Rana v Goldney (No 2) - [2008] FCA 1553

FEDERAL COURT OF AUSTRALIA
Rana v Goldney (No 2) [2008] FCA 1553
RANJIT SHAMSHER JUNG BAHADUR RANA v PROFESSOR ROBERT GOLDNEY, UNIVERSITY OF ADELAIDE, ANDREW SCHATZ, AUSTRALIAN GOVERNMENT SOLICITOR, REPATRIATION COMMISSION, CHIEF OF ARMY, COMMONWEALTH OF AUSTRALIA and GREG CAMILOS
SAD 48 OF 2008
MANSFIELD J
20 OCTOBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 48 OF 2008

BETWEEN:

RANJIT SHAMSHER JUNG BAHADUR RANA
Applicant

AND:

PROFESSOR ROBERT GOLDNEY
First Respondent

UNIVERSITY OF ADELAIDE
Second Respondent

ANDREW SCHATZ
Third Respondent

AUSTRALIAN GOVERNMENT SOLICITOR
Fourth Respondent

REPATRIATION COMMISSION
Fifth Respondent

CHIEF OF ARMY
Sixth Respondent

COMMONWEALTH OF AUSTRALIA
Seventh Respondent

GREG CAMILOS
Eighth Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

20 OCTOBER 2008

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application for an extension of time within which to appeal from the decision of the Court made on 3 April 2008 is refused.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 48 OF 2008

BETWEEN:

RANJIT SHAMSHER JUNG BAHADUR RANA
Applicant

AND:

PROFESSOR ROBERT GOLDNEY
First Respondent

UNIVERSITY OF ADELAIDE
Second Respondent

ANDREW SCHATZ
Third Respondent

AUSTRALIAN GOVERNMENT SOLICITOR
Fourth Respondent

REPATRIATION COMMISSION
Fifth Respondent

CHIEF OF ARMY
Sixth Respondent

COMMONWEALTH OF AUSTRALIA
Seventh Respondent

GREG CAMILOS
Eighth Respondent

JUDGE:

MANSFIELD J

DATE:

20 OCTOBER 2008

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
THE NATURE OF THE APPLICATION

This is an application for an extension of time within which to appeal from a judgment of a judge of the Court given on 3 April 2008 given in matter SAD.34 of 2008. The proceeding was commenced on 25 March 2008, and was dismissed as an abuse of the process of the Court on the first return date for hearing without having been served: see Rana v Goldney [2008] FCA 463. It was a direction of the Court that the proceeding not be served before the first return date.
THE BACKGROUND TO THE APPLICATION
The reasons for judgment record that the subject proceeding was brought by the applicant arising out of a medical examination arranged by the Australian Government Solicitor in respect of review proceedings which the applicant had brought in the Administrative Appeals Tribunal (the AAT) to review a decision of the Military Rehabilitation and Compensation Commission (MRCC) relating to his claim for compensation arising out of a period of military service, which was brought to an end in 1982. Recently the AAT has declined to summarily dismiss that application under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth): see Rana v Military Rehabilitation and Compensation Commission [2008] AATA 558.
The judge had previously on 17 March 2008 summarily dismissed a separate proceeding in matter SAD.12 of 2008 which had been brought against the University of Adelaide, the Repatriation Commission, the Australian Government Solicitor and the Chief of Army arising out of much the same complaint: Rana v University of Adelaide [2008] FCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 1553
Decision Date: 20 October 2008

CaseChat Overview and Summary

The case of Rana v Goldney (No 2) involves an application for an extension of time within which to appeal from a judgment of a judge of the Court given on 3 April 2008 in matter SAD.34 of 2008. The proceeding was dismissed as an abuse of the process of the Court on the first return date for hearing without having been served. The applicant, who had been a few days late in appealing from that decision, sought an extension of time to appeal. The legal issues the Court was required to decide included whether the period of delay was justifiable, whether the applicant had an arguable prospect of success on the proposed appeal, and whether the applicant would have some prospect of succeeding in the action if his actions were to remain on foot.

The Court considered the period of delay and the explanation for it, and whether the applicant would have some prospect of succeeding on the proposed appeal. The time delay was very short, and the respondents acknowledged that if there were any arguable prospect of success on the proposed appeal, an extension of time within which to appeal should be granted. The Court considered the reasons for decision of the primary judge and the applicant's proposed notice of appeal, which was uninformative. The Court concluded that there was no arguable prospect of success on the proposed appeal and that an extension of time to appeal should not be granted.

The Court's reasoning and outcome were based on the lack of an arguable prospect of success on the proposed appeal and the short period of delay. The applicant's proposed notice of appeal was uninformative, and the reasons for decision of the primary judge indicated that the application was an abuse of the process of the Court. Therefore, the application for an extension of time within which to appeal from the decision of the Court made on 3 April 2008 was refused.

Orders

Orders of the court

1. The application for an extension of time within which to appeal from the decision of the Court made on 3 April 2008 is refused.

Background

Background to the litigation

This is an application for an extension of time within which to appeal from a judgment of a judge of the Court given on 3 April 2008 given in matter SAD.34 of 2008. The proceeding was commenced on 25 March 2008, and was dismissed as an abuse of the process of the Court on the first return date for hearing without having been served: see Rana v Goldney [2008] FCA 463. It was a direction of the Court that the proceeding not be served before the first return date. THE BACKGROUND TO THE APPLICATION The reasons for judgment record that the subject proceeding was brought by the applicant arising out of a medical examination arranged by the Australian Government Solicitor in respect of review proceedings which the applicant had brought in the Administrative Appeals Tribunal (the AAT) to review a decision of the Military Rehabilitation and Compensation Commission (MRCC) relating to his claim for compensation arising out of a period of military service, which was brought to an end in 1982. Recently the AAT has declined to summarily dismiss that application under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth): see Rana v Military Rehabilitation and Compensation Commission [2008] AATA 558. The judge had previously on 17 March 2008 summarily dismissed a separate proceeding in matter SAD.12 of 2008 which had been brought against the University of Adelaide, the Repatriation Commission, the Australian Government Solicitor and the Chief of Army arising out of much the same complaint: Rana v University of Adelaide [2008] FCA 365. His Honour said that the subject proceeding was no different from that which had been dismissed summarily on 17 March 2008. The apparent principal differences between that former proceeding were the addition of Professor Goldney as a respondent (and officers of the Australian Government Solicitor) and the extension of the causes of action said to arise from the impugned conduct. The transcript records that, on 3 April 2008, the primary judge asked the applicant on a number of occasions how the current application was different from the application which had been dismissed on 17 March 2008. Apart from identifying that the first respondent (who has not yet apparently been served with the proceeding) was a new respondent to the proceeding, the applicant had been unable to identify any difference of substance in the nature of the causes of action relied upon. He did refer to some additional evidentiary material concerning the alleged claim that Professor Goldney was operating from premises called the Adelaide Clinic, financed by Ramsay Health Care Australia (Ramsay Health), which was also a financial supporter of the Chair of Psychiatry at the University of Adelaide. As the primary judge remarked in the course of the hearing, it was hard to see what that had to do with whether Professor Goldney had examined the applicant in accordance with a request made by the Australian Government Solicitor. In response to that, the applicant referred to a Deed of Settlement with the University of Adelaide and others and asserted that the Deed had been breached by Professor Goldney being asked to and being prepared to examine him in the circumstances. He also asserted contravention by Professor Goldney of s 52 of the Trade Practices Act 1974 (Cth) (the TP Act), aided and abetted by the other respondents, by agreeing to conduct and by conducting the examination. He also asserted in the course of the hearing that material provided to Professor Goldney by the Australian Government Solicitor prior to, and as information relevant to, the proposed examination included material in “footnotes 54-56” which should not have been included. The primary judge remarked, as to that, that the issue was whether the case as pleaded was different from the case which had been dismissed on 17 March 2008.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

The applicant did not appeal from that decision within the time permitted by O 52 r 15 of the Federal Court Rules. He was a few days late. Hence, the present application.CONSIDERATION The parties were agreed that the appropriate considerations in whether to grant an extension of time to the applicant relevantly were the period of delay and the explanation for it, and secondly whether the applicant would have some prospect of succeeding on the proposed appeal, and if his actions were to remain on foot, some prospect of succeeding in the action. The time delay was very short. The respondents (other than the first respondent who has not apparently been served and has not appeared in the proceedings to date) – I shall use the general term “the respondents” hereafter – acknowledged that, if there were any arguable prospect of success on the proposed appeal, an extension of time within which to appeal should be granted. On the application for an extension of time, the applicant sought to adduce two affidavits of his own sworn on 4 and 10 September 2008 to which he annexed medical reports of Dr Bal Jha of 8 September 2008 and Dr David Miller of 10 and 8 July 2008, indicating his general medical condition. Those medical reports confirm that he has significant ongoing medical conditions, although they do not directly relate to the period of time specifically when an appeal from the judgment of 3 April 2008 ought to have been instituted. However, I am prepared to proceed on the basis that an extension of time to appeal should be granted if there is any arguable prospect of success on the appeal which is proposed: see e.g. Eatts v Dawson (1990) 21 FCR 166; Gallo v Dawson (1999) 64 ALJR 458; Deighton v Telstra Corporation Limited [1997] FCA 1568. So there is no need to admit that fresh evidence. It cannot inform whether the action itself was an abuse of the process of the Court. To determine whether there is any arguable prospect of the applicant succeeding on his proposed appeal, it is appropriate to consider the reasons for decision of the primary judge to which I have referred, and his proposed notice of appeal. The grounds of appeal in the draft notice of appeal are uninformative. They are expressed in the following terms:1. His Honour Lander J applied an incorrect principle of law by being an advocate of the respondents and without theirs’ presence. At [1]-[5] of his reasons, His Honour failed to identify the source of his power. Chair of Psychiatry issue in terms of the agreement that the appellant had with the 2nd respondent was important matter per breach of s.52 of the Trade Practices Act. Further, there was the issue of the 2nd respondent providing information of SAD 67 of 2004, which was subject of deed of settlement to the 8th respondent without this appellant’s permission. The appellant had relied on accrued and associate jurisdiction of the court in causes of actions to tie other respondents.2. His Honour Lander J made a finding of fact or facts on an important issue, which could not be supported by the evidence as being baseless and/or he had no jurisdiction, was an abuse of process, and the most important point was that he dismissed the matter in implied terms under s.31A of the Federal Court of Australia Act 1976 (Cth).3. His Honour caught the appellant by surprise in the first direction hearing as he was not notified that the matter was for summary dismissal and/or summary judgment. The appellant was seeking to amend the statement of claim and was not given any opportunity. Thus, His Honour applied an incorrect principle of law by denying him procedural fairness.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 48 OF 2008

JUDGE:	MANSFIELD J
DATE OF ORDER:	20 OCTOBER 2008
WHERE MADE:	ADELAIDE

JUDGE:	MANSFIELD J
DATE:	20 OCTOBER 2008
PLACE:	ADELAIDE