Federal Court of Australia

Rana v Google Inc [2022] FCA 877

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal from the two sets of orders of the Court made 3 November 2021 is dismissed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant, Mr Ranjit Rana, seeks leave to appeal from interlocutory orders made by a single judge of this Court relating to three interlocutory applications. Leave is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2    Mr Rana instituted these proceedings in July 2021, naming the following six respondents:

(a)    first respondent - Google Inc;

(b)    second respondent - Automattic Inc;

(c)    third respondent - Dr Janice Duffy;

(d)    fourth respondent - Darda Gregurev;

(e)    fifth respondent - Nina Gregurev; and

(f)    sixth respondent - Microsoft Corporation Inc.

3    Mr Rana seeks to rely on various purported causes of action against some or all of the respondents, being defamation, negligence, breach of confidentiality, unconscionable conduct in breach of the Privacy Act 1988 (Cth) and the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and breach of contract.

Mr Rana's application relating to service

4    On 2 August 2021 Mr Rana filed an interlocutory application seeking leave to serve the originating application and 'litigation papers' on Google, Automattic and Microsoft outside the jurisdiction. He also sought leave under s 21 of the Defamation Act 2005 (SA) to serve Darda Gregurev and Nina Gregurev with the same documents.

5    On the same day he filed a 'Final Substituted Statement of Claim' (Claim), and it is not in issue that the leave sought by Mr Rana encompassed service of this pleading.

6    Mr Rana filed an affidavit of service relating to attempts to serve Dr Duffy, and also filed an affidavit generally in support of his application for leave to serve the respondents (first and second Rana affidavits), together with an outline of submissions.

9 September 2021 hearing - programming of first interlocutory application

7    On 9 September 2021 the primary judge to whom the proceedings had been allocated conducted a first case management hearing. Mr Rana was self-represented and appeared by video-conference. It is apparent from the transcript of the hearing that the primary judge identified the nature of the interlocutory application, being by that time an application for leave to serve each of Google, Automattic and Microsoft, for leave to serve Darda and Nina Gregurev, and for an order for substituted service on Dr Duffy.

8    His Honour also engaged in some discussion with Mr Rana and provided guidance as to the matters that might need to be addressed. For example, the transcript records the following:

HIS HONOUR: … All right. Well, they're the various things that you want to seek. And your email said that you wanted to seek that - you wanted a hearing when you can seek that.

MR RANA: Well, I don't know. The court proposes to go about … in the best possible way I could … I thought it would be the best way the court could set a timetable whether to accept my proposition …that case.

HIS HONOUR: Well, we can set a date if you want to. Two ways of proceeding. We can set a date when you make any further submissions in support of those application, or we can deal with the matter on the papers, as I think recently White J dealt with an application of yours on the papers. Do you understand what that means?

MR RANA: Yes, your Honour.

…

HIS HONOUR: … how would you like to proceed?

MR RANA: Papers would be fine, your Honour.

HIS HONOUR: Yes. So are there any other papers that you wish to file to support your applications?

MR RANA: Maybe one affidavit to bring every parties together and to mix it in final submission … not more than few pages.

HIS HONOUR: Yes. Well, I will make a direction about the filing of that in a moment so that I know when to receive it and then when to consider the application. Can I just draw a couple of things to your attention. First, in relation to Dr Duffy …

9    His Honour then raised some matters relating to substituted service. His Honour referred to the application for leave under s 21 of the Defamation Act and explained that amongst other things Mr Rana would need to identify the publications he sought to rely upon.

10    His Honour then addressed the question of service out of the jurisdiction:

HIS HONOUR: … And then in relation to leave to serve on companies out of the jurisdiction, there are requirements that need to be followed. I think you've made some reference to the Hague Convention. But the court rules identify what needs to be referred to in that application, including explaining how you propose to serve the documents, and why you say there is a right to serve in a particular way, not just that the Hague Convention applies. So you need to set those things out in your material. And then also, the court has a discretion as to whether to allow such service. And one of the things that the court might bring to account is whether the claim is clearly expressed in your document - and that is, in your application.

So you might need to look at whether it's clear in your document about the agreement that you say has been breached, and the publication that you say that you want to complain about. Because if the document isn't clear enough, that may be a reason why leave is refused …

11    His Honour then turned to programming of the application stating:

HIS HONOUR: … So they're a lot of things to bear in mind. What I will do is I will ask for the court transcript of what has just been said to be provided to you so you can look at those matters. And so having regard to those things, how long do you think it would take you to put on any further affidavit and submissions that you want to advance to support your applications?

MR RANA: About 45 to 60 days.

HIS HONOUR: So that will take us - let me just have a look. So if we say until 12 November. And then do you want to have a hearing, or are you happy for the matter to then be dealt with on the papers?

MR RANA: On papers might be convenient for all, your Honour.

12    His Honour then proceeded to make the following orders:

1.    Any further affidavit and any submissions in support of the applications as to service and leave under s 21 of the Defamation Act 2005 (SA), such submissions not to exceed 10 pages, be filed on or before 12 November 2021.

2.    A copy of today's transcript be provided to the applicant.

3.    After 21 November 2021, the applications as to service and leave be determined on the papers.

13    His Honour explained the third order to Mr Rana, stating:

HIS HONOUR: So you understand that if you don't file anything more by 12 November, you will either need to ask for more time and apply for more time, otherwise the applications will be dealt with after 12 November on the papers.

14    I interpose to note that these orders refer to provision of submissions limited to 10 pages and a further single affidavit - the importance of this is discussed further below.

15    On 23 September 2021 Mr Rana filed submissions in support of the application that were 10 pages in length (plus a 1 page annexure). On the same date Mr Rana filed an affidavit in support (third Rana affidavit).

16    Also on that date, Dr Duffy filed a notice of address for service.

17    On 13 October 2021 Mr Rana filed a document headed 'Amended outline of submissions'. It is clear from the content of those submissions that they were filed in support of his first interlocutory application. They are also 10 pages in length (plus a 1 page annexure).

Two more interlocutory applications and the 3 November 2021 hearing

18    On 6 October 2021 Dr Duffy filed an interlocutory application together with two affidavits in support. In summary, Dr Duffy sought orders seeking to restrain Mr Rana from contacting her and for certain relief relating to allegations made by way of documents filed by Mr Rana in the proceedings.

19    The court file indicates that a number of affidavits were subsequently filed:

(a)    on 13 October 2021 Mr Rana filed an affidavit addressing Dr Duffy's interlocutory application and affidavits (fourth Rana affidavit);

(b)    on 18 October 2021 Mr Rana filed an affidavit which also appears to respond to Dr Duffy's application and does not specifically address the service matters the subject of the first interlocutory application (fifth Rana affidavit);

(c)    on 20 October 2021 Darda Gregurev filed an affidavit;

(d)    on 21 October 2021 Mr Rana filed an affidavit which appears to respond to the Darda Gregurev affidavit and seeks to have that affidavit removed from the court file (sixth Rana affidavit);

(e)    on 25 October Dr Duffy filed two affidavits;

(f)    on 28 October 2021 Mr Rana filed an affidavit, again appearing to respond to Dr Duffy's affidavits, that contains numerous allegations with respect to various parties but again does not appear to specifically address the first interlocutory application (seventh Rana affidavit); and

(g)    on 29 October 2021 Nina Gregurev filed an affidavit.

20    On 27 October 2021 the associate to the primary judge wrote to the participating parties (Mr Rana and Dr Duffy) informing them that there would be a case management hearing and a mention of Dr Duffy's application on 3 November 2021. The associate informed the parties relevantly as follows:

I confirm the case management hearing and mention listed on 3 November 2021 at 9.00 am Perth time (11.30am Adelaide time) will proceed.

Arrangements have been made for the parties to appear from a courtroom in Adelaide with a video link to Perth.

As the interlocutory application is listed for mention on 3 November 2021, Justice Colvin will not be determining any substantive issues in the proceeding on that date. A mention is listed to determine the procedural steps before an application is listed for hearing. Therefore, it will not be necessary to rely on any affidavits that have been filed.

21    On 1 November 2021 Mr Rana filed a second interlocutory application. By this application Mr Rana sought to have Dr Duffy's interlocutory application dismissed as vexatious and also sought to have all affidavits relied upon by Dr Duffy, Darda Gregurev or Nina Gregurev either 'sealed' or 'dismissed from the registry for being embarrassing, scandalous and vexatious'.

22    On the same day the associate to the primary judge wrote to the participating parties informing them that Mr Rana's second interlocutory application would also be listed for mention at the hearing of 3 November 2021.

23    On 2 November 2021 Mr Rana filed an affidavit that purports to respond to Nina Gregurev's affidavit, and appears to be in support of his second interlocutory application (eighth Rana affidavit).

24    On the afternoon of 2 November 2021, the associate to the primary judge emailed the parties, attaching a document, and asking them to consider whether the orders proposed in the document were appropriate. The document provided as follows:

The following draft orders have been prepared by the Court in order to assist the parties to focus their submissions as to the orders that might be made in order to deal with the interlocutory applications of the applicant and the third respondent.

The Court will determine whether these or some other form of orders should be made after hearing from the parties.

Draft Orders for Rana v Google Inc SAD 147 of 2021

2 November 2021

1    No further interlocutory application or affidavit is to be filed in these proceedings unless leave has been given to do so by a judge of the Court.

2    No affidavit filed in these proceedings is to be made available for inspection by any person other than a party to the proceeding unless leave has been given by a judge of the Court for the party to inspect the affidavit.

3    No affidavit filed in these proceedings is to be published for any purpose other than the conduct of these proceedings.

4    Until further order, service of documents in these proceedings by the applicant on the third respondent and by the third respondent on the applicant shall be effected only by email to an address notified to the Court for that purpose.

5    A copy of the transcript of the case management hearing on 9 September 2021 shall be provided to the third respondent.

6    The interlocutory application of the third respondent dated 6 October 2021 is otherwise dismissed.

7    The interlocutory application of the applicant dated 28 October 2021 is otherwise dismissed.

8    The statement of claim be struck out.

9    The further conduct of these proceedings is stayed until leave is given to the applicant to file a concise statement.

10    On or before 26 November 2021, the applicant do file and serve on the third respondent a minute of proposed concise statement together with any submissions as to why leave should be given to allow the concise statement to stand as disclosure of the nature of the case that the applicant seeks to advance, subject to the right of any of the respondents to object to the form of the concise statement.

11    The question whether there be leave to the applicant to file a concise statement in terms of any such minute of concise statement be determined on the papers.

12    The case management hearing be otherwise adjourned to a date to be fixed.

13    There be no order as to the costs of today.

Orders and reasons - Dr Duffy's application and Mr Rana's second interlocutory application

25    Both Mr Rana and Dr Duffy provided responses by email to the proposed orders. Dr Duffy had no issue with the proposed orders, save for a comment with respect to costs. Mr Rana's response (by a number of emails) is difficult to follow and contains extraneous material, but in essence he indicated that he did not agree with the proposed orders, and he considered it unfair that the applications would be dismissed apparently without reasons.

26    On 3 November 2021 the primary judge conducted the case management hearing and mention as anticipated, and made orders in that regard. His Honour delivered extempore reasons, which I include (as subsequently edited from the transcript by the primary judge):

[1]    The parties have raised various complaints about affidavits and the nature of their communications with each other concerning these proceedings. They have also raised issues about the way these proceedings should continue and have sought by competing interlocutory applications various orders as to the way in which the proceedings should be conducted. They have also raised various matters informally with the court in addition to commencing those two interlocutory applications. Aspects of the interlocutory applications seek orders of the kind that could not be made by this Court, and what I have to consider today is the best approach as to how to case manage the proceedings.

[2]    This hearing today is a case management hearing, and I confine my consideration to matters that are relevant to the efficient and timely and fair conduct of the proceedings that Mr Rana seeks to bring. At present it is only Dr Duffy, the third respondent, who has been served and has given notice of intention to appear and is before the Court. The position in relation to the other respondents is that Mr Rana has sought leave to serve the proceedings on the first, second and sixth respondents out of the jurisdiction, and he has also sought permission under s 21 of the Defamation Act 2005 (SA) to allow him to bring certain aspects of his claims. Those matters have, pursuant to previous directions made by the Court, been directed to be dealt with on the papers, I will publish later today dealing with those applications (since published as Rana v Google Inc [2021 FCA 1360).

[3]    In the course of those reasons, I will express certain concerns that I have in relation to the current form of the statement of claim. It is because of those concerns and the nature of the matters that have been raised in the affidavits and communications with the Court that I have formed the view that it is appropriate for the commencing form of the application to be one which is supervised by the Court. The reason I have formed that view is that in my view and as will be further expressed in the reasons that I will publish later today, the content of the documents that have been filed, particularly the statement of claim, does not expose with clarity and in a way that is fair to the respondents the basis for the claim and particularly how it is focused on more recent events. I have formed the view that it is appropriate for the commencement of these proceedings to be supervised in a manner which enables the Court to consider whether leave should be given to file a concise statement, having regard to the concerns that will be expressed in the reasons to be published later today.

[4]    In addition, in view of the nature of the communications with the Court and the form and contents of affidavits that have been filed by Mr Rana, it seems to me that it is appropriate for there to be a concise statement to be supervised, and that will only be accepted for filing if leave is given by a judge of this Court. That form of order is not intended to require Mr Rana to obtain the certification of any lawyer of the form of the concise statement; rather, he is to prepare such a statement by reference to the explanation that is available on the Court website in relation to the filing of such a document. If there remain issues with that document once it is presented at the time of leave, then the procedure that I contemplate will enable brief communication to him about any further ongoing concerns with the formulation of the concise statement. It will also have the advantage of ensuring that the respondents are not burdened with having to respond to the document unless and until leave has been given.

[5]    In order to facilitate this, as a matter of case management, I propose to make a direction for the statement of claim to be struck out. That is not a substantive determination of the merits of that document; rather, it is a recognition that the appropriate course, having regard to the particular circumstances of this case, is for there to be a supervised process by which a concise statement is prepared. That document, as required by the Court, will focus upon the key aspects of what the nature of the claim is and will enable Mr Rana to focus upon those aspects in the interests of all parties.

[6]    The other issue that has been raised today is the possibility of a mediation in order to resolve the matters, and I will consider whether that is appropriate once the issue of the formulation of the concise statement has been addressed.

[7]    In relation to the costs of today and of the interlocutory applications which, having regard to the case management orders that I propose to make today, will now be redundant, Dr Duffy seeks an opportunity to be able to apply for those costs, and for that reason, I will make an order that the costs of today be reserved.

[8]    So for those reasons, the Court today makes orders in terms of the draft orders that were circulated to the parties yesterday, save as to order number 13, where the order will be that the costs of today be reserved.

27    For completion, the orders made were in terms of the proposed orders circulated on 2 November 2021, save that order 13 read 'The costs of today be reserved'.

Orders and reasons - first interlocutory application

28    As the above reasons anticipated, and later in the day on 3 November 2021, his Honour also made orders disposing of the first interlocutory application and published reasons: Rana v Google Inc [2021] FCA 1360.

29    Relevantly, the reasons disclose that his Honour sought to identify from the originating application the nature of Mr Rana's defamation claims against the respondents, noting that it was 'difficult to understand' and did not identify any particular defamatory publications. His Honour referred to the numerous claims for damages and aggravated damages included in the application and the separate claims in relation to 'medical information, army service and intelligence service overseas'.

30    His Honour considered the Claim, noting it ran to some 48 pages; that '[i]t is difficult to discern from the Claim any coherent or recognisable articulation of the material facts that might support a cause of action'; that there was no discernible chronology of events; that there were a number of other general claims of unconscientious advantage and breach of agreements without any precise details; and that although there might in parts of the Claim be a discernible complaint about defamatory publications on various websites, blogs and chat sites, against the lengthy history set out in the claim and the failure to precisely set out claims that range beyond alleged defamation, the precise subject matter of the Claim is unclear. His Honour concluded:

[10]    Having read the application and the Claim, I find the precise subject matter of the Claim, the facts upon which it is based and the legal basis for the claims within it to be obscure at best. The documents are expressed in a form that would impose an undue and unreasonable burden upon any respondent to try and comprehend the precise nature of the case that is alleged and the extent to which it is based upon recent events and the respects in which those events are said to give rise to liability on the part of a particular respondent. Further, the material indicates that there has been a previous dispute which was resolved but the allegations that are made seem to reach back to restate those earlier claims. It would be unfair and unduly prejudicial to require any respondent to answer claims expressed in the terms stated in the application and the Claim. In short, they are an abuse of the Court's process in the technical sense of that term. It would vex and oppress the respondents to have to respond to the application and the Claim.

31    His Honour then considered and applied the principles relating to ex parte applications for service out of the jurisdiction, noting that the court should not grant leave unless it was positively persuaded that it should do so, citing Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 564 (Mason CJ, Deane, Dawson and Gaudron JJ). His Honour concluded that:

[12]    Given the state of the application and the Claim, I am not satisfied that the proceedings in the form in which they have been commenced would not be stayed as an abuse of process for the reasons that I have given. Further, by reason of the terms in which the application and Claim are expressed it is not possible to determine whether there is a good arguable case to support the proceedings. The affidavits of Mr Rana do not assist in that regard. It is not for the Court to trawl through the material presented to try and determine whether there may be some basis for a claim amongst everything that has been deposed to by an applicant. The submissions filed by Mr Rana do not assist.

32    His Honour refused leave to serve the proceedings out of the jurisdiction in the exercise of the Court's residual discretion to make such orders.

33    His Honour also explained why the decision of Rana v Registrar Cridland [2021] FCA 848 (Mr Rana's successful application for review of a registrar's decision to refuse filing of the application and pleadings in this matter) did not assist him in this application, the question in issue being fundamentally different.

34    Finally, his Honour addressed that part of Mr Rana's claim seeking leave under s 21 of the Defamation Act, observing that Mr Rana provided no explanation as to the circumstances supporting the application for leave, but instead referred to provisions concerned with whether the proceedings have been commenced outside the applicable limitation period and whether he suffers from a mental disability, being a separate issue.

35    The orders made in accordance with the reasons were:

1    The application by the applicant for leave to serve the originating application and document entitled 'Final Substituted Statement of Claim' on each of the first, second and sixth respondents is refused.

2    The application for an order under s 21 of the Defamation Act 2005 (SA) in respect of the claim in these proceedings is refused with liberty to bring a further application.

Proposed grounds of appeal

36    Mr Rana's proposed grounds of appeal number seven, but may be distilled to the following four contentions:

(1)    The primary judge erred in law by failing to accord to Mr Rana natural justice by determining the first interlocutory application without notice on 3 November 2021 when his Honour had informed Mr Rana by the orders of 9 September 2021 that he would have until 12 November 2021 to file affidavits and submissions, and had said the application would not be determined until after 21 November 2021, so depriving Mr Rana of the opportunity to file submissions prior to 12 November 2021 (incorporating Mr Rana's grounds 1 and 2).

(2)    The primary judge erred in law by providing the draft orders relating to Dr Duffy's interlocutory application and Mr Rana's second interlocutory application and then conducting a 'truncated hearing' on 3 November 2021 for which Mr Rana was not prepared (incorporating Mr Rana's grounds 3 and 4).

(3)    The primary judge erred in making orders on 3 November 2021 striking out the statement of claim without giving reasons and in describing it as vexatious or oppressive, and erred in staying the proceedings pending leave being given to file a concise statement, when his Honour should have allowed him to rely on the statement of claim (incorporating Mr Rana's grounds 4, 5 and 6).

(4)    The primary judge erred with respect to the first interlocutory application by refusing leave under s 21 of the Defamation Act without having regard to the decision in Duffy v Google LLC [2019] SASC 157, and by failing to have regard to a delay by Mr Rana based on his mental illness and its effect on any limitation period (Mr Rana's grounds 4 and 7).

Some relevant principles

37    It is well established that there are two considerations which usually govern the outcome of applications for leave to appeal, as commonly drawn from Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. They are whether the decision sought to be appealed from is attended by sufficient doubt to warrant its being reconsidered by an appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. Those considerations bear on each other, in the sense that if one is particularly strong, the other may not need to be satisfied to a high degree. However, there are no rigid rules and in the end the discretion is unfettered. The unfettered nature of the discretion also appears on the face of s 24(1A) of the Federal Court of Australia Act.

38    Expressed broadly, the first three contentions set out above (at [36]) raise issues of procedural fairness. As explained in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361 (Allsop CJ, Middleton and Foster JJ):

[86]    The required content of fairness in any particular case will depend on context: constitutional, statutory and human, on all the circumstances of the case: Salemi v MacKellar (No 2) [1977] HCA 26; 137 CLR 396 at 419. The fairness required relates principally to the procedure employed in dealing with the party in question. That may involve the exercise of state or governmental power over the individual, who may be vulnerable and powerless, or a great corporation. The terms of any statute will be critical. The common element is that, generally speaking, the exercise of power should be fair. That exercise will always have a human context. That is why, as Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 14, fairness is not an abstract concept, but essentially practical. The concern of the law is to avoid practical injustice. Fairness is normative, evaluative, context-specific and relative.

39    In this case, the fact that the applicant was unrepresented highlights any questions as to the procedures he encountered. In SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 (Kenny, Robertson and Griffiths JJ) the Full Court observed:

[38]    … The fact that a litigant is not represented may require a court to take steps to explain its processes and procedures to the litigant to ensure procedural fairness. This is well-recognised, as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 makes clear.

40    It is also apparent that with respect to the case management directions made on 3 November 2021, Mr Rana raises questions as to the scope of the powers that may be exercised by way of case management. That scope is clearly broad. Key principles of case management by this Court are reflected in s 37M and s 37N of the Federal Court of Australia Act and in the Central Practice Note: National Court Framework and Case Management (CPN-1).

41    As s 37M provides, the overarching purpose of the civil practice and procedures is to facilitate the just resolution of disputes according to law and as efficiently as possible. This includes the objective of the efficient use of judicial resources and the efficient disposal of the court's overall caseload.

42    Section 37N provides that parties must conduct a proceeding in a way that is consistent with the overarching purpose.

43    In the context of this application, some of the more relevant imperatives expressly identified in CPN-1 include:

(a)    where a proceeding has been commenced by a statement of claim and/or affidavit, considering whether a concise statement may be helpful in understanding the nature of the proceedings;

(b)    considering how best to manage lay evidence; and

(c)    considering how to limit evidence to what is necessary and relevant; and eliminating or minimising the number of interlocutory hearings.

Contention 1

44    Turning to the first contention, Mr Rana is aggrieved by the fact that the primary judge made orders and delivered reasons on 3 November 2021 disposing of the first interlocutory application, when the programming orders of 9 September 2021 had provided that he had until 12 November 2021 to file his affidavit and submissions, and had provided that no judgment would be delivered until after 21 November 2021.

45    Mr Rana submitted that: the primary judge failed to give any notice that he was intending to publish the judgment early; the primary judge gave no reasons for publishing it early; Mr Rana had intended to consider and 'thread' together the affidavits of the third, fourth and fifth respondents that had been filed and provide a final submission by 12 November 2021; he would have sought leave to file a further five page submission; the primary judge overlooked the 'fine detail' of the history and the references to blogs and prior proceedings in the materials; the primary judge failed to consider the submission that he asserts he would have filed on 12 November 2021; the primary judge did not refer to any rule under which he struck out the statement of claim or give provision for one more time to re-plead; and had that submission been filed the outcome would have been different.

46    It is to be recalled that Mr Rana filed a 10 page submission in support of the first interlocutory application on both 23 September 2021 and 13 October 2021. He filed his affidavit in support on 23 September 2021. Having regard to their content, it is apparent that those documents were filed in accordance with the orders of 9 September 2021.

47    Implicit in Mr Rana's complaint is that he had assumed on the basis of the 9 September 2021 orders that even after he filed the affidavit and submissions in September 2021 and October 2021, he could continue to file any number of additional materials up until 12 November 2021. There was no sound foundation for that assumption.

48    Mr Rana was content to have the first interlocutory application dealt with on the papers. He was entitled to make submissions with respect to the application that he wished to press. There was nothing in the orders of 9 September 2021 that anticipated or permitted a rolling number of separate submissions to be filed, particularly when one has regard to the 10 page limit that was imposed. Mr Rana had the opportunity to file submissions of 10 pages and did so. Mr Rana also had the opportunity to file a 'further affidavit' and did so.

49    In circumstances where the primary judge was not forewarned that despite Mr Rana having ostensibly filed the documents he sought to rely upon, and where there is no suggestion that it was made known to the primary judge that Mr Rana intended to seek leave to file further documents, it is perhaps not surprising that his Honour considered it was open to him to proceed to deliver judgment without awaiting the expiry of further time.

50    However, there is no doubt that the judgment was delivered earlier than the date anticipated by the 9 September 2021 orders. I accept that Mr Rana was surprised by that course. I accept that as Mr Rana understood things, the close-off date for filing his affidavit and submissions was 12 November 2021 and that no judgment would be delivered until after 21 November 2021. I also take into account that Mr Rana was self-represented.

51    The issue, then, is whether judgment delivery occurred in circumstances that denied Mr Rana the opportunity to be heard, or denied him the opportunity to have a successful outcome, or that were in any event unfair.

52    The difficulty for Mr Rana is that nothing in the documents that he filed operated to amend the form of the originating application or the statement of claim that he wished to rely upon. The application for service out of the jurisdiction failed because of the form of those documents and the difficulties with them. Those difficulties are readily apparent on the face of the documents. For example, the Claim is convoluted, opaque and littered with references to information the relevance of which is not apparent. In my view it is entirely understandable that the primary judge was not satisfied that the proceedings in the form in which they had been commenced would not be stayed as an abuse of process. I do not consider that any further submissions or affidavits of the nature of those filed by Mr Rana would have done anything to assist his application. Expressed generally, the affidavits, most of which were filed apparently as a result of the various affidavits filed in support of Dr Duffy's interlocutory application, were compiled in a scattergun approach. They included numerous unsubstantiated allegations of alleged misconduct on the part of various persons without regard to the elements of any cause of action, any descent into particularity of claims or any coherent chronology.

53    I do not consider there was any real prospect of the application and Claim surviving a challenge based on abuse of process had they been served out of the jurisdiction, regardless of whether Mr Rana sought leave to file or otherwise purported to file additional documents before judgment.

54    That does not mean that if Mr Rana were to file an amended statement of claim in due course or a concise statement (a matter to which I will return), he would not succeed in a second application for leave to serve proceedings out of the jurisdiction on Google, Automattic and Microsoft. The primary judge's decision did not deprive him of the opportunity to bring a further application in due course. In saying that, I do not speculate as to whether leave would or would not be granted - that would depend upon the nature and content of the proceeding at that point in time.

55    Similarly, whilst the primary judge found that the documents filed by Mr Rana failed to articulate claims in a comprehensible manner for the consideration of a grant of leave under s 21 of the Defamation Act, Mr Rana was granted liberty to bring a further application. Again that prospect remains open to him.

56    Taking into account all of those matters, I do not consider that what might be perceived as the dismissal of the application outside of the terms of the orders of 9 September 2021 had the effect of denying Mr Rana procedural fairness. I acknowledge that Mr Rana may have felt frustrated and considered the primary judge's determination pre-emptive. However, I am not persuaded that where Mr Rana had already filed the documents anticipated by the 9 September 2021 orders, where they were clearly read by the primary judge and where the nature of the application directed attention to the quality and content of the application and Claim, that the failure on the part of the primary judge to wait until 21 November 2021 before delivering judgment deprived Mr Rana of the possibility of a successful outcome on his application. I do not consider it realistic to contend that there was any such possibility in this particular case.

57    Even if I am wrong in this regard, and the procedure adopted by the primary judge in delivering the judgment early resulted in a denial of procedural fairness, it does not follow that leave should be granted in relation to the first contention. No substantial injustice would result if leave were refused. The Claim cannot reasonably stand in its current form. It remains open to Mr Rana to revise his claim and seek leave to issue proceedings in a form that might be pursued against the parties. He has not lost this opportunity. Further, Mr Rana has specifically been granted liberty to re-apply with respect to that part of his claim that relates to s 21 of the Defamation Act.

Contention 2

58    This ground relates to the manner in which the primary judge exercised his discretion as to case management. Flexibility, thoughtfulness and a focus upon key problems and issues are the hallmarks of good case management. I am respectfully of the view that the course adopted by the primary judge in proposing draft orders prior to the 3 November 2021 hearing was an example of good case management. The parties who filed interlocutory applications were self-represented, their interlocutory applications and various supporting affidavits had the tendency to accelerate and exacerbate obvious tensions between the parties without achieving any real outcome or progress, and the risks associated with potential publication of material in those affidavits could sensibly be addressed by access and non-publication orders, without the unnecessary allocation of court resources to a contested hearing.

59    Furthermore, such a course sensibly met the objective referred to above of limiting the evidence to what is necessary and relevant; and eliminating or minimising the number of interlocutory hearings.

60    To the extent Mr Rana complains that he had little time to consider the proposed orders, that may be so, but it is not uncommon that parties circulate proposed orders the day before a hearing. And in any event, Mr Rana commented on the proposed orders in his reply email, and participated in the hearing on 3 November 2021 when the purpose and content of the proposed orders were discussed. The transcript of the hearing indicates that his Honour explained to Mr Rana that the orders were proposed as a matter of case management, and as being '…the best way of having this case go forward', noting that '… if you burden proceedings with many complaints, and it's hard to work out what they're about, then that doesn't assist you and it certainly doesn't assist the court or the other parties'.

61    The primary judge's decisions reflected in the orders were entirely discretionary, and Mr Rana has not identified any House v The King (1936) 55 CLR 499 error in it.

62    Mr Rana's complaints under this heading must also be considered having regard to what is said below relating to contention 3 and the Claim, as there is an element of overlap.

Contention 3

63    It is not correct that the primary judge failed to provide reasons for striking out the Claim. His Honour delivered extempore reasons, and once transcribed, a copy was provided to Mr Rana: [26] above.

64    Further, during the course of the hearing, Mr Rana said that it did not make sense to him that the Claim would be struck out because it was argumentative, and then referred to a number of unconnected assertions that objectively would not assist a reader in understanding the nature of his claims, and asserted that the whole of the matter was being dismissed. The primary judge explained to Mr Rana that Mr Rana's submissions about the Claim 'tend to expose the benefits of a concise statement'. His Honour explained that he was not dismissing the matter, but rather proposing a supervised process so that '… things are focussed on what the issues are and it's in your interests, I would suggest, as much as the respondent's interests, for that to happen'. The level of dialogue between the primary judge and Mr Rana reflects that Mr Rana had a fair opportunity to make submissions about the nature and purpose of the orders proposing a concise statement before they were made. Further, it is apparent from the nature of the discussion that the primary judge had regard to the fact Mr Rana was self-represented.

65    The course of striking out the Claim and moving forward, at least initially, by way of a concise statement, conformed with the objective referred to above of considering, where proceedings have progressed by a statement of claim, whether a concise statement may be helpful in understanding the nature of the proceedings, and also the objective of eliminating or minimising the number of interlocutory hearings. As to the latter aspect, I have little doubt that a party would have applied to strike out the Claim, had the Court not determined to do so. A contested hearing would no doubt have followed.

66    It is also important to bear in mind that the primary judge decided to strike out the Claim as matter of case management, and without a determination of the merits of the document. It remains open to Mr Rana to pursue his claims, albeit now with the focus envisaged and facilitated by the concise statement process, a process that is likely to assist him.

67    Further guidance with respect to the issues with the Claim was provided to Mr Rana by the published reasons: [30] above.

68    Again, Mr Rana has not identified any error in the primary judge's exercise of discretion, and I do not consider there is any prospect of such error being found on appeal.

Contention 4

69    As to the proposed ground that is based on the s 21 Defamation Act application, the primary judge had regard to the matters to which Mr Rana refers and whether or not they were relevant. So much is apparent from the published reasons at [20]-[22]. The primary judge was not satisfied that the threshold issue of the circumstances that supported his application for leave had been addressed. Mr Rana has not pointed to any error by the primary judge in identifying that failing in the materials. The primary judge having come to that view, the other matters that Mr Rana raised were not to the point.

70    It remains open to Mr Rana to make a further application, based on proper and probative materials. The primary judge anticipated this by granting liberty to apply.

Conclusion

71    For those reasons I do not consider that the decisions sought to be appealed from are attended by sufficient doubt to warrant them being reconsidered by an appellate court. Nor am I satisfied that substantial injustice would result if leave were refused, supposing the decision to be wrong. Accordingly the application for leave is dismissed.

72    I also take into account that appeal courts should be especially circumspect about interfering with decisions made on matters of practice and procedure: Ridolfi v Rigato Farms Pty Ltd [2000] QCA 292; [2001] 2 Qd R 455 at [23] (de Jersey CJ), [26] (McPherson JA agreeing), [30] (Williams J agreeing); and Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 at [22]. Even if there were some arguable error in his Honour's procedural decisions, the grant of leave to appeal would not in all the circumstances be appropriate.

73    No party has formally sought costs relating to the application for leave to appeal. Dr Duffy had an interest in the proceeding as a party to the case management hearing orders the subject of the application for leave to appeal. Dr Duffy filed submissions and an affidavit, although they have not been determinative of any of the matters in this application for leave. Dr Duffy was also copied into the relevant correspondence relating to the hearing of the application. If any party (apart from Mr Rana) seeks orders as to costs, they should write to my chambers within seven days and I will address any such request as appropriate.

74    Finally, I note that this application was determined on the papers. Mr Rana requested that it be dealt with on the papers. Dr Duffy had indicated she would appear at any hearing, but in the end agreed that the matter could proceed on the papers. In those circumstances, and having regard to the number of written submissions that had been filed and the nature of this application, I considered it appropriate to agree to Mr Rana's request.

Associate:

Dated:    27 July 2022