Orders and reasons - Dr Duffy's application and Mr Rana's second interlocutory application
25 Both Mr Rana and Dr Duffy provided responses by email to the proposed orders. Dr Duffy had no issue with the proposed orders, save for a comment with respect to costs. Mr Rana's response (by a number of emails) is difficult to follow and contains extraneous material, but in essence he indicated that he did not agree with the proposed orders, and he considered it unfair that the applications would be dismissed apparently without reasons.
26 On 3 November 2021 the primary judge conducted the case management hearing and mention as anticipated, and made orders in that regard. His Honour delivered extempore reasons, which I include (as subsequently edited from the transcript by the primary judge):
[1] The parties have raised various complaints about affidavits and the nature of their communications with each other concerning these proceedings. They have also raised issues about the way these proceedings should continue and have sought by competing interlocutory applications various orders as to the way in which the proceedings should be conducted. They have also raised various matters informally with the court in addition to commencing those two interlocutory applications. Aspects of the interlocutory applications seek orders of the kind that could not be made by this Court, and what I have to consider today is the best approach as to how to case manage the proceedings.
[2] This hearing today is a case management hearing, and I confine my consideration to matters that are relevant to the efficient and timely and fair conduct of the proceedings that Mr Rana seeks to bring. At present it is only Dr Duffy, the third respondent, who has been served and has given notice of intention to appear and is before the Court. The position in relation to the other respondents is that Mr Rana has sought leave to serve the proceedings on the first, second and sixth respondents out of the jurisdiction, and he has also sought permission under s 21 of the Defamation Act 2005 (SA) to allow him to bring certain aspects of his claims. Those matters have, pursuant to previous directions made by the Court, been directed to be dealt with on the papers, I will publish later today dealing with those applications (since published as Rana v Google Inc [2021 FCA 1360).
[3] In the course of those reasons, I will express certain concerns that I have in relation to the current form of the statement of claim. It is because of those concerns and the nature of the matters that have been raised in the affidavits and communications with the Court that I have formed the view that it is appropriate for the commencing form of the application to be one which is supervised by the Court. The reason I have formed that view is that in my view and as will be further expressed in the reasons that I will publish later today, the content of the documents that have been filed, particularly the statement of claim, does not expose with clarity and in a way that is fair to the respondents the basis for the claim and particularly how it is focused on more recent events. I have formed the view that it is appropriate for the commencement of these proceedings to be supervised in a manner which enables the Court to consider whether leave should be given to file a concise statement, having regard to the concerns that will be expressed in the reasons to be published later today.
[4] In addition, in view of the nature of the communications with the Court and the form and contents of affidavits that have been filed by Mr Rana, it seems to me that it is appropriate for there to be a concise statement to be supervised, and that will only be accepted for filing if leave is given by a judge of this Court. That form of order is not intended to require Mr Rana to obtain the certification of any lawyer of the form of the concise statement; rather, he is to prepare such a statement by reference to the explanation that is available on the Court website in relation to the filing of such a document. If there remain issues with that document once it is presented at the time of leave, then the procedure that I contemplate will enable brief communication to him about any further ongoing concerns with the formulation of the concise statement. It will also have the advantage of ensuring that the respondents are not burdened with having to respond to the document unless and until leave has been given.
[5] In order to facilitate this, as a matter of case management, I propose to make a direction for the statement of claim to be struck out. That is not a substantive determination of the merits of that document; rather, it is a recognition that the appropriate course, having regard to the particular circumstances of this case, is for there to be a supervised process by which a concise statement is prepared. That document, as required by the Court, will focus upon the key aspects of what the nature of the claim is and will enable Mr Rana to focus upon those aspects in the interests of all parties.
[6] The other issue that has been raised today is the possibility of a mediation in order to resolve the matters, and I will consider whether that is appropriate once the issue of the formulation of the concise statement has been addressed.
[7] In relation to the costs of today and of the interlocutory applications which, having regard to the case management orders that I propose to make today, will now be redundant, Dr Duffy seeks an opportunity to be able to apply for those costs, and for that reason, I will make an order that the costs of today be reserved.
[8] So for those reasons, the Court today makes orders in terms of the draft orders that were circulated to the parties yesterday, save as to order number 13, where the order will be that the costs of today be reserved.
27 For completion, the orders made were in terms of the proposed orders circulated on 2 November 2021, save that order 13 read 'The costs of today be reserved'.