Rana v State Ombudsman of South Australia

REASONS FOR JUDGMENT 1 The applicant has sought leave to appeal from a decision of Mr Lindsay FM given on 26 February 2004 refusing the applicant leave to issue a subpoena on the first respondent. That decision was an interlocutory decision and the applicant required leave to appeal. The applicant also sought orders that "special leave be granted for constitutional challenge to go before the High Court". On 26 March 2004 I heard the arguments of the parties on these applications. The substantive hearing of the trial was listed for hearing on 5 April 2004 before the learned Federal Magistrate. At the conclusion of the arguments on 26 March 2004 I dismissed the application for leave to appeal. These are the reasons for my doing so. 2 The substantive proceedings before the learned Federal Magistrate are against the Flinders University and certain of its officers pursuant to Div 2 of the Human Rights and Equal Opportunity Commission Act, 1996 (Cth). In those proceedings the applicant has made at least two attempts to subpoena documents held by the South Australian Ombudsman. Apparently the applicant made a number of complaints to the Ombudsman in relation to the University. They were investigated by Mr Wasley. Presumably he was employed in the Ombudsman's Office at the relevant time. In respect of the first subpoena the applicant sought to have the documents relating to those complaints (and relating to the investigations that presumably followed from them) produced to the Court. The Ombudsman sought to have the subpoena set aside on the basis that the relevant information was not compellable or admissible by reason of the Ombudsman Act 1972 (SA) (the Act) ss 22, 30(2). The first subpoena was set aside by Driver FM on 11 July, 2003 (see Rana v Fergusson & Ors No 1 [2003] FMCA 293). The applicant sought leave to appeal from that decision. Leave was refused by Mansfield J on 13 November, 2003: see Rana v State Ombudsman of South Australia [2003] FCA 1259 (Rana). Essentially Mansfield J refused leave on the basis that the decision of the Magistrate was plainly correct. In particular, Mansfield J held that the decision and reasons of the High Court in Northern Territory of Australia v GPAO (1999) 196 CLR 553 (GPAO)had the effect that the power of the Federal Magistrates Court to issue a subpoena was subject to the restrictions in the Act: see Rana at [23]-[36]. 3 On 11 July 2003 Driver FM had also ordered that the applicant should not issue any further subpoenas without first having obtained the leave of the Federal Magistrates Court. On 11 February 2004 the applicant had issued a Notice of Motion in the Federal Magistrates Court seeking "leave for a constitutional challenge against the SA Ombudsman Act" and for an order "for Attorney Generals to appear before this court". On 12 February 2004 the applicant issued a further Notice of Motion seeking leave to issue a subpoena on Grant Wasley and on the South Australian Ombudsman for them both to attend at Court and to produce to the Court the documents relating to those complaints. 4 The two Notices of Motion were heard by Lindsay FM on 26 February 2004. At the end of the hearing the learned Federal Magistrate refused leave to issue the subpoena sought by the applicant on the second Notice of Motion. The learned Federal Magistrate also ordered that the first Notice of Motion be dismissed "upon the oral application of the applicant." The applicant was ordered to pay the costs of the Ombudsman on the first Notice of Motion and the costs of Flinders University on the second Notice of Motion. It is from these orders that the applicant seeks leave to appeal. 5 Leave to appeal is required because the orders of the Federal Magistrate refusing leave to issue the subpoenas upon the Ombudsman and Mr Wasley were interlocutory orders. Leave is required to appeal from such an order: s 24(1A) Federal Court of Australia Act 1976 (Cth). 6 The issues relevant to the granting of such leave were considered by the Full Court of this Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-400. What is involved is a balancing of considerations which include the prospects of success of the proposed appeal and whether there would be substantial injustice if leave were refused. 7 The applicant has submitted to me that there was no transcript of the hearing on 26 February, 2004 and that the learned Federal Magistrate gave no reasons for his decision. This would be a strange circumstance, if it were true. There is an obligation upon a court to note the evidence before it and the decision arrived at: see Carlson v King (1947) 64 WN (NSW) 65 at 66. In modern times this duty is usually discharged by taking a transcript of the proceedings, including as to interlocutory matters. Further, the failure to give reasons may, in some circumstances, constitute an error of law: see Roy Morgan v State Revenue (2001) 207 CLR 72 at 83-84; R v Keyte (2000) 78 SASR 68, 75-79. This duty may not extend to "evidentiary rulings or some procedural applications": see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 260-261, 279. It may be that there would not have been an appealable error if the learned Federal Magistrate had failed to give reasons for his orders in this case, but, for my part it would at least have called for some comment. However, inquiries by this Court subsequent to the oral argument reveal that there was a recording of the proceedings before the learned Federal Magistrate. This recording had not been typed as a transcript, presumably because no-one had requested that this be done (or, presumably, been prepared to pay for it to be done). In any event I have obtained the transcript and have read it. Those inquiries also reveal that the learned Federal Magistrate did deliver Ex Tempore reasons. I have obtained a copy of those reasons and have taken them into account. 8 The applicant complained to me that the learned Federal Magistrate failed to afford him a fair hearing. There were two aspects of that compliant. The first was that the Federal Magistrate did not properly consider the issues that the applicant raised before him. The applicant submitted to me that the learned Federal Magistrate continually interrupted him and did not permit him to put his case. I note that similar complaints would seem to have been made in Rana notwithstanding that a different Magistrate was involved. The transcript makes it plain that that the learned Federal Magistrate did attempt to illicit from the applicant just what material he was seeking to obtain from the subpoena, what relevance that material might have to the hearing and, in what way the subpoena that he sought to issue was different from that which had been considered in Rana. It is also clear from the transcript that the applicant wished to make submissions to the learned Federal Magistrate on other, broader matters. For example, the applicant put submissions to the learned Federal Magistrate criticising the investigation conducted by the Ombudsman into the complaints that the applicant had made to the Ombudsman. Indeed, he also attempted to do so before me. Nevertheless, the attempt by the learned Federal Magistrate to focus the discussion to what were clearly the relevant issues that he needed to decide did not, in my view, involve a failure to afford the applicant a fair hearing. 9 The other aspect of that complaint was that the learned Federal Magistrate should not have heard this matter because of a perceived bias. As I understand it, the argument put by the applicant was that the learned Federal Magistrate sits often on family law matters and knows well the Justices of the Family Court who are resident in this State. The applicant says that he has a long history of appearing before those Justices and that it could be expected that those Justices may have discussed the applicant with the learned Federal Magistrate. He says that this possibility or expectation is sufficient that a fair minded observer aware of the relevant facts would have a reasonable apprehension that the learned Federal Magistrate would not bring an impartial or unprejudiced mind to the issue. I note that there is nothing in the transcript to suggest that the learned Federal Magistrate was in any way partial or prejudiced. In my view the considerations referred to by the applicant would not lead a fair minded observer to apprehend that the Federal Magistrate would not be impartial in hearing the matter. 10 As to the substantive issue of whether the Federal Magistrate was correct in dismissing the Notice of Motion of 12 February 2004 which sought leave to issue the subpoena, it is obvious from his reasons that the Federal Magistrate did so because, in his view, the application was fundamentally the same as that considered in Rana. In my view the learned Federal Magistrate was correct in that conclusion. The applicant argued that there were two differences between his current application and that considered in Rana. The first difference was that the applicant now said that he could identify the forensic advantage that he said he would obtain if he could obtain the relevant documents. He said that the material would enable him to cross examine a witness from the Flinders University as to his credit. True it is that in Rana at [41] Mansfield J did leave open the opportunity for the applicant to lead further evidence as to whether the material sought to be produced by the applicant could have served an appropriate forensic purpose at trial. It is also true that His Honour at [16]‑[21] discussed the failure of the applicant to identify what use he might make at trial of the information he was seeking as a reason why leave to appeal should be refused. However, as already mentioned, His Honour also found that the decision of the Magistrate was not "attended with any real doubt" by reason of the decision of the High Court in GPAO. That decision identified the limited power of the Family Court to require documents to be produced to the Court before trial in circumstances where there was a Territory law prohibiting such production. It is clear from His Honour's reasons that the Ombudsman and Mr Wasley could not be required to attend court pursuant to subpoena. Whilst that remained the case the identification of the forensic purpose of the material would not assist the applicant. 11 The second reason argued by the applicant was that the subpoena he was now seeking to issue was not an "interlocutory" subpoena, but a substantive one which fell squarely within the reasoning of von Doussa J in Chapman v Luminis Pty Ltd (No 3) (2000) 104 FCR 368 (Chapman). As the learned Federal Magistrate made clear both during the course of argument and in his reasons, this issue was expressly dealt with in Rana. It is clear from the reasons in Rana that a subpoena could not be issued to compel the Ombudsman or an officer employed in the Ombudsman's Office to attend court for the purpose of giving evidence about an inquiry under the Act, whatever may be the situation once the person was actually giving evidence. 12 Whilst the reasoning in Rana remains good law the applicant could not succeed in his Notice of Motion seeking leave to issue a subpoena seeking the production before trial of the relevant documents from the Ombudsman or from Mr Wasley. It has not been suggested to me that Rana is not good law. It has not been suggested to me that leave to appeal should be granted to enable that decision to be reconsidered by a Full Court. Whatever might be said about Chapman, it seems to me that the result in Rana is plainly consistent with GPAO. Consequently I do not think that the applicant would have any real prospects of success in an appeal if leave were granted. 13 However, even if I was wrong in all of the above considerations, nevertheless I do not think that leave to appeal would be justified in this case. The substantive matter was listed for trial commencing on 5 April 2004. If an appeal was to be effective it could not have been heard and determined before that date. The practical effect of granting leave would be to vacate that trial date. At its highest the evidence and material sought by the applicant from the Ombudsman and from Mr Wasley was only relevant to the question of credit. Even assuming that it was admissible for that limited purpose, it may be that the question of credit would not arise or, if it did, would not be critical or, even if it was, would not ultimately result in any prejudice to the applicant. Given the circumstances and context of this case it is my view that the interests of justice would be best served by the trial proceeding in accordance with the current schedule. The applicant can pursue whatever rights of appeal he may then have if he is ultimately unsuccessful and if his interests have been prejudiced. Consequently, even if I was of the view (which I am not) that the applicant had an arguable case on an appeal, leave nevertheless should be refused on the basis that it is in the interests of justice for the substantive hearing before the Federal Magistrates Court to continue rather than for that hearing to be adjourned so that this evidential issue can be resolved by a Full Court. 14 Although it is not altogether clear, it would seem that the applicant also seeks leave to appeal from the order of the Federal Magistrates Court dismissing the Notice of Motion dated 11 February 2004. In relation to that Notice of Motion the applicant informed the learned Federal Magistrate that he proposed to "challenge the constitutional invalidation of the ombudsman because it has been very oppressive in terms of my basic human rights". In relation to that issue the learned Federal Magistrate properly explored the question of whether it was necessary to order that Notices be issued under the Judiciary Act, 1903 (Cth) s 78B. In particular, the learned Federal Magistrate raised with the applicant just how the question of the validity of the Act arose in the proceedings before him, particularly in light of the reasons in Rana. In light of that discussion the applicant said that he withdrew the notice of motion. Subsequently the following exchange occurred between the learned Federal Magistrate and the applicant: 'HIS HONOUR: I will deal with your application if you want me to. I want to make that perfectly clear. I am not encouraging you to withdraw it. I have made some observations about the timeliness of the application - that is, as to whether it might be an application that was more appropriately agitated before Mansfield J - but that's not to say I won't deal with your application. On the other hand, if you want to withdraw the notice of motion or to indicate to me that you no longer seek the orders contained in that, I'm not going to get in your way of doing that either. MR RANA: Well, your Honour, I tried the strategies. I mean, it's like a chess game. You must try now and then and try to gain advantage somehow, but, as I say, I'm not a legally trained person. Under the circumstances of what I know, and I know my limitation, I tried my best and I can see that I am hitting a lot of brick walls because the time is not right. I tried to develop jurisprudence and in that light I leave it to your wisdom. HIS HONOUR: Well, I am afraid I have to ask you for a less ambiguous conclusion to your submission. I have to know whether you're still asking for the orders sought in that notice of motion or whether you're indicating to me that you're no longer proceeding with this application. MR RANA: I'm not any more proceeding.' 15 In my view it is clear from this exchange that the Notice of Motion dated 11 February 2004 was dismissed on the application of the applicant, as the order records. 16 In all the circumstances it is my view that the proposed appeal would have no prospects of success if leave were granted. In any event, the most convenient course is for the trial before the learned Federal Magistrate to proceed, rather than for that trial to be delayed by an appeal on an interlocutory issue as to evidence. 17 For these reasons I ordered that the application for leave to appeal from the orders made by the learned Federal Magistrate on 26 February 2004 should be dismissed. I also ordered that the applicant pay the costs of the Ombudsman fixed at $500. The other respondents consented to any order made by the Court save as to costs and made no submissions. I make no orders in relation to them. 18 As already noted, the applicant has also sought special leave from this Court for a constitutional challenge to go before the High Court. This Court has no jurisdiction to grant such leave. It is unnecessary to make any further orders in that regard. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.