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38 In 1984, Mr Rana applied to the Commissioner for Employees' Compensation for compensation under the now-repealed Compensation (Commonwealth Government Employees) Act 1971 (Cth).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".