Rana v Human Rights and Equal Opportunity Commission

[1999] FCA 264

FEDERAL COURT OF AUSTRALIA

Rana v Human Rights & Equal Opportunity Commission [1999] FCA 264

Administrative law – judicial review – bias or apparent bias – where judge adjudicated in other proceedings where applicant was a party – allegations of interference with the presentation of the applicant’s case – allegation that judge failed to consider meaning of “lack of substance” in statutory context.

Estoppel – finding of discrimination by Human Rights and Equal Opportunity Commission – whether an estoppel arose in applicant’s favour.

Flentjar v Repatriation Commission (1997) 26 AAR 93 – appl.
Livesey v NSW Bar Association (1983) 151 CLR 288 – appl.
The Queen v Australian Stevedoring Industry Board;  Ex parte:  Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 – appl.
Vakuatu v Kelly (1989) 167 CLR 568 – appl.
Webb v The Queen (1994) 181 CLR 41 – appl.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Racial Discrimination Act 1992 (Cth)
Disability Discrimination Act 1992 (Cth)

RANJIT S.J.B. RANA v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

SG 48 of 1998

JUDGES:      BEAUMONT, BRANSON & SUNDBERG JJ.
DATE:           19 MARCH 1999
PLACE:         SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 48 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RANJIT S. J. B. RANA Appellant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent
JUDGES:	BEAUMONT, BRANSON & SUNDBERG JJ
DATE OF ORDER:	19 MARCH 1999
WHERE MADE:	SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.No order for the respondent’s costs.

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	SG 48 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RANJIT S. J. B. RANA Appellant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent

JUDGES:	BEAUMONT, BRANSON & SUNDBERG JJ
DATE:	19 MARCH 1999
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. These are appeals from orders of von Doussa J dismissing several applications for judicial review brought under the Administrative Decisions (Judicial Review) Act 1977.

2. The background to these applications was a claim by the appellant Ranjit Rana that, in rejecting his application for membership in about December 1992, the Nepal Australia Friendship Association (“NAFA”) and one of its officers, Deepak Bista, had discriminated against him (1) on the ground of a disability arising out of a personality disorder (a complaint under the Disability Discrimination Act 1992 (“the DDA”); and (2) on racial and ethnic grounds (a complaint under the Racial Discrimination Act 1975 (“the RDA”)).

3. In order to understand the issues that arise on the appeal, reference should be made to the history of the matter relevantly as follows.

   HISTORY OF THE COMPLAINT UNDER THE DDA AGAINST NAFA

   ·On 30 August 1996, the Disability Discrimination Commissioner decided not to inquire further into the complaint. This decision was made in the exercise of the power conferred by s 71(2)(d) of the DDA relevantly as follows:

   “(2)The Commissioner… may decide not to continue to inquire into the act… if:

   …

   (d)… the Commissioner thinks that the complaint was… lacking in substance; ….”

   ·On Mr Rana’s application under s 71(5) the complaint was then referred to the President of Human Rights & Equal Opportunity Commission (“HREOC”), Sir Ronald Wilson.

   ·On 13 November 1996, the President made a finding of discrimination, but for other reasons confirmed the decision not to continue the inquiry.

   ·On Mr Rana’s application, in May 1997 O’Loughlin J ordered that the President’s decision be set aside and remitted the complaint to HREOC for further consideration (Rana v HREOC, 22 May 1997, unreported).

   ·The President delegated that further consideration to Mr Nader QC. On 14 August 1997 Mr Nader dismissed the complaint in the exercise of the power conferred by s 101(1)(a) of the DDA relevantly as follows:

   “101(1)If a complaint is referred to the President under s 71(5), the President may, without holding an inquiry, dismiss the complaint if:

   (a)the President thinks the complaint is… lacking in substance….”

   ·Mr Rana then applied for judicial review of Mr Nader’s decision.  This was one of the applications dismissed by von Doussa J in March 1998, the subject of the present appeal.

   HISTORY OF THE COMPLAINT UNDER THE RDA AGAINST NAFA AND MR BISTA

   ·On 8 September 1997, the Delegate of the Race Discrimination Commissioner decided not to inquire into the allegations. The decision was made pursuant to s 24(2)(d) of the RDA, which relevantly provides as follows:

   “(2)     The Commissioner may decide not to inquire into an act… if:

   …

   (d)in a case where a complaint has been made to the Commission in relation to the act, the Commissioner is of the opinion that the complaint was… lacking in substance.”

   ·Mr Rana requested a Presidential review of the decision. On 21 October 1997 Mr Nader, the President’s Delegate, confirmed the decision pursuant to s 24AA(2)(b)(i) of the RDA.

   ·On 31 March 1998, von Doussa J dismissed Mr Rana’s application for judicial review.

   HISTORY OF MR RANA’S COMPLAINT AGAINST THE AUSTRALIAN PRESS COUNCIL (“THE APC”) UNDER THE DDA

   ·On 26 September 1997, the Disability Discrimination Commissioner declined, pursuant to s 71(2)(d) of the DDA, to inquire further into the complaint.

   ·Mr Rana sought Presidential review. On 14 November 1997 the President’s Delegate confirmed this decision pursuant to s 101(1)(a) of the DDA.

   ·On 31 March 1998, von Doussa J dismissed Mr Rana’s application for judicial review.

   HISTORY OF MR RANA’S COMPLAINT AGAINST “THE ADVERTISER” UNDER THE DDA

4. The chronology of these events matches those of the APC complaint.

   THE RELEVANT REASONING AT FIRST INSTANCE

5. In considering the complaint against NAFA and Mr Bista under the RDA, his Honour noted that Mr Nader had concluded that there was no evidence to support Mr Rana’s claim that the refusal to allow him to join NAFA was because of his race.

6. His Honour said that central to Mr Rana’s challenge to the decisions of Mr Nader was his submission that both the primary decision maker and, on review, Mr Nader, were estopped from concluding that his complaints were lacking in substance. Mr Rana argued that because Sir Ronald Wilson, in the decision subsequently set aside by O’Loughlin J, concluded that he was satisfied that Mr Rana suffered a disability within the meaning of the DDA and that the decision of NAFA to refuse membership constituted discrimination, these conclusions continue to have binding force in law. Further, Mr Rana argued that the effect of O’Loughlin J’s decision was to require a reconsideration of one matter only, that is, the further conclusion of Sir Ronald Wilson that the history of conflict between Mr Rana and members of NAFA would impose unjustifiable hardship upon the respondent within the meaning of ss 24(2), 27(3) and 11 of the DDA. Mr Rana argued that by reaching a conclusion inconsistent with the first two conclusions reached by Sir Ronald Wilson, Mr Nader exceeded power, and acted contrary to the direction of O’Loughlin J.

7. von Doussa J said:

   “The first point to note about Mr Rana’s submissions is that they complain of inconsistency between Sir Ronald Wilson’s decision on the complaint under the DDA, and the decision on that complaint by Mr Nader. The submissions, if correct, would not establish error of law on the part of Mr Nader in deciding the RDA complaint.”

8. Noting that, in this connection, Mr Rana relied on the reasoning in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, von Doussa J said:

   “That decision is, however, not relevant to the present proceedings.  In Anshun the primary question was whether a party was allowed in subsequent proceedings between the same parties to raise an issue so closely connected with the first action that it should have been pleaded then, and where the new cause of action, if made out, would conflict with the judgment in the first proceedings.  In the present case, all the information which was before Mr Nader was before the original decision maker, Sir Ronald Wilson.  Even if the Anshun principle had any application in administrative proceedings, in this instance there is no question of new issues being raised by those against whom Mr Rana complained after the decisions of the Commissioner and Sir Ronald Wilson, and before Mr Nader considered the matter.”

9. The primary Judge went on to say:

   “As the decision of Sir Ronald Wilson on the DDA complaint was set aside by O’Loughlin J, there can be no question that the decision itself continues to operate as a decision on Mr Rana’s complaint. In judicial proceedings, even where there is no prior binding decision on the exact same matter before the Court, the principle of issue estoppel may apply… [but] [t]he decision of Sir Ronald Wilson was not a judicial determination, and in my opinion the principle has no application to an administrative decision of the kind made by Sir Ronald Wilson.  In any event, for the principle to arise, the earlier determination must be one that continues to bind the parties.  In the present case, once the decision of Sir Ronald Wilson was set aside, it thereafter had no binding force.”

10. His Honour observed that, when the matter was referred to Mr Nader for consideration, his statutory duty was to consider the complaint afresh and to form his own independent assessment of the facts and of the merits of the complaint:  that there was nothing in the files of HREOC, or in the submissions of Mr Rana, which suggested that Mr Nader did not perform this function;  and that this material “amply supports” the conclusion reached by Mr Nader that the decision of NAFA not to admit Mr Rana to membership was not on account of his disability.

11. von Doussa J said:

    “In the case of the RDA complaint, again there is ample support in the material on the HREOC files for the conclusion that Mr Rana’s complaint that he was refused admission to membership by NAFA on the basis of his ethnic origin was lacking in substance. The test adopted by Mr Nader to determine whether the complaint was ‘lacking in substance’ within the meaning of ss.24(2)(d) of the RDA was that stated by the then President of HREOC in Assal v Department of Health, Housing & Community Services (1992) EOC 92-409. That test has been adopted in this Court: Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5;  appeal to the Full Court dismissed, unreported, 2 June 1996;  application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) and Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995 at 54). It has not been suggested by Mr Rana that Mr Nader applied the wrong test in deciding that his complaint was lacking in substance. Rather, Mr Rana’s submission is that Mr Nader reached a conclusion on the facts which was not in accordance with the material in the HREOC files. On an application for judicial review under the ADJR Act, the applicant must establish an error of law, not merely an error of fact. An error of law will occur if there was no evidence or other material before the decision maker to justify the making of the decision: see ss.5(1)(h) and 5(3) of the ADJR Act and Curragh Queensland Mining Ltd v Daniel (1992) 34 FLR 212 at 220-221. However, as I have already observed, there was ample information in the present case to support Mr Nader’s decisions.”

    MR RANA’S APPEAL

12. Mr Rana now appeals from the dismissal of his application, seeking that the orders at first instance be set aside and that the matter be remitted to HREOC for further consideration.

13. In support of his appeal, Mr Rana relied upon his written summary of argument and oral submissions on the hearing of the appeal.  We will refer to these in expressing our conclusions on the appeal.

    CONCLUSIONS ON THE APPEAL

14. It will be convenient to consider Mr Rana’s several grounds of appeal in turn.

15. Mr Rana first argued that von Doussa J was biased, or apparently biased, for a number of reasons.

16. One reason advanced by Mr Rana was that his Honour had adjudicated in other, unrelated proceedings in which Mr Rana was a party. 

17. We have difficulty accepting the submission.  In the present proceedings, no question of credit or of primary fact arose for determination by von Doussa J.  On the contrary, the applications for judicial review were sought, necessarily, to be grounded on alleged errors of law.  Moreover, Mr Rana did not raise this objection until the appeal itself.  In those circumstances, given Mr Rana’s full knowledge of the facts, any claim of bias should be taken to have been waived (see Vakuatu v Kelly (1989) 167 CLR 568 at 572; Flentjar v Repatriation Commission (1997) 26 AAR 93 at 98).

18. Another limb of Mr Rana’s argument of “bias” was that his Honour is said to have impermissably interfered with the presentation of Mr Rana’s case, and in effect, denied Mr Rana natural justice by depriving him of a reasonable opportunity to be heard.  In support of this claim, Mr Rana took us to the transcript of the proceedings at first instance where his Honour and Mr Rana engaged in discussion of the issues.

19. We cannot accept Mr Rana’s argument here.  It is true that his Honour raised with Mr Rana a number of matters, some by way of expression of difficulties that Mr Rana needed to address, others seeking clarification of Mr Rana’s arguments.  But in none of this could it be said that his Honour was doing any more than attempting to identify the real issues for determination.  Having ourselves considered the relevant transcript, the contention that Mr Rana was not given an adequate opportunity to present his case is rejected.

20. A third limb of Mr Rana’s bias argument was that his Honour had in earlier decisions needed to consider, as a matter of law, the meaning of a “lack of substance” in the present statutory context. 

21. Again Mr Rana’s argument should not be accepted.  This could not constitute bias, real or apparent (see The Queen v Australian Stevedoring Industry Board;  Ex parte:  Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100 at 116; Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-4; Webb v The Queen (1994) 181 CLR 41 at 67-8; Flentjar, above).

22. Mr Rana next contended, in effect, that his Honour did not address the correct “matter”, or the correct legal question. 

23. We cannot agree. The question for his Honour was whether Mr Rana had established any of the statutory grounds for judicial review of Mr Nader’s decisions under the DDA and under the RDA. von Doussa J correctly identified this question as the “matter” to be adjudicated by him.

24. Mr Rana also challenged his Honour’s analysis of Mr Rana’s contention in his case for judicial review that, by virtue of the finding of discrimination made by Sir Ronald Wilson on 13 November 1996, it followed that an estoppel arose in Mr Rana’s favour on that issue. 

25. We cannot accept Mr Rana’s submission.  We agree with von Doussa J, for the reasons he gave, that once O’Loughlin J had set aside Sir Ronald Wilson’s decision, no estoppel could be created by that decision. 

26. We are further of the view that, in the circumstances, there was no error of law shown in the approach taken by Mr Nader in deciding, as a question of fact, that Mr Rana’s complaints were “lacking in substance”.  We would add that von Doussa J’s reference to the decided cases in this area clearly indicates that his Honour’s understanding of the meaning of the phrase in the present statutory context was correct.

    ORDERS ON THE APPEAL

27. The appeal will be dismissed.  Given its necessarily limited role in the appeal, there should be no order for HREOC’s costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             19 March 1999

Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Mr John Armstrong
Date of Hearing:	3 March 1999
Date of Judgment:	19 March 1999