Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev

[2011] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

RANA v HOUSING TRUST OF SOUTH AUSTRALIA; RANA v GREGUREV; RANA v GREGUREV

[2011] SASC 127

Decision of The Honourable Justice Gray

12 August 2011

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS

Referral for direction from Registrar pursuant to rule 53 of Supreme Court Civil Rules 2006 (SA) that he reject the four documents attempted to be filed by the plaintiff - whether the documents are on their face an abuse of process.

Held:  direction made that Registrar reject the documents for filing - documents an abuse of process.

Supreme Court Civil Rules 2006 (SA) r 53; Summary Procedure Act 1921 (SA) s 99CA, referred to.
Staats v United States of America (1992) 66 ALJR 793; Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Re Davison (1997) 147 ALR 259; Manolakis v District Registrar (SA) (2008) 170 FCR 426; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89; Eastman v Higgins (2007) 210 FLR 464; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193; Ramsey v Skyring (1999) 164 ALR 378, considered.

RANA v HOUSING TRUST OF SOUTH AUSTRALIA; RANA v GREGUREV; RANA v GREGUREV
[2011] SASC 127

CIVIL

GRAY J:

Introduction

1. Ranjit Shamsher Jung Bahadur Rana has attempted to file several documents in relation to three separate actions in the Registry of the Supreme Court.  This is a referral from the Registrar of the Supreme Court, pursuant to rule 53 of the Supreme Court Civil Rules 2006 (SA).  The Registrar has sought a direction that he reject the proposed documents.  I have decided to so direct and these are my reasons for that decision.

   Rule 53 – Relevant Principles

2. Rule 53 provides for power to reject documents submitted for filing.  The rule relevantly provides: 

   (1)A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.

   (2)If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.

   (3)If the Judge or Master so directs, the Registrar will reject the document.

   (4)If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.

3. The purpose of rule 53 is to ensure that the resources of the court are not exhausted by pointless and misconceived litigation and that in the interests of justice, defendants are not put to expense and stress in such cases.[1]  The rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[2]  Under a Federal Court rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[3]  The direction made under rule 53(4), is an administrative act not subject to appeal.[4]

   [1]    Staats v United States of America (1992) 66 ALJR 793; see further my treatment of this rule in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.

   [2]    Re Davison (1997) 147 ALR 259.

   [3]    Manolakis v District Registrar (SA) (2008) 170 FCR 426.

   [4]    Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89, [32]-[33].

4. Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.  The terms “scandalous, frivolous or vexatious” in this context are to be given a wide meaning.[5]  If the Registrar forms the opinion that the document is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master. 

   [5]    Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [5].

5. In Eastman v Higgins,[6] Lander J considered the correct approach to be taken by the Judge or Master in respect of a rule not materially different from rule 53.  In that case, Lander J observed that the question raised in the rule itself must be addressed, that is: does the document appear, on its face, to be an abuse of the process of the Court?[7]

   [6]    Eastman v Higgins (2007) 210 FLR 464.

   [7]    As set out by me in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [7].

6. I considered rule 53 in Westwill Pty Ltd & Ors v Byrt & Ors,[8] where I concluded:[9]

   Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly.  This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.[10]  While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts.[11]  On the other hand, a fundamental rule of law is that all persons have access to courts.[12]  Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed.[13]  It is however a power which should be exercised with care.

   [8]    Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.

   [9]    Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [13].

   [10]   Bhamjee v Forsdick (No 2) [2004] 1 WLR 88, 93 considered in Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [31].

   [11]   Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [32].

   [12]   See Ramsey v Skyring (1999) 164 ALR 378.

   [13]   Staats v United States of America (1992) 66 ALJR 793 where Deane J was considering a Rule in the High Court Rules comparable terms to rule 53.

   Consideration

7. By memoranda dated 14 July 2011 and 25 July 2011, the Registrar sought directions as to whether to accept or reject the four documents there referred to which I now set out below:

   1Affidavit of Mr Rana dated 2 June 2011 and exhibits thereto marked “A”-“D”, sought to be filed on 9 June 2011, in relation to action 522 of 2011.  This affidavit and its exhibits were the subject of the first referral.

   2A document entitled “second notice of appeal” in relation to action 545 of 2011.  This document was the subject of the second referral.

   3An affidavit of Mr Rana and exhibits thereto named “A”-“F”, in relation to action 545 of 2011.  This affidavit and its exhibits were the subject of the second referral.

   4A document entitled “second notice of appeal” in relation to action 523 of 2011.  This document was also the subject of the second referral.

8. 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. 

   Action 545 of 2011 and Action 523 of 2011

9. These are appeals from the decision of Magistrate Ackland of 7 April 2010.  There are two respondents. It appears that Mr Rana has filed a separate appeal in relation to each respondent, however the documentation as to each appears largely the same.  The principal complaints in these appeals are that Mr Rana was denied procedural fairness by the Magistrate, that the Magistrate provided inadequate reasons for the decision which was adverse to Mr Rana, that the Magistrate was biased and that generally the Magistrate’s reasons were unfair. 

10. The two appeals came before Peek J on 23 June 2011 and were heard concurrently.  On that occasion, Peek J gave an ex tempore judgment dismissing the appeals, primarily on the basis that no error was identified on the part of the Magistrate.  In his ex tempore reasons, Peek J addressed each of the principal complaints of Mr Rana in these two actions, as set out in the notices of appeal. 

11. I turn now to address each of the documents numbered 1 to 4 above.

    Document Numbered 1

12. I note that on 22 July 2011, Mr Rana wholly discontinued action 522 of 2011.  Although I now do not strictly need make a direction in relation to the referral in this action, in my view, this affidavit was totally unacceptable and to have allowed it to be have been filed would encourage an abuse of the processes of this Court.  The contents of the affidavit are defamatory and make, in a gratuitous way, many criminal and other allegations about the respondents and others.  I consider this document to be an abuse of process.

    Document Numbered 2

13. This document is entitled a “second notice of appeal”.  The document addresses and attacks on many fronts the decision of the Magistrate the subject of the appeal to Peek J.  By the document, Mr Rana appears in substance to be re-agitating the issues argued before Peek J.  Mr Rana also complains that Peek J was in error in denying Mr Rana procedural fairness.  How this is so is not clear.  It is difficult to extract any sense from the particulars of complaint.  However Mr Rana appears to be complaining that Peek J misconstrued section 99CA of the Summary Procedure Act 1921 (SA) in holding that the Magistrate was not in error in exercising his discretion in the way he did in relation to restraining order provisions.  I consider this document to be an abuse of process. 

    Document Numbered 3

14. By this affidavit, Mr Rana appears to be seeking an extension of time in which to appeal from the decision of Peek J referred to above.  The principal ground offered in support of the extension is that Mr Rana has been unwell and unable to complete the appeal books in time.  More particularly, Mr Rana states that as a result of the accent of his Chinese friend, he mistakenly poured “mint ice drops” in his eyes thinking they were eye drops, which caused his eyes to burn and an inability to see for some time.  The affidavit occupies some 20 paragraphs.  Paragraphs 1-9 continue to explain why he ought to be granted an extension. They do so incoherently.  The remaining paragraphs are nonsensical.  In my view this document is an abuse of process. 

    Document Numbered 4

15. This document appears to be in relevantly identical terms to document numbered 2, save for the addition of a few paragraphs, which, in their current terms, do not add anything to the rest of the document.  Accordingly, I refer to my observations and conclusions above. 

    Conclusion

16. I have no hesitation in the circumstances in directing the Registrar to reject the proposed four documents and the relevant attachments, pursuant to rule 53 of the Supreme Court Civil Rules.  For the reasons given, I am satisfied that the documents are on their face an abuse of the process of the Court.  I direct that these reasons be sent to Mr Rana.