Rana v Hyatt Regency Hotel Ltd - [2007] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
RANA v HYATT REGENCY HOTEL LTD
[2007] SASC 174
Judgment of The Honourable Justice Vanstone
17 May 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - OTHER CASES - DISCONTINUANCE OR ABANDONMENT
Appeal from costs order of magistrate - order made on basis of email letter ostensibly sent by appellant indicating discontinuance of proceedings - appellant disputing the email emanated from him and challenging costs on that basis - evidence taken - finding that appellant sent the email. Held: appeal dismissed.
Magistrates Court Act 1991 (SA), s 40(2); Trade Practices Act 1974 (Cth), s 52; Misrepresentation Act 1972 (SA); Supreme Court Civil Rules 2006 r 281; Magistrates Court Rules 1992 r 88, referred to.

RANA v HYATT REGENCY HOTEL LTD
[2007] SASC 174
Magistrates Appeal
VANSTONE J:
Introduction

Ranjit Rana, who appears in person, seeks permission to appeal against an order made in the Magistrates Court that he pay the costs of action of the respondent. That order was made following the apparent discontinuance of the appellant’s suit against the respondent, that discontinuance being communicated by email letter. The appellant now claims that he was not the author of the email letter in question and that it was fraudulently sent by an unknown person. Since this proposed appeal raises the very basis upon which the costs order was made and not just the terms of that order, I consider it appropriate to grant permission to appeal pursuant to s 40(2) Magistrates Court Act 1991 (SA) and r 281 Supreme Court Civil Rules 2006.
Background
The chronology of this matter is of importance. On 26 April 2006 the appellant filed a claim in the South Australian Magistrates Court (“the state Magistrates Court”) against the respondent, alleging that he was refused entry into a nightclub operated by the respondent and claiming damages consequent upon that refusal pursuant to s 52 of the Trade Practices Act 1974 (Cth) and the Misrepresentation Act 1972 (SA).
On 1 August 2006 the matter came before Magistrate Kleinig upon the respondent’s application that the matter be struck out as the pleadings failed to disclose a cause of action. The magistrate acceded to that application.
Mr Rana lodged an appeal against that order and the matter came before Justice David in this Court. On 19 January 2007 David J allowed the appeal insofar as it related to the Trade Practices Act claim and remitted the matter to the Magistrates Court for further consideration.
In evidence before me, Mr Rana said, and it was not disputed, that on about 27 January 2007 he was telephoned by the clerk to Magistrate Kleinig who advised him that the matter would be coming back before the magistrate and would soon be listed.
On 28 January 2007 an email message addressed to the Registrar of the Adelaide Magistrates Court and which appeared to have been sent by the appellant was received by staff within the Adelaide Magistrates Court registry. A copy of it was sent simultaneously to Mr J Murray, the solicitor at Messrs Thomson Playford who had conduct of the matter and to another solicitor at that firm, Mr Brennan. The subject of the email was expressed to be “Notice of intention not to proceed against Hyatt Hotel in local court”. The text of the letter read, in part, as follows:
It is my legal advice that I would not get fair hearing at your local courts. You are aware that I was based (sic) by a Samoan Sheriff Officer in the toilets of your Court, and that my late friend may also have been poisoned by security guard of the Hyatt and his connected Motor Bikie gang called the Commancherio.
…
I do not want to add more negative karmic vibrations in the local courts mad circus and also presided by the cahp (sic) I know called Cannon.
I hereby discontinue my winning immediately and will take such proceedings in the Federal Courts of Australia.
Yours sincerely
Ranjit Rana
The reasons for decision of Justice David were attached to the letter.
It is that email letter which the appellant denies having sent.
On 30 January 2007 the appellant made application to the Federal Magistrates Court to enlarge a pre-existing claim in that Court so as to include a claim under the Trade Practices Act covering the same subject matter as the state Magistrates Court action.
It is noteworthy that in evidence before me the appellant acknowledged that he was aware from a previous matter in which he was involved that he would not be permitted to pursue the same cause of action in two different courts.
Presumably in response to receipt of the apparent notice of discontinuance, it was arranged on 31 January 2007 that the matter in the state Magistrates Court would be listed for mention on 9 February 2007. Prior to the date fixed the defendant filed an application for an order for costs.
On 9 February 2007 the matter came on before Magistrate Kleinig. To some extent what occurred on that day is a matter of dispute. What is clear is that the magistrate treated the email letter to the Registry as an effective discontinuance, having effect as a judgment, and went on to consider the defendant’s application for costs. He made an order that the defendant have its costs of action to be agreed or taxed. (Subsequently the defendant filed a bill of costs which was later certified in the sum of $5,729 plus disbursements.)
On 22 February 2007 Mr Rana filed the notice of appeal relating to that order. This is the appeal presently before this Court. In that notice the judgment/order appealed against is described as “dismissal of the appeal remitted by Justice David” and the grounds are expressed as follows:
1.Respondent did not serve papers on time and the appellant did not know what the matter was to defend. Surprise resulted.
2.Denial of natural justice.
On 20 March 2007 Federal Magistrate Cameron made an order staying the Federal Court action pending compliance with the costs order made in the state Magistrates Court.
Rule 88 of the state Magistrates Court Rules provides as follows:
88.(1) A party may discontinue an action at any time by notice in writing filed and served on the other parties.
(2)Any other party may apply for an order for costs, from the party discontinuing the action, within 7 days of the service of the notice.
(3)… (irrelevant)
(4)A discontinuance of an action has effect as a judgment.
Before me the appellant confined his attack on the magistrate’s decision on costs to the issue of authorship of the email letter. I take the view that in the circumstances, provided he was satisfied that the appellant sent the letter, the magistrate was entitled to proceed as he did.
Therefore I consider the issue before me to be a straight-forward one. It is whether or not the appellant sent the email dated 28 January 2007.
Although the appellant maintained his claim that the costs application was not served on him in advance of the mention date and he was taken by surprise at the hearing, he did not address any argument to me as to how he would better have resisted the application. From what I know of the matter and from general principles, it seems that if the matter was discontinued, there was no reason to deprive the defendant of its costs of action. Accordingly I do not see any need to further examine that issue. Everything turns on the premise underlying the costs order, being whether the email message was sent by the appellant.
Analysis
I heard lengthy evidence from the appellant as to the history of the matter and the sequence of events under consideration. In addition I heard submissions from him as to the way in which I should view the evidence on both sides and as to the legal principles.
For the defendant I heard evidence from Mr Murray and from another solicitor at Mr Murray’s firm who worked on the matter, being Ms Sanderson. Each was cross-examined by the appellant. Mr Murray essentially proved relevant dates and the receipt of email letters. Although Mr Rana was inclined to dispute aspects of his evidence, these matters went to credit only. Ms Sanderson’s evidence covered the course of proceedings on the day on which the costs order was made, there being no transcript of that hearing.
Ms Sanderson said that at that directions hearing Mr Rana told the magistrate that he had not received the costs application in advance of the hearing. Counsel for the respondent then set out for the magistrate the events leading to the hearing, referring to the discontinuance email. The magistrate questioned Mr Rana about the email and Mr Rana responded that
[H]e’d only discontinued in principle and that the Hyatt had promised to negotiate and so that’s why he purported to discontinue and that we hadn’t done so.
Ms Sanderson said the words “in principle” were words used by Mr Rana. She said she had no recollection of any denial by Mr Rana of sending the email and believed she would have recalled such a denial if made.
It was notable that despite advice from me as to the obligation to put his case where it differed from Ms Sanderson’s account of the hearing, the witness was not contradicted by Mr Rana.
I found both witnesses to be truthful and generally reliable and I accept their evidence. That observation extends to Ms Sanderson’s recollections of the various interchanges between bench and bar table on the day of the costs order.
However, upon the central issue, namely the provenance of the email message, Mr Murray could say no more than that he received that message and took it to be from Mr Rana. My determination of whether it was or was not sent by the appellant turns on an evaluation of the appellant’s evidence together with Ms Sanderson’s account of what Mr Rana said during the directions hearing.
I had a very good opportunity to observe the appellant when he gave his evidence. Indeed, at his request, I guided his evidence-in-chief by asking him questions. He was then cross-examined at some length by Mr John White, counsel for the respondent. Apart from my quite firm impressions about Mr Rana’s credibility, formed whilst he gave evidence, there is a great deal of circumstantial evidence in the content of the email letter itself which bears on its genuineness.
The sequence of events which I earlier outlined, coupled with the evidence given by Mr Rana, confirmed that as at the date when the message was received his state of mind was that he knew that the matter was coming back on before Magistrate Kleinig. He considered that Magistrate Kleinig was biased against him and would not objectively adjudicate his claim. He preferred the matter to go to the Federal Magistrates Court where he apprehended he would get a fairer hearing. He understood that he could not pursue the claim in both courts. I find that he determined that he would discontinue the state Magistrates Court action and pursue the matter in the Federal Court. It would be consistent with his sending the email message of 28 January 2007 that two days later he enlarged his Federal Magistrates Court claim to take in the same subject matter, being the Trade Practices Act claim.
In my opinion the message displayed such esoteric knowledge of the course of the appellant’s claim against the respondent that it is very unlikely that anyone other than the appellant himself could have composed it. For instance it includes the names of two solicitors at Thomson Playford concerned in the matter. It shows an understanding of the reasons for decision of Justice David and annexes those reasons. It refers to Mr Rana’s preference that the matter proceed in the Federal Court. In addition there are references to the “local court” and “local courts” in the letter, expressions which Mr Rana used in evidence when referring to the state Magistrates Court.
During his evidence I asked the appellant whether he knew who would be minded to falsify an email message in the way claimed and he nominated a former neighbour of his in whom he formerly confided as to his various claims. He told me that the neighbour had been in communication with security guards from the Hyatt and that between them there could have been collusion to send the questioned email message and so disadvantage his claim. However, Mr Rana acknowledged that he and that neighbour fell out in about June 2006 and that he has not since communicated with him. I consider it to be quite implausible that either that person or anyone else would have had the motive and the esoteric knowledge required to send the questioned message. All in all I found the appellant to be an unconvincing witness. I am satisfied that Mr Rana sent the email message of 28 January 2007.
I think it is unnecessary for me to decide whether or not Mr Rana received in the post the defendant’s application for costs or was able to open the attachments to an email letter sent to him by Mr Murray, one of which contained the application. It appears that he was out of the state at about that time and the mail may have been picked up for him, but not handed on in time for the hearing. In any event I find that it was after he became aware of the broad quantum of the costs and particularly after he became aware that non-payment of the amount would frustrate him in the Federal Magistrates Court that he determined to support his appeal by claiming that he was not the author of the email. It is noteworthy that neither at the directions hearing when the costs order was made nor in his notice of appeal, filed 22 February 2007, did he assert that the email message was fraudulent. Rather, in the appeal notice he said that he was taken by surprise when the costs application was made and resolved against him.
I might add that the appellant claimed that a number of other email messages, apparently passing between himself and Mr Murray, were not composed or received by him. It is not strictly necessary for me to make any finding about those, although I do not doubt that they were genuine. In my view the appellant felt he was driven to dispute the genuineness of those communications because he saw that they would likely be viewed as part of a continuing series and would therefore stand or fall together. Importantly several of those incorporate the discontinuance email and use the expression “associate jurisdiction” when referring to the Federal Magistrates Court, just as did Mr Rana in evidence. There is also reference to a preparedness to accept $5,000 in settlement of his claim, a stance which he confirmed in evidence to me.
In support of his contention as to the falsity of the relevant message, the appellant told me that he has some tertiary education in computing and has a level of expertise about the way in which email messages can be falsified and demonstrated to be so. To fortify his point the appellant filed an affidavit exhibiting examples of such false emails which he claimed to have sent. There was a challenge to the expertise of the appellant to give this evidence but I ruled in his favour. In the way in which the evidence has come out this is not an issue of importance. Whilst I am perfectly prepared to accept that false email messages can be sent and yet have the appearance of being genuine, and I am further prepared to assume that it is possible to demonstrate that they are false, I have made my decision on the basis of the contents of the questioned message and the context in which it was sent.
Conclusion
Accordingly I reject the appellant’s evidence that he did not send the message. I find that the magistrate, in all the circumstances, was entitled to proceed on the basis that the matter was discontinued. Further I find that the costs order made by the magistrate was appropriate.
I grant permission to appeal but dismiss the appeal.