Rana v University of Adelaide

REASONS FOR JUDGMENT 1 This is an application under s 31A of the Federal Court of Australia Act 1976 (Cth) by the first, second, fourth and fifth respondents for an order that the Court give judgment for them against the applicant on the ground that the proceeding brought by the applicant is hopeless or bound to fail or both. 2 This proceeding has been generated as a result of a medico-legal report written by Professor Goldney at the request of the fourth respondent for use in a proceeding in the Administrative Appeals Tribunal (AAT) brought by the applicant against the second respondent. 3 Some history needs to be explained for an understanding of what follows. The applicant has been involved in a number of proceedings against the first and third respondents in relation to periods of time when he was a student or attempting to be a student of the two universities. The proceedings were ultimately settled as against both the first and third respondents after a mediation which was conducted by the Registrar of this Court. 4 The settlements which had been arrived at between those parties were evidenced by deeds which were entered into between the applicant and each of the universities separately. In the case of the settlement with the University of Adelaide a deed was entered into between the applicant and the university, the Vice Chancellor and some employees of the university on 2 March 2006. That deed recited the history of the litigation between the parties and stated that the purpose of the deed was to finally resolve all complaints, claims and allegations by Mr Rana against the university and other parties. 5 It was a term of the deed that Mr Rana would undertake not to apply to enrol at the university in the future and that he would cease to communicate with the university or enter onto or remain on university grounds except in accordance with the terms of the deed. The deed permitted him to communicate with the university by way of a particular email address. The university on its part agreed in clause 10.1: Except as required by law in the event of any request for references or other information on Mr Rana made by other universities or institutions, the university shall limit its response to the provision of academic transcript and information and shall not disparage or otherwise adversely comment on Mr Rana. 6 It was a further term of the deed that all of the parties would not disclose and would keep confidential the terms of the deed, except in the limited circumstances expressed in clause 9 of the deed. 7 In the case of the University of South Australia, the university agreed to make a payment to Mr Rana of a sum which is not disclosed in the deed which has been exhibited to Mr Rana's affidavit, as the deed to that extent has been redacted. However, relevantly, for the purpose of this proceeding the university agreed that it would: ... not disparage, adversely comment or call into disrepute by words or conduct any other party to the Deed or any person associated with another party to the Deed, its directors, its officers, its employees, its agents or any person associated with any other party to the Deed. 8 The applicant has claimed in other proceedings, both in this Court and in the AAT, that whilst he was a member of the Australian Army between October 1980 and July 1982 he suffered personal injury which exacerbated a medical condition from which he then suffered. The circumstances giving rise to his discharge from the Army are currently the subject of an application in the AAT in which the second respondent is the other party. In particular, the question presently before the AAT is whether the applicant's service in the Australian Army was terminated by reason of his physical or mental incapacity to perform his military duties. 9 The fourth respondent, who is the solicitor for the second respondent, and coincidentally the fifth respondent, on instructions from the second respondent, sought to have the applicant examined by Professor Goldney, who is, or was at the relevant time, the Professor of Psychiatry at the University of Adelaide. Of course, at the time that the fourth respondent sought that examination, the fourth respondent and its client, the second respondent, were not aware of the deed between the applicant and the first respondent. In particular, the fourth respondent was not aware of the restrictions on movement which the deed imposed upon the applicant in the university and its grounds. 10 The applicant raised with both the fourth respondent and the university the fact that he could not be examined by Professor Goldney at the University of Adelaide because that would put him in breach of the deed between himself and the University of Adelaide. Eventually, the matter was brought to the attention of the Chief Prudential Officer of the University of Adelaide who, on 26 November 2007, responded to an email from Andrew Schatz, a solicitor in the Australian Government Solicitor's office. She wrote: I confirm: (1) The University has entered into a Deed of Settlement with Mr Rana in March 2006. The Terms of the Deed are confidential and the University is not at liberty to disclose its contents. (2) Without disclosing any facts or circumstances or the terms of the Deed, I can confirm that Mr Rana is not permitted to be on University premises; (3) The Deed does prevent Mr Rana from having access to nominated University staff. Professor Goldney is not among the designated group. (4) There is no legal impediment to Mr Rana being medically examined by Professor Goldney in his private capacity, provided that the examination is arranged at premises other than University premises. 11 Consequently, it was agreed by the applicant and by the fourth respondent and by, of course, Professor Goldney, that any examination which Professor Goldney would undertake of the applicant would take place off the university grounds and at a private psychiatric clinic. There were two examinations of Mr Rana, the first on 11 December 2007 and the second on 8 January 2008. On 16 January 2008, Professor Goldney provided his medical report addressed to Mr Schatz at the Australian Government Solicitor's office. The medical report is under the letterhead of the University of Adelaide, "Discipline of Psychiatry" and it is signed, "Professor R.D. Goldney". 12 The report was prepared by Professor Goldney with not only the aid of the two interviews to which I have referred, but also comprehensive briefing notes which were given him by the Australian Government Solicitor. Those notes set out in some considerable detail Mr Rana's history, including more relevantly and more recently Mr Rana's history of litigation with the universities in South Australia. Professor Goldney's report sets out in very considerable detail the matters which Mr Rana provided Professor Goldney at the interviews. It also sets out a resumé of a number of earlier medical reports which were supplied to Professor Goldney by the instructing solicitors. The report then addresses in some considerable detail the summary and conclusions at which Professor Goldney arrived. 13 It must be understood that as Professor Goldney needed to address the whole of the period from 1980 to the present time, it was necessary for him, in discharge of his duty, to consider a number of facts which were brought to his attention by the medical reports with which he had been provided and the briefing notes which he had been given. 14 Professor Goldney was of the opinion that the applicant has a chronic psychotic illness which has gradually evolved over the years. In addition, the applicant has an underlying paranoid personality disorder. Professor Goldney was of the opinion that, notwithstanding that the applicant was being treated by significant amounts of psychotropic medication for his paranoid psychotic illness, the treatment of the illnesses from which the applicant suffers was far from satisfactory. He was also of the opinion that, in view of the insidious nature of the illness, it is more probable than not that it would persist. Professor Goldney then addressed specific matters and, in particular: Based on your examination of the Applicant and the material provided to you, was the Applicant terminated, in fact, by reason of physical or mental incapacity to perform military duties? (Please note, the relevant time for you to consider is, of course, at or around the date the decision was made to discharge the Applicant from the Army (ie 15 March 1982) but the question posed has to be considered as at the time of termination (ie 13 July 1982). 15 Whether any opinion on that matter could be admissible in the AAT is a matter for the AAT, not for me. However, it was that principal matter which Professor Goldney was asked to consider. In the end result, he said that, "one must conclude that it is a possibility that Mr Rana's discharge from the Army could have been related to his emotional state." But he said it was a "possibility, rather than it probably being so related." He said, in particular, there has been an evolution of Mr Rana's current assertions about his military service and an elaboration of his current perception of what may have occurred. Professor Goldney said, "in view of the documentation provided and also in view of the nature of his current presentation, with paranoid ideation quite evident, one would not be on firm ground in concluding that his condition warranted his discharge in 1982." It was important for the purpose of the opinion which Professor Goldney proffered that he consider whether Mr Rana's condition had either changed or worsened between the period between 1982 and 2008. 16 Mr Rana says that Professor Goldney's report is such that the University of Adelaide has breached clause 10 of the deed to which I have already referred. I will return to that clause but I will particularise first how he says that Professor Goldney has caused the university to breach that clause. I should also note that Professor Goldney is not a party to these proceedings. Professor Goldney wrote at page 17 of his report: It is pertinent to note that it is unexpected that that alleged sexual abuse had not been divulged until that time, and I strongly suspect that is an example of retrospective reconstruction to attempt to create reality and meaning to a paranoid person's experiences. At page 18 he wrote, citing another psychiatrist Dr Davis: I think they also carry a propensity to become transiently psychotic so there are times whereby under certain duress or with high arousal, or agitation, the suspiciousness, wariness, might actually be moved towards a degree of psychotic thinking, whereby they may become delusional ... it would be a fluctuating state and they would be transient at this stage under high duress by arousal. At page 22 of his report he wrote: The incapacity [referring there to the mental incapacity] would be related to a concentration and attention disturbance which would have been associated with his adjustment disorder, and which would have compromised him in carrying out his military duties. I consider that it is most unlikely that any concentration and attention disturbance which one could reasonably relate to his military service, in terms of it being a contributing factor to his adjustment disorder, would have been sufficient to have compromised his duties to the extent that he would have been discharged. 17 They are the matters about which Mr Rana complains. They are the matters which he says in relation to clause 10 "disparage or otherwise adversely comment upon him." 18 He claims that as a result of those comments the university has contravened s 52 of the Trade Practices Act 1974 (Cth). Moreover, he says the university has thereby breached clause 10 of the deed. Further, the university, he says, has breached the duty of care the university owes him and, lastly, he says that the university has slandered and libelled him in that report. 19 Mr Rana complained about Professor Goldney's report being on the letterhead of the University of Adelaide. His complaint was brought to Professor Goldney's attention. On 25 February 2008 Professor Goldney wrote: I confirm that my report dated the 16th of January 2008 re Mr Ranjit Rana was prepared in my private capacity and not in my capacity as an employee of the University of Adelaide. This was under the guidelines described by Ms Celine McInerney in her email of 26 November 2007, a copy of which had been forwarded to Mr Rana. I regret that the report was forwarded on University of Adelaide letterhead. This should not have occurred, but it was an administrative oversight for which I take responsibility. To further clarify the matter I have prepared a different front page to the report, and this is appended. I trust that this clarifies the matter. Again, I would emphasise that the report was prepared entirely in my private capacity, and that was my understanding of the understanding of both myself and Mr Rana at the time of the examination. 20 There can be no doubt that Professor Goldney is right when he says that the understanding of both he and Mr Rana was that at the time of the examinations, the examinations and the report, were being carried out and given by Professor Goldney in his private capacity and that he was not doing so as an employee of the university. 21 Clause 10 of the deed has been set out above. It means that when any information is requested about Mr Rana the university must limit its responses to the provision of academic transcript and information. It must also not disparage or otherwise adversely comment upon Mr Rana. 22 The proceeding against the first respondent must fail on its premises. The report which has been provided by Professor Goldney of 16 January 2008 is not a response by the university to a request for a reference or other information on Mr Rana. It is a medico-legal report written by Professor Goldney in his private capacity. For that reason alone, the proceeding against the first respondent must fail. However, it must fail for a second reason, because even if it were a report of the university, which I find it was not, it does not disparage or otherwise adversely comment on Mr Rana. What it does is offer a professional opinion on Mr Rana's mental condition. In those circumstances, the action is bound to fail against the first respondent. 23 I should say that the fact that Professor Goldney wrote the report under the university letterhead does not make it the university's document. The university properly distanced itself from the process. Notwithstanding that the report is under the letterhead of the University of Adelaide, it was not written by the University of Adelaide. 24 The proceeding against the second, fourth and fifth respondents is somewhat difficult to comprehend. The proceeding against them seems to be a complaint that they should not, or specifically the fourth respondent should not, have sent Mr Rana to be examined by Professor Goldney. There is nothing in that complaint on Mr Rana's own evidence. 25 Whilst Mr Rana properly brought to the authority's attention his inability to attend at the university for the purpose of examination, in the end result, it was agreed that Professor Goldney would carry out the examination, which he did. The fact that the report has been published to the second respondent is unremarkable because it was obtained by the fourth respondent for the purpose of the second respondent's defence to the application brought by the applicant in the AAT. The second respondent is entitled to use the document in the AAT. Its admissibility, as I have said, especially in relation to the matter to which I referred, will be a matter for the Deputy President seized of the proceeding in the AAT. 26 The case against the fifth respondent is even harder to understand. It seems to be based on the fact that the fifth respondent, having a common solicitor with the second respondent, namely the fourth respondent would have been provided with the report. I am of course not satisfied that that ever would be the case, but even if it were I cannot see how any case would be brought against the fifth respondent. In any event, the proceedings against the second, fourth and fifth respondents are derived from the claims made against the first respondent. As I have held that those claims can never succeed, then nor could the proceedings against the second, fourth and fifth respondents. 27 For all of those reasons there will be judgment for the first respondent against the applicant. The applicant must pay the first respondent's costs. There will be judgment for the second, fourth and fifth respondent against the applicant and the applicant must pay the second and the fifth respondents' costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.