Rana v University of South Australia - [2007] FCAFC 188 - FCAFC 2007 case summary — Zoe

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Rana v University of South Australia

[2007] FCAFC 188

Federal Court of Australia (Full Court)|2007-12-04|Before: Dowsett JJ

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At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2007-12-04

Before

Dowsett JJ

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Background 1 The appellant sought damages from the respondent (the University) for alleged contravention of s 52 of the Trade Practices Act 1974 (Cth) and for breach of a contract he claimed existed between them in relation to his proposed attendance at a 'hypothetical' staged by the University. He also sought an injunction to restrain the University from banning him from any public functions held by it in the future. The claims were dismissed by a judge of the Court, and the appellant appeals from that dismissal. 2 The statement of claim pleaded the s 52 case as follows: (a) on 27 March 2006 the University engaged in the following conduct in contravention of s 52: · it did not provide the appellant with ten tickets to the hypothetical as promised over the telephone by the University's Melissa Ellmers "when he would pay" $35 for each ticket; · the University's Helen McIver took the $350 for the tickets at the Adelaide Convention Centre (the Centre) at 5:20 pm but did not give the appellant the tickets as promised; and · Ms McIver called the security guards and the police and told them the appellant had been banned from all University functions for being a troublemaker. (b) the University's conduct was misleading and deceptive or likely to mislead and deceive in that the appellant was not allowed to attend the function for the public as advertised in The Australian newspaper; (c) the University's conduct misled the Centre's security officers and the police by causing them to believe that the appellant was banned and a troublemaker; (d) the appellant and his family and friends were also deceived and misled or likely to be deceived or misled by the ban; (e) the University's conduct induced the appellant to buy tickets because he was invited to the function as an alumnus and the tickets for alumni were at a $10 discount; (f) the appellant suffered loss or damage by the University's conduct, namely humiliation, embarrassment, loss of reputation and face and aggravation of paranoid schizophrenia, quantified at $1 million. 3 The contract cause of action was pleaded as follows: (a) the parties entered into the contract over the telephone on 27 March 2006 when Ms Ellmers "accepted to provide" ten tickets to the appellant for $35 each which the appellant was to pay to Ms McIver when he collected the tickets at the Centre by 5:20 pm on that day; (b) the terms of the contract were that in return for paying for the tickets the appellant would be provided with drinks and nibbles and be part of the hypothetical; (c) the appellant went to the Centre to pay for and collect the tickets, but "this was denied" by the University which put a ban on him and his party; (d) the University banned the appellant even though he had paid for the tickets, and did not refund the purchase price or provide the tickets; (e) the University disparaged the appellant before his guests contrary to the deed of settlement; (f) the loss caused by the breach of contract is the same as the loss consequential on the breach of s 52. 4 The primary judge found the appellant, who was the sole witness in his case, a "most unsatisfactory witness", and did not accept his evidence except where it accorded with other evidence that he accepted. His Honour noted that the appellant's evidence in relation to important events changed in the course of the trial, some of his evidence was highly improbable, and a good deal of it was inconsistent with other evidence that his Honour accepted. On the other hand the primary judge found that each of the witnesses called by the University was honest and straightforward, and he accepted them as witnesses of truth.

[2]

Primary judge's findings 5 The primary judge made the following findings of fact, amongst others: (a) On 27 March 2006 the University held an event at the Centre called a 'hypothetical', which involved a discussion about the prospects of Australian business exporting wine to Asia. The ticket price was $45, with University alumni, staff and students entitled to a discount. (b) An advertisement for the hypothetical in The Australian newspaper stated that a person wanting to "book" for the event should contact Ms Ellmers. (c) The appellant saw the advertisement, contacted Ms Ellmers by telephone and discussed with her his attendance at the hypothetical. Ms Ellmers told him the price of the ticket, and there was a discussion about the discount available to alumni. The appellant said he wanted to pay by cash. Ms Ellmers said she would see him at the registration desk at the Centre where he could pay for his ticket. The appellant did not say he wanted to purchase ten tickets. (d) Some time after this telephone call Ms McIver, Ms Ellmers' superior, came into the latter's office, and upon seeing a note Ms Ellmers had made of the appellant's details, told her she would be denying him entry to the hypothetical. (e) At about 5:00 pm the appellant attended the Centre. Ms McIver met him and told him he was not permitted to attend the event given his "past history with the Division [of Business]". The appellant said he would sue the University. The conversation was brief and not heated, and there were very few other people in the foyer. The appellant went to the Centre alone and left alone. He was not escorted out. No security guards or police officers were involved in his departure. (f) The appellant did not pay Ms Ellmers or Ms McIver any money, and the receipt he produced at trial was not the type of receipt used for cash purchases of tickets for the hypothetical. The receipt tendered by the appellant was an adaptation of a receipt the University had issued to him in relation to an earlier transaction having nothing to do with the hypothetical, to which he had made certain additions and deletions. (g) Emails tendered by the appellant, two suggesting that the University had received $350 from him in relation to the hypothetical, and one making very serious allegations against him, were not sent by the University staff named in them, but by the appellant himself.

[3]

Primary judge's disposition of the case 6 The primary judge at [45] dismissed the appellant's breach of contract case as follows: Mr Rana did not purchase a ticket or tickets. He did not pay any money to the University in relation to the hypothetical. Ms Ellmers did not promise Mr Rana ten tickets or, indeed, any tickets. My findings as to the content of the conversation between Ms Ellmers and Mr Rana are set out in [22] above. In my opinion, Ms Ellmers did no more than provide information to Mr Rana. Those conclusions mean that Mr Rana's case in contract as pleaded must fail. 7 The appellant's case under the Trade Practices Act was that the newspaper advertisement contained an implied statement or representation about entry to the hypothetical. In rejecting it the primary judge said at [57]: in relation to the period prior to the purchase of a ticket, the advertisement or statements of Ms Ellmers do not contain or give rise to an implied statement or representation as to the right of a member of the public to attend the hypothetical. Clearly, there cannot be any implied statement or representation that there is an unqualified right because there might be any number of reasons why the organiser of an event might justifiably deny a person a ticket or entry to the event, ranging from the cancellation of the event or a full auditorium on the one hand, to disruptive conduct or inappropriate dress by the proposed attendee on the other. No reasonable reader of the advertisement or party to the conversation with Ms Ellmers would understand that, prior to the purchase of a ticket, any member of the public had an unqualified right to attend the hypothetical. To my mind, it is not possible to conclude that there is an implied statement or representation as to a right of a more limited nature, for example, a right to enter subject to a good reason to exclude, because there would simply be no unanimity, or even a majority view, as to the particular circumstances which would justify the exclusion of a member of the public. 8 In relation to both the contract and the s 52 claims the primary judge said that even if there were a contract and a breach of it, or a contravention of s 52, the claims had to fail because the appellant had not proved any loss or damage. Dealing with the contract claim his Honour said at [49]‑[51]: As far as what might be called reliance loss is concerned … I am satisfied that Mr Rana did not pay any money to the University in relation to the hypothetical and there can be no recovery on that ground. Furthermore, Mr Rana did not seek to establish any loss or damage suffered as a result of travelling to the Convention Centre in the expectation of being admitted to the event and there can be no recovery on that ground. Mr Rana's claim for loss or damage by way of psychiatric injury fails because there is simply no proof of psychiatric injury. Mr Rana gave no evidence as to his psychiatric condition and he called no medical evidence. Mr Rana's claim for loss of reputation and face, including humiliation and embarrassment, fails because … I am satisfied that the conversation between Mr Rana and Ms McIver was a measured and relatively quiet one; that no one else was present during the conversation and certainly not any family or friends of Mr Rana, and that Mr Rana left the Convention Centre quietly and without an escort. He was not escorted out of the Convention Centre by security guards or police officers or, indeed, by anyone. Furthermore, Mr Rana was not emotionally distressed or, at least, not openly so. In fact, he had the presence of mind to calmly tell Ms McIver during his conversation with her that he would be suing the University …. There is no evidence of disappointment or emotional distress, even if it was otherwise an appropriate case for such an award. The primary judge said these reasons applied also to the s 52 claim. On the appeal the University accepted that had the appellant established a contract and breach thereof, he would have been entitled to nominal damages.

[5]

Fraudulent emails 11 The appellant challenges what he calls the primary judge's 'inference' that the emails were sent by the appellant and not by those whose names appeared on them. He says that the inference was not supported by the evidence. He says that the University staff could have gone to a local internet café and sent the emails "in my name to themselves". He relies on a passage in Mr Dronfield's evidence that he, Mr Dronfield, did not "pinpoint" the appellant as the sender of the emails. Mr Dronfield was an expert witness employed by the University in its Information Technology Department. An attack on his expertise is dealt with at [27]. 12 In his affidavit Mr Dronfield said of two of the emails that there were no corresponding log records of the messages being sent from the University. He was able to say with certainty that the email was not sent from the University's email system. It appeared to have been sent from rana@cw.aunz.com.au. The face of the email had been altered at the time of sending to cause it to appear that it originated from the University. He repeated these matters in connection with the third email, save that he was unable to identify the source of that message because it had not been sent simultaneously to any other email address of the University. 13 In cross‑examination Mr Dronfield was asked by the appellant to identify the objective test he employed to "pinpoint that it was me on the balance of probability, nobody else". Mr Dronfield's reply was that he didn't pinpoint the appellant. Rather he was of the opinion that certain emails appeared to have been sent from rana@cw.aunz.com.au. Then, in response to the question how he pinpointed that email address, he said: in all of the screen shots that showed emails that I couldn't find us sending - so it wasn't in our outgoing logs - there - where there was a university … recipient on that email, I could find the incoming to the University log and in that log there is a property called the return path. … And that return path is provided by the machine that is sending the email, so the machine that contacted our machine to send the email gave as … that value in a return path and it was recorded in our logs. He went on to say that the "value" was the email address rana@cw.aunz.com.au. 14 The primary judge was satisfied of Mr Dronfield's expertise in the matters on which he gave evidence, and accepted his evidence. In addition he accepted the evidence of Ms McIver and Ms Willason that they had not sent the emails. His Honour did not accept the appellant's claim that he had closed his email account at the relevant time. He described his evidence on this and related matters as "very confusing", and said there was nothing in that evidence to suggest that his Honour's conclusion as to the emails was incorrect, namely that the University employees did not send the messages, the appellant was the only person who had an interest in making it appear that they had, and that he had sent them. 15 In the above circumstances the primary judge was entitled to conclude as he did. We reject the appellant's claim that there was no evidence to support that conclusion, and that the 'inference' finding was not open. This ground of appeal simply argues about the primary judge's fact finding in relation to the emails. The finding was not based on Mr Dronfield's evidence alone. His Honour believed the University employees' evidence, and did not regard the appellant as a witness of truth. If the finding that the appellant sent the emails was an inference, then we would draw it in the same way as the primary judge.

[7]

Estoppel 17 This ground, which is elaborately expounded in the appellant's Outline of Submissions, is based on a deed made on 2 March 2006 in settlement of various disputes between the parties. By clause 6(b) the parties undertake and agree that they will not disparage, adversely comment on 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. 18 The appellant claims that Ms McIver disparaged him when she refused him entry to the hypothetical given his past history "with the [Business] Division". He says that the primary judge should have "applied estoppel by deed". He deals at some length with the law relating to estoppel by deed. 19 In dismissing this part of the appellant's claim the primary judge said at [15] that it was "unclear by the end of the case" whether the disparagement claim was still pursued. On the assumption that it was, his Honour said that in view of his findings of fact, there was no conduct on the part of the University that constituted a breach of clause 6(b) of the Deed. The relevant findings are those in par (e) at [5]. 20 The exchange between Ms McIver and the appellant did not take place in the presence of others. It was not a heated conversation. It was brief. The appellant left the Centre of his own accord. He was not escorted out. No police or security guards were involved. He was not accompanied by family or friends, but arrived and left on his own. In those circumstances Ms McIver did not disparage him, adversely comment on him or call him into disrepute. Clause 6(b) contemplates one party speaking or writing to third parties in a manner adverse to the other. That is the scenario painted by the appellant's statement of claim (see [5(e)]), but it does not accord with the facts as found. The primary judge correctly held that his findings disposed of any case founded on clause 6(b).

[11]

Evidence Act complaints 24 The appellant complains that the primary judge erred in not applying, or acting contrary to, various provisions of the Evidence Act 1995 (Cth). These complaints proceed on the basis that a party is at liberty after judgment to trawl through the Evidence Act for provisions that could have been, but were not, relied on at trial. The time to take evidentiary objections is at trial when evidence is about to be given or is in the course of being given. Further, except in the instance considered at [27], the appellant has not explained how the various provisions he now relies on are relevant to the evidence that was given or in what manner, if at all, the application of the sections would have impacted on the outcome of the case. 25 The appellant contends that the primary judge erred by failing to apply s 103(2) and 108A(2). The former deals with cross‑examination as to credibility, as an exception to the inadmissibility of evidence that is relevant only to a witness's credibility: s 102. The appellant has not explained how s 103(2) has any relevance to the case. The same applies to s 108A(2), which deals with the admissibility of evidence of credibility of a person who has made a previous representation. 26 The appellant asserts that the primary judge erred by accepting "fabricated" evidence of all the University's lay witnesses contrary to s 78. His Honour accepted the evidence of these witnesses. He thought them witnesses of truth. Section 78 deals with lay (non‑expert) opinion evidence. The University's lay witnesses did not give opinion evidence. In any event, s 78 is an exception to the rule in s 76 that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed. 27 Mr Dronfield gave opinion evidence based on his specialised knowledge. The appellant asserts that he was not qualified to give expert opinion evidence. Section 79 provides: If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 28 The primary judge recorded Mr Dronfield's experience. He had a good deal of practical experience. He had worked in the University's Information Technology department since 1978, and had worked exclusively in the information technology field for more than 28 years. His Honour found he had sufficient knowledge and experience to conduct the investigations and express the views he did. That satisfies the requirements in s 79: "specialised knowledge", "based on … experience" and "opinion … based on that knowledge". No error has been shown in his Honour's acceptance of Mr Dronfield as an expert. The appellant had the opportunity to challenge his evidence, and did so. 29 The appellant contends that the primary judge's failure to decide whether s 51A of the Trade Practices Act applied (see [9]‑[10]) was contrary to s 136 of the Evidence Act. This section enables the Court to limit the use to be made of evidence if there is a danger that a particular use might unfairly prejudice a party or be misleading or confusing. We are unable to see how that section could apply in relation to the primary judge's failure to rule on the s 51A contention. There is nothing in the material before us to suggest that the primary judge was asked to apply s 136 in that connection. 30 None of the Evidence Act grounds has any substance.

[12]

Briginshaw 31 In relation to the fraudulent emails the appellant asserts that the primary judge applied the wrong standard of proof - the balance of probabilities rather than the "Briginshaw test". His Honour found "on the balance of probabilities" that the appellant sent the three emails. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362‑363 Dixon J stressed that when, in civil proceedings, a question arises whether a crime or fraudulent conduct has been committed, the standard of persuasion remains the civil standard of balance of probabilities. The seriousness of the matter in issue affects the process by which reasonable satisfaction is attained. Thus there was no error in the primary judge's application of the balance of probabilities standard. 32 Dixon J also said that reasonable satisfaction in the case of an allegation of serious misconduct should not be produced by inexact proofs, indefinite testimony or indirect inferences. That was not the case here. The primary judge thought Ms McIver and Ms Willason truthful witnesses. He believed their evidence that they did not send the emails. Their evidence was corroborated by the expert evidence of Mr Dronfield. Mr Dronfield went further. Without definitely asserting that the emails had been sent by the appellant, he said that two of them appeared to have come from rana@cw.aunz.com.au. The primary judge described that as "an email address … which suggests a link with Mr Rana". Mr Dronfield also said that the face of all three messages had been altered at the time of sending to make them appear to have originated at the University. 33 The primary judge noted that the appellant sought to counter Mr Dronfield's evidence by saying he had closed his email account before the emails were sent. His Honour described his evidence as confusing, and did not believe he had closed his account at the relevant time. He said the appellant was the only person who had an interest in making it appear that the University employees sent the emails. In this connection it is to be remembered that two of them purported to corroborate the appellant's claim that he had paid $350 for ten tickets to the hypothetical. 34 In all those circumstances the evidence before his Honour did not consist of inexact proofs, indefinite testimony or indirect inferences. There was a body of evidence pointing distinctly towards the appellant, including the primary judge's acceptance of the University employees' evidence and his disbelief of the appellant's account. 35 The appellant contended that the primary judge's finding was an inference, and that an appellate court is in as good a position as he was to draw or not draw it. That will be true in many cases. Whether it is the case here, where the finding is based in part on disbelief of the appellant's evidence, and acceptance of the University's witnesses, need not detain us. In Cross on Evidence 7th Aust ed (2004) at [9055] it is said: Where satisfaction of the civil standard of proof depends on inference, there must be something more than mere conjecture, guesswork, or surmise. That is, there must be more than 'conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture'. If there is, the test is as follows: 'The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged'. For the reasons appearing at [32] to [34] this is not a case of conflicting inferences or mere conjecture. The circumstances undoubtedly raised a more probable inference in favour of the conclusion the primary judge reached.

Rana v University of South Australia

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