Rana v Commonwealth of Australia

Applicant's submissions 27 The applicant submitted that he had a disability at the time of his discharge in that he had a reactive depression personality disorder. He submitted that the second respondent had directly discriminated against him on the grounds of that disability in not accepting that the applicant suffered from a psychiatric disorder at the time of discharge that was a disability. 28 The applicant also submitted that even if there was no direct discrimination, he had been indirectly discriminated against because the database had been amended for other soldiers: "in the data base that other soldiers, there were soldiers, who they have been - just because they have been lazy, the army has offered them out of the army on the medical discharge." He further submitted that there was indirect discrimination on the part of the second respondent on the ground that the second respondent introduced "new terms that is not known in law, the terms that [the applicant] could not meet" by stating that the applicant was not disabled at the time of discharge when there was psychiatric evidence showing the contrary. 29 The applicant argued that there had been indirect discrimination because soldiers who were discharged who had been diagnosed with reactive depression "would get all the benefits". He argued that, although he suffered from the same thing, it was determined that he was not entitled to receive anything. He relied on literature annexed to his affidavit of 8 October 2007 which showed that adjustment disorder and reactive depression are the same. The applicant asserted that the second respondent had written that if there was evidence of any adjustment disorder, that the applicant's record would be changed. The applicant contended that it therefore followed that because reactive depression and adjustment disorder are the same, his record should have been changed. The applicant submitted that because the second respondent did not come to the conclusion that they were the same, it was the applicant's "inference that he directly or indirectly discriminated against" him. 30 The applicant also submitted that the decisions complained of were illogical and unreasonable in the circumstances. 31 During argument I put to the applicant that even if the second respondent had made factual errors in arriving at any or even all of the above conclusions, that would not constitute evidence of any discrimination on the grounds of any disability. I further put to the applicant that there was no particular plea contained in the current statement of claim of indirect discrimination. 32 The applicant also submitted that he should be entitled to cross-demand or set off the claim he has in this proceeding against his creditor in the bankruptcy proceeding. 33 The applicant further submitted that his proceeding should not be summarily dismissed as there were "merits in the applicant's causes of actions here below to survive the strike out application by the respondent." Furthermore, the applicant submitted that the respondents had not proven that the applicant's causes of actions were an abuse of process. Instead, the applicant contended that it was in fact the respondents' claims that were vague, oppressive, scandalous and caused embarrassment. 34 In relation to the claim for security for costs, the applicant referred to Rana v Fsaser Hotel Pty Ltd T/A Hyatt Regency Hotel [2007] FMCA 403 where Cameron FM stated that he was very reluctant to order security for costs against a litigant in person. The applicant contended that this Court should also not make such an order on this occasion. The applicant filed further written submissions that addressed this same issue and submitted that the respondents had not shown factors relevant for the Court to exercise its discretion and order security for costs. He contended that the respondents would suffer no hardship if security was not ordered and they sought such an order to "stifle the action" and stated that the respondents falsely considered him a flight risk because he is Asian.

Respondent's submissions 35 The respondents contended that this proceeding should be dismissed on two grounds: a. the proceeding is an abuse of process, as it has been brought for an improper purpose (to offset bankruptcy proceeding) and also because of the applicant's general history of litigation; and b. that the proceeding is vexatious, as this proceeding would have the effect of re-litigating issues already determined against the applicant by the Administrative Appeals Tribunal and the Federal Court on a number of other occasions. 36 It is necessary to understand the respondents' first contention that this proceeding is an abuse of process issue to give a brief history of the bankruptcy proceeding in which the applicant is currently involved. 37 On 15 May 2007 the respondents in this matter caused the applicant to be served with a bankruptcy notice claiming the sum of $7,582.86 which represents the first respondent's party/party costs which the applicant was ordered to pay by Mansfield J on 14 September 2005 in the applicant's failed judicial review proceeding. On 17 May 2007 the applicant swore an affidavit and made an application disputing the amount and sought an order that the respondent be restrained from proceeding until such time as the appeal in that matter was finalised and until the Administrative Appeals Tribunal (AAT) determined whether he was entitled to compensation from the respondent which could then be used to set off the bankruptcy claim. 38 On 10 July 2007 the application to have the bankruptcy notice set aside was dismissed by Registrar Christie (with costs to be taxed or agreed). The applicant sought review of that decision. On 22 April 2008 Simpson FM dismissed that application: Rana v Chief of Army [2008] FMCA 518. Notwithstanding the applicant's application to set aside the bankruptcy notice, the first respondent has filed a creditor's petition which was required to be done within six months from the date of bankruptcy. 39 The respondents acknowledged that although it is only in the clearest of cases that an application for summary dismissal would succeed: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J, in this case, because the applicant's claim failed to disclose a reasonable cause of action, it was appropriate for the Court to exercise its power and dismiss the proceeding. 40 In support of the abuse of process ground, the respondents contended "that in making his application ... the predominant purpose of the [a]pplicant [was] not to prosecute the proceeding to a conclusion, but instead to use it as a means of obtaining an advantage for which it [was] not designed ...": Metall & Rohstoff AG v Donaldson Lufkin [1990] 1 QB 391 at 469. In particular, the respondents submitted that the purpose of the applicant was to delay and/or frustrate the bankruptcy proceedings against the applicant. 41 The respondents submitted that the applicant was seeking to re-litigate issues already decided such that there was a collateral attack on several Full Court decisions. The respondents stated that, in effect, the applicant was seeking to re-agitate issues already the subject of a decision and order of the Full Court. The respondents submitted that there were no facts currently pleaded in the applicant's statement of claim which would support any conclusion that the second respondent actually unlawfully discriminated against the applicant. 42 In relation to the issue of "offset against bankruptcy proceedings", the respondents submitted that there were no "mutual dealings" between the respondents and the applicants for the purpose of s 86 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act): Gye v McIntyre (1991) 171 CLR 609, and that the $2,000,000 claimed in damages by the applicant in this matter is neither a debt presently owed to the applicant by the respondents, nor is it a contingent liability arising out of mutual dealings between them. The respondents also stated that as there is currently no sequestration order made against the applicant, he is not presently a "person who has become a bankrupt" which means s 86 of the Bankruptcy Act cannot operate in relation to him. 43 The respondents argued that the proceeding was vexatious, given the applicant's litigation history in which he has been attempting (unsuccessfully) to establish that, as a result of his service in the Army, he developed a mental disability for which he should be compensated and that this proceeding was yet another attempt by the applicant to re-litigate matters already determined against him on a number of occasions both in this Court and in the AAT. 44 The respondents also contended that as there are no particulars in the application or statement of claim (other than bare allegations) as to how the applicant was discriminated against, that the applicant should be ordered to pay security for costs. They argued that the claim was unmeritorious. The respondents contended that the applicant owns no property and has been unable to pay previous costs orders made against him. 45 The respondents contended that there was no direct or indirect discrimination or victimisation by the second respondent against the applicant and that his claims therefore had no prospects of success. 46 In response to the applicant's submission relying on the decision in Rana v Fsaser Hotel Pty Ltd T/A Hyatt Regency Hotel [2007] FMCA 403, the respondents contended that in that matter the application for security for costs was premised upon the applicant residing outside the jurisdiction which is not the ground relied on on this application. 47 This is not an application under O 11 r 16 of the Rules to strike out a pleading because the pleading has a tendency to cause prejudice, embarrassment or delay of the proceeding, or was otherwise an abuse of the process of the Court. It is an application under O 20 r 5 that the proceeding is frivolous or vexatious or an abuse of the process of the Court. 48 The power of the Court to dismiss a proceeding summarily is conferred by s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). The Court is empowered to give judgment for a respondent to a proceeding if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. In considering whether a party has a reasonable prospect of success, the Court need not be satisfied that the proceeding is hopeless or bound to fail. 49 Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298. So much is supported by the Attorney-General's second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said: The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case. 50 Order 20 rule 5 has to be considered in the light of s 31A. 51 Notwithstanding that the purpose of s 31A was to relax those tests, a Court will still be cautious about finding that an applicant has no reasonable prospect of successfully prosecuting a proceeding. 52 Nevertheless, I am satisfied that the respondents have succeeded in establishing that the applicant has no reasonable prospect of prosecuting this proceeding because the proceeding is an abuse of the Court's processes. 53 The applicant in these proceedings is seeking to have set aside the decisions made by the second respondent for grounds not advanced in the proceeding before Mansfield J and in the Full Court. It is the same decisions as were under attack before Mansfield J and the Full Court. Those decisions were found by the Full Court not to have been actuated by any bad faith on the part of the decision-maker. 54 Whilst the applicant chose not to argue before the Full Court that the particular of bad faith was discrimination on the ground of his mental illness, nevertheless, the primary judge and the Full Court needed to decide whether or not the decision-maker had reached his decision for any reason of bad faith. The finding has been made and must stand. 55 This Court has an implied incidental power to prevent an abuse of its processes. The jurisdiction of a superior court to prevent its processes from an abuse of process was considered by the High Court in Walton v Gardiner (1993) 177 CLR 378. In that case, the High Court was concerned with complaints against three medical practitioners which were laid but not prosecuted in the Medical Tribunal and then re-laid after a Royal Commission had reported adversely on the conduct of the practitioners. On an application to the Court, the Court of Appeal in New South Wales stayed the new complaints on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process. 56 Chief Justice Mason, Deane and Dawson JJ said at 392-393: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. ... Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate a newer case which has already been disposed of by earlier proceedings. (Footnotes omitted.) 57 The respondents contended that this Court should find that this proceeding is an abuse of process. 58 There is no doubt that the issues which are said to arise in this proceeding should have been raised in the proceeding before Mansfield J: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 146 FCR 1. No explanation has been given for the failure to raise these issues in that proceeding. In those circumstances, this proceeding is a manifest abuse. 59 In Rogers v The Queen (1994) 181 CLR 251 at 286, Mason CJ, after remarking that categories of abuse of process remain open, identified three categories within which abuse of process usually falls: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. See also Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256. 60 Moreover, I am satisfied that this proceeding, as the respondents have contended, has been brought for a collateral purpose and thereby an improper purpose: Williams v Spautz (1992) 174 CLR 509. This proceeding has been brought for the purpose of calling into question Mansfield J's decision and that of the Full Court. It has also been brought for the further improper purpose to obtain the interlocutory relief which is sought in the application so as to prevent the first respondent from proceeding with the creditor's petition in the Federal Magistrates Court. Clearly, in this proceeding, this Court could not make an interlocutory order of the kind sought in the application. The Court in which the bankruptcy proceeding has been brought might make such an order but, as the reasons of Simpson FM show, the Federal Magistrates Court has declined to make such an order: Rana v Chief of Army [2008] FMCA 518. 61 In my opinion, therefore, there are two improper purposes identified which underlie the bringing of this proceeding. First, the proceeding seeks to bring into question previous decisions of this Court and, secondly, seeks to obtain an order restraining the first respondent from prosecuting proceedings in another court. 62 This proceeding deals with the ultimate issue which Mansfield J was called to decide upon, namely, the validity of the decisions made by the Australian Army. If the applicant wished to contend that the decisions were arrived at in contravention of the DD Act, in addition to the other grounds which he advanced before Mansfield J, that was the proceeding in which that argument should have been put. 63 It is an abuse of process, in my opinion, to proceed in the way in which the applicant has. It could lead to the very unsatisfactory result that, contrary to the decision of Mansfield J, the decisions would be quashed for reasons not considered by him. That would tend to bring the administration of justice into disrepute: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 and Brock v Minister for Justice and Customs (2007) 243 ALR 315. 64 It was also contended that the proceedings were vexatious. In support of that submission, the respondents referred to a number of proceedings brought by the applicant in this Court, in the Federal Magistrates Court and in the AAT. There is a difference between a vexatious litigant and a vexatious proceeding. This is not an application to have the applicant declared a vexatious litigant. However, the proceeding may be vexatious and may be demonstrated to be so by reference to the fact that the same proceedings have been brought before and failed, or the same proceedings have been brought in other courts and failed. 65 The respondents have demonstrated, again in my opinion, that the subject matter of this proceeding has been previously determined in this Court and in the Federal Magistrates Court and, in those circumstances, the prosecution of this proceeding in this Court is vexatious. 66 I am satisfied that the respondents have made out that the proceeding is vexatious. 67 For all of those reasons, the proceeding must be dismissed. The applicant should pay the respondents' costs, however, I will hear the respondents as to whether they seek costs on other than a party and party basis. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 17 June 2008 Counsel for the Applicant: The Applicant appeared in person

Counsel for the First and Second Respondents: Mr G Camilos

Solicitor for the First and Second Respondents: Australian Government Solicitor