of incompetent proceedings is one of the very mischiefs to which the provision is directed.

34    In my view, this circumstance is sufficient to attract the jurisdiction of the Court to decide the Commonwealth’s claim for the relief sought at [2.4] of the interlocutory application and in the written submissions.

35    A precondition for making the orders is the Court’s satisfaction that the person to be subject to the orders has frequently instituted vexatious proceedings in Australian courts or tribunals.

36    It is therefore necessary to consider the proceedings Mr Rana has commenced and continued, having regard to the breadth of the order sought by the Commonwealth. The history of proceedings will be described in sufficient detail to demonstrate why the precondition for making the order is satisfied. The pages that follow are also intended to assist the Court in performing the function mandated by s 37AS(2) of the FCA Act should Mr Rana make an application under s 37AR for leave to institute a proceeding against the Commonwealth in the future.

PRIOR LITIGATION

37    The Commonwealth relies on the affidavit of Ms Marcella Bienvenue, a solicitor under the employ of the Australian Government Solicitor (AGS affidavit). Ms Bienvenue deposes that Mr Rana was discharged on the ground that his retention was not “in the interest of Australia or the Army”.

38    In 1984, Mr Rana applied to the Commissioner for Employees’ Compensation for compensation under the now-repealed Compensation (Commonwealth Government Employees) Act 1971 (Cth). He claimed payments for incapacity arising from certain psychiatric disorders. He alleged that during his time in the Army he had been subjected to physical, emotional and sexual harassment due to his race, creed and colour. In that claim, Mr Rana also sought compensation for a “loss of a normal sexual life due to the failure of the Department of Defence to inform him appropriately of the risk and protection required to avoid contracting Veneral [sic] Herpes Simplex ii.”

39    A part of this claim resulted in the payment of compensation to Mr Rana to which I have already referred, on the limited basis that his employment was a contributing factor to an adjustment disorder. The Commissioner, by a delegate, otherwise determined that Mr Rana did not suffer from any loss of capacity to engage in sexual intercourse due to his employment with the Department of Defence. That determination was made on 9 October 1985. The award of compensation was payable up to and including 11 April 1985.

40    There followed a long history of litigation commenced by Mr Rana, a summary of which is given in the AGS affidavit. I have received the summary of proceedings set out in the AGS affidavit as being in the nature of an aid or otherwise as being in the nature of submissions. The proceedings, their subject matter, and their outcomes are discernible from the published reasons and orders made in the cases to which the solicitor refers. I have otherwise accepted the evidence set out in the AGS affidavit as to the fact that various statutory claims for compensation have been made by Mr Rana since his discharge from the Army. Those claims in any event are discernible from the judgments and orders of courts and tribunals which may be taken into account for the purposes of s 37AO(1) of the FCA Act: see s 37AO(2)(b).

41    In Re Mr R v Commonwealth of Australia (1988) 15 ALD 167, the Administrative Appeals Tribunal affirmed the Commissioner’s determination of 1985. The Tribunal found that the Army did not cause Mr Rana’s personality disorder, adjustment disorder or reactive depression. It nonetheless affirmed that Mr Rana’s employment in the Army was a contributing factor to his adjustment disorder for which the Department of Defence was liable to pay compensation up to and including 11 April 1985. It concluded that any loss of sexual capacity was not due to Mr Rana’s employment with the Department of Defence.

42    In Re “SAN” and Comcare (2004) 81 ALD 149 Mr Rana sought merits review of a decision made by Comcare on 28 September 2001. Mr Rana had made a claim against Comcare for rehabilitation and compensation for certain mental conditions said to have been caused or contributed to by emotional and physical harassment by other members of the defence force. That claim was made pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare had rejected the claim on the basis that it related to the same issues that had been dealt with by the Tribunal in 1988. The Tribunal heard and determined Mr Rana’s application for review, albeit limited to his claim for compensation in relation to the conditions of post-traumatic stress disorder and psychotic paranoid reaction. It did so on the basis that its decision in 1988 had not previously considered Mr Rana’s entitlement to compensation in relation to those two conditions. The Tribunal concluded that Mr Rana was not entitled to compensation on the basis that it was unlikely that his Army service contributed to the development of the conditions. The Tribunal did not accept Mr Rana’s claim that he had been sexually assaulted whilst serving in the Army (at [161]).

43    An appeal by Mr Rana against the Tribunal’s decision was dismissed by this Court: Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6 (Finn J). The Full Court dismissed Mr Rana’s appeal from that judgment: Rana v Military Rehabilitation and Compensation Commission [2005] FCAFC 85 (Marshall, Mansfield, and Stone JJ).

44    In January 2005, Mr Rana lodged a further claim for compensation with the Military Rehabilitation Compensation Commission (MRCC). He alleged that he suffered from psychiatric conditions and diabetes caused by non-sexual physical acts, racial and sexual harassment and name-calling. That claim was rejected on the basis that it was the same as that which had been considered by the Tribunal on previous occasions and for which Mr Rana had been compensated in 1988. Mr Rana made an application for merits review before the Tribunal of that decision. The application for review was rejected on the basis that it was essentially the same claim for compensation that had previously been made by Mr Rana. The Tribunal concluded that the claim disclosed no new evidence or new grounds, it enjoyed no reasonable prospects of success and was vexatious within the meaning of s 42B of the Administrative Appeals Tribunal Act 1975 (Cth): Re Rana v Military Rehabilitation and Compensation Commission (2005) 89 ALD 180.

45    In Rana v Chief of Army [2005] FCA 1283, Mansfield J dismissed an application by Mr Rana for review of two decisions made by a delegate of the Chief of Army. By the first of those decisions, the delegate refused to make an order, requested by Mr Rana, that his discharge from the Army was due to physical or mental incapacity to perform duties. By the second decision, the delegate refused to amend Mr Rana’s record of discharge so as to remove a reference to Mr Rana’s retention in the Army “not being in the interest of Australia or the Army” and so as to include a reference to Mr Rana being discharged on grounds of “mental or physical incapacity”.

46    Mansfield J determined that neither decision was affected by a reviewable error. An appeal to the Full Court from his Honour’s judgment was dismissed with costs: Rana v Chief of Army Staff (2006) 90 ALD 474.

47    On 11 July 2007, Mr Rana commenced proceedings in the original jurisdiction of this Court against the Commonwealth of Australia and a delegate of the Chief of Army. He alleged that the delegate had breached the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). He claimed that he had been discriminated against both in relation to the refusal to amend records and in relation to the non-payment of pensions because he suffered from a psychiatric condition and because of his race. On 17 June 2008, Lander J dismissed that action on the basis that it constituted an abuse of process and was vexatious: Rana v Commonwealth of Australia [2008] FCA 907. The Full Court dismissed an appeal from that judgment: Rana v Commonwealth of Australia (2008)108 ALD 1.

48    In 2008, Mr Rana commenced a further application for review before the Tribunal in relation to a decision of a delegate of the MRCC made on 9 May 2007. By that decision, the delegate refused an application by Mr Rana to reconsider a decision made in 2006. The decision made on reconsideration was one in respect of which the Tribunal had power to review.

49    Whilst that proceeding was on foot, Mr Rana commenced proceedings in this Court challenging the conduct of the Australian Government Solicitor in arranging a medical examination to be conducted for the hearing’s purposes. In Rana v Goldney [2008] FCA 463 Lander J dismissed that application in circumstances where his Honour had, about two weeks earlier, dismissed another action brought by Mr Rana in relation to the very same complaint. His Honour directed that the second application not be served on the respondents. In his reasons for judgment, Lander J said (at [6]):

This Court has been put to considerable inconvenience by actions which are brought by Mr Rana which are baseless.  …

50    Mr Rana made an application for an extension of time in which to appeal. Justice Mansfield dismissed that application on the basis that it was “clearly an abuse of process” for Mr Rana to have commenced the second proceeding: Rana v Goldney (No 2) [2008] FCA 1553. In doing so, his Honour analysed the originating processes in each action and concluded that although the second action alleged different causes of action and was more sophisticated in its articulation, the two proceedings were “variously … based upon the same conduct” (at [25]). Mr Rana had, his Honour held, “simply sought to litigate again, in this case in the same Court, claims which he has already made and had dismissed in this Court” (at [26]).

51    In the meantime, the Commissioner had applied to the Tribunal to have the review proceedings then before it summarily dismissed. Among other things, the Commissioner argued that the review proceedings sought to challenge the same factual matters that had previously been determined against Mr Rana in earlier review proceedings such that the principles of res judicata, issue estoppel and Anshun estoppel applied. The Tribunal held that the principles to which the Commissioner referred “could not stand in the way of” the Tribunal’s power to review the delegate’s reconsideration decision, particularly because it concerned two conditions not previously the subject of merits review, namely diabetes and paranoid schizophrenia: Re Rana v Military Rehabilitation and Compensation Commission (2008) 104 ALD 595 at [110] – [111]. The Tribunal nonetheless confined the subject matter of the review to ensure that Mr Rana could not re-agitate matters that had previously been the subject of the Tribunal’s earlier findings. It determined that it would inform itself as to the circumstances of, and events arising during, Mr Rana’s employment and the conditions he had suffered (apart from paranoid schizophrenia and diabetes) to the findings it had made in Re Mr R and Re “SAN”. Notwithstanding that direction, Mr Rana sought to adduce, in those proceedings, military police documents in support of his claim that he had suffered physical and sexual abuse. The Tribunal refused to receive the material because the materials had been admitted in evidence and considered extensively in Re “SAN” and, as the Tribunal was not revisiting the factual circumstances of Mr Rana’s employment, admission of the material in evidence would serve no worthwhile purpose. In the result, the Tribunal affirmed the Commissioner’s 2007 decision to refuse liability for stress induced paranoid schizophrenia and diabetes and the 2005 decision refusing liability for various physical assaults, racial vilification and sexual harassment: Rana v Military Rehabilitation and Compensation Commissions [2010] AATA 937.

52    On appeal to the Full Court of this Court, Mr Rana alleged, among other things, that the Tribunal had denied him natural justice by refusing to receive the reports. The Full Court noted that the Tribunal, after limiting its direction as to the scope of the review, had varied that direction by providing that in the event that Mr Rana required the hearing of his application to proceed on any other basis, he was to apply for further directions within 14 days of his receipt of a further medical report. Mr Rana had made no such application for directions. The appeal was dismissed with costs: Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80. The Full Court said (at [15]):

The imprecision which has attended Mr Rana’s prosecution of these proceedings has occasioned great difficulty for both the [Commissioner] and the Court. The [Commissioner] has not, as it may well have been entitled to, move the Court for orders of summary dismissal of both proceedings. Rather it has acknowledged that Mr Rana is an experienced but unrepresented litigant without legal qualifications who should be accorded some latitude. It has conceded that some, at least, his complaints about the Tribunal’s decision could, perhaps, be formulated as questions of law for the purposes of s 44 of the AAT Act. It has done the best that it can to understand the grounds formulated by Mr Rana and then sought to deal with them in argument.

53    The Full Court expressed a willingness to entertain Mr Rana’s application for judicial review, although it did not consider that any of the grounds he had raised had any substance (at [17]):

The grounds contained in Mr Rana judicial review application are difficult to understand. Many are unintelligible. Some are accompanied by rambling discourses. Some serious allegations, such as fraud, are made, but the necessary particularity is not provided.  …

54    The Court noted that the applications bore a similar characteristic to those advanced by Mr Rana in the earlier proceedings before Finn J. It declined to embark on a textual analysis of all of the grounds on which Mr Rana had sought to rely (at [17] – [18]). The Court declined to deal with any grounds that were unintelligible or which were “no more, overtly or covertly, than attempt to reargue the merits of Mr Rana’s claims” (at [18]).

55    The Full Court otherwise said this of the subject matter of the proceedings:

19    Before turning to the grounds in more detail it is necessary to say something about certain evidence on which Mr Rana sought to rely before the Tribunal but which the Tribunal refused to admit into evidence. He claimed that, during his Army service, he had, on a number of occasions, been sexually assaulted. The trauma resulting from these assaults was said to have led to him suffering from the medical conditions on which his compensation claims were based. He sought to support his claim by reference to a series of statements, taken by military police investigators, into allegations which he had made following his period of service.

20    Mr Rana had made the same claims relating to sexual assault in earlier proceedings before the Tribunal. The military police statements had been tendered and relied on by him in those earlier proceedings. The statements were made by persons whom Mr Rana had alleged had assaulted him or had witnessed him being abused. Each deponent denied the substance of Mr Rana’s allegations in their statements to the military police. They were called to give evidence before the Tribunal. They gave evidence consistent with their statements. Having considered the evidence of Mr Rana and the deponents, the Tribunal had concluded that Mr Rana had not been subject to sexual assaults in the course of his Army service: see SAN v Comcare (2004) 81 ALD 149 at 190 [161]. A purported appeal to this Court from the Tribunal’s decision was dismissed: see [2005] FCA 6.

56    In Rana v Musolino [2009] FCA 1050, Mr Rana made an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) against his official trustee in bankruptcy. Mr Rana wrongly alleged that the trustee had asserted that proceedings Mr Rana had or could commence in the High Court of Australia had vested in the trustee, namely an application for an extension of time in which to appeal from the Full Court's judgment in Goldney (No 2) and an application (not then filed) for special leave to appeal from the Full Court’s judgment in Rana v Commonwealth. Justice Finn dismissed the application on the basis that the trustee had made no assertion that the causes had vested in him. To the contrary, the trustee had formed the view that the causes fell within an exemption in s 60(4) of the Bankruptcy Act 1966 (Cth). The trustee had communicated that view to Mr Rana in respect of the Goldney (No 2) matter. Mr Rana was, Finn J held, not “aggrieved” by the trustee’s decisions, and so there was no proper foundation for the review application against the trustee.

57    In Musolino, Mr Rana had also sought judicial review of the decisions or conduct of the Registrar of the High Court of Australia in respect of applications he had filed or sought to file. Finn J held that aspect of the claim was “without foundation” and that, in any event, matters involving the conduct of the High Court’s own officers in the discharge of their duties were ones for the High Court to properly to determine (at [4]).

58    An application for leave to appeal from the judgment in Musolino was dismissed: Rana v Musolino [2010] FCA 476 (McKerracher J). So, too, was a further application in which Mr Rana sought (among other things) to re-agitate the question of whether this Court had the power to direct that a proposed proceeding in the High Court be accepted for filing by a Registrar of that Court: Rana v Official Trustee in Bankruptcy [2011] FCA 504 at [16] (Mansfield J).

59    About a month after the latter judgment was delivered, Mr Rana lodged a complaint with the Australian Human Rights Commission (AHRC) alleging disability, age and racial discrimination in relation to the Deputy Registrar’s handling of applications for judicial review of the judgments in Goldney (No 2) and Rana v Commonwealth, together with the handling of an application for special leave from a judgment in Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80.

60    After the AHRC terminated the complaint Mr Rana then commenced proceedings in this Court under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). The discriminatory conduct of which Mr Rana complained in that proceeding extended impermissibly beyond the terms of the AHRC complaint. Justice Mansfield dismissed the proceedings as having no real prospect of success: Rana v Commonwealth of Australia [2013] FCA 189. His Honour also concluded that the action constituted an abuse of process of the Court in that Mr Rana was “really trying again to litigate the way in which the High Court Registry dealt with” his applications. His Honour continued (at [67]):

… 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 [applications] were handled by the High Court Registry. …

61    Mr Rana was, his Honour said, “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”.

THIS LITIGATION

62    The SOC filed by Mr Rana in this action is discursive and disjointed. It contains lengthy passages in the nature of submissions. It is difficult to understand in parts. It will not be analysed at the level of the sentence and paragraph. It is sufficient to give a broad overview of the factual allegations and the nature of the relief sought.

63    The first paragraph gives a fair indication of what is to follow. It refers to Mr Rana’s period of employment with the Department of Defence from 1980 to 1982 and continues (at [1(iii)]):

Applicant’s life has never been the same as Army abuses allegedly has (significantly, and materially allegedly) contributed him to develop paranoid schizophrenia, depression, and diabetes type two via the drugs prescribed to him in the treatment of his paranoid schizophrenia.

64    Mr Rana claims compensation in respect of the various ailments mentioned in that paragraph as well as “severe emotional distress”, “aggravation or acceleration or exacerbation of personality disorder, reactive disorder, adjustment disorder with mixed emotional features, and loss of normal sex life and/or sexual dysfunction” (SOC [33]), “significant ill repute” (SOC [60]) and “herpes simplex II” (SOC [100]).

65    The ailments referred to in the pleading have previously been the subject of decisions made on unsuccessful claims for compensation, and subsequently affirmed in the history of legal proceedings detailed above.

66    The conduct said to have caused these conditions may be considered in three categories.

67    In the first category are allegations that Mr Rana was subjected to physical and sexual abuse, harassment and racial vilification in the course of his employment. It is not necessary to detail them here. It is sufficient to say that the claimed events largely coincide with the subject matter dealt with in Mr Rana’s prior claims for compensation, which were then the subject of subsequent review and appeal proceedings by which Mr Rana challenged administrative decisions rejecting those claims.

68    In the second category are allegations relating to Mr Rana’s diagnosis of herpes simplex virus. It will be recalled that Mr Rana has unsuccessfully litigated the question of whether the respondent had a duty to advise and warn him about the dangers of contracting that disease. The claims in this matter appear to proceed from a different premise. It is alleged that certain doctors (alleged to be employees or agents of the Commonwealth) disclosed, without authorisation, some details of Mr Rana’s medical condition by means of a report to a GP who treated Mr Rana’s wife, and directly to his wife in conversation. Mr Rana alleges the breach of confidence led to the destruction of his marriage and his estrangement from at least one of his daughters.

69    The pleading also makes reference to a certain medical report being “hidden” from Mr Rana by the Commonwealth through its legal advisers. However, it is somewhat unclear how the non-disclosure of that report bears upon Mr Rana’s substantive entitlement to relief. In the course of submissions it was alleged that the “hidden document” was to the effect that Mr Rana did not suffer from herpes at all, but rather from a non-specific inflammatory condition that could not have been contracted by him having been unfaithful to his wife.

70    The Court has before it the “hidden document”. It is not possible to discern from the face of that document whether or not its author considered Mr Rana not to be the carrier of the herpes simplex virus. In any event, I do not consider that discrete allegation to form any part of an adequately pleaded case. Mr Rana’s claim that he is not a carrier of the herpes simplex virus cannot be reconciled with the allegation at [101] of the SOC to the effect that Mr Rana was “exposed to herpes virus in the clinical setting of the dirty old hospital named above”.

71    Also in this category is an allegation that the medical examination carried out by the doctor to whom the respondent sent Mr Rana for treatment constituted a sexual assault for which the respondent is vicariously liable.

72    The third category impugns the conduct of the Commonwealth in refusing to apologise to Mr Rana and in refusing to provide to him a monetary settlement over and above that which he received on his original claim for compensation. The following paragraphs typify this category of complaint:

The Respondent had been in breach of that duty by not settling the issues of abuses suffered by the Applicant … (SOC [55(iii)]

From 14.10.1981 to now ongoing, the Applicant has asked the Respondent to apologize, and rehabilitate him for the loss of his reputation, and health problems, and the Respondent has provided general apology, and reparation category three for the abuses that was in early 2015 a sum of A$35,000, which is not satisfactory to the Applicant … (SOC [57])

The Respondent’s conduct so far as to paragraphs above about the various requests by the Applicant has remained indifferent, and/or the highest watermarks ignored or intentional negligence legally termed ‘constructive refusal’ (SOC [70])

Respondent applying hardball tactics from 1985 to now (SOC [114(i)].

73    To this category may be added the above-mentioned allegations concerning the allegedly “hidden documents” (SOC [107]) and further claims to the effect that the Commonwealth has “hidden witnesses” in previous proceedings before the Tribunal (SOC [115]).

VEXATIOUS PROCEEDINGS

74    Section 37AO of the FCA Act provides:

Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

…

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

…

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

  (d)    a person who has a sufficient interest in the matter.

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) or (b) is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

75    The expression “vexatious proceeding” is defined in s 37AM of the FCA Act to include:

  (a)    a proceeding that is an abuse of the process of a court or tribunal; and

  (b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

  (c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

  (d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

76    Two issues arise. The first is whether the present proceeding is vexatious and so should be dismissed.

77    The second is whether the Court should make an order having the effect of prohibiting Mr Rana from instituting proceedings, or proceedings of a particular type, in the Court. That is an order of a more far-reaching kind.

78    Before turning to the application of the provisions to the present case, it is convenient to repeat what I said in Garrett, in the matter of Company One [2016] FCA 703 as to the defined phrase “vexatious proceeding”, commencing with a discussion of paragraph (c) of the statutory definition:

9    The phrase ‘without reasonable ground’, as used in paragraph (c) of the definition, is equivalent in meaning to the phrase ‘without reasonable cause’. In Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh [2004] FCAFC 155 (Spotless) the Full Court considered the phrase ‘without reasonable cause’ as it then appeared in s 347(1) of the Workplace Relations Act 1996 (Cth). The Full Court said (at [13]) that the question of whether a proceeding has been commenced without reasonable cause is to be answered as a matter of objective fact and requires an assessment of whether the proceeding is ‘bound to fail’ or ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘bad beyond argument’. In Hatchett v Bowater Tutt Industries Pty Ltd (No 2) (1991) 28 FCR 324, von Doussa J said (at FCR 327 [8]; IR 34):

The test imposed by the expression ‘vexatiously or without reasonable cause’ is similar to the one applied by a court on an application for the exercise of summary power to stay or strike out proceedings: see Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 272-273 and Geneff v Peterson (1986) 19 IR 40 at 87-88.

10    The test being an objective one, it is not to the point that the applicant subjectively believes there to be a reasonable ground to institute the proceeding.

11    In contrast, paragraph (b) of the definition involves a subjective element in that it invites an enquiry into the purposes for which the applicant proposes to institute proceedings. The application for leave must be dismissed if the Court considers the proposed proceeding is sought to be instituted to harass or annoy, to cause delay or detriment or for any other wrongful purpose.

12    The considerations that may be taken into account in determining whether a proceeding meets the description in paragraph (a), (b) or (c) of the definition may overlap. For example, where there is evidence that an applicant appreciates that an intended proceeding is lacking in merit, that circumstance will be a relevant factor in determining whether the proceedings are sought to be instituted for a wrongful purpose and will also inform the question of whether the proposed proceeding constitutes an abuse of process.

13    As I have mentioned, the definition of the phrase ‘vexatious proceeding’ is expressed in non-exhaustive terms. The phrase may encompass proceedings that do not strictly meet any one of the descriptions in paragraphs (a) to (d) in the statutory definition, but which nonetheless are encompassed within the meaning of the word ‘vexatious’, properly construed having regard to the statutory purpose of the enactment in which it is employed.

14    In Fuller v Toms (2015) 234 FCR 535 (Fuller), the Full Court said, of the purpose of s 37AO (at [31]) (emphasis added):

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.

15    In Gallo v Attorney-General [1984] VicSC 412 the Victorian Supreme Court said, of the meaning of the word ‘vexatious’:

In the light of the mischief to which the section is directed, however, it seems to me that the word ‘vexatious’ is not in this context the term of art and is an omnibus expression, which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word ‘vexatious’ in the statute.

16    The above passage has been adopted with approval in a number of decisions of this Court as a proper expression of the meaning of the word ‘vexatious’ as it is used in the FCA Act: Garrett v Federal Commissioner of Taxation (2015) 147 ALD 342; [2015] FCA 117 (Pagone J at [4]), Mathews v State of Queensland [2015] FCA 1488 (Reeves J at [87]), Mulhern v Bank at Queensland Ltd (No 3) [2015] FCA 927 (Gleeson J at [8]).

17    In Jones v Skyring (1992) 109 ALR 303, Toohey J said (at 310) that the test for whether proceedings are vexatious was properly characterised in Hutchison v Bienvenu (unreported, High Court of Australia, Walsh J, 19 October 1971) as ‘not simply a subjective one’. His Honour continued:

In expressing that view Walsh J endorsed (at p 11) what Ormerod LJ had said in In re Vernazza [1960] 1 QB 197 at 208:

‘[T]he question is not whether [legal proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious.’

That question is one for the Court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought was acting maliciously or in bad faith. So, in deciding the present application, it is not to the point that Mr Skyring may believe and believe strongly in his view of s 115 of the Constitution and the associated points he wishes to agitate

18    Further, in determining that a proceeding is vexatious, it is not necessary for the Court to identify that any particular party to the proposed litigation would be troubled, vexed or harassed by the proceedings. Part VAAA of the FCA Act is protective not only of the interest of persons who may be joined in or otherwise directly or indirectly affected by a vexatious proceeding, but of the public interest in the proper administration of justice more broadly. So much was recognised by the Full Court in Fuller by its reference to the right of other litigants to access the resources of the Court, which, of course, are not unlimited.

19    …  In a statement that captures an issue arising on the present application, the New Zealand Court of Appeal said in Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 at [21] (emphasis added):

A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.

79    It must be borne in mind that the New Zealand Court of Appeal in Brogden v Attorney-General [2001] NZCA 208; [2001] NZAR 809 was not concerned with a provision in the terms of s 37AO(1)(b). That provision is conditioned by a requirement that the Court be satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. The test for whether a person has frequently commenced vexatious proceedings is different from the task of identifying whether a particular proceeding is an abuse of process, although common considerations may be relevant on either enquiry.

This proceeding

80    The Commonwealth submits that the present proceeding constitutes an abuse of the Court’s processes.

81    The Court’s implied power to prevent an abuse of process is equivalent to the power of courts of unlimited jurisdiction, described by Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529. See also Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ).

82    In Ridgeway v The Queen (1995) 184 CLR 19, Gaudron J said (at 74 — 75):

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.

(Footnotes omitted)

83    I am satisfied that the pleaded case constitutes an attempt by Mr Rana to re-agitate the same underlying grievances that have been dealt with over and again in previous proceedings. That conclusion may be drawn directly in relation to the allegations of physical assault, sexual harassment and racial vilification that have formed the basis of Mr Rana’s prior claims for compensation and the unsuccessful course of litigation following each claim. In my view, it does not assist Mr Rana to say that the present claim is for the enforcement of asserted rights arising at common law, albeit founded upon the same facts. Mr Rana has not sought to explain why the claims founded in tort, arising as they did in the early 1980s, have not been previously agitated. The conduct of which Mr Rana complains and the nature of the loss and damage bears sufficient resemblance to Mr Rana’s past complaints to support a conclusion that the proceedings are a further attempt by Mr Rana to obtain another award of compensation from the Commonwealth because he remains dissatisfied with the amounts he has already received. That conclusion also finds support in the terms in which the pleaded case is expressed. The allegation that the Commonwealth has “played hardball tactics” by refusing to reach a settlement with Mr Rana suggests a motivation in Mr Rana to utilise the proceedings as a means of applying pressure to resolve his complaints by way of a payment that might finally appease him.

84    Separate consideration may be given to the allegation that agents of the Commonwealth wrongfully disclosed confidential information about Mr Rana’s sexual health, particularly to his wife. Mr Rana submits that he only recently discovered or appreciated the alleged breach of confidence when he recently saw, for the first time, a medical report and associated correspondence prepared around the time of his initial diagnosis: exhibits “RAN01” and “RAN02” of the affidavit of Mr Rana sworn on 14 December 2017.

85    The difficulty with that allegation is that other parts of the pleaded case contain allegations that Mr Rana’s wife commenced divorce proceedings because she had been informed of his diagnosis and (presumably) assumed that he had not been faithful to her. If the disclosure of information to Mr Rana’s wife constituted a breach of confidence by the Commonwealth through its agents (howsoever the claim may be formulated as a cause of action), it was a breach of which Mr Rana has been aware at least since the breakdown of his marriage.

86    Similarly, to the extent that the claims as now formulated include a claim to have been sexually assaulted by means of the administration of a medical examination, the facts alleged in support of that claim have been known to Mr Rana since the time of the examination itself.

87    In respect of Mr Rana’s claim to have only recently realised (by reference to the same newly discovered documents) that he is not in fact the carrier of sexually transmitted herpes simplex virus at all, I have already observed that this discrete claim is inconsistent with the pleaded allegation that Mr Rana contracted the virus in the “dirty old hospital” at which the Commonwealth’s medical personnel are said to have operated. It is also inconsistent with Mr Rana’s repeated claims for compensation on the basis that he does in fact suffer from the virus. His claims for compensation in respect of that condition have been rejected because of a lack of any causal connection between the illness (and any sexual dysfunction) and his prior employment with the Australian Army. Mr Rana’s claim that the Commonwealth had a duty to warn him about the dangers of contracting such an illness has also been rejected. Mr Rana’s affidavit of 15 December 2017 serves only to confuse the question of whether he did or did not contract the herpes simplex virus. The confusion is demonstrated by the following passage (extracted without alteration from Mr Rana’s written submissions):

7.    I was naïve, vulnerable and suffering from a psychiatric condition, and was led by Detective Barry Crosch of Queensland Police Special Branch to claim for herpes, and I was under his direction and control, and also I believed him implicitly, and now I realize being a fool.

8.    I always obeyed authorities in a fragile state of mind, and I was less educated and less assertive in 1983 in Queensland, and I never knew the existence of exhibit ‘RA02’ the summary of treatment for non-specific urethritis.

9.    I have no idea when I contacted allegedly herpes simplex II.

88    Considered in the context of the pleaded case as a whole, the medical documents (assumed for present purposes to have only recently been discovered) do not deter me from the view that this proceeding constitutes an abuse of process. I am fortified in that view by Mr Rana’s failure to omit from the subject matter of this proceeding all of the other claims for compensation that have, again and again, been rejected and that have, again and again, been the subject of unsuccessful litigation in this Court and before the Tribunal. He has made no attempt to confine the proceedings to those aspects of his complaints on which the “fresh evidence” could have any potential bearing.

89    I am satisfied that Mr Rana is both unable and unwilling to narrow his claim to one founded solely upon a breach of confidence, as he is calcified (but wrong) in his view that the alleged breach is the gateway to the re-agitation of all of his other grievances.

90    I would conclude in any event that the new claims are, in part, indecipherable in the sense that it is not possible to ascertain whether the pleaded case is founded on the proposition that Mr Rana does or does not have the herpes simplex virus, and the nature of the claim against the Commonwealth in that respect simply cannot be understood.

91    Mr Rana submits that the deliberate “hiding” by the Commonwealth of the newly discovered report and the “hiding” of witnesses by the Commonwealth have been the cause of his failure to secure a successful outcome in respect of all aspects of claims. However, the bald and serious assertion that the Commonwealth has “hidden” witness documents is not adequately particularised and the newly discovered evidence is not capable of demonstrating that the previous claims for compensation (founded as they were on alleged physical and sexual assaults, and physical, sexual and racial harassment), were wrongly decided in any event.

92    I reject Mr Rana’s submission that the proceedings do not constitute an abuse because it remains open to an administrative decision-maker to revisit and change a previous decision of his or her own motion. For that proposition Mr Rana relied on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Mr Rana cannot personally mandate the remaking of any prior administrative decision to refuse him the further payment of compensation, nor does he seek any relief of that kind in this proceeding in which he founds his claims upon common law causes.

93    I find that Mr Rana genuinely holds a belief that previous decisions to refuse him further compensation payments should be revisited. I infer that Mr Rana’s subjective motivation for commencing this proceeding includes a desire to bring about that result.

94    In all of the circumstances, I conclude that this proceeding constitutes an abuse of process.

95    I now turn to consider the precondition for making vexatious proceedings orders pursuant to s 37AO of the FCA Act.

“Frequently”

96    The word “frequently” is not defined in the FCA Act. It imports notions of degree. As Justice Perry said in Soden v Crocker (No 2) [2016] FCA 15; (2016) 334 ALR 540 at [25]:

The term ‘frequently’ is a relative term and ‘must be looked at in the context of the litigation being considered’: Gargan at [7] (Davies J); see also Wilson at [12] (Davies J); Jones v Cusack (1992) 109 ALR 313 at 315 (Toohey J); and Chan at [37] (Adamson J). Thus, the Court may find that a person has instituted or conducted vexatious proceedings ‘frequently’ even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue already determined against the person: Fuller v Toms [2013] FCA 1422 at [77] (Barker J). Similarly, in explaining the previous requirement that vexatious proceedings be instituted ‘persistently’, the Full Court in Kowalski (FCAFC) at 164 [67] approved the statement of the New Zealand Court of Appeal in Brogden v Attorney-General (NZ) [2001] NZAR 809 at [21] that:

What constitutes institution of such proceedings ‘persistently’ will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication.

97    The relief sought by the Commonwealth does not include an order that Mr Rana be prohibited from instituting or continuing proceedings in this Court against any person and in respect of any subject matter. In support of its claim that Mr Rana has “frequently” instituted vexatious proceedings, the Commonwealth has confined its submissions to those proceedings that directly or indirectly affect the interests of the Commonwealth in relation to Mr Rana as a past employee. It may be that, on its proper construction, s 37AO of the FCA Act would permit a wider consideration of Mr Rana’s history as a litigant in this and other Australian courts, but it is not necessary to identify or analyse any wider conduct.

98    It is otherwise clear from the text of the provision that it is not necessary to find that proceedings commenced by Mr Rana have been dismissed on the ground that they are vexatious, although orders dismissing a proceeding on that basis may be taken into account. In my view, it is permissible to take into account those proceedings in which Mr Rana’s claims have been found to be either incomprehensible or dismissed on their merits with accompanying reasons to the effect that the claims were wholly without merit.

99    I take into account that some of the proceedings commenced by Mr Rana are instances in which he sought to exercise rights of appeal from a judgment of the Court or rights to merits review of an administrative decision. Care should be taken before concluding that such proceedings are commenced for a wrongful purpose. An appellate proceeding may nonetheless bear the character of a “vexatious” proceeding if it is unmeritorious and so pursued “without reasonable ground”. Similarly, an application for merits review of an administrative decision may be vexatious if the claimed right subject to the application is one that has previously been agitated unsuccessfully and previously subject to an unsuccessful merits review application. Mr Rana’s litigation history has these features.

100    I take into account the circumstance that some of the proceedings do not, of themselves, directly constitute claims in which Mr Rana commenced proceedings against the Commonwealth in connection with his time in the Australian Army. In that category falls Mr Rana’s claims that employees of the High Court racially discriminated against him by refusing to accept documents for filing. I nonetheless consider those proceedings can and should be taken into account when determining whether the conditions for making a vexatious proceedings order against Mr Rana are met. The proceedings bear a sufficient connection with Mr Rana’s ongoing grievance against the Australian Army because they concern his attempt to file an application for special leave in the High Court against decisions of the Full Court of this Court concerning his employment relationship with the Commonwealth. In respect of those proceedings, Mansfield J was satisfied that an order should be made pursuant to r 6.02 of the Rules (as then in force) to prohibit Mr Rana attempting to agitate that discrete complaint any further.

101    I also consider Mr Rana’s two appearances before the Honourable Justice Selway to be especially pertinent. In the second of those proceedings, Mr Rana was found to have commenced an action of the same kind and in respect of the same subject matter as an earlier action that had been dismissed as wholly unmeritorious, about two weeks prior.

102    Also relevant is the circumstance that the Tribunal did hear and determine one part of an application for review of a decision to reject a claim for compensation made by Mr Rana after his first claim for compensation had been allowed in part. However, the Tribunal refused to entertain the application for review insofar as it related to certain ailments that had previously formed the subject of an unsuccessful claim and an unsuccessful review mechanism. The Tribunal also proceeded on the facts it had previously found in the earlier review proceedings. Although Mr Rana made no application to the Tribunal to proceed in any other way, he has subsequently sought to re-agitate the same factual questions. The present case is a further example.

103    I have, for the reasons given above, determined this action to constitute an abuse of process and so it, too, may be taken into account, in addition to the previous cases upon which the Commonwealth relies, especially for the purposes of s 37AO(2)(b).

104    Having regard to the terms of the order sought by the Commonwealth, I am satisfied that the conditions for making the order are met.

Discretion

105    It is relevant to consider whether the mischief addressed by s 37AO may be avoided other than by making the order sought by the Commonwealth. In this case, I am satisfied that it cannot. Although Mr Rana is a self-represented litigant, he is by no means an inexperienced or unsophisticated one. In light of the history of litigation to which I have referred, I find that Mr Rana harbours a genuine belief that he is entitled to a greater award of compensation to that which he has achieved and that he is unwilling to accept that his prior claims for compensation have been finalised. I am further satisfied that Mr Rana genuinely believes the Commonwealth is obliged, if not legally then morally, to pay him a sum by way of settlement of this litigation and that he seeks to remain a party to litigation with the Commonwealth in order to increase his prospects of settlement. I am satisfied that if a vexatious proceedings order is not made, Mr Rana will continue to commence vexatious proceedings against the Commonwealth in connection with his employment with the Australian Army, which ended nearly four decades ago.

106    I place substantial weight on the imposition and inconvenience the order will place upon Mr Rana, particularly having regard to his status as a self-represented litigant and the nature of the personal injuries upon which his claims are based. I nonetheless consider those interests to be outweighed by the need to prevent Mr Rana from again becoming an unreasonable imposition upon the respondent and upon the finite judicial and administrative resources of this Court in respect of this particular type of proceeding against this particular respondent.

Conclusion

107    I am satisfied that an order should be made under s 37AO(2)(a) dismissing the originating application.

108    I am also satisfied that an order should be made under s 37AO(2)(b) prohibiting Mr Rana from instituting a proceeding against the Commonwealth, its agents or instrumentalities in this Court in connection with his past employment with the Department of Defence. The effect of Pt VAAA of the FCA Act is that Mr Rana must make an application for leave to institute any proceeding of that type: FCA Act, s 37AR.

109    I am also satisfied that the orders should be made before granting leave for the filing of any application by Mr Rana for the joinder of additional respondents, and before hearing and determining any such application.

110    The orders under s 37AO(2)(a) and s 37AO(2)(b) are final orders: FCA Act s 37AO(5).

APPREHENDED BIAS

111    The recusal application filed on 20 December 2017 is expressed as follows:

1.    The Applicant seeks Her Honour Charlesworth J disqualify from the matter on the grounds of showing apparent bias by over jealous [sic] application of too many times of the Court’s inherent powers such that Court staff being directed not to process any papers despite liberty to apply appearing on orders.

…

(footnotes omitted)

112    The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council (2015) 255 CLR 135 at [12] (Kiefel, Bell, Keane and Nettle JJ). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] — [36] (Allsop CJ, Kenny and Griffiths JJ).

113    As the majority said in Ebner (at [8]), the application of the test involves two steps:

…  First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

114    What must be shown is that the reasonable observer might apprehend that the Court, as presently constituted, might approach the determination of the legal and factual issues in the proceeding with a foreclosed mind. It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet”: Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission and Another (2002) 76 ALD 424 at [100] (Weinberg J).

Asserted grounds

115    Mr Rana relies on an affidavit sworn on 20 December 2017.

116    Mr Rana also relies upon a document titled “Proposed submission for disqualification of the judge and substituted final submission” dated 18 February 2018. Although in the nature of written submissions, that document was marked “Exhibit A1” in the course of argument so that there might be some certainty as to the material upon which Mr Rana relied. It contains submissions both in relation to the Commonwealth’s interlocutory application and in relation to the application that I be disqualified.

117    By reference to the affidavit and to Mr Rana’s submissions it was apparent that the grounds for the recusal application were more expansive than those set out on the face of the interlocutory application itself. It is appropriate to have regard to all of the factual matters upon which Mr Rana relies, both separately and in accumulation. Broadly summarised, the asserted bases for disqualification, as confirmed by Mr Rana at the hearing, are:

(1)    overzealous exercise of the discretion conferred by r 1.37;

(2)    findings made about Mr Rana in Rana v Google SAD 286 of 2014 (the Google proceedings);

(3)    prior employment with the Crown Solicitor’s Office and involvement as solicitor and counsel in a proceeding to which Mr Rana was a party in 2003 and 2004;

(4)    prior representation of “D”, a potential witness in the Google proceedings; and

(5)    an alleged encounter with Mr Rana on a public bus in or around 2005.

Rule 1.37

118    Rule 2.27 provides that a document lodged in the Registry for filing will not be accepted for filing if the Court has given a direction that the document not be accepted without the Court’s leave, and leave has not been obtained.

119    The complaint raised on the face of the application relates to a direction I made on 9 October 2017 pursuant to r 1.37 of the Rules to the effect that the District Registrar not accept for filing, without the leave of the Court, any document lodged by Mr Rana in these proceedings.

120    The order did not prevent Mr Rana from lodging documents for filing, which he has continued to do. In the period between 9 October 2017 and 24 November 2017, Mr Rana filed a series of documents, which were marked for identification in open court. On 24 November 2017, I made a further order to the effect that the question of whether leave should be granted for the filing of the marked documents be deferred until the determination of the Commonwealth’s interlocutory application. Among the marked documents are applications for orders that additional respondents be joined, and several documents bearing the same title “outline of submissions rebutting summary judgment”.

121    On 15 December 2017, I granted leave to the District Registrar to accept for filing an interlocutory application by Mr Rana seeking an order that I disqualify myself. Mr Rana then filed such an application and it is that application that is presently before me. Also accepted for filing was Mr Rana’s affidavit of 20 December 2017. It is appropriate that Mr Rana’s submission dated 18 February 2018 be accepted for filing as a submission, and I will give a direction to that effect.

122    Also on 15 December 2017, I refused to grant leave for an interlocutory application lodged by Mr Rana to be accepted for filing on the basis that the application related to a matter in respect of which the parties had already been heard.

123    The purpose of the order made on 9 October 2017 was to maintain some control over the number and nature of documents filed by Mr Rana in the proceeding so as to assist the Court to identify the purpose for which they were filed and the extent to which the documents complied with the Court’s orders concerning document length and filing deadlines. The order was made in circumstances where Mr Rana appeared to be lodging numerous lengthy and apparently repetitive documents in the Court that did not appear to be required by, or referable to, any particular rule of the Court or to any order made for the proper case management of the proceeding.

124    Mr Rana complains of the order made on 9 October 2017 and says that the Court has refused to grant leave for the acceptance of at least eight documents for filing. He submits that the circumstances give rise to an apprehension of bias.

125    The contention that the Court has over zealously refused to grant leave for the acceptance of documents for filing is not correct.

126    The true circumstance is that, with one exception, the Court has deferred its consideration as to whether the documents should be accepted for filing until the Commonwealth’s interlocutory application could be heard and determined. Mr Rana has not been prevented from relying on documents that properly bear on the issues to be decided on the Commonwealth’s application or on his present application.

127    Whilst it is true that Mr Rana’s written submission of 18 February 2018 was not accepted for filing by the District Registrar, that submission fell within the orders of 24 November 2017 and so ought to have been accepted. That circumstance was explained to Mr Rana and the document was received and read by the Court. The matter was stood down so as to permit the Court and the respondent time to read and consider it before oral submissions proceeded any further.

128    As I understand Mr Rana’s submissions in relation to this issue, it is that a reasonable bystander might apprehend that the Court might have a mind foreclosed against him in the proceedings generally and so seek to stymie him in the presentation of his case. I reject that submission. The making of the order would be understood by a reasonable observer to be explained and justified by the Court’s interest in ensuring the proper allocation of the Court’s judicial and administrative resources, the necessity to control the overall costs of the proceedings, and the need to avoid confusion as to the purposes for which documents such as submissions and affidavits are filed. Mr Rana has not demonstrated that the Court has refused leave for the acceptance of a document for filing other than by having proper regard to the content and apparent purpose of the document lodged by him. As I have said, the question of whether the numerous documents lodged by Mr Rana should be accepted for filing has been deferred. The deferral, of itself, has not prejudiced Mr Rana in the presentation of his arguments on this application or on the Commonwealth’ interlocutory application. Nor does the deferral give rise to a reasonable apprehension of bias. Even if there be an appealable error affecting the order of 9 October 2017 that of itself would not give rise to a reasonable apprehension of bias.

129    I will not disqualify myself on this basis, whether considered alone or in conjunction with the other matters upon which Mr Rana relies.

Judgment in Rana v Google

130    The Google proceedings presently remain subject to my case management. On 25 January 2017 I delivered an interlocutory judgment concerning the competency of that proceedings: Rana v Google Inc (No 2) [2017] FCA 17; (2017) 347 ALR 663. In the reasons for judgment, consideration was given to whether Mr Rana’s invocation of the Australian Consumer Law (ACL) attracted the jurisdiction of this Court under s 39B(1)(c) of the Judiciary Act. Mr Rana submits that an apprehension of bias arises because the reasons for judgment contain a finding that he improperly fabricated a colourable claim under the ACL in an attempt to attract the jurisdiction of the Court.

131    The reasons for judgment contain no such finding. Rather, the reasons make reference to the significant deficiencies in Mr Rana’s manner of pleading, such that it was impossible to comprehend the nature of the case he sought to agitate under the ACL and so impossible to determine whether the claims were colourable (at [52]). I determined that the ACL claims should be struck out, not because they were colourable but because the pleading could not be understood and so was embarrassing. That part of the judgment was not disturbed on appeal: Rana v Google Inc (No 2) at [39] - [41], [55].

132    There being no finding of the kind complained of by Mr Rana, it is not necessary to consider whether such a finding would form a proper basis for my disqualification in this proceeding.

Prior employment

133    Mr Rana correctly asserts the following facts:

(1)    in 2003 and 2004 I was employed as a solicitor in the office of the Crown Solicitor for the State of South Australia (CSO);

(2)    at that time, Mr Rana was involved in proceedings in the then-name Federal Magistrates Court concerning, among other things, his conduct as a student at a University;

(3)    in those proceedings, Mr Rana requested the issue of a subpoena addressed to the State Ombudsman (a non-party);

(4)    in my capacity as a solicitor employed by the CSO, I presented arguments in the proceedings on behalf of the State Ombudsman to the effect that a State law, applicable in the proceedings, prevented the State Ombudsman from being compelled to appear as a witness or to produce documents in answer to the subpoena;

(5)    the arguments were accepted by the Federal Magistrates Court; and

(6)    Mr Rana’s appeal to this Court on the question was unsuccessful, as was an application for leave to appeal to the Full Court of this Court: see Rana v State Ombudsman of South Australia [2003] FCA 1259 and Rana v State Ombudsman of South Australia [2004] FCA 456 respectively.

134    As the judgments in those matters make plain, the arguments advanced on behalf of the State Ombudsman went to procedural matters and turned entirely upon questions of law. They did not involve any assertion, or invite any finding, about Mr Rana’s personal characteristics or propensities whether in relation to the subject matter of the principal proceeding or otherwise.

135    Mr Rana also asserts, incorrectly, that in the course of acting for the State Ombudsman, I was provided with, and reviewed, documents referred to in the subpoena which, he says, were disparaging of his conduct as a student of the University. The assertion is unfounded. Even if the assertion had some proper basis in fact, Mr Rana has not provided any evidence as to the content of the documents viewed, nor has he articulated how viewing the documents could give rise to an apprehension of bias in this proceeding.

136    Mr Rana also asserts that in the course of my employment with the CSO I was involved in other litigation commenced by Mr Rana concerning other agencies or instrumentalities of the Crown. That assertion is incorrect in fact.

137    The correct facts asserted by Mr Rana provide no proper basis for disqualifying myself. Mr Rana has articulated no connection between those facts and the possibility of any departure in this action from impartial decision making.

Prior representation of Ms D

138    In the Google proceedings, Mr Rana seeks leave to serve proceedings on Google Inc outside of Australia pursuant to r 10.43 of the Rules. Resolution of that question has been delayed pending the determination of an apprehended bias application made by Mr Rana in that action. In turn, resolution of that recusal application is deferred pending the delivery of these reasons for judgment because Mr Rana has understandably sought an opportunity to be heard in the Google proceedings about additional matters going to apprehended bias that might flow from these reasons.

139    Mr Rana has filed a proposed further amended statement of claim in the Google proceedings. The proposed pleading contains allegations to the effect that Google republished defamatory publications allegedly authored by a person who I will refer to as Ms D. It is apparent that Ms D may well be a potential party or witness in that proceeding should it proceed to trial. It is conceivable that she may be joined as a party by another respondent, even if Mr Rana has no present intention to join her. If she were called, it may be necessary to make an assessment of her credit and Mr Rana’s credit in respect of critical contested facts. The issue of credit might arise in a number of ways, including because Mr Rana has stated that the authors of the pleaded publications may well argue that the publications were in fact authored and published by Mr Rana himself and are the product of his paranoid psychosis. Whether or not the authors would advance such a defence (if joined) is unknown.

140    At a case management hearing on 9 February 2018, I informed Mr Rana that I had, as a member of the independent bar, previously represented Ms D in defamation proceedings commenced by her. To the matters disclosed to Mr Rana I should add that my representation of Ms D was in respect of an interlocutory issue arising in her action and did not continue to trial.

141    At the same case management hearing I said to Mr Rana that the issue of whether Ms D might be called as a witness in his action may be significant because it may become necessary to determine whether Ms D was a credible witness. I said words to the effect that in my previous dealings with Ms D, I had formed a positive view of her.

142    I do not consider the circumstances of my previously acting for Ms D, or the views I have expressed about her, to give rise to an apprehension of bias in this particular proceeding. The issues arising for determination in this action are entirely different from those that may arise for determination in the Google proceedings. In this action, there is no prospect of Ms D being called as a witness and so there will be no occasion to resolve any contest of testimony between her and Mr Rana. As I have said, the anticipated defences of the prospective respondents in the Google proceedings are presently unknown.

143    Mr Rana’s written submissions contain assertions that the prior dealings with Ms D explain the Court’s decision to direct the District Registrar not to accept Mr Rana’s documents for filing except with the leave of the Court. I do not consider a reasonable person equipped with knowledge of all of the circumstances might draw any such inference.

144    I do not otherwise consider the issues raised by the Court with Mr Rana to give rise to a reasonable apprehension that the Court might not approach the matters to be determined in this action with a mind foreclosed to the actual merits.

Alleged 2005 encounter

145    In his written submissions, Mr Rana asserted that he had seen me with Ms D on a on a public bus in the Eastern suburbs of Adelaide in about 2005. In his oral submissions, he appeared to vary that assertion so as to allege that Ms D was not there, but that he and I had seen each other on the bus.

146    Mr Rana was unclear in his submission as to what consequence should follow from this asserted fact. When asked to explain, Mr Rana said “Since there is an allegation of many women that I stalked, maybe your Honour’s view might be against me”.

147    Even if there was a chance encounter with Mr Rana on public transport some 13 years ago, as to which I make no finding, that would not be a proper basis to disqualify myself in this proceeding, whether for the reason advanced by Mr Rana or for any other reason.

Other bases

148    Before concluding I should record that Mr Rana’s written submissions make broad allegations of actual and apprehended bias, the factual basis of which is somewhat unclear. It was for that reason that the Court asked Mr Rana to articulate the factual basis for the disqualification application near the commencement of the hearing. Mr Rana confirmed that he relied upon the facts and circumstances now dealt with in these reasons. I have had regard to Mr Rana’s written submissions to the extent that they are relevant to the matters upon which he confirmed his application was based.

149    I have nonetheless given consideration to the short history of dealings between the Court and Mr Rana in the two matters presently under my case management. In my view, the conduct of the proceedings as a whole do not justify disqualification in this matter. As Mansfield J said in Rana v Commonwealth of Australia [2013] FCA 189 at [35]:

… as [Mr Rana] 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.  …

150    Mr Rana’s interlocutory application filed on 20 December 2017 should be dismissed.

151    It remains open to Mr Rana to persist with his application that I disqualify myself in the Google proceedings and he may, of course, make reference to findings expressed in these reasons for judgment for that purpose.

Associate:

Dated:    1 November 2018