Rana v Flinders University
[2004] FMCA 325
•26 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANA v FLINDERS UNIVERSITY & ORS | [2004] FMCA 325 |
| HUMAN RIGHTS – Disability discrimination. |
| Applicant: | RANJIT RANA |
| Respondent: | FLINDERS UNIVERSITY and OTHERS |
| File No: | AZ 22 of 2003 |
| Delivered on: | 26 February 2004 |
| Delivered at: | Adelaide |
| Hearing date: | 26 February 2004 |
| Judgment of: | Lindsay FM |
REPRESENTATION
| Counsel for the Applicant: | Self represented |
| Solicitors for the Applicant: | Self represented |
| Counsel for the 1st Respondent: | Ms McGarrigan |
| Solicitors for the 1st Respondent: | Fisher Jeffries |
| Counsel for the 2nd Respondent: | Mr Goldsmith |
| Solicitors for the 2nd Respondent | Crown Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ 22 of 2003
| RANJIT RANA |
Applicant
And
| FLINDERS UNIVERSITY and OTHERS |
Respondent
REASONS FOR JUDGMENT
Before me firstly this morning is a notice of motion filed on the 12th day of February 2004, filed by Mr Rana. Leaving aside the precise language of the orders sought in the notice of motion, I have treated the application as one which seeks the leave of the court pursuant to paragraph 2 of the orders of Driver FM of 11 July 2003, when his Honour dealt with the issue of a subpoena addressed to a Ms Emily Davis, secretary‑general of the Flinders University Students Association. That is an order that provided that the leave of this court was required before Mr Rana sought the issue by the registry of any further subpoena in this cause.
I have had regard to Mr Rana's affidavit, filed in support of the notice of motion, and to the oral submissions he has put this morning. As I put plainly to Mr Rana, it seems to me his difficulty is that there is nothing about the subpoena sought to be issued in this case which brings the matter into any different category than that which was determined by Federal Magistrate Driver in his other decision of 11 July 2003 that is his reasons for judgment in respect of an application at that stage for the issue of a subpoena addressed to Mr Grant Wasley of the Ombudsman's Office. That was a subpoena dated 10 March 2003, which sought the production of all records on Mr Rana's complaints about Flinders University of South Australia between 1996 and 2003.
I do not propose to deal in any detail with the matters that have already been set out with some degree of particularity by Federal Magistrate Driver and by his Honour Mansfield J in an application for leave to appeal from the Federal Magistrate’s judgment. Suffice to say that I am satisfied that the provisions of section 22 and section 30(2) of the Ombudsman Act 1972 apply and that relevantly there are no provisions of the Commonwealth Evidence Act which otherwise provide in terms of the language used by section 79 of the Judiciary Act 1903 in relation to the circumstances in which a subpoena will be authorised to issue by this court.
Mr Rana put two specific matters to me which he said brought this subpoena into a different category. Firstly, he drew my attention to section 36 of the Commonwealth Evidence Act, which section was specifically considered by Mansfield J in the determination of leave to appeal application to which I have adverted. Suffice to say that that section, providing as it does for the power of the court to require the giving of evidence or the production of documents by persons who are otherwise present at the hearing of the proceeding, has no application to the circumstances being agitated before me this morning, in that Mr Rana's predicament remains the question of the mechanism by which he brings Mr Wasley to the court at all whether for the giving of evidence or for the production of documents.
Secondly, Mr Rana drew my attention to what he clearly regarded as a window of opportunity provided by his Honour's judgment on the leave to appeal question, which indicated that left open by Federal Magistrate Driver in his determination was the issue as to whether Mr Wasley, while being a person apprehended by Mr Rana as having the capacity to produce documents under the bailiwick of the Ombudsman's Office was yet someone not in the employ of the Ombudsman's Office and not, therefore, subject to the provisions of section 22 and especially section 30(2) of that act. I gave Mr Rana the opportunity to put to me any material he had to support such a proposition and he was unable to do so.
Thirdly, and to deal, I hope, comprehensively with all the matters put to me by Mr Rana in respect to this matter, I gather him to be putting that in some sense because of the timing of the issue of this subpoena, it, therefore, becomes a matter that relates not to the interlocutory stage of the proceedings, but attaches itself in some way to the actual conduct of the trial proceeding; but, again, nothing put to me by Mr Rana persuades me that this is other than the process which was before Federal Magistrate Driver and that is the process relating to the issue of subpoena by this court.
Having regard to all those matters, it seems to me plain that my obligation is to refuse leave for the issue of the subpoena identified in the affidavit filed in support of the notice of motion and my order will be that leave to issue the subpoena so identified is refused. In the light of Mr Rana's indication that he doesn't wish to proceed with his notice of motion filed on 11 February 2004, I dismiss the two applications contained in the notice of motion.
Both the legal representative for the Ombudsman's Office and the legal representative for the respondent in these proceedings have applications for costs in respect of the two notices of motion which we have determined this morning. In my view, both of the notices of motion were unmeritorious and patently unmeritorious. In respect of the notice of motion which agitated the question of the section 78B notices Mr Rana sought to issue to the attorneys-general of the Commonwealth and the states, that application has been dismissed by me at what I took to be the invitation to dismiss, constituted by Mr Rana's indication that he did not want to proceed with the implication.
His decision speaks for itself but, in any event, had the matter proceeded, it seemed to me that, he not having taken the opportunity to have Mansfield J determine the question as to whether it was appropriate to seek the issue of such notices at the hearing of the application for leave to appeal which was determined by his Honour on 13 November 2003, it seems to me that it was clearly inappropriate for me to be asked to consider the issue of such notices when, in all material respects, the issue said to give rise to the constitutional matter was the same as had been agitated before both his Honour and before Federal Magistrate Driver.
With respect to the first notice of motion – that is, the subpoena itself or the further request for the issue of a subpoena addressed to an officer of the Ombudsman's Office – save for the matters that I adverted to in my reasons for refusing to grant Mr Rana leave for the issue of such subpoena, it was in all material respects the same argument or set of arguments determined by me today as were determined by Federal Magistrate Driver on that occasion.
The two additional matters that were agitated by Mr Rana were, firstly, the issue of section 36 of the Commonwealth Evidence Act and for the reasons I indicated in my judgment it seems to me there was no substance in any contention that section 36 operated so as to otherwise provide, in terms of section 79 of the Judiciary Act. Secondly, the other matter Mr Rana sought to ventilate related to the question of the status of Mr Wasley in the Ombudsman's Office, being the issue that was referred to in paragraph 38 of the reasons for judgment of Mansfield J of 13 November 2003. It turned out, when Mr Rana was pressed to provide any sort of particularity in respect of such a submission, to be a submission that was put without any factual basis to support it.
In those circumstances, it seems to me that it is appropriate to accede to the request that I make an order for costs. The way I will deal with it is this way. Returning to the notice of motion filed on 12 February 2004, my first order was to refuse leave in respect of the issue of the subpoena. My second order will be that the applicant do pay the costs of Mr Wasley and the Office of the Ombudsman, fixed in the sum of $180. With respect to the second notice of motion, which was that filed on 11 February 2004, my first order was an order upon the application of Mr Rana dismissing the applications contained in paragraphs 1 and 2 of that notice of motion. My second order will be an order that the applicant pay the respondent's costs in respect of such notice of motion fixed in the sum of $190.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Lindsay FM
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