Rana v Registrar Cridland

Consideration 25 Three of the bases on which the applicant seeks judicial review can be addressed quite shortly. 26 Insofar as the applicant claims that he was denied natural justice because he was not given a hearing by the Registrar, the claim fails for the same reasons as were given by Murphy J in Somasundaram v Luxton [2020] FCA 1076 at [41]-[44]. As his Honour noted, the requirements of natural justice vary according to the circumstances of the individual case. In the present case, relevant matters are that the decision concerned the acceptance of a document for filing, ie, a short and confined administrative action; that the Registrar was to make the decision (relevantly) by reference to the face of the document and not by reference to extraneous materials - see Frigger v Trott at [12]-[14]; and the decision of the Registrar did not preclude the applicant from lodging for filing documents which did, on their face, invoke the jurisdiction of the Court. These matters indicate that the Registrar was not required to give the applicant an opportunity to be heard. 27 Insofar as the applicant claims a denial of natural justice because the Registrar did not consider the interlocutory application and affidavit lodged for filing on 4 March 2021, the claim fails because the Registrar was required relevantly to determine the application of r 2.26 on the face of the documents lodged on 3 March 2021, these being the documents by which the applicant sought to invoke the jurisdiction of the Court. The interlocutory application and supporting affidavit had not been lodged for filing on 3 March 2021, and were in any event ancillary to the applicant's proposed proceeding. 28 The second ground which can be dealt with shortly is that, although seeking to invoke s 5(2)(f) of the ADJR Act, the applicant did not identify the "rule or policy" which he contended the Registrar had applied. 29 The third is that the applicant did not point to any matter by which the criteria specified in s 5(3) for the purposes of s 5(1)(h) could be satisfied. 30 This means that the fate of the application for judicial review turns on whether s 5(1)(e) is available to the applicant. This depends in turn on whether the applicant establishes that the Registrar failed to take a relevant consideration into account. 31 In identifying above the causes of action in the applicant's proposed proceedings, I was not expressing any view as to their viability. As the Registrar seems to have concluded, I consider, at least as things stand presently, that there is reason to doubt the viability of several. For example, the applicant's claim based on a "tort of breach of confidentiality" and his supposition that ss 89-94 of the Privacy Act give him a private cause of action. The latter appears misconceived because, as s 89 indicates, those provisions do not have apparent application to the respondents. Section 89 provides: 89 Obligations of confidence to which Part applies Unless the contrary intention appears, a reference in this Part to an obligation of confidence is a reference to an obligation of confidence: (a) to which an agency or a Commonwealth officer is subject, however the obligation arose; or (b) that arises under or by virtue of the law in force in the Australian Capital Territory; or (c) that arises under or by virtue of a law in force in an external Territory. 32 At the least, it can be said that the applicant has not pleaded any material facts which would indicate that these provisions are applicable to the respondents. 33 The applicant's claim that breaches of s 36 of the Privacy Act will support a claim of unconscionable conduct may also be doubtful. 34 However, in my view, the applicant did, on the face of the documents, raise viable defamation claims, albeit that a grant of leave under s 21 of the Defamation Act may be required before he can pursue them. The documents contain a pleading of the elements of the tort of defamation, being the publications containing the statements said to be defamatory, the imputations said to have been conveyed by them, the manner in which the statements were published, the makers of the statements, and he has alleged that he has been damaged by the publications. 35 The Registrar's reference to a cause of action which would "enliven the jurisdiction of the Federal Court" suggests that she may have been concerned about the jurisdiction of this Court to hear the defamation claims and the other "non-federal" claims. With respect to the Registrar, I consider that, if these were her concerns, she has overlooked, and did not take into account, important considerations bearing upon this Court's jurisdiction. 36 The Court's jurisdiction with respect to defamation claims of the present kind (and with respect to non-federal claims more generally) was considered in Rana v Google Full Court. It is not necessary to repeat in these reasons all that was said then. It is sufficient to say that that decision confirmed a number of propositions of present relevance: (a) when federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction has jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction, at [17]; (b) a "matter" for the purposes of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) will "arise under" a law of the Parliament in a number of ways, including in cases in which the cause of action is created by Commonwealth statute; in which a Commonwealth statute is relied upon as establishing a right to be vindicated; in which a Commonwealth statute is the source of a defence that is asserted; in which the subject matter of the controversy owes its existence to Commonwealth legislation; in which it is necessary to decide whether a right or duty based on a Commonwealth statute exists even when that has not been pleaded by the parties; and in which a federal issue is raised on the pleadings even though it is not necessary to decide that issue, at [18]; (c) generally, a non-colourable assertion of a federal issue is enough to attract federal jurisdiction, at [21]; and (d) independently of those matters, by reason of s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), this Court has jurisdiction over civil matters which are within the jurisdiction of the Supreme Courts of the Australian Capital Territory and the Northern Territory, at [24]. In particular, s 9(3) has the effect of conferring on this Court the jurisdiction of the Territories' Supreme Courts to hear and determine defamation matters which would be within their jurisdiction - see Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451. 37 The last of these sources of jurisdiction is particularly pertinent presently. It is established that a defamatory statement made by online means is taken to be "published" for the purposes of an action in defamation when and where it is downloaded: Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575. The applicant's proposed statement of claim did not allege expressly that the claimed defamatory items on the impugned websites had been published in the Australian Capital Territory or in the Northern Territory or even that they had been viewed by people in those places. He did, however, allege in his proposed statement of claim: [41] Over a decade over more than 65,000 people have seen the above cited publications globally, and mostly people in Australia. 38 If that be correct, the applicant may well be able to establish that there had been some downloading of the impugned statements in both the Australian Capital Territory and the Northern Territory. 39 As was noted in Rana v Google Full Court at [40], the electronic nature of the publications on which the applicant then sought to sue suggested that it would not be difficult for him to allege that there had been downloading of the impugned publications in either the Australian Capital Territory or the Northern Territory or both. 40 With respect to the Registrar, this basis for the Court's jurisdiction does appear to have been overlooked by her. I am satisfied that it means that the applicant has established that the Registrar did fail, within the terms of s 5(2)(b) of the ADJR Act, to take a relevant consideration into account in the exercise of the power under r 2.26 and therefore that the decision was an improper exercise of the power within the meaning of s 5(1)(e). 41 That conclusion makes it unnecessary to consider whether the applicant has also established that the Registrar failed to take into account the possible existence of a common substratum of facts between his proposed claims of unconscionable conduct, on the one hand, and those underpinning his other claims, on the other. It is, however, sufficient to note that, independently of the provisions in the Privacy Act to which the applicant refers, he had pleaded breaches of ss 20 and 21 of the ACL. Those sections proscribe unconscionable conduct: 20 Unconscionable conduct within the meaning of the unwritten law (1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time. Note: A pecuniary penalty may be imposed for a contravention of this subsection. (2) This section does not apply to conduct that is prohibited by section 21. 21 Unconscionable conduct in connection with goods or services (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person; or (b) the acquisition or possible acquisition of goods or services from a person; engage in conduct that is, in all the circumstances, unconscionable. … 42 The claims based on ss 20 and 21 of the ACL are "federal" claims. In my opinion, it is not possible to be confident about the viability of these claims or that they are based on the same substratum of facts as are the defamation claims. That is particularly so because they seem to be made on a very confined basis, as the following paragraphs in the proposed originating application indicate: Unconscionable conduct by the First Respondent in breach of s. 36 of the Privacy Act 1988 (Cth), and Section 20 and 21 of the ACL Act (Schedule 2 of the Competition and Consumer Act 2010 (Cth)). [22] The agreement between Ranjit SJB Rana and Google LLC (per Managing Member Kenneth Hohee Yi, Assistant Secretary of Google LLC) dated 26/8/2020 was signed. [23] The reference was per CP15/00623 of the Office of Australian Information Commissioner. [24] The Office of Australian Information Commission closed its file as of [23] above per s. 41 (1A) of the Privacy Act. [25] The breach of the implied term being bringing https://sites.google.com/site/answerstoranjitranasaffidavits/ alive on 1.10.2020 contrary to it having being disabled on the date of signing the above said agreement. [26] The Applicant requests the Court to declare the agreement null and void, which is that it serves no purpose in the best interest of the Applicant anymore. 43 Whether or not the applicant's claims based on ss 20 and 21 are viable is not an issue which is appropriate for determination on the present application. Nor is it appropriate on the present application to determine whether the applicant's pleading of "causes of action" under the Privacy Act or under the ACL are "colourable", that is, made for the improper purpose of fabricating jurisdiction: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; (1987) 18 FCR 212 at 219; Rana v Google Full Court at [22]. 44 For the reasons given above, I consider that the applicant's claim that the Registrar's decision was an improper exercise of the power conferred by r 2.26 should be upheld. That is because I am satisfied, with respect, that the Registrar did fail to take a relevant consideration into account, namely, the applicant's pleading of at least some causes of action (those in defamation) which are within the Court's jurisdiction. I repeat that an acceptance that the applicant has identified causes of action which, on their face, are within the jurisdiction of the Court, conveys no implication about the ultimate viability of those causes of action or about the adequacy of the pleading of those causes of action. All I am indicating is that, having regard to the limited function of a Registrar pursuant to r 2.26, the Registrar does appear to have failed to consider relevant matters bearing on the Court's jurisdiction. The question of whether the applicant's claims may be vulnerable to applications for summary judgment or strike out because of the inadequacies in the manner of their pleading, or on other bases, is not an issue which arises presently.

Conclusion 45 For this reason, I uphold the application for judicial review. 46 The appropriate order to give effect to these reasons is an order setting aside the decision of the Registrar: Frigger v Trott at [42]. It will then be a matter for a Registrar to consider afresh whether the documents should be accepted for filing, but doing so in the light of these reasons. 47 I have not heard from the parties with respect to the issue of costs and will give them the opportunity to make submissions. I indicate, however, my preliminary view that it may be appropriate to make no order as to costs. That is so because it is not apparent that the applicant, as an unrepresented litigant, has incurred any costs of a material kind which can be the subject of a costs order and, secondly, because the manner of the applicant's pleading of his causes of action seems to have contributed materially to the Registrar's decision. I also observe that neither the Originating Application nor the Statement of Claim contain any claim by the applicant for the costs of the proceedings. However, I will give the parties the opportunity to be heard on the question. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.