Rana v Deakin University
[2012] FMCA 575
•20 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANA v DEAKIN UNIVERSITY | [2012] FMCA 575 |
| HUMAN RIGHTS – Claims of unlawful disability and race discrimination – respondent seeking summary dismissal of claims and/or vexatious litigant order – consideration of applicant’s claims – claims found to have no prospect of successful prosecution – consideration of whether claims vexatious – consideration of applicant’s numerous other cases – orders made as sought by respondent. |
| Federal Magistrates Court Rules 2001, rr.13.10, 13.11 Federal Magistrates Act 1999, s.17A Civil Dispute Resolution Act 2011, ss.6, 7 Federal Court of Australia Act 1976, s.31A Disability Act 2006 Racial Discrimination Act 1975 Evidence Act 1995, s.140 Judiciary Act 1903, s.39B Bankruptcy Act 1966, ss.178, 179 Veterans’ Entitlements Act 1986 Administrative Decisions (Judicial Review) Act 1977 Disability Discrimination Act 1992 |
| Rana v Libraries Board of SA and Ors [2008] FMCA 911 Rana v Musolino [2009] FCA 1050 Rana v Chief of Army (No.2) [2009] HCASL 89 (18) Rana v University of South Australia & Anor [2008] 108 ALD 45 Rana v Police [2008 SASC 347 Rana v Goldney (No.2) [2008] FCA 1553 Rana v Libraries Board of SA (2008) 219 FLR 44 Rana v Hase [2008] HCCSL 380 Rana v Commonwealth of Australia [2008] FCA 907 Rana v Goldney [2008] FCA 463 Rana v University of South Australia (No.2) [2007] FCA 941 Rana v Chief of Army [2005] FCA 1283 Rana v Military Rehabilitation & Compensation Commission [2005] FCAFC 85 |
| Applicant: | RANJIT RANA |
| Respondent: | DEAKIN UNIVERSITY |
| File Number: | ADG 197 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 28 May 2012 |
| Date of Last Submission: | 28 May 2012 |
| Delivered at: | Melbourne (via video link to Adelaide) |
| Delivered on: | 20 July 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr S. Cole |
| Solicitors for the Respondent: | Minter Ellison Lawyers |
ORDERS
The claim made by the applicant, Mr Rana, be dismissed.
The applicant, Mr Rana, be and is hereby declared a vexatious litigant pursuant to r.13.11 of the Federal Magistrates Court Rules 2001 and:
(a)Any proceedings issued by Mr Rana may not be continued without leave of the Court; and
(b)Mr Rana may not institute a proceeding without leave of the Court.
Mr Rana is to pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 197 of 2011
| RANJIT RANA |
Applicant
And
| DEAKIN UNIVERSITY |
Respondent
REASONS FOR JUDGMENT
Introductory
By its application in a case filed on 4 May 2012, the respondent seeks orders that the claim made by the applicant, Mr Rana, be dismissed pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (“the Rules”) and/or that judgment be given for the respondent pursuant to s.17A of the Federal Magistrates Act 1999. Further or in the alternative, the respondent seeks that Mr Rana be declared a vexatious litigant pursuant to r.13.11of the Rules.
Mr Rana strongly resists the making of any such orders and by way of contrast seeks that this application in a case be summarily dismissed and the matter be heard in full at trial.
For the reasons that follow, the Court will order that Mr Rana’s application be dismissed and that he be declared a vexatious litigant.
The two preliminary objections taken by Mr Rana
Mr Rana submitted most forcefully that the Court should summarily dismiss the respondent’s application on two grounds. His first point was that the respondent failed properly to reply to his “Applicant’s genuine steps statement – Rule 4.09” filed with the Court on 14 May 2012. His second point was that the respondent was in breach of orders made by the Court on 27 March 2012 in that the outline of submissions the respondent had been ordered to file before 18 April 2012 was not in fact filed until 4 May 2012.
The Genuine Steps Statement
The Genuine Steps document is a document now required by virtue of this Court’s Rules further to the enactment of the Civil Dispute Resolution Act 2011 (“the Civil Dispute Resolution Act”). Part 1 of that Act, according to the copy given to the Court by Mr Rana, came into operation on 12 April 2011 and the remainder on 1 August 2011. It imposes a number of obligations on parties who are to commence litigation. As I indicated to Mr Rana during the trial, I had not in fact myself previously been made aware in any significant detail of the legislative provisions. That, no doubt, is because cases involving the operation of the new legislation are only now starting to come through for trial. Furthermore, it should be noted that the obligations the Act imposes would appear, from the absence of prior controversy, to be complied with in an unremarkable way by parties to litigation before this Court.
Mr Rana’s originating application was filed on 1 August 2011 and it is therefore, it would appear, more likely than otherwise that the legislation did in fact apply to him. He was unaware of the legislation at the time of filing and no criticism can be advanced of him for that. Nonetheless, it is important to note what it is that the legislation actually requires.
By s.6 of the Civil Dispute Resolution Act it is required that:
“(1) An applicant who institutes civil proceedings in an eligible court must file a genuine steps statement at the time of filing the application.”
These being civil proceedings in an eligible Court it was, therefore, at least arguably required that Mr Rana file such a genuine steps statement pursuant to the Court’s Rules.
By s.7 of the Civil Dispute Resolution Act it is relevantly provided that:
“(1) A respondent in proceedings who is given a copy of a genuine steps statement filed by an applicant in the proceedings must file a genuine steps statement before the hearing date specified in the application.”
In this case, the original application filed by Mr Rana specified a hearing date (obviously the first return date) of Friday 26 August 2011.
On any view, it would not have been possible for the respondent to have filed any response because Mr Rana did not file his Genuine Steps document until May 2012 when it would appear, from what he told me, he became aware of the Act in another proceeding.
I should observe that the Civil Dispute Resolution Act has as its object (see section 3):
“… to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted.” (emphasis added)
Here the Act was, if it was operative at all, commencing on the very day upon which Mr Rana filed his proceeding. It is no wonder that he did not comply. It should also be noted, however, that it is quite clear that what the Act is seeking to do is to compel parties to take genuine steps to resolve their disputes before proceedings are instituted. There is nothing in the legislation to suggest that it had retrospective operation to proceedings that were already underway at the time the legislation was introduced.
Furthermore, and leaving all these matters to one side, an infraction of the genuine steps obligations merely brings into play the powers of the Court set out in Part 3 of the Act. Those powers (see sections 11 and 12) merely give a discretion, which appears to be at large albeit one would accept it must be exercised judicially, to give proper weight to any failure to comply in performing the Court’s functions or exercising power in relation to the proceeding.
In the context of this case and the circumstances in which Mr Rana filed his Genuine Steps document, on 14 May 2012 when the matter was listed for trial on 28 May 2012, it is immediately apparent that Mr Rana’s submission is hopelessly misconceived.
The respondent was not required to respond to Mr Rana’s document and clearly should not face any penalties in the particular circumstances of this case even if in some fashion it might be thought that it was appropriate for the respondent to have replied. It should be noted that the respondent did file a responding document which took issue with Mr Rana’s document in any event.
The late service issue
Mr Rana is correct to say that the respondent filed its written submissions late. They should have been filed by 18 April 2012 and were not filed until 4 May 2012. Nonetheless, there are several things to be said about that delay.
The first is that Mr Rana made no interlocutory application as a result of the default. He was content to let the matter run to trial without pressing on an interlocutory basis for the delay in the written submissions to give rise to some adverse consequence to the respondent. It should be noted that Mr Rana was well aware of the procedure for making interlocutory applications and has indeed made one in this case himself.
Furthermore, and more tellingly, Mr Rana was well able to file a substantial amount of material in response to the respondent’s written submissions and he did so on 7 May 2012 by filing a “Rebuttal of alleged vexatious proceedings” and a further and substantial affidavit on 15 May 2012.
There is no prospect whatever, as I find, that Mr Rana was in any way prejudiced by the late filing of the respondent’s written submissions and indeed Mr Rana was well able to present argument to the Court at trial.
In the circumstances, Mr Rana’s objections arising from the late service of the respondent’s written submissions are of no force whatever.
The application to amend
On 4 May 2012, the respondent filed an application in a case supported by an affidavit of a Mr Hurburgh. In substance what was sought was that the application in a case filed by the respondent on 18 October 2011 be the subject of minor amendment as to the form of orders sought. At trial, Counsel for the respondent submitted that the application did no more than align the wording of the application in a case to the relevant rules and legislation. I note that perhaps the more substantive amendment was to seek in the alternative judgment pursuant to s.17A of the Federal Magistrates Act 1999.
Mr Rana took serious exception to this aspect of the application which, like the matters already referred to, he submitted in the strongest terms showed vexatious abuse of process on the part of the respondent.
I indicated that I would permit the amendment and give my reasons for doing so in this judgment and these are the reasons.
The first and most overwhelming reason to permit the amendment is that the submission of Counsel for the respondent as to the nature of the amendment is entirely correct. It is entirely apparent that the amendment does no more than bring the verbiage in the application in a case into conformity with the legislation and to add in the alternative the application pursuant to s.17A. The materials relied on in support of the s.17A application were the same as those for the r.13.10 application.
Mr Rana had already referred to s.17A in materials previously filed with the Court and was clearly fully aware of the operation of s.17A in any event. No possible prejudice to Mr Rana, apart from facing a claim expressly contemplated by the statute, could possibly arise from the amendment. It was for those reasons that I permitted the amendment to be made.
The applicable law
It is appropriate to set out the relevant Parts of the Federal Magistrates Act 1999 and the Federal Magistrates Court Rules 2001.
Section 17A relevantly reads:
“(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.”
Rule 13.10 of the Federal Magistrates Court Rules 2001 provides:
“The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
Rule 13.11 reads as follows:
“(1) If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian Court (whether against the same person or against different persons), the Court may order:
(a) that any proceeding instituted by the person may not be continued without leave of the Court; and
(b) that the person may not institute a proceeding without leave of the Court.”
There are two things that may be helpful to note about the operation of s.17A. The first is that as Federal Magistrate Simpson pointed out in Rana v Libraries Board of SA and Ors [2008] FMCA 911 at [25]:
“[25] In the explanatory memorandum for the introduction of
s 17A the Minister said:“Subsection 17A(3) provides that for the purposes of giving summary judgment, a proceeding … need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the Courts in construing the conditions for summary judgment by reference to the “no reasonable cause of action”.”
It should also be noted that s.17A of the Federal Magistrates Act 1999 is to the same effect and, in my view, is relatively indistinguishable from s.31A of the Federal Court of Australia Act 1976, (“the Federal Court Act”).
That point is brought into play because the Full Court of the Federal Court has considered the operation of s.31A of the Federal Court Act in the authoritative decision of Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd & Ors (2008) 167 FCR 372.
Much of that case was concerned with the question as to whether or not an order made under s.31A of the Federal Court Act was interlocutory or not. The Court split on this issue with Rares & Gordon JJ saying that it was interlocutory and Finkelstein J dissenting. Nonetheless, there is helpful guidance in my respectful view to be obtained.
Rares J said at [45]:
“[45] The character of a judgment under s 31A is identified by the test which the section prescribes. The judgment is a determination that the proceeding or part of the proceeding “has no reasonable prospect of success”. Thus, when the Court gives judgment for a party under s 31A(1) or (2) it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes. By enacting s 31A, the Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised. It is inherent in the power conferred by s 31A that the Court need not and does not ordinarily determine the proceedings on their merits after a full trial. A decision under s 31A is that the claim or defence has “no reasonable prospect of success”. It is not that the claim or defence has been proved so that the right or cause of action or defence merges into judgment and loses its independent existence: Blair v Curran (1939) 62 CLR 464 at 531–2 per Dixon J. Rather, the power conferred by the section authorises the Court to make a decision summarily that there is no reasonable prospect that if a trial were to take place the claim or defence would succeed. The section requires a prediction of the outcome of a trial on the merits but is not an actual adjudication of those merits.”
Gordon J dealt with the nature of s.31A at [123]-[134] of the judgment. Given the length of that extract, I do not propose to set it out in full but I pay careful regard to, and respectfully adopt, all of the matters to which Her Honour referred. Some matters of particular relevance to this case that I would extract from Her Honour’s observations are:
a)the express words of s.31A impose a different and less stringent test to that described in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at [129]-[130] (at [124]);
b)s.31A is a provision which permits and assists the Court to manage proceedings and therefore assists in controlling the cost of, and delays in, resolving proceedings by summarily dismissing claims which have no reasonable prospects of success (at [125]);
c)the mechanism for assessment of whether a proceeding or part of a proceeding has no reasonable prospect of success will necessarily require attention to the matters set out by Her Honour at [126];
d)each case must be considered separately and there is no particular hard and fast set of rules (at [127]);
e)where there is a real issue of fact relevant to a pleaded cause of action which must be resolved to determine whether the claim succeeds, it is unlikely that that part of the proceedings has no prospect of success (at [130]);
f)by contrast, the existence of a real issue of law does not necessarily preclude a summary judgment (at [131]).
Her Honour has set out five principles which I have (in part) paraphrased above. At [132], Her Honour went on to say however:
“I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences — but only reasonable inferences — in favour of the non-moving party: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [30]; Boston Commercial Services 236 ALR 720 at [45]. I emphasise "reasonable" because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between "hopeless" cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.”
Although I have been referred to other authority on the operation of s.17A, in my respectful view the passages I have cited above are sufficient to indicate the approach that this Court should take in dealing with that part of the application that seeks the summary dismissal of the application on the footing that the application has no reasonable prospects of success.
I should, however, also refer to the decision most strongly relied upon by Mr Rana, namely Rana v University of South Australia (2004) 136 FCR 344. It should be noted of course that the decision in that case pre-dated the introduction of s.17A and of s.31A of the Federal Court Act.
Nonetheless, Lander J’s remarks are still of assistance. Having referred at [72] to Dey v Victorian Railways Commissioners and General Steel Industries (1949) 78 CLR 62, His Honour went on to say at [73]:
“The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action. That is for the reasons already mentioned. There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. The applicant is not obliged to file all affidavit evidence with the application, but only an affidavit which need not be the applicant’s It could not have been intended that an application under r 13.10 would give rise to an obligation upon the applicant to produce all of the applicant’s evidence in order to determine whether the applicant could disclose a reasonable cause of action. If that were the obligation, the hearing of the application would almost become the trial.
The Court, on hearing an application under FMC Rules 4.04(1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action. Again, that would amount to a trial of the action. What the applicant must disclose is a reasonable cause of action — not that on the evidence presently available the applicant will succeed on that cause of action.
In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant’s proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim.”
The law in relation to vexatious litigants
In both written and oral submissions, the respondent pointed to the decision of the Supreme Court of New South Wales in Attorney-General v Wentworth (1988) 14 NSWLR 481 where Roden J observed at 491:
“It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4. In order to fall within the terms of s 84:
(a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);
(b) the proceedings must have been “habitually and persistently” instituted by the litigant.”
It should be noted that in this case, and bearing in mind the terms of r.13.11, counsel for the respondent expressly conceded that it was necessary for the Court to find that this proceeding is vexatious for the Court to have power to make an order declaring Mr Rana a vexatious litigant. Additionally of course Mr Rana must be found to have habitually, persistently and without reasonable cause instituted other vexatious proceedings in either this Court or another Court.
Whether counsel’s concession is correct is not, at least to me, entirely clear. Nonetheless, I am proceeding to determine this matter on the footing upon which counsel expressly advanced his case.
I have also been referred to, and have had regard to, the decision of the High Court of New Zealand in Attorney-General v Collier [2001] NZAR 137 from which I would draw the following points:
a)it is not the manner in which proceedings were conducted that is to be considered but whether the nature and substance of the proceedings themselves could be characterised as vexatious;
b)it is appropriate to look first to the individual proceeding started by the party, but the Court also has to look at the totality of the proceedings. The subjective intention of the allegedly vexatious party is not determinative of vexatiousness which is a matter to be objectively assessed;
c)the fact that a plaintiff failed in litigation did not demonstrate that proceedings were vexatious but a successful strike out when not based on technical points might be reliable evidence of vexatiousness;
d)the Court should consider the applicant’s proceedings overall and the number of such proceedings is a relevant consideration.
As observed by Stone J in Soden v Kowalski [2011] FCA 318 at [35]-[36]:
“[35] The relief for which these rules provide is extreme. It deprives the person subject to the order of a right that is fundamental to the preservation of a civil society governed by the rule of law, namely the right to call on the court to resolve a dispute or adjudicate a claim simply by filing an application in the prescribed form. For this reason such an order is not made lightly. (authorities omitted).
[36] There is, however, a countervailing consideration which is to be found in the purpose of the rules. In Jones v Skyring (1992) 109 ALR 303 at 312, Toohey J referred to the purpose of such a rule as,
‘reinforcing the power of the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance’.
In Ramsey v Skyring (1999) 164 ALR 378 at [52], Sackville J referred to Toohey J’s comment and added,
‘Linked with that objective is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings’.”
Should the application be summarily dismissed?
Bearing all the matters I have earlier referred to well in mind, I now turn to the matters indicated by Gordon J in Jefferson Ford at [126]. This involves, in summary, a consideration of the cause of action pleaded, identification of the pleaded facts said to give rise to the cause of action, a review of the evidence tendered in support of the claim, identification of a defence and identification of any facts said to give rise to the defence. In summary, the Court has to make an analysis of what the applicant’s claim is and what the defence to it might be said to be.
The applicant’s claim
The first thing to be said about Mr Rana’s case is that it is not easy to understand. Like a number of other people who have had to sit in judgment in cases involving Mr Rana, I found his approach to be somewhat scattergun both in his written materials and in his oral submissions. The application lodged on 1 August 2011 seeks as final orders sought an apology, re-markings of Marketing Management and Global Trade and Markets and compensation of $10,000 “or as ordered by Court of precedent”.
The application indicates that it is brought as a result of unlawful discrimination in contravention of the Disability Act 2006 and the Racial Discrimination Act 1975 and itemises various sections to be relied upon but does not indicate in what way the sections itemised operate upon the circumstances of the case.
The application has annexed to it a Notice of Termination by the Australian Human Rights Commission together with a letter to Mr Rana of 7 July 2011 from the Commission. In that letter the delegate of the Commissioner describes the complaint as follows:
“You state that you are of Nepalese origin and you have a psychiatric disability and diabetes. You say that in 2009 Dr Goohra, your lecturer in the unit MPE711 (Global Trade and Markets) threatened to fail you for not taking part in group work with other students of Indian heritage. You say that you negotiated to complete three assignments in unit MPE711 individually, as opposed to participating in group work, under the supervision of Professor Sgro. You claim that you were subsequently assessed against different marking criteria used to assess other students in the class and awarded a low grade.
You allege that this amounts to race and disability discrimination under the DDA and RDA.”
Having set out the analysis of the response from the respondent, the delegate of the Commissioner went on to say:
“On 21 July 2010, you re-iterated your claim that a different assessment weight structure had been applied to you in unit MPE711. You also sought leave to amend your complaint to include allegations relating to your assessment in unit MPK732 (Marketing Management) and Deakin’s refusal to provide a review of your mark in that course.
You say that, in or around September 2009, you requested and were granted special consideration to accommodate your disabilities in the form of sitting a special examination for unit MPK732 in February 2010, as opposed to November 2009. You say that you received your mark on 9 March 2010 and asked for a review of the mark on 12 March 2010.”
Having noted a response from Deakin University (“Deakin”) which, inter alia, said that the request for a review by Mr Rana on 12 March 2010 was out of time and that “You allege that this refusal to provide you with a remark for unit MPK732 also amounts to unlawful discrimination under the RDA and DDA” the delegate went on to say that leave was granted to amend the complaint to include the allegations regarding unit MPK732.
The delegate noted that Deakin acknowledged, by a response dated 24 March 2011, that:
“… the letter sent to you dated 12 March 2010 incorrectly states that you sat the relevant examination at the end of trimester 2, 2009. However, Deakin said that the letter informed you of the appropriate process by which to make an application for review and you did not do so in the required time period or at all.”
The delegate went on to say:
“I have considered all of the information that has been provided to the Commission and I wish to advise that I have decided to terminate your complaint under section 46PH(1)(c) of the AHRCA as I am satisfied that your complaint is lacking in substance.”
The delegate went on to give reasons for this conclusion as follows:
“I turn first to your allegation regarding unit MPE711. While you claim that you were threatened with failure for not taking part in group work with other students of Indian heritage, you have not provided any information to support this claim and the information before me indicates that Deakin accommodated your request not to participate in group assignments. In relation to your claim about your assessment in this unit, Deakin advised that you were provided with extensions of time to complete your assignments and your assessments were marked and remarked by two qualified assessors in accordance with the marking criteria applied to all students. You have not provided any information or documents to refute the information provided by Deakin. Additionally, you have not provided or pointed to any information which supports a view that your race and/or disabilities were factors in how your performance in this unit was assessed.
I turn next to your allegation regarding unit MPK732.
I understand from the information before me that you requested, and were granted, special consideration to accommodate your disabilities in terms of sitting a special examination at a later time. It appears that Deakin’s letter to you of 12 March 2010 advising that it was too late for you to request a review of your mark in this unit, is based on incorrect information about the date of your examination. However, it also appears that you did not seek to correct this error about the date of your examination when you received the letter. While I appreciate your dissatisfaction with this error, it does not follow that the error in and of itself, amounts to racial or disability discrimination. To date you have not provided or pointed to any information which supports a view that your race and/or disabilities were factors in why your request for a remark was refused.
Therefore, on the basis of the information before me at this time I am satisfied that your complaint is lacking in substance.”
I interpolate at this point and say that in the light of all the materials filed with the Human Rights Commission the delegate’s letter does seem to me correctly to describe the various matters that Mr Rana raised.
Annexed immediately behind the decision of the delegate to which I have referred are various documents including an email chain between the relevant officer at the Commission and the applicant, the letter of 12 March 2010 already referred to, a medical certificate and a statutory declaration from 2009 relevant to Mr Rana’s application for special consideration, and an Attachment B which is another email exchange between an officer of the University and Mr Rana, and Mr Rana’s original complaint form to the Commission.
The complaint form to the Commission reveals the organisation complained of was Deakin University and secondly refers to Fofi Hronopoulos who was the Director of the Division of Student Administration. It should be noted that Ms Hronopoulos was the author of the erroneous letter of 12 March 2010.
Having identified psychiatric and diabetes type 2 medical conditions and having also identified race as grounds of complaint, Mr Rana said that he had been treated unfairly for another reason, namely a previous complaint to the Human Rights Commission. No indication was given as to when the prior alleged complaint had been made or as to what discrimination was alleged to have arisen from it.
Mr Rana went on to assert that Dr Prateek Goorha in 2009 threatened to fail him in the subject MPE711 “for not taking part in most groups chosen by him who were Indians and did not like me from Nepal”. He went on to reiterate that complaint in more detail. He complained about the way in which he had been marked.
In his affidavit filed contemporaneously with the application, Mr Rana set out at length his various complaints. It should be noted that amongst other things, he raised (see paragraph 5 of the affidavit) an instance in which he was charged with gross academic misconduct in the form of plagiarism. He asserted that he was charged by an Indian lecturer named Vijaya Mohan and that “He told me this is because I am not Indian and a backward Nepalese”. Complaint was made that Mr Mohan had not passed on to the appropriate authorities Mr Rana’s medical certificates seeking special consideration. One report allegedly not passed on was a report of Dr Bal apparently provided by Mr Rana to Mr Mohan in 2007.
The affidavit asserts at paragraphs 6 and 7:
“I was given a zero mark as my punishment based on a draft that I had provided to Mr Vijaya Mohan, and clearly marked that it was a draft only.
I complained to Human Rights Australia and was rejected on the grounds for ‘lacking in substance’.”
The affidavit goes on to make assertions of harassment and victimization by Mr Mohan, in particular in relation to Mr Rana’s interrelation with a woman called Gregurev. Some of these assertions seem slightly fantastic as is the assertion at paragraph 10 of the affidavit:
“I was doing Terrorism Studies in 2007 to 2009 and Vijaya Mohan further reported me to CIA, FBI, and Australian Federal Police’s Counter Terrorism.”
The affidavit reviewed the conduct of the Australian Human Rights Commission which led to the letter already referred to from the delegate. Mr Rana went on to state what he described as his second complaint in this matter. This matter arose out of a topic in marketing in late 2009, the chair of which was a Mr Vieceli (spelt Viceli in the application). Mr Rana asserted that he had difficulties with Mr Vieceli prior to 2002 at the University of South Australia. In his own Affidavit at paragraph 28(iv) Mr Rana volunteered:
“I was told by Julian that he did not remembered me from University of South Australia after so many years. I do not agree with him.”
Mr Rana went on to complain that he got 50 out of 100 marks in his first assignment in Mr Vieceli’s topic and asserted at paragraph 29(iv) of the affidavit that:
“I remember getting 50 out of 100 again from Prateek Goorha saying nothing was wrong with Julian’s generous marking and I was the one who was wrong from Nepalese backward thinking, and having unacceptable behaviour to wise teachers, which was such that I had mental deficit in my moral fiber.”
The affidavit noted, however, that Mr Rana had been granted special consideration to sit for a supplementary examination in February 2010 and that “I was also provided usual ‘reasonable accommodation’ for my psychiatric condition that was extra 10 minutes for every one hour”.
I do not propose to traverse each and every matter set out in Mr Rana’s affidavit because to the extent that it is intelligible it speaks for itself. As one illustration of the disconnect between some of the assertions made in the affidavit and the materials alleged to support it, I refer to the following extract from paragraph 35 of the Affidavit:
“I have added as exhibit “H” in this affidavit a letter to me dated 8 December 2010 from Fofi Hronopoulos, Director, Division of Student Administration with bizarre threats, which later involved Australian Federal Police, Victoria Police, South Australia Police, FBI, CIA and Nepalese Police. Basically, I was alleged to be a member of the Mc Jihad Moslem Black Network. This made me feel incredibly humiliated and embarrassed with my family and friends.”
Exhibit “H” is a letter to Mr Rana dated 8 December 2010 from Ms Hronopoulos. The letter does no more than assert that the University had been contacted by a recipient of the emails sent to the recipient’s email address in September and November 2010. Copies of the emails were enclosed for reference and it was pointed out to Mr Rana that his conduct might be in breach of student discipline. It should be noted that the emails that were enclosed for reference were not appended, it would appear, to Mr Rana’s exhibit itself.
The respondent’s application in a case filed 18 October 2011
The respondent filed a response and also filed the application in a case that has ultimately led to the hearing before the Court. It made an application both that Mr Rana’s application be dismissed pursuant to r.13.10 and/or in the alternative that he be declared a vexatious litigant.
The application was supported by a number of affidavits. The affidavit of Alexandra Marie Smith filed 20 October 2011 was essentially a facultative affidavit putting in issue the question as to whether or not Mr Rana’s application faced any reasonable prospect of success or whether he should be declared a vexatious litigant. It appended a considerable number of cases in which the applicant had been involved although, pursuant to a further affidavit, one such case was eventually removed and another effectively substituted for it.
The respondent also filed affidavits from three academics involved in the matter. It should be noted that Mr Goohra resigned from employment with Deakin University in 2011 and is now living overseas.
The Affidavit of Pasquale Sgro, Associate Dean of the Deakin Graduate School of Business, responds directly to Mr Rana’s affidavit. He asserts that he became aware that Mr Rana made a complaint against the University from Dr Goohra and that at Dr Goohra’s request, he took over all dealings with Mr Rana.
Although Dr Sgro was aware of Mr Rana’s requirement for special consideration for medical conditions, he deposed to having been unaware of specific illnesses and in particular that Mr Rana was suffering from paranoid schizophrenia or diabetes. Dr Sgro went on to say that the assignment referred to in paragraph 22(vi) of Mr Rana’s affidavit appeared to be one initially marked by Dr Goohra which Mr Rana failed. Following complaint, Dr Sgro re-marked it and Mr Rana passed. Dr Sgro deposes that he would have used the same weighting as Dr Goohra, being the weighting that was set out in the Unit Guide for the unit and the same weighting that was applied to all other students. Dr Sgro deposed that only the Faculty Board can change the weighting of the subject and that this did not occur at any material time.
Dr Sgro otherwise refuted a number of the assertions made by Mr Rana in his affidavit.
Mr Vijay Mohan deposes that he was a lecturer of a course undertaken by Mr Rana in 2007. He refers to two assignments in the assessment of the unit. In respect of the first assignment (clearly MPE711), he deposes that Mr Rana asked in effect to work as an individual instead of within a group. In fact, Mr Mohan responded favourably to this request. Mr Mohan exhibits a number of emails which in my opinion can fairly be said to show that the relationship between those in the group prior to Mr Rana’s leaving it were breaking down. Some of Mr Rana’s observations to his fellow students were presumptuous if not insulting in their terms.
The second aspect of controversy that appears to touch directly upon Mr Mohan arises from Mr Rana’s assertions at paragraph 5 of his affidavit that he “was falsely charged with gross academic misconduct about plagiarism by an Indian Lecturer named Vijaya Mohan”.
Mr Mohan deposed that the difficulty that arose was that a software programme he used suggested that a substantial amount of Mr Rana’s article had been plagiarised, albeit not the material from the IMF site that was properly indexed and sourced.
Mr Mohan deposed that he referred this matter to the Faculty Academic Progress and Discipline Committee (“FAPDC”) of the University and that he had no say at all as to whether Mr Rana would be found guilty of plagiarism.
Mr Mohan deposes that he checked both the hard copy and online version of Mr Rana’s assignment which were identical and that neither, contrary to Mr Rana’s assertion, was marked as a draft.
The FAPDC, according to Mr Mohan found Mr Rana guilty of plagiarism and awarded him a zero mark for the assessment.
Mr Mohan also responds to a number of the assertions about a number of incidents to do with Ms Gregurev which Mr Mohan found as strange as I do. He expressly denied any sort of racial abuse of Mr Rana.
Because Mr Rana was an online off-campus student, it is scarcely surprising that Mr Mohan had never met Mr Rana or spoken to him. It should be noted that in amongst substantial tranches of emails exhibited by Mr Mohan, a message from Mr Rana emailed on 14 October 2007 at 9.53am asserts:
“Mr Vijay,
I do not think that I have done stealing from internet. Your accusations are fraudulent as you know my data came from IMF hard copy. I have not relied on any material from internet. You have done this history that I have as you falsely claim comes from the power of your turnitin software and thus I need to be given a grade of zero weight. I think your turnitin is a sham.”
In a further email sent once the matter had apparently been moved out of Mr Mohan’s care towards the FAPDC on 31 August 2007, Mr Rana wrote:
“I have been failed for cheating. I have a medical explanation that is having diabetes I had submitted my wrong assignment through a third party, while I was in hospital and the marker marked when I had asked him not to do so. He says I have a history of being a vexatious person. I want my appeal and that I be allows to do alternative examination.”
The evidence of the third academic to be put on affidavit, Mr Vieceli, confirms that he was employed by Deakin University between 1995 and 2011. He deposes to having been employed at the University of South Australia from which he resigned in 1994 to take up a position at Deakin University. He deposed that he did not recall ever meeting Mr Rana at the University of South Australia and that he did not ever mark any work from Mr Rana or fail him for poor English or otherwise at that University as he was not his student.
Mr Vieceli then goes on to refer to paragraph 28(ii) of Mr Rana’s affidavit. He denies Mr Rana’s assertions as to prejudicial racial remarks.
I note that Mr Vieceli deposes that Dr Goohra did not mark any of Mr Rana’s assignments in his unit and that they would have been sent to another person.
At paragraph 26 he asserts:
“From my reference to the spreadsheet, I can see that Mr Rana received a mark of 11 out of 25 for his first written assignment, 13 out of 25 for his second assignment and 32 out of 60 for his final exam.”
This remark, which in my view shows a clear typographical error in the last figure of 60, gave rise to much of what Mr Rana had to say before the Court.
I note that Mr Vieceli says that he marked Mr Rana’s exam first and failed him but that the re-marking took place administratively. He went on to depose (at paragraphs 41 and 42):
“I have never met Mr Rana, nor do I recall ever speaking to him on the telephone.
I did not know until receiving Mr Rana’s Affidavit that Mr Rana was Nepalese, nor would it have made any difference had I known this at all material times.”
He goes on to assert that while he recalls that Mr Rana required special consideration around the time of his exams he did not recall seeing anything about diabetes or paranoid schizophrenia. He recalled reading that Mr Rana had a medical condition.
Mr Vieceli also annexed as part of his materials an email sent by Mr Rana on 9 August 2009 to Mr Vieceli which, amongst other things, includes racist remarks about a Chinese fellow student.
As will immediately be apparent, the above has been a somewhat despairing attempt to paraphrase a voluminous amount of material concentrating upon what the claims in the proceeding are and what it is Deakin says about them.
Mr Rana’s response
Mr Rana filed a responding affidavit on 4 November 2011. With annexures, this fully occupies a full lever arch folder.
Once again, I will endeavour to paraphrase the important parts of it although obviously, as with all the materials, I have had careful regard to all of it.
At paragraph 9, Mr Rana deposed that he would have got superior marks had he not been mistreated and that he lost an opportunity to undertake a Doctorate of Philosophy. He asserts:
“This poor mark grades has caused me detriment, which is the loss and damage to my reputation, and humiliation and embarrassment to me in the public. I do not have to plead any cause of actions in this court, and I do not have to properly particularise compensation for my loss, which is to say I shall obey to the court’s awarded damages for me being humiliated and hurt, and embarrassed.”
Much of what Mr Rana deposed to consisted of assertions about the cases referred to in the affidavit of Ms Smith and in particular, assertions that these cases were not actually dismissed but were the subject of deeds of settlement.
In his response to the affidavit of Mr Vieceli, Mr Rana deposed at paragraph 19:
“I was subject of his vicious attacks on me at University of South Australia in the 1990s. I dispute his 19 too, and the same pattern repeats at Deakin. He always failed me or gave me just pass at 50 on the ground of having Indian accent and I am from Nepal.”
At paragraph 23 Mr Rana deposed that:
“I was told by Mr Goohra that he would mark my papers as I am a known thief. I dispute his 23 and I need to cross examine Mr Goohra.”
It is fair to say, Mr Rana disputed just about all the facts advanced by the three academic deponents and in a number of cases asserted that he would wish to cross examine. Importantly, in response to Mr Mohan’s affidavit, Mr Rana deposed:
“I had clearly submitted my draft for feedback only. I refer to Exhibit “K” in page one: dated with stamp 30/8/2007.”
Exhibit “K” is a document submitted in the unit International Banking & Finance Unit Code MPE707. The document on its face was dated 25/8/07. It has upon it a date stamp of 30 Aug 2007 and the words “DRAFT ONLY” written in blue ink. The entirety of the rest of the document is in black and white.
It should be noted from Exhibit “B” to Mr Rana’s affidavit that it is clear that he in fact passed Unit MPE707 with a mark of 51. I also note that the affidavit of Dr De Pasquale exhibited to his affidavit suggests that in 2004 a diagnosis was made by Dr De Pasquale that Mr Rana suffered from paranoid delusional disorder. It is clear on any view, including his own, that Mr Rana has had ongoing psychiatric difficulties of a paranoid schizophrenic nature.
Mr Rana also exhibited a large number of deeds of settlement in various cases in which he had been involved, this being a matter to which I shall return.
Mr Rana’s affidavit of 6 March 2012
I have passed over the affidavit in support of Mr Rana’s interlocutory application lodged on 6 March 2012 and his outline of submissions filed on 4 November 2011. Although I have had regard to them they do not, in my view, take the matter further.
The supplementary affidavit exhibits again numerous settlements between Mr Rana and various of the numerous parties with whom he has been in litigation and denies the various annexures to Ms Smith’s affidavit showing vexatious proceedings.
Mr Rana’s subsequent documents
Mr Rana has filed, as earlier indicated, a “Rebuttal Submission” and “Rebuttal of alleged vexatious proceedings” document on 7 May 2012. These documents are essentially responsive and argumentative to the matters raised by the respondent’s application.
In a supplementary affidavit filed on 15 May 2012, Mr Rana sets out various other newer claims he is bringing forward including action against two Registrars of the High Court, apparently for failing to accept documentation he wished to file, and an action against Google for failing to remove Facebook entries made by Ms Gregurev to whom reference has already been made.
The oral submissions made by the parties
The respondent, which naturally addressed first through Counsel, was content largely to rely on the written submissions made. For these purposes it is sufficient to note the oral submission made that the schedule of cases filed by the respondent pursuant to Ms Smith’s affidavit showed an unending series of vexatious applications. It was submitted that the affidavits of the three academics were unremarkable and prima facie believable. It was submitted that they had no obvious reason to have misconducted themselves in any of the ways that the applicant asserted. It was submitted that this application was both vexatious and had no reasonable prospect of success (although counsel conceded I might make a finding as to the latter without making a finding as to the former). It was also submitted that the applicant was, in the circumstances disclosed by the materials, clearly a vexatious litigant both in this proceeding and in the others to which reference was made.
Mr Rana’s submissions were made extremely forcefully. He complained of the involvement of Minter Ellison in his affairs since 2002. He pointed out that most of the cases to which reference was made have been settled by deeds of settlement. He relied strongly upon the judgment of Lander J in 2004 to which I have referred and referred also to the judgment of Spender J sitting as the Full Court of the Federal Court in Rana v Commonwealth of Australia [2008] FCA 1667. He also pointed to the decision of the Equal Opportunity Tribunal of South Australia constituted by Withers J, being Exhibit “A” to his supplementary affidavit to support motion filed 6 March 2012. In fact, in this last-named case, Mr Rana was largely unsuccessful. His claim against three respondents was effectively dismissed and he was granted leave to replead as against a fourth.
A number of the assertions made by Mr Rana in oral submissions were, at face value, somewhat off-putting. He asserted, inter alia, that his marks had gone down after the University’s lawyers had been involved. He asserted that Ms Hronopoulos lied to the Court because she asserted that the supplementary exam was done in December when it was in fact done in February (see transcript P-49 for both matters).
I detail these matters only by way of illustration. The transcript will no doubt speak for itself.
I repeat, were it is necessary to do so, that I have read and re-read carefully all of the voluminous materials in this case. I have endeavoured to extract aspects of it that give both the proper flavour of what both parties have put but also those aspects which seem to me to be particularly relevant.
I have endeavoured to address those matters set out by Gordon J in Jefferson Ford at [126].
I now come to what Her Honour described as the sixth principle which is that I should draw reasonable inferences but only reasonable inferences in favour of the non-moving party. As Her Honour said:
“… the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.”
Section 75 Evidence Act 1995
At this point I will interpolate and say that the objections taken by Mr Rana to the material filed by the respondent are, in my view, wholly misconceived. It is accepted that this is an interlocutory proceeding and evidence can be given on the basis of information and belief. Various academics who have given evidence have given what seems to be direct admissible evidence both from their own recollection and from what are clearly business records. To the extent that Ms Smith’s material involved matters of information and belief, it seems to me that the sources of her materials are clearly given.
Findings about the application – does the case have reasonable prospects of success?
It should be emphasised that the findings made in this instance, self-evidently, do not follow a trial involving the cross-examination of the various witnesses. They are made at the level contemplated by the introduction of s.17A of the Federal Magistrates Act (and its counterpart in the Federal Court, s.31A of the Federal Court Act).
Here, I have no hesitation in reaching the conclusion that Mr Rana’s application has no reasonable prospects of success. There are a number of reasons why I arrive at this view.
First, the application brought by Mr Rana complains in essence of discrimination, as far as I can see, in relation to three matters:
a)an assertion that he was the subject of compulsion to undertake group work in a course because of dislike of him by Dr Goohra, an Indian lecturer;
b)a complaint that his papers were wrongly marked and should be re-marked;
c)a complaint that he was a plagiarist because of racial prejudice on the part of Mr Mohan.
It is rapidly apparent that none of the things of which Mr Rana complains are made out. It is clear from the email tranches attached to Mr Mohan’s affidavit that Mr Rana himself created friction in the group or groups in which he was working and was accommodated to the extent that he requested to work on his own. It is not necessary, in my view, to say more than this because the conclusion is quite clear from the materials. Further, Mr Mohan played no part in the decision of the FAPDC that found Mr Rana to have plagiarised.
It is also clear that although Mr Rana initially failed his exam, he was re-marked by Dr Sgro, and passed.
Furthermore, to the extent that Mr Rana sought special consideration to take his exam in February 2010 rather than in December 2009, this was also accommodated.
To the extent that Mr Rana says that Dr Sgro re-marked him wrongly by using the wrong criteria, there is nothing in the materials to suggest that this is in any way likely.
The error of Mr Vieceli in ascribing 60 per cent final total tally is in the scheme of things unfortunate but it does not disturb for one instant the proposition that the marking of all of Mr Rana’s work was routinely done and uncontroversially so.
I note that two of the three academics deposed never having spoken to or met Mr Rana. Given that he was an off-campus student, this is scarcely surprising.
Mr Rana’s thesis that Mr Vieceli disliked him at the University of South Australia (which he left in 1994) and brought this dislike to bear upon his employment at Deakin in about 2009 and 2010 is prima facie unbelievable. Mr Vieceli deposes that he simply never had anything to do with Mr Rana at the University of South Australia where he had not been an employee for some 15 years plus before the events the subject of controversy in these proceedings arose. It is, of course, possible that Mr Vieceli is perjuring himself when he says this but s.140 of the Evidence Act 1995 (“the Evidence Act”) applies to such assertions. It is not in any way likely.
To the contrary, it is apparent as Counsel for the respondent submits that there was no valid reason why Messrs Vieceli, Sgro or Mohan would be likely to bring upon themselves the misconduct that would necessarily be involved in discriminating against Mr Rana either on the basis of his ethnicity or disability.
In this regard it must be said, contrary to the submissions of the respondent, that there are some aspects of facts raised by Mr Rana’s materials that give rise to genuine factual controversies. Although they are not really itemised as matters giving rise to discriminatory conduct, the fact is that Mr Rana asserts that both Dr Goohra and Mr Mohan spoke to him insultingly on the basis of his Nepalese ethnicity. Such assertions, if made out, would arguably be capable of grounding a complaint of racial discrimination without more, and give rise to potentially an order for damages for hurt and humiliation. Mr Rana has not, in my view, characterised his complaint in this way but the fact is that such an assertion would be open.
This is where the observations of Gordon J in Jefferson v Ford are a very helpful guidance. While it is plausible that a person from India might have a condescending attitude towards a person from Nepal merely by virtue of their respective nationalities, this does not mean that it is a reasonable inference to draw. There is, moreover, no proof whatever in Mr Rana’s oral assertions before the Court that Indians generally look down on Nepalese as backward and the like.
The reality is that the email strings exhibited by both Mr Mohan and, to an extent, Mr Rana disclose on their face a fair and tolerrant response from Mr Mohan to Mr Rana’s sometimes rude and almost invariably combative approach.
There is yet a further part of the materials in this case to which I have said I would return and I now do so.
I refer here to the document marked “DRAFT ONLY” annexed to
Mr Rana’s affidavit of 4 November 2011 and marked as exhibit “K”. As earlier indicated, this document has the words “DRAFT ONLY” written in blue ink (but presumably by biro) whereas the rest of the document is all in black and white and has every appearance (scarcely surprisingly) of being a photocopy. Although it is a very significant finding to make, and one in which I make full allowance for the considerations raised by s.140 of the Evidence Act, the fact is that the explanation which makes sense is that this is a fraudulent document created by Mr Rana for the purposes of this proceeding.
The document exhibited of its nature has to be one of which the original is with Deakin University. It is wholly inexplicable that a photocopy shows the words “DRAFT ONLY” in a different colour to the entirety of the rest of the document. I note there have been previous judicial findings that Mr Rana has altered documents. I regret to say that the conclusion is really entirely inescapable that Mr Rana has altered this document for his own purposes.
While my finding about this document is a devastating one, it only adds to the overall picture to which I have already referred.
The reality is that Mr Rana has scarcely articulated any claim giving rise to any loss other than, as I have said, the possibility of some award for general damages for distress as a result of imputed racial remarks of which I am not satisfied. This is because Mr Rana’s case is generally deficient. The probability of Mr Mohan and Dr Goohra having made the remarks is, viewed objectively, extremely implausible. Mr Rana has sworn that his exhibit K is something I am convinced it is not.
In my view the application cannot succeed. I do not think that the things Mr Rana alleges were said and done to him, to the extent that they might give rise to a complaint of discrimination on the bases of race or ill health, have occurred. Furthermore, even if they had, they had no effect in the matters regarding Mr Rana’s marking and therefore no loss or damage emerged as a result.
It is perhaps trite to say in the circumstances, but the case that Mr Rana’s application should be dismissed pursuant to s.17A of the Federal Magistrates Act is overwhelming. Indeed the same would be the case even under the higher bar occasioned by r.13.10 of the Federal Magistrates Court Rules.
Should Mr Rana be declared a vexatious litigant?
In order to achieve the order that it seeks, the respondent must show that the applicant meets the description set out in r.13.11 of this Court’s Rules as follows:
“If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian Court (whether against the same person or against different persons) …”.
If those matters are satisfied then the Court’s power, which is of course discretionary, to make orders having the effect of limiting Mr Rana’s capacity to institute proceedings is enlivened.
As earlier indicated, the relevant tests were recently comprehensively considered by Stone J in Soden and Her Honour’s methodology was comprehensively approved by the Full Court in Kowalski v Mitsubishi Motors Australia Ltd [2011] FCAFC 159 at [141].
I respectfully refer to Her Honour’s consideration of the authorities, which I adopt in these Reasons by reference, at [45]-[58].
The first matter to be considered is whether this proceeding has been instituted vexatiously. As I have earlier indicated, Counsel for the respondent expressly conceded that it was necessary for the Court to address the issue in this way.
In this instance, I think that it is clearly beyond doubt that the proceeding is indeed vexatious. I have endeavoured, in dealing with the application to dismiss the application as having no reasonable prospect of success, to isolate some of the qualities which apply in my view equally in this instance.
The following points should be noted.
First, insofar as the application relates to complaints about the marks that Mr Rana received, not only are the events in part some considerable time ago (2007), but Mr Rana on the evidence as it stands quite clearly elected not to pursue his claims for a considerable period. His claim to the Human Rights Commission was not signed until 23 February 2010.
Further, the matters in respect of which Mr Rana complains seem to me to be quite incapable of being made out. What I mean by this is that the facts as he asserts them are simply not reasonably likely.
Insofar as Mr Rana complains of mistreatment by Dr Goohra, the prima facie evidence discloses beyond doubt that it was not Dr Goohra who actually marked the assignment of which Mr Rana complains.
Insofar as the complaint arises out of the referral of Mr Rana to the FAPDC and the subsequent decision by that body that Mr Rana had plagiarised, not only is there no evidence to suggest that this decision was in any way wrong, there is no evidence whatever that Mr Rana, as he could have, pursued the matter through the University’s own internal procedures.
Insofar as complaint is made of the actions of Ms Hronopoulos, the error that she made, which is readily conceded, as to the date upon which Mr Rana actually sat his deferred exam, is simply not conduct capable of constituting discriminatory conduct on any view.
Furthermore, and even leaving aside the significance and in my view insuperable difficulties with what one might describe as the basal factual assertions Mr Rana makes, there is, as Counsel for the respondent in my view correctly submits, no evidence that any discriminatory state of mind, for example on the part of Dr Goohra, in fact operated upon any of the outcomes of which Mr Rana complains.
It is noteworthy that Mr Rana is also not slow to attribute malice and/or fraud or dishonesty to those who have taken part in decisions of which he disapproves. This is the case in respect of Dr Goohra, Mr Mohan and Ms Hronopoulos. Express or implicit assertions of malice are also attributed to others including Mr Vieceli and the University solicitors.
To the extent that the objective evidence shows anything, it reveals as I have earlier indicated that Mr Mohan and Ms Hronopoulos simply seek to respond to Mr Rana in a perfectly unexceptional and courteous way.
As indicated by Stone J in Soden, the following principles in my view apply in this instance:
a)proceedings are vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless (see Soden at [46] quoting Roden J in Wentworth);
b)a successful strike-out application by the defendant not based upon technical points may be reliable evidence of vexatiousness (Soden at [47] quoting Attorney-General v Collier);
c)ultimately the test is whether the proceedings have been conducted by the litigant in a manner which properly attracts the epithet of vexatious (Soden at [48] quoting Brogden v Attorney-General [2001] NZAR 809;
d)vexatious is an omnibus expression which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing or which are an abuse of process of the Court (Soden at [50] quoting Gallo v The Honourable the Attorney-General, Supreme Court of Victoria, 4 September 1984, (unreported) Starke J).
In my view each and every one of these descriptions apply here. It must be conceded, as I have earlier indicated, that there are odd glimmers of hope for Mr Rana such as the allegation, for example, that Dr Goohra spoke to him in racially offensive terms and Mr Mohan did as well.
These remarks, however, need to be considered in context. Not only for the reasons that I have already given are they not likely to be made out, they do not in fact, if one looks at the evidence carefully, ground the supposition that the matters of which Mr Rana actually complains could have been the result of the racial attitudes to which he has deposed.
In my view, taking the materials as a whole, Mr Rana’s case is utterly hopeless and would fail and is properly, in all the circumstances, to be regarded as vexatious.
Has Mr Rana habitually and persistently and without reasonable grounds instituted proceedings in this Court or other Australian Courts?
The affidavit material annexed by Ms Smith runs to some 78 annexures of which 77 are decisions of various Courts in which Mr Rana has litigated. With some wholly immaterial minor interlocutory exceptions (such as his equal opportunity tribunal decision to which I have referred which is exhibited to Mr Rana’s affidavit and the decisions of Lander J and Spender J), the fact is that Mr Rana was unsuccessful in each and every one.
The respondent has provided a schedule of the cases in which Mr Rana has been involved which is annexed to the written submissions filed. It charts the successive history of Mr Rana’s litigation by grouping it into related topics. In my view the grouping by the respondent is an accurate reflection of Mr Rana’s curial activities. What this grouping shows is a relentless picture of constant and unsuccessful challenge to any decision whether interlocutory or final with which Mr Rana disagrees. It is the consistent pattern of his approach to litigation.
It would, in my view, be overly burdensome to go through each and every one of Mr Rana’s all too numerous unsuccessful applications. Nonetheless, I propose to refer to a number of matters in which particular observations were made that are of relevance to the question the Court is presently considering. To assist those who may read the materials as well as this judgment, I have indicated in brackets the annexure numbers to Ms Smith’s affidavit.
Rana v Repatriation Commission [2011] FCAFC 123 (3)
This was an appeal by Mr Rana from a decision of a Judge of the Federal Court who had dismissed Mr Rana’s application under s.39B of the Judiciary Act 1903 (Cth) for the judicial review of a decision to give a procedural direction.
Mr Rana pressed two grounds of appeal and also an application for leave to adduce further evidence, a practice which appears again and again in the decisions.
The Full Court held at [20]:
“None of the grounds of appeal has any merit.”
Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127 (4)
In this case Mr Rana had attempted to file several documents in relation to three separate actions in the registry of the Supreme Court of South Australia. The matter came before Gray J who observed that this was a referral from the Registrar of the Supreme Court by which the Registrar sought a direction that he reject the proposed documents. Gray J did make the direction sought by the Registrar. At [8] his Honour said:
“I have reached the conclusion that all four documents sought to be filed are an abuse of the process of the court. I will address each document briefly, but in short, the documents are incomprehensible and rambling. They appear to contain serious and multiple assertions regarding the conduct of many people. Insofar as it is possible to glean sense out of these documents, they appear to be in part a continuation of a longstanding complaint regarding restraining orders imposed on Mr Rana and orders that he seeks to have imposed on others. Otherwise the documents may properly be described as outrageously drafted and painfully difficult to follow, and in the circumstances, an abuse of the process of the court. To ask the respondents to respond to the material sought to be filed would in my view be unfair.”
Rana v Official Trustee in Bankruptcy [2011] FCA 504 (6)
This case involved consideration by Mansfield J of an application filed by Mr Rana purporting to constitute an application pursuant to s.178 and s.179 of the Bankruptcy Act 1966 (Cth) against his Trustee in Bankruptcy.
At [4] his Honour described the application in the following terms:
“The application itself is, to say the least, cryptic.”
At [26]-[28] his Honour says:
“[26] The allegations concern asserted fraudulent conduct of the Chief of Army concern the acquisition and use of medical evidence from the consultant psychiatrist in the circumstances referred to above in [8]. There is no reason to think on the material before the court, that there was any impropriety in what occurred. Furthermore, there is no evidence to indicate that the costs orders in favour of the Chief of Army in earlier proceedings could now be challenged by any application to set aside the judgments upon which those costs orders were made. No such application has been made by the applicant. In fact, the two costs orders were disclosed by the applicant in his statement of affairs filed on 14 August 2008, subsequent to his bankruptcy. The material indicates that the applicant was unable to meet the debts disclosed in his statement of affairs, and remains insolvent. It does not indicate that he has an excess of assets over liabilities either at the time of his bankruptcy or subsequently. It does not provide any foundation for a determination that the debts upon which the bankruptcy order was made or improperly procured. There was no action taken by the applicant to set aside those costs orders. Again, this application is an inappropriate attempt to go behind the decision of Lander J in Rana v University of Adelaide [2008] FCA 365. The applicant’s written submissions to some degree seek to be given a further opportunity to have earlier (and decided) claims concerning a Army service-induced disability reheard. The applicant has elsewhere exhausted that claim, such that there is no proper basis for him to revisit those same claims in the present application. I note that there is also a more general allegation in the applicant’s affidavit of 7 July 2010 that the Trustee has defrauded the applicant in the past in relation to an earlier bankruptcy. That is without any apparent foundation. It is gratuitous and improper in the circumstances. This claim has no apparent merit.
[27] In my view, it is clear that the claim in its entirety is without merit.
[28] During his submissions, the applicant rhetorically asked how he was to get justice. It is plain that his view about a just result is that all his various earlier claims should be accepted. He has made those claims and they have been adjudicated according to law. He has largely been unsuccessful. He cannot by the present application, in effect, create an opportunity to go behind or ignore those previous adjudications. The application represents then, to a significant degree, an impermissible attempt to challenge those decisions. …”
Rana v Repatriation Commission [2010] FCA 280 (10)
This was an application heard by Lander J for judicial review of a decision of a Member of the Administrative Appeals Tribunal by which the Member decided that an application by Mr Rana should be considered first by reference to whether the applicant was a person to whom a particular Part of the Veterans’ Entitlements Act 1986 (Cth) applied.
Lander J described the application at [15] in the following terms:
“In my opinion, the application should be dismissed because it lacks merit.
I note that at [17] his Honour said:
“When this matter first came before the court, I explained to the applicant that subsequent events, namely the decision of Deputy President Hack to proceed in the way that he did and his decision to affirm the decision of the Veterans’ Review Board, superseded Member Short’s decision and made his application otiose. He appeared to understand the matters which I put to him and said that he would withdraw the application. I invited him to file a notice of discontinuance. Subsequently, he changed his mind and decided to proceed with the application. I will hear the respondent in relation to any claim for indemnity costs.”
Rana v Repatriation Commission [2010] FCA 281 (11)
This was an appeal heard by Lander J from a decision of a Deputy President of the Administrative Appeals Tribunal in which a decision rejecting Mr Rana’s claim for a pension was affirmed.
At [88] Lander J said:
“[88] This was a case quintessentially which had to be decided upon its facts. The Deputy President addressed all of the relevant evidence and decided the case factually adversely to the applicant.
[89] The applicant has wrongly assumed that because he adduced evidence in support of the proceeding the AAT was bound to accept it. The AAT was not bound to accept the applicant’s evidence or contentions. It was bound to conduct a review of the decision and to determine whether on the evidence before him the decision under review was the correct or preferable decision …
[90] The applicant is not entitled to argue under the guise of questions of law that the Deputy President arrived at the wrong factual conclusion.
…
[92] Because the applicant’s notice of appeal otherwise only raises factual findings which he says should or should not have been made, no questions of law are raised.”
Lander J dismissed the application.
Rana v Musolino [2009] FCA 1050
This was an action brought by Mr Rana against a Registrar of the High Court and Others brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) with respect to various proceedings in which Mr Rana had been unsuccessful including claims in contract, breach of confidence, negligence and contraventions of the Trade Practices Act and other matters.
At [14] and following, Finn J characterised the various proceedings that Mr Rana had been involved in. The findings at [15]-[26] are wholly dismissive of Mr Rana’s application and include the following at [25]-[26]:
“See also Rana v University of Adelaide (No 2) [2008] FCA 494 at [7] in relation to the third respondent where the claim dismissed was based on an email found to be not authentic.
I would interpret that, having regard to the complaints by Mr Rana against the various respondents, the proceeding before Lander J was, manifestly, an abuse of process: it was ‘foredoomed to fail’.”
At [45] Finn J said:
“Distinctly, I am not satisfied that Mr Rana is seeking to vindicate or establish a ‘personal wrong or injury’ for s.116(2)(g) purposes. All of the claims he advanced (in SAD 12 of 2008) against all five respondents were struck out as abuses of process. No legally intelligible claims were disclosed against four of the respondents; the remaining claim against the University of South Australia was also struck out for the same reason, his Honour having found it was based on a document relied upon by Mr Rana which was ‘not authentic’: Rana v University of Adelaide (No 2) at [7]. The proceedings before Lander J were doomed to failure. The imagined claims made did not give that degree of authenticity to the rights asserted such as would justify characterising them as rights to recover damages for personal injury or wrong to the bankrupt for s.116(2)(g) purposes. They are illusory rights.”
Rana v Chief of Army (No 2) [2009] HCASL 89 (18)
This was an application for special leave to appeal against the orders of Mansfield J dismissing Mr Rana’s appeal against a decision of Simpson FM. Simpson FM had made a Sequestration Order against Mr Rana’s estate.
At paragraph [3] of the decision of Hayne and Crennan JJ their Honours observed:
“The applicant’s written submissions develop no real argument in support of the application for special leave, nor is there any reason to doubt the correctness of the conclusions reached in the courts below.”
It should be noted in passing at this point that Mr Rana has made a number of applications for special leave, all of which have been summarily dismissed.
Rana v University of South Australia & Anor [2008] 108 ALD 45 (20)
This was a proceeding brought by Mr Rana against the University of South Australia and Another. He had claimed discrimination under the Disability Discrimination Act 1992 and remedies under other legislation.
At [42]-[44] Besanko J observed:
“[42] There are two independent grounds upon which I conclude that the pursuit of the claim for unlawful discrimination is an abuse of process.
[43] First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The court has a wide jurisdiction to protect a party from an abuse of process. …
[44] The other independent ground for dismissing the claim for unlawful discrimination is that, in my opinion, the applicant has no reasonable prospect of successfully prosecuting the claim. There is no allegation of a disability in the statement of claim, nor is there an allegation that the applicant was treated less favourably than a person without a disability. …”
It should be noted that Besanko J did not extend to Mr Rana the opportunity to replead his case because “there is no suggestion that the applicant has a reasonably arguable case of unlawful discrimination” (at [45]).
Rana v Police [2008] SASC 347 (21)
This was an application by Mr Rana for permission to appeal to the Full Court of the Supreme Court against a decision of a single Judge who dismissed an appeal against a decision of a Magistrate confirming a restraining order against Mr Rana.
At [10]-[11] the Full Court, constituted by Doyle CJ, Bleby and Kelly JJ said:
“[10] The proposed appeal raises no issue of legal principle. If permission is granted the appeal would involve a re-argument of matters already argued before the single Judge and decided by him. The written material submitted by Mr Rana does not give rise to any reason to doubt the correctness of the decision of the single Judge in dismissing Mr Rana’s appeal.
[11] The Court will not ordinarily grant permission to appeal to the Full Court unless the case raises some issue of legal principle, and unless the appeal has an arguable prospect of success. Neither of these conditions are satisfied in the present case. …”
Rana v Goldney (No 2) [2008] FCA 1553 (24)
This was a application for an extension of time for Mr Rana within which to appeal from the judgment of a single Judge of the Federal Court. The single Judge had dismissed Mr Rana’s application as an abuse of the process of the Court.
At [26] Mansfield J said:
“[26] In my judgment the decision of the primary judge was clearly correct. The applicant, having had his claims dismissed on 17 March 2008, simply went out and a few days later commenced a similar claim with additional respondents but based upon the same conduct. The conduct complained of, giving rise to the alleged causes of action, is the circumstances in which Dr Goldney came to write a medical report under the letterhead of Professor of Psychiatry, University of Adelaide, when it was desirable that he should not have done so, and was given information which was made available to him by the Australian Government Solicitor. It was clearly an abuse of process for the applicant to have brought the second proceeding SAD.34 of 2008. The applicant has simply sought to litigate again, in this case in the same Court, claims which he has already made and had dismissed in this Court. See eg McHenry v Lewis (1882) 22 ChD 397; Schumack v Commissioner, Australian Federal Police [2005] FCA 1476. And the general discussion in Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 especially at 290. There is no potential merit in any of the proposed grounds of appeal. There is no prospect of the proceeding at first instance succeeding if it were to be reinstated.”
Rana v Commonwealth of Australia [2008] FCA 1667 (28)
This is one of the cases in which Mr Rana asserts that he had a considerable measure of success. It concerned an application for security of costs by the Commonwealth against Mr Rana. Ultimately, Spender J declined to grant the Commonwealth’s application for security for costs. But at [15]-[16] his Honour said:
“[15] Accepting that the prospects of success of the applicant’s appeal do not appear to be strong or, in fact, may be regarded as quite poor, there is in my view a relevant factor (apart from the nature of the order appealed from and what may be said to be the “something of an onus” cast by the wording of O 52 r 20) in the circumstances of this case against ordering security.
[16] That is the fact that the judgment under appeal was given on 17 June 2008. An appeal was lodged within time, and the application for security for costs was not made until 2 October.”
At [18] His Honour continued:
“[18] Notwithstanding these matters, I dismiss this application for security for costs, principally because of the significant delay between the filing of the appeal and the application for security for costs.”
The point to be noted here is that although Mr Rana was successful, his Honour described Mr Rana’s prospects of success in the appeal as “quite poor”.
Rana v Libraries Board of SA & Ors (2008) 219 FLR 44 (32)
This was a matter in which the respondents sought summary dismissal of proceedings brought against them by Mr Rana. His Honour Simpson FM granted the application. It is not necessary to say more as the judgment makes it clear that Simpson FM was of the very clear view that the respondents were entitled to succeed in their application for summary dismissal of Mr Rana’s claims.
Rana v Hase [2008] HCASL 380 (34)
This was an application for leave to appeal against a decision by Crennan J dismissing summarily a summons and statement of claim with costs. Kirby and Heydon JJ relevantly held:
“Crennan J held: ‘The statement of claim does not contain an intelligible cause of action which could properly be heard in this Court.’
The draft notice of appeal states no grounds of appeal. The applicant’s summary of argument, although detailed, does not reveal any reason to doubt Crennan J’s conclusion. The applicant wishes to file fresh evidence in this Court. Even if on the authorities this course were permissible, the evidence would not overcome the deficiencies in the statement of claim.
The Court dismissed the application.
Rana v Commonwealth of Australia [2008] FCA 907 (36)
This matter was heard by Lander J and constituted an application by the respondents to dismiss Mr Rana’s proceeding as an abuse of process of the Court or on the ground that the proceeding was vexatious.
At [52] Lander J said:
“…I am satisfied that the respondents have succeeded in establishing that the applicant has no reasonable prospect of prosecuting this proceeding because the proceeding is an abuse of the Court’s processes.”
At [60] his Honour said:
“[60] Moreover, I am satisfied that this proceeding, as the respondents have contended, has been brought for a collateral purpose and thereby an improper purpose: Williams v Spautz (1992) 174 CLR 509. This proceeding has been brought for the purpose of calling into question Mansfield J’s decision and that of the Full Court. It has also been brought for the further improper purpose to obtain the interlocutory relief which is sought in the application so as to prevent the first respondent from proceeding with the creditor’s petition in the Federal Magistrates Court. … ”
His Honour continued at [61]:
“[61] In my opinion, therefore, there are two improper purposes identified which underlie the bringing of this proceeding. First, the proceeding seeks to bring into question previous decisions of this Court and, secondly, seeks to obtain an order restraining the first respondent from prosecuting proceedings in another court.”
At [65]-[66] his Honour said:
“[65] The respondents have demonstrated, again in my opinion, that the subject matter of this proceeding has been previously determined in this Court and in the Federal Magistrates Court and, in those circumstances, the prosecution of this proceeding in this Court is vexatious.
[66] I am satisfied that the respondents have made out that the proceeding is vexatious.”
Rana v Goldney [2008] FCA 463 (42)
This matter was heard by Lander J and at [1] his Honour said:
“This is yet another proceeding brought by Mr Rana arising out of a medical examination which was arranged by the Australian Government Solicitor in respect of proceedings which Mr Rana has brought against a number of parties in the Administrative Appeals Tribunal. …”
At [2] his Honour continues:
“The proceeding which has been brought today is no different to that which was dismissed summarily on 17 March 2008. … ”
At [5] his Honour continued:
“When the application was filed in the Court I directed that it not be served upon the respondents so that the respondents would not be put to the cost of this application. I explained to Mr Rana that this application is no more than an abuse of the processes of the Court. I explained to Mr Rana that these proceedings, which are brought too frequently, must stop and he must use this Court only for the purpose for which the Court has been erected and that is for the consideration of claims under a statute of the Commonwealth.”
Rana v University of South Australia (No 2) [2007] FCA 941 (47)
This was a decision of Besanko J. He was considering a costs application. At [6] his Honour said:
“In my opinion, this is an appropriate case for the award of indemnity costs. Mr Rana made allegations about payment for the tickets and what occurred at the Convention Centre which were critical to his case and he must have known were untrue. Those allegations should not have been made. He claimed that he had suffered loss and damage of $1 million but he proved no loss or damage. He altered a document, namely, a receipt, so that his case would appear stronger. These circumstances alone justify an award of indemnity costs.… ”
Rana v Chief of Army [2005] FCA 1283 (64)
These were two applications brought by Mr Rana under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review the decisions of the Chief of Army. They were heard by Mansfield J. At [16] his Honour said:
“Mr Rana provided seven separate sets of written submissions, as well as making oral submissions at the hearing of the applications. The submissions largely overlap. They must of course be tied to one or other of the grounds of review available under s 5 of the ADJR Act. They are expressed in a scattergun fashion, and understandably (as he is not represented) somewhat discursively. I have considered those submissions. They are variously expressed, and sometimes in offensive or unhelpful epithets. …”
Rana v Military Rehabilitation & Compensation Commission [2005] FCAFC 85 (65)
This was an appeal to the Full Court from a judgment of Justice Finn. At [2] the Full Court said:
“Mr Rana represented himself on the appeal, as he did before Finn J. His notice of appeal contains 15 “grounds”, none of which identifies any intelligible basis for setting aside the orders below.”
Conclusion as to whether Mr Rana has habitually persistently and without reasonable grounds instituted other vexatious proceedings
I emphasise that I have only in the above extracts concentrated on some of the more obviously deplorable aspects of Mr Rana’s conduct as a litigant. In my view the decisions to which I have been referred, (the vast majority proffered by the respondent but at least one by Mr Rana), show that it is abundantly clear that he has habitually, persistently and without reasonable grounds instituted numerous vexatious proceedings both in this Court, the Federal Court, the Courts of South Australia and indeed the High Court.
It is therefore clear that the Court’s discretion to make the orders sought by the respondent is enlivened.
Should Mr Rana be declared a vexatious litigant and be subject to an order pursuant to Rule 13.11(1)?
It is abundantly clear, in my opinion, that the Court should exercise its discretion to make the order that the respondent seeks. It is quite clear that Mr Rana is a vexatious litigant. In saying this I emphasise that I have not had regard, (as the authorities in my view require me not to have regard), to whether Mr Rana’s litigation is the subject of a genuine belief or otherwise on his part. His subjective motive is not relevant (see Collier at [35]). Likewise, for the reasons set out by Stone J in Soden, I do not regard the way in which Mr Rana has conducted himself, being often offensive and making inappropriate assertions of misconduct, as being of itself of relevance save as to the issue of the Court’s discretion.
The fact is that this Court ought not have its time further wasted by Mr Rana. There are many other applicants who wish to have their cases heard by this Court which is a very busy trial Court. It is wholly inappropriate that Mr Rana be permitted to continue not only this proceeding but any other proceeding without leave of the Court.
Although the matter in the ultimate is put shortly, the case brought by the respondent is overwhelming.
In saying this I should make it clear that I have had regard to Mr Rana’s submissions and in particular his submissions that many of the cases referred to by the respondents were settled by deeds of release.
In this regard it is important to look at what the deeds of release actually show. Although a number of deeds of release where annexed to Mr Rana’s affidavit filed on 4 November 2011, others (and I think they may well be the same) are annexed to his supplementary affidavit to support motion filed 6 March 2012.
In my view, these deeds of release show in many ways striking similarities. They show the enormous range of complaints and litigation brought by Mr Rana against each of the respondents. They involve settlements involving relatively small amounts of money (I think the largest cash sum paid to Mr Rana was $27,000) which were clearly paid by those institutions and parties to avoid the obvious further expenses that further litigation would involve. Some of the recitals expressly refer, accurately enough, to the long history of litigation that has been undertaken by Mr Rana against the party or parties with whom he is settling.
It suffices to say that the deeds upon which Mr Rana relied, far from proving his point, only go to show the scope of and unending nature of Mr Rana’s litigation activities.
The materials relied upon by Mr Rana do not assist him and to the contrary only go to confirm the impression gained from the judgments to which I have already referred that Mr Rana is indeed a vexatious litigant.
Conclusion
For the above reasons, I think that not only is this case one which has no prospect of successful prosecution but it is also vexatious. Further, Mr Rana has habitually, persistently and without reasonable cause conducted other vexatious proceedings. Finally, the Court should in the exercise of its discretion make the orders sought by the respondent. There will be orders accordingly.
There is no reason why costs should not follow the event, and I will therefore also order that Mr Rana pay the respondent’s costs.
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 20 July 2012
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