Rana v Google Inc

1. The matter be referred to the National Operations Registrar for allocation to a judge other than Charlesworth J.
2. The matter be set down for a further case management conference at a date to be fixed by the National Operations Registrar. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 For the reasons that follow, I consider it necessary and appropriate to disqualify myself from further presiding in this proceeding. 2 In this action Mr Rana originally named two respondents, the Commonwealth of Australia and Google Inc. Google is a foreign corporation having its place of incorporation in the United States of America. It is the only remaining respondent. Mr Rana requires the leave of the Court to serve his initiating documents in the proceeding on Google outside of Australia: r 10.43(1) of the Federal Court Rules 2011 (Cth). Mr Rana sought leave by an interlocutory application dated 3 November 2014 (the 2014 application) and has since filed further applications for the same relief. 3 In 2014, these proceedings were before Mansfield J. By orders made on 6 May 2016, his Honour stood the 2014 application over to a date to be fixed: Rana v Google Inc [2016] FCA 461 at [45]. The matter was then allocated to me with the 2014 application yet to be determined. 4 Mansfield J determined (at [40]) that the initiating documents Mr Rana sought to serve upon Google were not sufficiently clear and precise as to fairly require Google to plead to them. His Honour afforded Mr Rana the opportunity to file amended initiating documents. On 14 June 2016, Mr Rana filed documents titled "Amended Statement of Claim" and "Amended Originating Application". 5 The 2014 application was determined by me by reference to the proposed amended documents. I concluded that although the proposed amended documents were deficient in certain respects, it was possible that Mr Rana may, if given the opportunity, be able to adequately remedy the defects identified by the Court: Rana v Google Inc (No 2) [2017] FCA 17; (2017) 347 ALR 663. I nonetheless determined that the proceedings were incompetent and on 25 January 2017 I made an order dismissing the originating application for that reason. The conclusion that proceedings were incompetent was erroneous. On 28 September 2017, the Full Court set aside the order of 25 January 2017 and remitted the matter to me for further case management: Rana v Google Inc (2017) 254 FCR 1. 6 Shortly following the remittal, I provided Mr Rana with another opportunity to propose a statement of claim and originating application that would comply with the Rules of the Court. Newly proposed documents were filed. I heard Mr Rana's submissions in relation to the sufficiency of the proposed amended initiating documents and reserved judgment on the 2014 application on 9 February 2018. Argument on the application was reopened in the circumstances explained below. 7 The proposed statement of claim contains additional substantive allegations that were not included in previous iterations of the plea. It is those new allegations that prompted the Court's consideration of the principles of apprehended bias. 8 The test for apprehended bias is sometimes referred to as the "double might test". It is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council (2015) 255 CLR 135 at [12] (Kiefel, Bell, Keane and Nettle JJ). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] - [36] (Allsop CJ, Kenny and Griffiths JJ). The test is an objective one. 9 By interlocutory application made on 5 March 2018, Mr Rana sought an urgent order to the effect that I disqualify myself from determining the 2014 application and further presiding in this action. 10 On the same day, Mr Rana made an application in a separate proceeding then pending before me, SAD 231 of 2017 (the Defence proceeding) in which the Commonwealth of Australia (as respondent) had sought (among other things) a vexatious proceedings order against Mr Rana. Mr Rana applied for an order that I disqualify myself in the Defence proceeding on the alternate grounds of apprehended or actual bias. I refused to disqualify myself and proceeded to make an order against Mr Rana pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Rana v Department for Defence [2018] FCA 1642. I otherwise dismissed the Defence proceeding as an abuse of process. 11 In response to the disqualification application filed in this proceeding, the Court set the matter down for a further case management hearing on 20 March 2018. At that hearing, Mr Rana expressed concerns about the Court proceeding to judgment in the Defence proceeding. He submitted that the two proceedings bore upon each other insofar as an apprehension of bias was alleged. Having regard to that submission, the Court proposed that it not proceed to judgment on any applications in this proceeding until after delivery of judgment in the Defence proceeding, so that Mr Rana might have an opportunity to consider the Court's reasons in the Defence proceeding and to supplement his submissions in this action if he wished to do so. Mr Rana confirmed that he wanted the progress of this matter to be deferred. I made orders to the effect that argument on the 2014 application be reopened, and that further consideration of that application and the interlocutory application of 5 March 2018 be deferred pending judgment in the Defence proceeding. That explains the delay in the progression of this matter since the delivery of judgment in Google Inc. 12 This matter was again listed for a case management hearing shortly after the delivery of judgment in the Defence proceeding. At that case management hearing, Mr Rana indicated that he did not persist with his application that I disqualify myself. I will proceed on the basis that the interlocutory application of 5 March 2018 is withdrawn. 13 Notwithstanding the withdrawal of the application, there is an accumulation of circumstances that make it appropriate for the Court to consider, of its own initiative, whether it would be appropriate to continue to preside. I can have no confidence that Mr Rana will not renew his disqualification application at a later time. He is a self-represented litigant and I have some doubt as to whether he is capable in law of "waiving" any right to object to a presiding judge on the ground of apprehended bias in any event. 14 Mr Rana's most recent proposed statement of claim contains allegations concerning a person I will refer to as D. At a case management hearing, I informed Mr Rana that prior to my appointment as a Justice of this Court I was an advocate for D in my capacity as a member of the independent bar. More particularly, I acted for D at an interlocutory stage in defamation proceedings she had commenced against Google. I had communications with D and her solicitor in that capacity. At the same hearing, I identified that an issue may arise in the proceedings as to whether Mr Rana was himself the author of publications that are highly defamatory of him, including publications he pleads were authored by D and made available to the public via Google's search engine. Mr Rana frankly acknowledged that it may be alleged by D that the defamatory publications were in fact authored by Mr Rana himself, that they are a manifestation of his psychotic illness and the continuation of a campaign of harassment. 15 Also before the Court is Mr Rana's interlocutory application dated 11 June 2016. By that application, Mr Rana seeks (among other things) leave to join three further respondents to this proceeding, namely the Commonwealth of Australia and two persons who will be referred to for present purposes as NG and DG. The joinder of those persons would necessitate further revision of the originating application and statement of claim which (properly at present) name Google as the sole respondent. 16 In his written submissions in support of his interlocutory applications, Mr Rana has referred this Court to affidavits sworn by NG and DG in other defamation proceedings he commenced against them in 2012 and subsequently discontinued. Mr Rana has annexed those affidavits to an affidavit sworn by him in this proceeding: affidavit of Rana sworn on 30 November 2017, exhibits RAN03 and RAN04. I have read them. By reference to that material, I infer that NG and DG would, if heard on the question, contend that this very proceeding forms a part of an ongoing campaign of serious harassment by Mr Rana, and that the proceeding is a vexatious proceeding. The affidavit of NG contains allegations that Mr Rana has threatened to seriously harm her, resulting in an apprehended violence order being made against him in the Adelaide Magistrate's Court in NG's favour, with the assistance and support of the South Australia Police. Notably, NG's affidavit alleges that Mr Rana has hacked or otherwise misused email accounts so as to distribute defamatory and falsified communications in the names of other persons that are defamatory of her. Specific examples of that conduct are alleged. NG further alleges that Mr Rana regularly falsifies evidence in affidavits. 17 The allegations sought to be introduced in the newly proposed pleading also raise an issue as to whether the publications alleged to have been authored by D (and said to be actionable against Google) form part of the alleged same pattern of abusive and threatening conduct on Mr Rana's part involving the fraudulent misuse of the internet and email accounts for the purposes of harassment. These issues would fall to be determined at trial, if the matter were to proceed. Issues of credibility would clearly arise, including whether Mr Rana, as asserted by NG, has a propensity to depose to facts in affidavits he knows to be untrue. 18 Mr Rana filed an affidavit in this proceeding (and in the Defence proceeding) in which he deposed to having seen me, together with D, on a public bus. In the course of oral submissions in the Defence proceeding, however, Mr Rana stated that he had not seen D on the bus at all, only that he had seen me. To date, Mr Rana has not been asked to explain his conduct in deposing to an event in an affidavit which he then acknowledged did not occur. The factual content of the allegation may not be significant, however, I anticipate that evidence of the kind to which I have referred may be used by a respondent in this proceeding as a basis for undermining Mr Rana's veracity more generally. In my view, the appearance of the independence of the Court, as presently constituted, would be compromised in that event: the factual subject matter of the discrepancy relates to the presiding judge. 19 Of course, the question of whether Mr Rana's proposed initiating documents in the proceeding against Google are adequately drawn does not require the resolution of any issue of credit. It is open to the Court to decide the 2014 application by assessing the sufficiency of the documents against the Rules as to pleading. However, that is not the only application before the Court. As I have said, Mr Rana has also applied for leave to join NG and DG as respondents. He seeks to have that application determined together with the 2014 application. The question of which application should be determined first is a matter for the Court's discretion. 20 In the ordinary course, and in the circumstances I have now described, I would not decide the 2014 application without first determining the application to join NG and DG as respondents. Furthermore, in light of the content of the affidavit of NG in particular, I would not proceed to hear and determine the joinder application without first directing the Registrar to notify NG and DG of the existence of the application. I would provide NG and DG with an opportunity to be heard in respect of it. I would also give consideration as to whether D should be afforded an opportunity to be heard on the 2014 application, given the likelihood that she would be drawn into the proceeding as a respondent by Google, should Mr Rana be granted leave to serve Google outside of the jurisdiction. 21 Mr Rana has acknowledged that D may, at the very least, be called as a witness and that she would be "hostile" to him. He has made a submission to the effect that D is a "dangerous person" because she has notified the police, presumably about his conduct. The circumstances are complex and unusual. They give rise to an issue as to whether Mr Rana's true motivation for commencing and pursuing this action is to persist in a campaign of harassment and annoyance against NG, DG and, more recently, D. The question of whether this proceeding constitutes an abuse of process or is otherwise a vexatious proceeding is a question the Court may determine of its own initiative, provided that procedural fairness is afforded to Mr Rana in respect of it: Rules, r 1.40 and r 26.01; FCA Act s 37AO(3) and (4). 22 In the Defence proceeding, I have already determined that Mr Rana has frequently instituted vexatious proceedings in Australian Courts and Tribunals within the meaning of s 37AO(1)(a) of the FCA Act. Mr Rana has sought leave to appeal from that judgment and it may be some time before his application is determined. 23 I fairly anticipate that, if given the opportunity, D would give evidence to the effect that Mr Rana is the author of the very communications on which he sues. By reason of my prior acquaintance with D, and having regard to the nature of Mr Rana's allegations, I hold the preliminary view that D is unlikely to have been the author of the words attributed to her by Mr Rana. I emphasise that is only a preliminary view. A preliminary view as to the merits of an issue does not, without more, give rise to an apprehension of bias. 24 The question is whether a fair-minded lay observer might reasonably apprehend that, in light of all of the circumstances I have described, I might not bring an impartial mind to the resolution of a number of interrelated issues presently arising for determination at the interlocutory stage, as well as substantive issues that would arise for determination at trial. I consider the test to be satisfied. In my view, a fair-minded lay observer might reasonably apprehend that I might not be open to persuasion by Mr Rana, including on the question of whether this Court should, of its own initiative, or on the anticipated application of NG, DG or D, dismiss this proceeding as a vexatious proceeding. 25 To be clear, I would reject any submission advanced by Mr Rana to the effect that there exists actual bias. Any prior submission to that effect appears to have been properly withdrawn by Mr Rana in any event. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth j.