Rana v Commonwealth of Australia

REASONS FOR JUDGMENT 1 This is an application by the respondents to dismiss the applicant's proceeding as an abuse of the process of the Court or on the ground that the proceeding is vexatious. In the alternative, the respondents seek an order that the applicant provide security for costs in the sum of $20,000 and, in the event of default, the proceeding be dismissed. 2 The proceeding was commenced by application on 11 July 2007 accompanied by a Form 167, as required by O 81 r 5 of the Federal Court Rules 1979 (Cth) (the Rules), which provided no other information other than in the application. The application is said to be brought under ss 5, 6, 15, 29 and 42 of the Disability Discrimination Act 1992 (Cth) (DD Act), s 13 of the Racial Discrimination Act 1975 (Cth) (RD Act), the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) and the tort of negligence. The applicant expressly abandoned the ground under the RD Act at the hearing before me. 3 The applicant seeks interlocutory relief in the proceeding which is important for the purpose of disposing of this application. The interlocutory relief sought is: 1. Injunction against bankruptcy proceedings against the applicant. 2. Adjustment of this matter as an offset against bankruptcy proceedings by the respondents. 4 The application was also accompanied by a statement of claim to which is attached a number of documents. In that statement of claim the applicant asserts that the second respondent breached the terms of the RD Act and the DD Act, and thereby the first respondent has vicariously breached those Acts. 5 It is pleaded: 2. About September 2003 the applicant sought with the 1st respondent to change his army record under the old Australian Military Regulation from being "retention of this soldier not in the interest of Australia or the Army" to that of being discharged in "medical or psychiatric incapacity". Further, the applicant also sought under DFRDBA Act 1973 with the 1st respondent a pension on the ground of physical or mental incapacity. 3. The 2nd respondent made decisions on both matters as a delegate of the Chief of Army on 5/4/2005 denying the benefits sought by the applicant. Most of the inferences by HREOC are erroneous of facts and chronology in all of its analysis. 6 The applicant claims that the respondents discriminated against the applicant in making the decisions complained of. It is pleaded: 12. The applicant is seeking relief from this court that the respondents discriminated against him in Commonwealth laws (to change his army record) and programs (to get pension from DFRDB Authority) because he suffers from psychiatric condition and he is Asian. The applicant's friends who are white have got pension and change of army record even after going awol and will be shown at trial. 7 In the alternative, the applicant claims that the respondents owed him a duty of care in respect of the two applications made by the applicant and that they breached those duties of care. The particular duty of care and the circumstances which are said to give rise to its operation are not pleaded. The breach is not identified. 8 The respondents have not filed a defence but have brought the application to which I have referred. The application was supported by an affidavit of Gregory Camilos sworn on 28 September 2007. 9 In response to the application the applicant filed a document entitled "Submission to Dismissal Application" and an affidavit. Approximately a week later, the applicant filed a further affidavit in opposition to the application. The respondents filed two further affidavits sworn by Mr Camilos. 10 On 15 October 2007 the matter came on before Mansfield J who ordered that the parties file any affidavit evidence in support of and in opposition to the notice of motion. The parties have complied with that order. Justice Mansfield ordered that the motion be heard and determined on the papers. 11 On the next day the applicant filed yet another affidavit in which he deposed that Mansfield J "did not give me opportunity for an oral hearing. I need oral hearing to persuade the motion judge otherwise my chance to persuade him/her is forever gone." 12 On 25 January 2008 the applicant filed yet another affidavit, this time exhibiting a medical report of Professor Goldney. On 31 January 2008 the applicant filed yet a further affidavit in which he took issue with the report of Professor Goldney which he had exhibited to his previous affidavit. 13 On 15 February 2008 the respondents filed a further affidavit sworn by Mr Camilos. The matter came on for hearing before me on 19 February 2008. The applicant said that, notwithstanding Mansfield J's order, he wished to be heard orally in opposition to the respondents' notice of motion. I acceded to the applicant's request. The applicant had already filed written submissions. 14 On 21 February 2008 the respondent filed a further affidavit sworn by Mr Camilos. The applicant filed another affidavit on 25 February 2008 which prompted yet a further affidavit of Mr Camilos sworn on 26 February 2008. I have not had regard to the affidavits filed subsequent to the hearing. 15 Notwithstanding the plethora of affidavits, the point is a short one. 16 For the reasons which follow, there will be an order dismissing the application as an abuse of the process of the Court. 17 The applicant was a member of the Australian Army between 14 October 1980 and 13 July 1982. He was discharged from the Army on that day on the stated ground of his "retention not being in the interests of Australia or the Army". 18 He claims that at the time he was discharged he suffered from a psychiatric condition and an ongoing mental incapacity such that he was unable to perform his duties as a soldier. 19 On 14 September 2003 the applicant wrote to the Defence Retirement and Death Benefits Authority (the Authority) seeking an order that pursuant to s 37 of the Defence Force Retirement and Death Benefits Authority Act 1973 (Cth) (DFRDBA Act), the Chief of Army inform the Authority that at the time he was retired from the Army, grounds existed to state he could have been retired on the grounds of physical or mental incapacity to perform his duties. If the Authority had acceded to the applicant's request, the applicant may have been treated as being eligible for a pension from the first respondent on the ground of physical or mental incapacity. 20 On 29 September 2003 the applicant also requested that the first respondent change his Army record pursuant to s 44(2) of the Defence Act 1903 (Cth) (this section has since been repealed) from stating "retention of this soldier not in the interest of Australia or the Army" so that he was discharged on the grounds of "medical or psychiatric capacity". 21 On 5 April 2005 the applicant was advised by a delegate of the first respondent, the Director of Personnel of the Army, Brigadier Orme (the second respondent) that both of these requests had not been granted. Brigadier Orme made a decision that, at the time of the applicant's discharge, grounds did not exist whereby the applicant could have been discharged because of physical or mental incapacity to perform his duties. 22 On 28 April 2005 the same delegate, the second respondent, made a further decision not to amend the Army records showing the reason for the applicant's discharge. 23 The applicant sought judicial review of the two decisions made by the second respondent on 5 April and 28 April 2005 which came before Mansfield J. The grounds of the application were referred to in Mansfield J's reasons as being a breach of natural justice due to the non-provision of reports; an improper exercise of power for having taken into account irrelevant considerations; a failure to account for relevant considerations; unreasonableness and that the decision was made in bad faith; that the decision involved an error of law; and, finally, that there was no evidence to justify the decision. The applicant did not raise discrimination as a ground of review. On 14 September 2005 the applicant's application was dismissed by Mansfield J in Rana v Chief of Army [2005] FCA 1283. Mansfield J referred to the claim that the decision was unreasonable and said that there was no material to support the contention that the decision was made in bad faith. 24 On 12 May 2006 an appeal to the Full Federal Court was also dismissed: Rana v Chief of Army Staff (2006) 90 ALD 474. 25 On 30 September 2006 the applicant complained to the Human Rights and Equal Opportunity Commission (HREOC) alleging discrimination on grounds of both race and disability and victimisation. 26 On 5 July 2007 the applicant's complaint was terminated by HREOC pursuant to s 46PH(1)(c) of the HREOC Act on the ground that there was "no, or no sufficient, evidence that the A[ustralian] D[efence] F[orce] or Brigadier Orme discriminated against [the applicant] on the ground of disability or race or victimised [the applicant] ...".