Rana v Libraries Board of South Australia

REASONS FOR JUDGMENT 1 On 12 April 2007, the appellant applied in the Federal Magistrates Court, supported by a statement of claim, for damages under ss 80 (sic), 82 and 87 of the Trade Practices Act 1974 (Cth) (the TP Act) for contraventions of s 52 of the Act, and for negligence and for breach of contract for "loss of shelter and reputation and aggravation of paranoid schizophrenia and diabetes type two", claiming $250,000. 2 That proceeding was summarily dismissed on 4 July 2008 pursuant to s 17A(2) of the Federal Magistrates Court Act 1999 (Cth) (the FM Act) and r 13.10(1) of the Federal Magistrates Court Rules (the Rules) with costs. Section 17A of the FM Act empowered a Federal Magistrate to summarily dismiss a proceeding if the claimant had no reasonable prospect of successfully prosecuting the proceeding, and r 13.10(1) relevantly was in the same terms. 3 This is an appeal from that decision. 4 The appellant was declared bankrupt on 13 August 2008. He appealed from the decision of that date, and judgment on that appeal is to be delivered at the same time as this appeal. For reasons which appear in that judgment: Rana v Chief of Army [2008] FCA 1554, that appeal is to be dismissed. However, it is common ground that, notwithstanding his bankruptcy, s 60(2) of the Bankruptcy Act 1966 (Cth) does not apply as s 60(4) of that Act preserves the appellant's right to maintain the proceeding.

THE CLAIMS AGAINST THE RESPONDENTS 5 There were three separate claims made against each of the three respondents in the proceeding at first instance. 6 On 17 October 2005, the first respondent passed a resolution banning the appellant from being present in the State Library of South Australia precinct for a period of 12 months. The appellant challenged that decision in the Supreme Court of South Australia, and on 10 August 2006 that proceeding was discontinued when the Director of the first respondent set aside the ban. It is not necessary to inquire into the circumstances in which that came about. 7 The appellant was notified of the decision to concede the judicial review proceeding by letter from the Crown Solicitor for South Australia of 3 August 2006 addressed to the appellant at 1/25 Hackney Road, Hackney. On 10 August 2006, the Director of the first respondent wrote to the appellant at his former address at 62/40 Park Terrace, Gilberton informing him of that decision. The decision was formally recorded in the minutes of the Board of the first respondent on 21 August 2006. On 30 August 2006 the director of the first respondent wrote to the appellant concerning the amendments that had been made to the minutes, reflecting that the ban imposed upon the appellant had been lifted and enclosing a cheque for the $30 costs awarded to him. That letter was sent to the appellant at 63/40 Park Terrace, Gilberton. That was a wrong address. 8 As the Federal Magistrate recorded, it appears that the neighbour at 63/40 Park Terrace, Gilberton opened the envelope addressed to the appellant, wrote comments on the letter that were derogatory of the appellant, and then forwarded the letter to the appellant, or alternatively that the neighbour receiving the letter to the appellant then on-sent it to the appellant but again unfortunately to the wrong address at 2/25 Hackney Road, Hackney where that neighbour opened it and wrote comments derogatory of the appellant and then forwarded the letter to him. Consequently, the appellant came to learn of that letter and that it had been sent to the wrong address. A letter in the same terms was sent to the appellant at his correct address, namely 1/25 Hackney Road, Hackney, on 1 September 2006. 9 Subsequently, these proceedings were commenced on 12 April 2007. In the meantime, the Director of the first respondent had written to the appellant on 11 September 2006 apologising that the earlier letter of 30 August 2006 had been sent to the incorrect address, and that that was an inadvertent error, and that the first respondent had updated its records. 10 The second claim concerned the second respondent, the owner of the property at 1/25 Hackney Road, Hackney. The appellant was a tenant of the second respondent at material times. On 27 March 2007, the second respondent filed an application in the Residential Tenancies Tribunal of South Australia seeking to terminate the appellant's residential tenancy agreement pursuant to s 90 of the Residential Tenancies Act 1995 (SA). Promptly, on 12 April 2007, the appellant commenced proceedings in the Federal Magistrates Court alleging that the second respondent was in breach of the tenancy agreement for having taken steps to have him evicted. In fact on the following day, 13 April 2007, the Residential Tenancies Tribunal dismissed the second respondent's application and the appellant was not evicted. 11 The third claim against the third respondent concerned a nearby property at 23 Hackney Road, Hackney leased to the third respondent to conduct a catering business. The appellant lived next door to that property. The appellant claimed that certain members of the family who were apparently associated with the third respondent (not specifically identified) had allegedly made false complaints to the police and to the second respondent as his landlord, regarding the conduct of the appellant and suggesting that he was a troublemaker. 12 The appellant alleges that the first respondent, as a corporation engaged in trade or commerce, engaged in misleading and deceptive conduct contrary to s 52 of the TP Act as a result of inadvertently sending the letter of 30 August 2006 to the appellant to an incorrect address. The statement of claim alleges that the appellant had requested the first respondent not to send correspondence to that address of his former neighbour. It alleges that either the former neighbour added the comments to the bottom of the letter, or placed the letter at 2/25 Hackney Road, Hackney (rather than 1/25 Hackney Road, Hackney) and that the resident at 2/25 Hackney Road, Hackney then commented in the bottom of the letter with inflammatory and defamatory comments, and that the relationship between that resident, the second respondent and the third respondent "soured via rumours spread by" each of the occupants' units at 2/25 Hackney Road and 63/40 Park Terrace. It is further alleged that the conduct of the first respondent caused the second respondent to apply to the Residential Tenancies Tribunal to terminate the contract of tenancy. Hence, he alleged that he was going to become homeless, would have disruption in his education, and that those events had aggravated his paranoid schizophrenia and diabetes type two. It also alleged that he had, as a result, been thought of as a troublemaker by tenants of nine other units at Park Terrace, Gilberton, as well as Unit 2/25 Hackney Road, Hackney and by the third respondent and "the whole world". The alternative basis of that claim was based upon the same conduct, namely inadvertently sending the letter of 30 August 2006 to the wrong address. It is alleged that the first respondent sent that letter "knowingly" when there was a police ban that the appellant was not to cause others to contact that tenant and knowing that his relationship would "collapse through this scandalous contact" and would trigger the second respondent to terminate the tenancy. The relationship which would collapse is not spelled out. Incorrectly, it also asserts that the first respondent had not apologised to the appellant for the "simple stupid mistake". It therefore alleges that the first respondent was in breach of a duty of care owed to the appellant by sending the letter to his "known enemies" and had thereby damaged his relationship with the second respondent and its other tenants and with the third respondent. It also alleged that as a result, he had aggravated his psychiatric and medical condition, reputation and privacy, comfort, peace and safety. It sought damages. 13 The second claim is purely a contractual one. The statement of claim alleges that the tenancy agreement was entered into on 27 May 2006, and that the tenancy relationship was going well until "the letter scandal broke out" and that the second respondent then applied for the appellant to be evicted. He disputed any conduct warranting his eviction. He complained that that action itself was in breach of his entitlement to enjoy the tenanted premise. He asserted that the particulars upon which the second respondent sought to have the Residential Tenancies Tribunal terminate his occupancy were false, namely calling police falsely to harass other tenants and members of the public, claiming that the letter from the State Library had been fabricated to harass its tenants, and taking photographs of tenants and the public and so invading their privacy. He claimed damages for aggravation of his medical and psychiatric conditions as previously expressed, together with damages for loss of shelter and reputation. 14 The claim against the third respondent is also discrete. It is brought under s 52 of the TP Act. It is alleged that the third respondent, his neighbour, between 27 May 2006 and the time of the proceedings being instituted, had made false complaints about him to the second respondent and its tenants, by calling police to harass "all stake holders of the commercial premises", by throwing rubbish at 23 Hackney Road surroundings, and asserting that he is a troublemaker. He contended that that conduct was likely to mislead or deceive the second respondent into believing that he is a troublemaker, as well as other members of the public and the police. He complained that that conduct had caused a loss of relationship between the appellant and the second respondent, and had thereby aggravated his medical and psychiatric conditions. He also complained that it made him vulnerable to losing his home, his education and his enjoyment of life. He claimed damages.