Rana v Goldney

THE BACKGROUND TO THE APPLICATION 2 The reasons for judgment record that the subject proceeding was brought by the applicant arising out of a medical examination arranged by the Australian Government Solicitor in respect of review proceedings which the applicant had brought in the Administrative Appeals Tribunal (the AAT) to review a decision of the Military Rehabilitation and Compensation Commission (MRCC) relating to his claim for compensation arising out of a period of military service, which was brought to an end in 1982. Recently the AAT has declined to summarily dismiss that application under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth): see Rana v Military Rehabilitation and Compensation Commission [2008] AATA 558. 3 The judge had previously on 17 March 2008 summarily dismissed a separate proceeding in matter SAD.12 of 2008 which had been brought against the University of Adelaide, the Repatriation Commission, the Australian Government Solicitor and the Chief of Army arising out of much the same complaint: Rana v University of Adelaide [2008] FCA 365. His Honour said that the subject proceeding was no different from that which had been dismissed summarily on 17 March 2008. The apparent principal differences between that former proceeding were the addition of Professor Goldney as a respondent (and officers of the Australian Government Solicitor) and the extension of the causes of action said to arise from the impugned conduct. 4 The transcript records that, on 3 April 2008, the primary judge asked the applicant on a number of occasions how the current application was different from the application which had been dismissed on 17 March 2008. Apart from identifying that the first respondent (who has not yet apparently been served with the proceeding) was a new respondent to the proceeding, the applicant had been unable to identify any difference of substance in the nature of the causes of action relied upon. He did refer to some additional evidentiary material concerning the alleged claim that Professor Goldney was operating from premises called the Adelaide Clinic, financed by Ramsay Health Care Australia (Ramsay Health), which was also a financial supporter of the Chair of Psychiatry at the University of Adelaide. As the primary judge remarked in the course of the hearing, it was hard to see what that had to do with whether Professor Goldney had examined the applicant in accordance with a request made by the Australian Government Solicitor. In response to that, the applicant referred to a Deed of Settlement with the University of Adelaide and others and asserted that the Deed had been breached by Professor Goldney being asked to and being prepared to examine him in the circumstances. He also asserted contravention by Professor Goldney of s 52 of the Trade Practices Act 1974 (Cth) (the TP Act), aided and abetted by the other respondents, by agreeing to conduct and by conducting the examination. He also asserted in the course of the hearing that material provided to Professor Goldney by the Australian Government Solicitor prior to, and as information relevant to, the proposed examination included material in "footnotes 54-56" which should not have been included. The primary judge remarked, as to that, that the issue was whether the case as pleaded was different from the case which had been dismissed on 17 March 2008. 5 In fact, as the primary judge correctly remarked, the so called fresh evidence was a letter from Ramsay Health of 19 March 2008 that Professor Goldney, who had examined the applicant at the behest of the Australian Government Solicitor, had permission to use the Adelaide Clinic's consulting suites for his private patients. Those matters, as his Honour said, do not support any claim by Mr Rana that the University of Adelaide was in breach of a Deed of Agreement referred to in the earlier reasons of 17 March 2008 or of a breach of s 52 of the TP Act by the University of Adelaide. They simply provide information as to Professor Goldney's relationship with the Adelaide Clinic. 6 His Honour dismissed the proceeding because it was no different in substance to that which had been dismissed summarily on 17 March 2008. 7 The applicant did not appeal from that decision within the time permitted by O 52 r 15 of the Federal Court Rules. He was a few days late. Hence, the present application.

CONSIDERATION 8 The parties were agreed that the appropriate considerations in whether to grant an extension of time to the applicant relevantly were the period of delay and the explanation for it, and secondly whether the applicant would have some prospect of succeeding on the proposed appeal, and if his actions were to remain on foot, some prospect of succeeding in the action. 9 The time delay was very short. The respondents (other than the first respondent who has not apparently been served and has not appeared in the proceedings to date) - I shall use the general term "the respondents" hereafter - acknowledged that, if there were any arguable prospect of success on the proposed appeal, an extension of time within which to appeal should be granted. 10 On the application for an extension of time, the applicant sought to adduce two affidavits of his own sworn on 4 and 10 September 2008 to which he annexed medical reports of Dr Bal Jha of 8 September 2008 and Dr David Miller of 10 and 8 July 2008, indicating his general medical condition. Those medical reports confirm that he has significant ongoing medical conditions, although they do not directly relate to the period of time specifically when an appeal from the judgment of 3 April 2008 ought to have been instituted. However, I am prepared to proceed on the basis that an extension of time to appeal should be granted if there is any arguable prospect of success on the appeal which is proposed: see e.g. Eatts v Dawson (1990) 21 FCR 166; Gallo v Dawson (1999) 64 ALJR 458; Deighton v Telstra Corporation Limited [1997] FCA 1568. So there is no need to admit that fresh evidence. It cannot inform whether the action itself was an abuse of the process of the Court. 11 To determine whether there is any arguable prospect of the applicant succeeding on his proposed appeal, it is appropriate to consider the reasons for decision of the primary judge to which I have referred, and his proposed notice of appeal. 12 The grounds of appeal in the draft notice of appeal are uninformative. They are expressed in the following terms: 1. His Honour Lander J applied an incorrect principle of law by being an advocate of the respondents and without theirs' presence. At [1]-[5] of his reasons, His Honour failed to identify the source of his power. Chair of Psychiatry issue in terms of the agreement that the appellant had with the 2nd respondent was important matter per breach of s.52 of the Trade Practices Act. Further, there was the issue of the 2nd respondent providing information of SAD 67 of 2004, which was subject of deed of settlement to the 8th respondent without this appellant's permission. The appellant had relied on accrued and associate jurisdiction of the court in causes of actions to tie other respondents. 2. His Honour Lander J made a finding of fact or facts on an important issue, which could not be supported by the evidence as being baseless and/or he had no jurisdiction, was an abuse of process, and the most important point was that he dismissed the matter in implied terms under s.31A of the Federal Court of Australia Act 1976 (Cth). 3. His Honour caught the appellant by surprise in the first direction hearing as he was not notified that the matter was for summary dismissal and/or summary judgment. The appellant was seeking to amend the statement of claim and was not given any opportunity. Thus, His Honour applied an incorrect principle of law by denying him procedural fairness. 13 The applicant also filed two written submissions in support of his application as well as making oral submissions on the hearing of the application. I do not think the written submissions assist in identifying the matters which he wishes to raise. The written submission of 14 July 2008 starts by referring to his medical condition and to decisions in which that is discussed. It then asserts that he was taken by surprise, in the absence of the respondents having been served and having appeared, in being confronted with the risk of his proceeding being dismissed, and that its dismissal affected his capacity to appeal within time. As the time issue will not work against this application, that does not matter. That submission also refers to the question of whether the dismissal order was a final order or an interlocutory order under s 31A of the Federal Court of Australia Act 1975 (Cth). That also is not an issue on this proceeding, as it is accepted by the respondents that it is a final decision. 14 Then as that submission refers to the possible availability of "relevant evidence" likely to produce the opposite result, namely that there were genuine issues of fact and law to be determined. That is not to the point. His Honour made it plain that he was concerned about the nature of the claims, and not whether they could be proved. Evidence which may have gone to proving the facts asserted would not establish that the making of the claims, if they were in substance the same as those the subject of the proceeding dismissed on 17 March 2008, was not an abuse of process. 15 The remaining paragraph of that written submission asserts that the primary judge did not properly consider his statement of claim which invoked the jurisdiction of the Federal Court (the claim was not dismissed for want of jurisdiction) or the availability of evidence as to the relationship between Professor Goldney, the University of Adelaide and the Ramsay Health Group (a matter of fact which, as the reasons for judgment indicate, was assumed in favour of the applicant but was not pertinent to whether the claims as made were an abuse of the process of the Court). Finally, it asserts "significant errors of law or mistake" by the primary judge without identifying any. That submission does not provide any basis for determining that the primary judge's assessment of the nature of the case was incorrect. 16 The second submission of 4 September 2008 is also largely misconceived. It comprises 13 paragraphs, but they deal (so far as I can determine) with five issues. 17 The first is that the respondents' submission that the application for an extension of time was itself an abuse of process. That misunderstands the respondents' submission. It was to support the primary judge's ruling that the proceeding itself was an abuse of process. 18 In the course of that contention, the applicant complains of "hearsay evidence" admitted and relied upon by the primary judge. There was none. For the purposes of this application, the respondents prepared an application book containing copies of the pleadings in both actions, that is the one the subject of the decision on 17 March 2008 and of the current action including the application and the statement of claim, the transcript of the hearing before Justice Lander on 3 April 2008, and the documents filed by the applicant. There was no hearsay material. It was a useful resource of material to which the primary judge correctly was entitled to refer. Indeed, the applicant during the course of his oral submissions made use of it. 19 Thirdly, the applicant refers to the fresh evidence which he sought leave to rely upon to demonstrate his medical condition, and to explain why the appeal was not instituted within time. I have assumed in his favour a satisfactory explanation for that failure, and that bearing in mind the brevity of the delay, the delay will work against a grant of an extension of time. Then, the applicant refers to the decision of Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 396 dealing with circumstances in which leave to appeal from an interlocutory decision should be made, and which the applicant perhaps not inappropriately considers may apply by analogy in respect of the current application. Hence, he poses the questions whether the decision appealed from is attended by sufficient doubt to warrant it being reconsidered by the appellate court, and whether substantial injustice would result if leave to appeal were refused supposing the decision to be wrong: see Décor at 433. 20 Fourthly, the applicant then refers to the Limitation of Actions Act 1936 (SA) in particular s 48 and s 45. They do not apply. They may have applied had his initial proceeding been said to be out of time and had he been seeking an extension of time within which to bring it, but no such issue arose. Those provisions do not apply when the Court is considering whether to extend time within which to appeal from a decision already given. 21 Finally, the applicant asserts that he has identified error on the part of the primary judge, as the matter is "arguable based on fact and law". Unfortunately, he has identified no error. He seeks to distinguish the applicability of Walton v Gardiner (1993) 177 CLR 378 at 393 describing what may constitute an abuse of process, and refers extensively to cases discussing that topic. None of that discussion demonstrates an arguable error, even a remotely arguable error, on the part of the primary judge. 22 When asked in the course of his oral submissions to identify the asserted arguable error or arguable ground of appeal, he referred to two annexures to his affidavit of 18 February 2008 sworn in the earlier proceeding, in which he sought to rely upon to demonstrate error. The first is a Deed of Settlement between himself, the University of Adelaide and certain of its officers, regarding a complaint which he had made and other matters concerning his relationship between himself and the University. Relevantly, that deed provides: 10.1 Except as required by law in the event of any request for references or other information on Mr Rana made by other universities or institutions, the University shall limit its responses to the provision of academic transcript and information and shall not disparage or otherwise adversely comment on Mr Rana. In conjunction with that, he referred to a letter of 24 December 2007 from the Australian Government Solicitor to Professor Goldney providing background to assist him in preparing the medical report which Professor Goldney provided. In particular, he referred to certain material identified by footnotes at p 11 of that report (the footnoted material being pp 1, 171 and 194 of transcript of 1 December 2004 in earlier proceedings between himself and the University, and later he also referred to a document described on the same page by footnote as emails from "Romei Subramanium" dated 18 December 2001 and 10 January 2002 at certain pages of an enclosed folder of materials. He sought to complain of the Australian Government Solicitor having access to that material, and by inference to say that the University of Adelaide had breached the Deed by making it available to him. 23 How those matters relate to any alleged breach of the Deed was not explained. Nor is there any basis to suggest that the information incorporated into the letter to Professor Goldney by the Australian Government Solicitor was improperly acquired, even if it was acquired from the University of Adelaide. The second respondent, against whom such material was solely directed, was prepared to assume for the sake of argument that that material had been sent by the University of Adelaide to the Australian Government Solicitor. On that basis, nevertheless, counsel for the second respondent pointed out that the applicant himself, prior to the Deed of Settlement, had provided pp 169-193 of that transcript both to the AAT and to the Australian Government Solicitor. He so deposed in an affidavit of 28 February 2008 in the proceeding 12 of 2008 (in which judgment was given on 17 March 2008). But it is not a breach of the Deed in any sense for the University of Adelaide to have done so. Nor was any breach of the Deed pleaded in those terms. If it were it would be demonstrably wrong. 24 The comparison of the applications in the two proceedings is telling. 25 As noted above, proceeding SAD.12 of 2008 is different from proceeding SAD.34 of 2008 in that Professor Goldney was added as a first respondent and officers of the Australian Government Solicitor were added as respondents. In fact, one of those officers was not a party at the time although he has been "added" on the hearing of the application for the extension of time to appeal without any leave to do so. In any event, the later proceeding, apart from invoking the Fair Trading Act 1985 (SA) as well as the TP Act, in effect alleges the same primary causes of action: breach of s 52 of the TP Act, and breaches of "contract of deeds" and of negligence and of defamation. The later proceeding is a little more sophisticated, because it also alleges breaches of confidentiality. It also involves additional statutory provisions : the Frustrated Contracts Act 1988 (SA), the Misrepresentation Act 1972 (SA) and "any such reformed South Australian contributory negligence legislation", and the Limitation of Actions Act 1936 (SA), but without apparently identifying their significance. The section headed "Details of the Claim" is identical in each application. Apart from proceeding SAD.12 of 2008 referring to the second respondent permitting Professor Goldney to use the University of Adelaide logo and employment title, and reference to the Fair Trading Act, the substantive allegations are again very similar. Paragraphs 4 and 5 are identical. The allegations of misleading or deceptive conduct are substantially the same. In the statement of claim in the later proceeding, there is then reference to the earlier proceeding in SAD.12 of 2008 which the primary judge dismissed and then there are the allegations of loss and damage, which again are substantially the same as is the relief claimed in the earlier action. The statement of claim in the later action does have additional allegations of negligence, and for damages for breach of confidence and breach of contract, but variously it is based upon the same conduct including additional allegations of misrepresentations and breach of the settlement deed and misleading or deceptive conduct. Although it is a more extensive document, it is built upon the same fundamental complaint. In his written and oral submissions, the applicant made no point of any differences arising from the more extensive factual allegations in the statement of claim in the later proceeding. 26 In my judgment the decision of the primary judge was clearly correct. The applicant, having had his claims dismissed on 17 March 2008, simply went out and a few days later commenced a similar claim with additional respondents but based upon the same conduct. The conduct complained of, giving rise to the alleged causes of action, is the circumstances in which Dr Goldney came to write a medical report under the letterhead of Professor of Psychiatry, University of Adelaide, when it was desirable that he should not have done so, and was given information which was made available to him by the Australian Government Solicitor. It was clearly an abuse of process for the applicant to have brought the second proceeding SAD.34 of 2008. The applicant has simply sought to litigate again, in this case in the same Court, claims which he has already made and had dismissed in this Court. See eg McHenry v Lewis (1882) 22 ChD 397; Schumack v Commissioner, Australian Federal Police [2005] FCA 1476. And the general discussion in Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 especially at 290. There is no potential merit in any of the proposed grounds of appeal. There is no prospect of the proceeding at first instance succeeding if it were to be reinstated.

27 For those reasons, in my view, the application should be refused. There is no foundation upon which an extension of time within which to appeal from the decision of the primary judge should be granted. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 20 October 2008 Counsel for the Applicant: The applicant appeared in person

Counsel for the First Respondent: The first respondent did not appear

Counsel for the Second Respondent: Mr M Roder

Solicitor for the Second Respondent: Finlaysons

Counsel for the Third to Eighth Respondents: Mr R Prince

Solicitor for the Third to Eighth Respondents: Australian Government Solicitor