Rana v Fsaser Hotel Pty Ltd - [2007] FMCA 403

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RANA v FSASER HOTEL PTY LTD T/A HYATT REGENCY HOTEL

[2007] FMCA 403

PRACTICE AND PROCEDURE – Stay of proceedings pending payment of costs in previous proceedings – proceedings not an abuse of process.
SECURITY FOR COSTS – Not ordered.
HUMAN RIGHTS – Disability discrimination.

Federal Magistrates Court Rules 2001, rr.13.10, 21.15
Federal Magistrates Act 1999, s.45

Hutchinson v the Nominal Defendant (1972) 1 NSWLR 443
Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346

Applicant:

RANJIT RANA

Respondent:

FSASER HOTEL PTY LTD T/A HYATT REGENCY HOTEL

File number:

ADG 310 of 2006

Judgment of:

Cameron FM

Hearing date:

20 March 2007

Date of last submission:

20 March 2007

Delivered at:

Adelaide

Delivered on:

20 March 2007

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondent:

Mr. J. White

Solicitors for the Respondent:

Thomson Playford

DECLARATION

It is appropriate in the interests of the administration of justice to allow discovery in these proceedings.

ORDERS

The applicant’s motion to amend his application be stayed pending payment of costs in the Magistrates Court of South Australia action number 3512 of 2006.
The applicant file and serve a sworn or affirmed statement of chronological facts relevant to his application, stating clearly what acts, statements, and communications he says occurred, by 23 April 2007.
The applicant provide a verified list of documents to the respondent no later than 14 May 2007.
The parties have liberty to apply on three days’ notice.
The matter be further listed for directions at 9.30am on Thursday,

24 May 2007.
The costs of today be costs in the cause.

CERTIFICATION

Pursuant to r.21.15 of the Federal Magistrates Court Rules 2001 the proceedings today reasonably required the employment of an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 310 of 2006

RANJIT RANA

Applicant

And

FSASER HOTEL PTY LTD T/A HYATT REGENCY HOTEL

Respondent

REASONS FOR JUDGMENT

The matter is before the Court today on the applicant’s notice of motion dated 12 February 2007, filed that day, in which, amongst other things, he seeks leave to file an amended application and an amended statement of claim. The respondent has filed an amended response which is dated 28 February 2007, and filed that day, in which it seeks orders, firstly that the application or amended application be dismissed; alternatively that the proceedings be stayed; in paragraph numbered (4) that the applicant gives security for costs; (5) that the applicant be ordered to prepare and provide a sworn or affirmed chronology; (6) that interrogatories be ordered; (7) that discovery be ordered; and finally in paragraph numbered (8) that there be further directions.
The history of this matter is that the conduct of which the applicant complains has been the subject of proceedings in the Adelaide Magistrates Court as well as a complaint to the Human Rights and Equal Opportunity Commission. This matter came before this court initially because the applicant’s complaint to the Human Rights and Equal Opportunity Commission was terminated. And, as his application currently stands, it is based on that termination.
In the South Australian court system, the applicant has brought proceedings focused on trade practices claims arising out of conduct alleged to have happened at the hotel in question. However, through a series of steps, the South Australian State proceedings have failed to proceed to any conclusive determination of the facts. The initial proceedings were dismissed, an appeal was dismissed and partially the matter was remitted to the Magistrates Court. The proceedings based on that count were subsequently dismissed and an order for costs has been made. I am informed by the respondent that the costs are in the process of being taxed. The applicant tells me, and his affidavit attests to this, that he has sought to appeal from the decision of the Adelaide Magistrates Court.
In his submissions today, the applicant has told the court that his application to the Supreme Court of South Australia is in respect only of the costs portion of the Adelaide Magistrates Court proceedings, and that he is not seeking to re-agitate the trade practices count which had been remitted. In his proposed amended application in this court, the applicant seeks to agitate the trade practices claim which he brought originally in the Magistrates Court in Adelaide.
The respondent has raised a number of arguments generally about the proceedings and I think, having set out the background, it is as well now to deal with issues one by one.
In relation to the proposed amendment sought by the applicant, I should also note that the applicant has – when he was closing his address to me today – indicated that he sought a stay of these proceedings in their entirety pending the outcome of his proceedings in the South Australian Supreme Court. There will be some form of stay but not on the terms which were sought by the applicant.
The fact that the applicant is seeking to agitate in this court matters which he agitated unsuccessfully in the State system, though admittedly to no res judicata, is a matter which has caused concern to the respondent. The respondent has been awarded its costs in the State system, and normally if the applicant had been unsuccessful there on a dismissal which was not a dismissal on the merits, but a procedural dismissal, then the applicant would re-agitate his claims there. However, that is not the case. If he had recommenced his proceedings in the Adelaide Magistrates Court there is a good chance that the unsatisfied costs order in that court would have sounded against him in some form or other.
I do not think that it is reasonable that the respondent should be asked to meet a claim in this court, in respect of which it has been successful in the Adelaide Magistrates Court, and in respect of which it has been awarded costs, unless the costs in those other proceedings are paid first. I am very well aware that the applicant claims impecuniosity, and I am not doubting that that is so, nor have I overlooked the fact that the trade practices count may have merit, though that is not for me to decide, but the respondent does run the risk of its costs not being paid. It may have to meet the same claim twice without having its costs met, should it be successful in these proceedings as well. The respondent’s counsel has drawn my attention to a decision of Isaacs J in the New South Wales Supreme Court, Hutchinson v the Nominal Defendant [1972]

1 NSWLR 443, where his Honour says at page 448:
It is undoubtedly established law that a second action brought in respect of the same subject-matter in respect of which the plaintiff has already brought an action and failed will be stayed until the costs of the first action have been paid. This is not an absolute right, but is in reality an exercise of the discretion of the court to stay proceedings which are either vexatious, unjust, oppressive, malicious or frivolous in the particular circumstances, and the courts have taken the view that it is certainly unjust and oppressive for a defendant, who has already faced an action by the plaintiff and succeeded and has not been paid his costs to run the risk of having to face a second action on the same subject-matter with probably the same result, and risk that if the plaintiff fails in that second action the defendant will be unable to recover his costs or may be left lamenting in respect of them.
Now, I do note of course that the proceedings in the South Australian system were not dismissed following a full hearing. However, they were dismissed and the respondent was ordered costs. It is fair to say that there is more than one person with rights in this court. Certainly an applicant has rights, but so does the respondent, and I think a fair balancing of the rights in relation to the proposed amendment is that the application for the amendment should be stayed until such time as the costs ordered by Magistrate Kleinig in the Magistrates Court of South Australia, action number 3512 of 2006 be paid.
In relation to the other orders which are being sought of the court, the first order sought in the amended response is that the application or the amended application be dismissed pursuant to rule 13.10 of the rules of this court. Now, the relevant sub-rule would be that relating to the proceeding being an abuse of process.
The remaining claim which will be on foot in this court is in relation to the Human Rights and Equal Opportunity Commission appeal, if it can be so called. I do not consider it to be an abuse of process that that action proceed in this court, given that it is not an action which can be brought in the South Australian courts. As Bowen CJ said in Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 at 354:
Turning to the present case, it appears to me that jurisdiction in relation to the claim that the Hire Car Group now makes in the Federal Court can be exercised only by this court and cannot be exercised by the State Supreme Court. In my opinion, they are entitled to come to the Federal Court to establish their right and they should not be denied the opportunity of doing so forever, simply because there are on foot other proceedings involving similar issues of fact and claiming the same damages in another court. For this reason I am not prepared to exercise my discretion in granting an absolute stay of the proceedings in this court.
Of course that case involved duplicitous proceedings, which this to some extent does not although there are some echoes, but the reality of the case is that the relief which the applicant seeks can only be brought in this court or the Federal Court, and I do not find it an abuse of process. Because I do not consider it an abuse of process, I will not make the order sought in paragraph 2 of the amended response, although to some extent that order has already been made in relation to the proposed amendment.
In relation to the application for security for costs, I am very reluctant to order security for costs against a litigant in person. I am not satisfied on the material before me that it is appropriate to order security for costs. It is not as if the applicant has sought to conceal his address or he is a resident outside the State, and noting that the court should not turn its face against impecunious litigants, I am not satisfied that it would be in the interests of justice to order security for costs against him in these proceedings.
In relation to the remaining orders which are sought by the respondent, I am of the view that some further particular procedural orders ought to be made, in order that the proceedings in relation to the Human Rights and Equal Opportunity Commission aspect of the proceedings might progress, and I will hear Mr White on what he might suggest.

RECORDED NOT TRANSCRIBED

The respondent has sought an order that the applicant give discovery in these proceedings. I am of the view that an order for discovery is likely to contribute to the fair and expeditious conduct of the proceedings and I make a declaration under s.45(1) of the Federal Magistrates Act 1999, that it is appropriate in the interests of the administration of justice to allow discovery in these proceedings and I order that the applicant give discovery to the respondent by service of a list of documents by Monday, 14 May 2007. Therefore the orders of the court will be that:
a)The applicant’s motion to amend his application be stayed pending payment of costs in the Magistrates Court of South Australia action number 3512 of 2006.
b)
The applicant file and serve a sworn or affirmed statement of chronological facts relevant to his application, stating clearly what acts, statements, and communications he says occurred, by

23 April 2007.
c)The applicant provide a verified list of documents to the respondent no later than 14 May 2007.

RECORDED NOT TRANSCRIBED

d)The parties have liberty to apply on three days’ notice.

RECORDED : NOT TRANSCRIBED

e)The matter be further listed for directions at 9.30am on Thursday, 24 May 2007.

RECORDED : NOT TRANSCRIBED

f)The costs of today be costs in the cause and I will certify the reasonableness of briefing counsel for the respondent.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate: Angela Chong

Date: 20 March 2007