Rana, Ex parte Re Beaumont & Ors

[2005] HCATrans 576

[2005] HCATrans 576

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Adelaide  No A63 of 2004

In the matter of -

An application for Writs of Certiorari/Mandamus/Prohibition against BEAUMONT, BRANSON AND SUNDBERG JJ

First Defendants

VON DOUSSA J

Second Defendant

HONOURABLE JOHN NADER QC

Third Defendant

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

Fourth Defendant

NEPAL AUSTRALIA FRIENDSHIP ASSOCIATION

Fifth Defendant

DEEPAK BISTA

Sixth Defendant

Ex parte –

RANJIT SHAMSHER JUNG BAHADUR RANA

Plaintiff

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 9 AUGUST 2005, AT 3.28 PM

Copyright in the High Court of Australia

__________________

MR R.S.J.B. RANA appeared in person.

HIS HONOUR:   Mr Rana, you appear on your own behalf, do you?

MR RANA:   …..

HIS HONOUR:   I am informed by the Deputy Registrar that the respondents whom you have named as the first, second, third and fourth respondents have all filed submitting appearances.  She further informs me that the fifth and sixth respondents were notified by letter of 29 July 2005 of the listing of the matter but that she, the Deputy Registrar, has had no response to that letter.  Have any of the papers in this matter been served on Nepal Australia Friendship Association or Mr Deepak Bista?

MR RANA:   Yes, your Honour, I served two appearance with registered Australia Post and I also indirectly through…..indicated to them that it is important that they should come to the Court, your Honour, but they went to the police saying that I harassed…..

HIS HONOUR:   Yes.  It may be as well that we should call Nepal Australia Friendship Association and Mr Deepak Bista.  While that is being done, Mr Rana, I have looked at the papers that you have filed.  I have read the outline of submissions that you filed on 1 August 2005.  Just one moment.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  So I have looked at your outline of submissions and I have read the papers.  What more is it that you would wish to add in support of that?  Could I say to you that I would expect you to contain your submissions to no longer than 20 minutes.

MR RANA:   Yes, your Honour.

HIS HONOUR:   Yes, go on.

MR RANA:   I just have four pages ‑ ‑ ‑

HIS HONOUR:   Yes.

MR RANA:   Excuse me, your Honour, what happened to the other respondents, because I saw the Australian Government Solicitors?

HIS HONOUR:   The Australian Government Solicitor has filed submitting appearances on behalf of the Federal Court judges and the Human Rights and Equal Opportunity Commission and Mr Nader.  That is they have said that they will abide by any order that the Court makes, save as to costs.

MR RANA:   Okay then, your Honour.

HIS HONOUR:   So that is why they have left.

MR RANA:   Certainly.  So I understand that this prerogative writ is discretionary and why I did not go for special leave is that…..indicated that I would have no prospect of success and, however, they told me that…..remedies will be given in the…..jurisdictional error, as you can see jurisdictional error appearing…..of the defendants…..South Australia forming part of the record.  This honourable Court has no discretion to…..to quash the decisions and mandamus to compel them to decide…..according to law.  This was the case of GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 515 per Kirby P and Hope JA.

It is in the public interest that…..should not be allowed to stand…..applicant like in this case.  Like the case of R v The Judges of the Federal Court of Australia; Ex Parte The Western Australian National Football League (Inc) (Adamson’s Case) (1979) 143 CLR 190 at 204.

The principle of…..does not in my judgment entitle one to overlook self‑evident facts…..seven men with black hair and one with red hair, you are not entitled to say that there are…..men with black hair…..Human Right and Equal Opportunity Commission’s role as the judge, jury and the prosecutor…..their decisions.  They always do not believe me what I have to put…..that substance.  I said I am not – might not…..this and the thing that they apply if I have personality disorder the Minister…..

Every time I try to say to them what this suggested that in substance…..simply the matter was that you should be able argue the case, but I said, you know, “You don’t tell me how I should satisfy the high‑water mark, the low‑water mark”.  They never gave me any guidance about that and I…..that this is a…..about NAFA and the Disability Discrimination Act.  I went before von Doussa J and I got a surprise and…..and I tried to indicate to him about the test but he said this is not a valid test…..I appealed…..for the Full Court and they said, “Oh, well, von Doussa J is correct”.

So, your Honour, you know, I said, “Well, forget about it”, and I kept on looking for reasons.  One day I must open the case because it is a…..thing, your Honour, that, you know, all they have, these people have…..saying I am crazy one.  They do not listen to me because they think that the Human Right…..that I am crazy.  So it is…..very, very difficult for me.  I believe that Nader J and the President of the Human Rights and Equal Opportunity Tribunal and von Doussa J and Nader J and Full Court I think used…..rule and used it…..  They also, I think, used…..to look at the generality but they denied me all my credibility and used the wrong test and they never allowed me for my matter to be heard…..what Lander J was saying was that because of…..not the one that wants to ultimately say that the case will be summarily dismissed because the…..fails.

That, I think, was very significant to me and I am in disability and…..a lot of pain has passed, but the section 45 of the Limitation Act of South Australia is going to be picked up by section 79 of the Judiciary Act allows me to bring this matter before you, your Honour, within a…..span.

If I believe that it is a…..and I have been excluded…..things like that, I have been totally excluded in terms of my needs of society from government, et cetera, et cetera.  So I think in that case, your Honour…..I have is before you, your Honour.  I think that, you know, of course, I…..all the rules of evidence and that and what that…..they were whatever and they never believe me, even though many times that…..from his Honour Lander J in the Full Court decision, that what he said was that, you know, the cause of actions would be allowed, not that even the prospect of him saying that you failed, that summary dismissal…..even in the case of, like, observations of Kirby J in Lindon v The Commonwealth 70 ALJR 541 at 544 and 543. At paragraphs 3 and 4 his Honour correctly stated that:

that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination.  Even a weak case is entitled to the time of a court.  Experience teaches that the concentration of attention, elaborated evidence and argument and extended for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

4.         . . . for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.  If there is a serious legal question to be determined, it should ordinarily be determined a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

So what I would like to say is, your Honour, there is two kinds of…..people who have…..how to go about by using the test of the cause of action and just to show that what you have to do when pleading or outlining the case.  But, in…..you know, the…..case that one was a…..agreed was that, you know, if I said I could have no substance that means, you know,…..so there seems to be a…..two sets of court cases.  I think in the interests of jurisprudence I think your Honour must ask the question, “Which is the right test?  Is what Lander proposes…..my substantial rights or is it significant test…..emotional one, not objective test.  Which one is the right one because that…..to 100 per cent of litigants like me in the future.  I think that will be…..

HIS HONOUR:   Thank you very much, Mr Rana.

On 20 October 2004 the applicant filed an affidavit in support of an application for orders nisi for certiorari, mandamus and prohibition.  The draft order nisi filed at that time revealed that the applicant, Mr Rana, sought to have the order nisi directed to Justices Beaumont, Branson and Sundberg of the Federal Court of Australia, to Justice von Doussa then of the Federal Court of Australia, to the Honourable John Nader, QC, to the Human Rights and Equal Opportunity Commission and to an organisation called the Nepal Australia Friendship Association and an individual associated with that body, Mr Deepak Bista.

The proposed respondents other than the Nepal Australia Friendship Association and Mr Bista have all filed submitting appearances.  Although the applicant told me that documents have been served on the Association and on Mr Bista, there is no material on the file which reveals with any clarity what papers have been served on the Association or Mr Bista or when that was done.  Nothing turns on that fact.  For the moment it is enough to notice that neither the Association nor Mr Bista appears.

Although there are some internal inconsistencies in the documents filed by Mr Rana, it appears that the particular decision of which he seeks to complain in this Court is the decision of Justices Beaumont, Branson and Sundberg sitting as a Full Court of the Federal Court of Australia made on 19 March 1999.  That court dismissed an appeal which Mr Rana had brought against orders of Justice von Doussa who had dismissed several applications for judicial review brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The background to those applications, at least as far as revealed in the reasons for judgment of the Full Court of the Federal Court, lies in claims made by Mr Rana that in rejecting his application for membership in about December 1992, the Nepal Australia Friendship Association and Mr Bista had discriminated against him on the ground of a disability arising out of a personality disorder, a complaint which Mr Rana made under the Disability Discrimination Act 1992 (Cth) and had discriminated on racial and ethnic grounds, a complaint he made under the Racial Discrimination Act 1975 (Cth). Those complaints of discrimination were considered ultimately by Mr Nader, QC as the delegate of the relevant Commission or Commissioner and in each case Mr Nader concluded that the complaint should be terminated either by being dismissed or as being a complaint not to be the subject of further inquiry.

In addition to these complaints, Mr Rana had also made some complaints against the Australian Press Council and the Advertiser newspaper under the Disability Discrimination Act and these complaints too had failed.  The proceedings which Justice von Doussa heard and determined were, so it would seem, intended to agitate the correctness of all of the several decisions that I have mentioned.

In the course of his oral submissions today, the applicant sought to emphasise to me the importance of the underlying complaint to him.  As he pointed out, he attached great significance to the cultural consequences for him of being excluded from not simply the Association but the society of Nepalese people either in this city or perhaps in a wider group.  What is important to notice, however, is that the bare recitation of the history of the relevant events that I have given reveals the events which lie at the root of Mr Rana’s complaint occurred many years ago.  Moreover, the particular decision of the Full Court of the Federal Court which he would now seek to impugn by proceedings in this Court was made more than five years before he sought to institute proceedings in the Court.

That the applications for certiorari and mandamus are made so long after the expiration of the relevant time limits fixed by the Rules of Court would, in the particular circumstances of this case, be reason enough to refuse the application for order nisi. As to those time limits, see in particular Order 55 rule 17 and Order 55 rule 30 of the High Court Rules 1952 and now rule 25.06.1 and rule 25.07.2 of the High Court Rules 2004.

Although the lapse of time would itself be reason enough to conclude that the order nisi which Mr Rana seeks should not be granted, I should add in that regard that Mr Rana’s reliance upon section 45 of the Limitation of Actions Act 1936 as a means whereby that time might be extended would seem misplaced. The power to extend the relevant time, fixed as it is by Rules of Court, would be found within the powers of the Court rather than any surrogate federal law picked up by the Judiciary Act 1903 (Cth) section 79, whether section 45 of the Limitation of Actions Act 1936 or otherwise. Even assuming, as I do, that there is ample power to extend the times fixed by the Rules, there is in my opinion no sufficient cause shown for the exercise of that power.

Not least is that so because the grounds which Mr Rana would seek to state as the grounds on which order nisi should go reveal no arguable ground for the grant of relief of the kind which he would seek.  As framed, the grounds offer little particularity of the complaint he would seek to make.  They read:

1.        Questions of law (eg no evidence to support that I was the perpetrator of the conflict, debt was owed to me by Deepak Bista and on this basis all levels of judgment declared that I was the source of conflict being inherent in my personality or personality disorder and this was irrational, illogical and unreasonable approach in law to arrive at a decision that no other tribunals would arrive at.

2.        Questions of discretion (eg all of them used an erroneous test, they used irrelevant materials into account at arriving at a decision as they indicated that I had personality disorder and that was the basis of conflict stemming from me).

3.        Questions of fact (eg they all used wrong Nepalese cultural materials into account as they indicated that I was not contributing to the objectives of NAFA).

4.        Denial of Natural Justice (eg they all denied me legal and reasonable expectations to join NAFA, most of the presented evidence against me had no probabilistic value to exclude me and rather it was prejudicial to me in denying me a hearing).

5.        Jurisdictional Error (eg they used erroneous tests and also fell into factual errors by using irrelevant Nepalese and psychiatric materials against me to deny me a hearing).

6.        Lack of Power (eg they went beyond the legal power to deny me a hearing).

7.        Relevant and Irrelevant Considerations (eg that appears above).

8.        Improper Purpose (eg they summarily dismissed my case to save time and money in parochial terms).

9.        Unreasonableness (eg I have provided some examples above and this questions falls per the decisions being Wednesbury unreasonable that no other reasonable courts would arrive at.

10.      Factual Error (eg I have set out some examples above already.

11.      Negligence as an Abuse of Power and Error of Law (eg they all should had given me a hearing and I have to come to correct the situation after many years per Lander J’s decision and it is the proper authority as a question of law.

Even accepting, as I do, that these grounds have been framed by the applicant without legal assistance and giving to those grounds as ample a construction as I can, nonetheless it seems to me that they reveal no arguable ground for grant of the relief which he seeks, nor, having examined the material that he has filed in support of his application, is there anything in that material that would reveal any arguable ground.

Finally, there is a still further but separate set of reasons why Mr Rana’s application should fail.  Insofar as he seeks relief directed to the Human Rights and Equal Opportunity Commission or to Mr Nader, Mr Rana has already taken proceedings in the Federal Court in which complaints of the kind he would now seek to propound could, at the very least for the most part, have been put forward.  Insofar as Mr Rana would seek relief directed to Justice von Doussa, all of the complaints that he would now seek to make were complaints of a kind that could have been put forward as grounds of appeal to the Full Court of the Federal Court.  Insofar as he now seeks relief directed to the judges who constituted the Full Court of the Federal Court, again the complaints he makes are all complaints of a kind that could have been advanced as grounds of appeal to this Court by special leave.  In these circumstances relief of the kind now sought should, for the reasons just articulated, be refused:  see, for example, R v Cook; Ex parte Twigg (1980) 147 CLR 15; R v Ross‑Jones; Ex parte Green (1984) 156 CLR 185.

For all the reasons I have indicated, I am of the opinion that Mr Rana’s application for order nisi should be dismissed.  The order of the Court is application for order nisi dismissed.

I will adjourn.

AT 3.55 PM THE MATTER WAS CONCLUDED