Rana v Hase & Anor

[2007] HCATrans 191

[2007] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A7 of 2007

B e t w e e n -

RANJIT SHAMSHER JUNG BAHADUR RANA

Plaintiff

and

STEWART HASE

First Defendant

SOUTHERN CROSS UNIVERSITY

Second Defendant

Summons for Directions

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 4 MAY 2007, AT 10.27 AM

Copyright in the High Court of Australia

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

MR C.J. HORAN:   If the Court pleases, I appear for the first and second defendants.  (instructed by Southern Cross University)

HER HONOUR:   Yes, Mr Rana. 

MR RANA:   Yes, your Honour.

HER HONOUR:   Did you understand that Mr Horan is appearing today on behalf of the first and second defendants?

MR RANA:   Yes, your Honour.

HER HONOUR:   Yes, very well.  What would you like to say to me in relation to the directions today?

MR RANA:   Just the affidavit is defective when…..section 75 of the Evidence Act 1995 (Cth). The person was the consul for the University and she claims to know but does not draw on the source. This matter has been addressed by his Honour Lander J as the Full Court of the Federal Court of Australia. In matter of Rana v University of South Australia we served them specifically in interlocutory proceedings.  If a solicitor does not draw the knowledge of her sources then the affidavit is fixed by itself and it is inadmissible and also it does not have the format required by the High Court with the…..and it is not paginated including all…..bundle of annexures.

Therefore, a summary of that entire affidavit be dismissed and in view of that, this Court, I proceeded under the Constitution Act of Australia, section 75(iii) in the original jurisdiction of this Court in the disputes between person to person intrastate, and other matters like the Trade Practices Act and vicarious liability this Court can accommodate my matter under its…..jurisdiction and associated jurisdiction.  For that I relied on the article written by his Honour Justice Allsop of the Federal Court in 2002 23 Australian Bar Review and also, like this Court, he is not in a position to deal with this matter.  Under your Court’s diversity jurisdiction you can…..down to the lower Federal Courts under section 44 of the Judiciary Act.  That is all I have to say, your Honour.

HER HONOUR:   Thank you very much.  Yes, Mr Horan.

MR HORAN:   Your Honour, the defendants who have each submitted a conditional appearance apply for the dismissal of the proceeding, firstly for want of jurisdiction and, secondly, as frivolous or vexatious or not disclosing a cause of action.

HER HONOUR:   Yes.

MR HORAN:   In terms of the material relied upon there was a summons filed on 1 May 2007.

HER HONOUR:   Yes, I have read that.

MR HORAN:   And an affidavit of Madeline Love sworn 27 April 2007.

HER HONOUR:   Yes.

MR HORAN:   This morning, your Honour, there has been a supplementary affidavit – a brief affidavit filed, sworn on 4 May 2007 by Madeline Love which addresses some developments in relation to remission of the fee help debts.

HER HONOUR:   Yes.

MR HORAN:   The first point, although perhaps I will only mention this briefly, is the question of service.  The writ of summons has not yet been personally served on the defendants as required by rules 9.01.1 and 22.01.1.

HER HONOUR:   But I suppose you are here.

MR HORAN:   I am here, although still objecting to service and appearing – each of the defendants appears conditionally, firstly on the basis of service, but secondly, on the basis of the jurisdictional point which is perhaps the more substantive matter.

HER HONOUR:   Yes, of course.

MR HORAN: In relation to jurisdiction, the plaintiff purports to rely upon section 75(iv) on the basis that the matter is said to be one “between residents of different States”. The second defendant, Southern Cross University, is a corporation and the authority of this Court is clear that a corporation is not a resident within section 75(iv) which applies only to natural persons and, further, that following from that the presence of a corporation on either side of the record will prevent the matter from being one which is “between residents of different States”.

The principal authority I rely upon is the decision of Justice Gaudron in Rochford v Dayes (1989) 84 ALR 405. Does your Honour have a copy of that decision?

HER HONOUR:   No.

MR HORAN:   Perhaps if I hand a copy up.

HER HONOUR:   Thank you.  I will just take a minute, if I may.  Do you know what the year of the report is, Mr Horan?

MR HORAN:   I think it is 1989.

HER HONOUR:   Thank you.  Yes.

MR HORAN:   Your Honour, the material facts before the Court in that case were analogous to those in the present, which is apparent from the first paragraph of the judgement in which the third defendant was a corporation.  The other parties to the proceedings, as constituted, were natural persons, one of which was resident in New South Wales and the other two on the defendant’s side were residents of Queensland and Western Australia, respectively.

The Court referred to the authority that residents had been construed as referring only to natural persons and the line of authority is then referred to by her Honour beginning with Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 which has been considered on several subsequent occasions and on each occasion the Court has refused to reopen that decision until as recently as the decision in British American Tobacco Australia Ltd v Western Australia [2003] HCA 47 at paragraph 37.

The first proposition was that the corporation – the third defendant in that proceeding, as a corporation, was not a resident for the purposes of section 75(iv). Her Honour then considered whether the presence of the corporation precluded the matter from falling within the jurisdiction conferred by section 75(iv) and applied a subsequent decision of the High Court in Watson and Godfrey v Cameron (1928) 40 CLR 446 and the Court in that case held that if there was a resident of the same State on the other side of the record that that would prevent the matter from being one between residents of different States within the jurisdiction conferred by section 75(iv).

Applying that decision to the facts of Rochford v Dayes, Justice Gaudron concluded that the presence of a non‑natural person on one side of the record had a similar effect and that the matter would therefore not be one between residents of different States.  The present facts are indistinguishable in that respect and that while the University is a defendant the matter cannot fall within the original jurisdiction of this Court and must be dismissed.

It would not, in my submission, be open to the Court to remit a matter that was not within its original jurisdiction to another court and so the only order that can be made, if the jurisdictional point is made out, is an order to dismiss the application.  Your Honour, the balance of the application made by the defendants is one for summary dismissal, relying on rule 27.09 and I acknowledge that the Court’s powers under those rules are only exercised in the clearest of cases and where the claims in the application are manifestly groundless.

However, the following defects and difficulties appear from the plaintiff’s writ of summons and statement of claim, some of which are apparent from the facts disclosed in the affidavit of Madeline Love and the exhibits to that affidavit.  But, in summary, the claims that are made by the plaintiff - the first is one said to arise under the Trade Practices Act for misleading and deceptive conduct.  The second is a claim in breach of contract.

Each of those claims are premised on the alleged suspension or exclusion of the plaintiff from the University and having been prevented from sitting his exams.  However, the plaintiff voluntarily withdrew from his course and all units within the course and was not prevented from sitting any examinations.  Further, the plaintiff alleges that he was not given procedural fairness in relation to an allegation made of plagiarism in one of the subjects in which he was enrolled, but again the material makes clear that the plaintiff was given a full opportunity to respond to the allegations and was invited to make submissions.

The principal loss that is alleged is said to be incurring a fee help debt of $6,000 - I think the precise amount is $5,600, in respect of the four subjects in which he was enrolled.  In respect of two of those subjects the plaintiff applied for withdrawal and that application was granted.  The two remaining subjects from which he withdrew were initially recorded as fail results although I understand that there may be consideration of changing those results also to withdrawal.

Relevantly, the fee help debt in respect of those subjects, the plaintiff applied to the Department for remission or removal of the debt.  A remission for two of the four units has already been granted in February 2007 and the application for remission in respect of the remaining subjects is awaiting decision so that it is likely that the principal financial loss alleged in the action in fact is no loss at all.

Finally, on the elements of the causes of action that are relied upon by the plaintiff, the first is in essence a claim which asserts a liability under the Trade Practices Act for communications that were said to have been made by the defendants to the Human Rights and Equal Opportunity Commission and, in my submission, those claims overlook the immunity which is conferred from civil action by section 48 of the Human Rights and Equal Opportunity Commission Act in relation to communications with the Commission and, secondly, the breach of contract claim which is asserted relies upon a contract which is alleged between the plaintiff and the University, but on no view could it be said that any contractual relationship exists between the plaintiff and the first defendant who is an academic employee of the University.

For all of those reasons, in my submission, the claims raised in the statement of claim are either frivolous or vexatious or do not disclose a cause of action or, alternatively, the material put before the Court reveals that each of the defendants has a good defence on the merits within rule 27.09.6 of the High Court Rules.

Now, the form of relief would vary from staying or dismissing the proceeding to striking out the statement of claim to ordering judgment be entered for the defendants. In my submission, the former is the most appropriate under rule 27.09.4 that the proceeding be dismissed or stayed, but it is unnecessary for the Court to address the powers conferred by any of those Rules if my first point is accepted, which is that the action is not within original jurisdiction and should be dismissed on that basis. If your Honour pleases.

HER HONOUR:   Thank you, Mr Horan.  Mr Rana, do you wish to say anything further, having heard what Mr Horan had to say?

MR RANA:   Yes, your Honour.  I would like to add that the Acts Interpretation Act 1903 (Cth), section 22(1) says that any “body politic” is a person within the meaning. That also ties with section 4 of the Trade Practices Act interpretation and, as I said, the body politic, the corporation is a person to be sued and can sue and therefore falls within the associated jurisdiction of the Federal Court Act, section 32, and therefore it is within your jurisdiction to tie in with the original jurisdiction, …..jurisdiction and the associated jurisdiction and it can be remitted to the lower Federal Courts.

I accept that they have waived fees here for two subjects, and I do not know about the other two remaining, that can be subject to negotiation.  But having said that, it will be asked of you to have the entire matter dismissed because I am not represented by a lawyer and as his Honour Kirby J said in the case of…..v The Commonwealth (1998) – I do not have

the other CLR citation - he says that given the….., can with the passing of time, on reflection and so forth, can have merit.

So if you take - a cautious approach is that you should not allow this matter to be struck off on – as being vexatious of your Honours because, as I said, I have a lot of contention on the issue of the merit of the respondent’s massive affidavit. It does not complain that section 75 of the Evidence Act, as I indicated, are…..because this is interlocutory proceeding and I am entitled to have another chance to amend my statement of claim and I think if you consider in the interests of justice then your Honour with your own…..this matter be remitted to a lower Federal Court where this can - if, I think amicably settled by negotiation.  In other terms of the contentious issue of merits and facts I think that is very, very dubious.

I try to tell them that I have got a second degree in marketing from University of South Australia in advertising and it was my own work.  Somebody stole it and put it in a website and that was my assignment and I tried to tell them that and they will not listen apart from saying that you have been charged for misconduct and I try to go into the premises and nobody wanted to listen to me.  They send security guard.  I tried to contact them by phone, email.  They will not respond, your Honour.  Under the circumstances, what am I supposed to do apart from come before you.  That is all I have to say.

HER HONOUR:   Thank you very much, Mr Rana.

On 7 March 2007 the plaintiff filed a summons and a statement of claim which refers to section 75(iv) of the Constitution. The plaintiff also appears to assert that there has been a contravention of section 52 of the Trade Practices Act 1974 (Cth) via a breach of natural justice and various other instances of misleading or deceptive conduct by the employees of the second defendant. The plaintiff also asserts that there has been a breach of contract.

On 1 May 2007 the defendants filed a summons seeking an order that the proceeding be summarily dismissed for want of jurisdiction or, alternatively, that it be dismissed pursuant to rule 27.09.4 of the High Court Rules 2004 (Cth) on the ground that it:

(a)      does not disclose a cause of action;

(b)      is scandalous, frivolous or vexatious; or

(c)      is an abuse of the process of the Court;

In relation to that first ground, Mr Horan appeared, at least conditionally, on behalf of the first and second defendants.  He made submissions in relation to both grounds.  The submissions made by the plaintiff today reveal no ground for the grant of the relief he seeks, nor is there anything in the materials which the applicant has filed in support which would support any arguable ground for the grant of relief.

Counsel for the respondent relied on an affidavit sworn by Madeline Love, filed today, which deals with fee help issues, which seems to be the real issue between the plaintiff and the defendants. Mr Horan submitted that the matter was not properly constituted for the purposes of section 75(iv) and relied on Rochford v Dayes and Others (1989) 84 ALR 405. That jurisdictional difficulty, without more, may have resulted in the dismissal of this proceeding.

In reply Mr Rana sought leave to amend his statement of claim to deal with that jurisdictional difficulty.  However, there were other manifest difficulties with the plaintiff’s statement of claim.  The statement of claim does not contain an intelligible cause of action which could properly be heard in this Court.

In these circumstances, the plaintiff’s summons of 7 March 2007 should be dismissed. In all of the circumstances, it Is appropriate to rely on rule 27.09.4 of the High Court Rules 2004 (Cth).

Are you seeking costs, Mr Horan?

MR HORAN:   Yes, your Honour.

HER HONOUR:   The order is:  proceeding to be dismissed with costs.

AT 10.52 AM THE MATTER WAS CONCLUDED