Rana v Kiefel, Kenny & Graham JJ & Ors

[2007] HCATrans 190

[2007] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A11 of 2006

B e t w e e n -

RANJIT SHAMSHER JUNG BAHADUR RANA

Plaintiff

and

KIEFEL, KENNY & GRAHAM JJ

First Defendants

MANSFIELD J

Second Defendant

CHIEF OF ARMY

Third Defendant

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 4 MAY 2007, AT 10.17 AM

Copyright in the High Court of Australia

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

MS S.J. MAHARAJ, QC:   Your Honour, I appear for the Chief of Army.  (instructed by Australian Government Solicitor)

HER HONOUR:   That is the correct entitlement to the proceeding, is it, in this matter?

MS MAHARAJ:   Yes, your Honour, it is.

HER HONOUR:   Thank you.  Yes, Mr Rana.

MR RANA:   Yes, your Honour.  Again, Brigadier‑General Orme was the delegate and he has not addressed the question of my disability, apart to say, as a layman, he considered that reactive depression, as you can see in my affidavit, he.....that is from the…..

HER HONOUR:   Yes, I have read that.

MR RANA:   It says that actually I just read this disorder, this reactive depression as long back as 1968.  Now, Brigadier Orme he had a flight sergeant, a Dr Miller, who was not even a psychiatrist, and he advised Brigadier Orme that reactive depression is not a psychiatric disorder and therefore on the basis of my discharge that there was no medical ground and that I have gone AWOL and therefore I have frustrated every avenue of medical really.  However, his delegate, Major Tattersal considered that the Administrative Appeals Tribunal of 1988 was an independent body and he recommended that I be considered for change of my record and also for the pension from the superannuation of the Commonwealth Army.

Now, based on that my pure submission to you is that it is a question of medical expertise and therefore not question of law where everybody in the decision‑making process, because they would not accept my fresh evidence, therefore made jurisdictional error and denied me natural justice, for example, like the case of Board of Education v Rice & Others (1911) AC 179. He has not – that means Brigadier‑General Orme has not answered the specific question whether I had a psychiatric illness or not because he confused in the medical question adjustment disorder, which is a psychiatric illness and which I had been diagnosed with as long back as 1981 by the army psychiatrist, Dr Hoff. He became confusing. He says that reactive depression is not adjustment disorder.

Thus on that basis of jurisdictional error, everything – decision so far made ought to be quashed in the interests of justice and same to have pressed decision.  That is all my submissions for today, your Honour.

HER HONOUR:   Yes, thank you, Mr Rana.  Yes, Ms Maharaj.

MS MAHARAJ:   Your Honour, we make the same submission regarding the submitting appearance.  Your Honour, will see that the Chief ‑ ‑ ‑

HER HONOUR:   Yes, you want to withdraw that?

MS MAHARAJ:   Yes, your Honour, and file the Form 8 appearance.

HER HONOUR:   Yes, thank you.  Again, I am treating this as an application for orders nisi.

MS MAHARAJ:   Yes, your Honour, we note that.  We make the same submissions that we made in the previous matter, your Honour, that no substance is disclosed in the documents filed by the applicant and that the application ought to be dismissed.  Apart from the history, your Honour, which is slightly different, your Honour will see that there was a decision by his Honour Justice Mansfield delivered on 14 September 2005 which rejected the arguments advanced by the applicant.  That decision was, of course, appealed to the Full Court of the Federal Court and the substantive arguments were again comprehensively rejected by the Full Court on 12 May 2006 and we respectfully ask your Honour to dismiss the application with costs.

HER HONOUR:   Yes, thank you.

This is an application filed on 19 May 2006 for an order nisi seeking certiorari and mandamus against three judges sitting as the Full Court of the Federal Court of Australia (the first defendants) and a single judge of the Federal Court of Australia (the second defendant).  The plaintiff seeks for the matter to be remitted for redetermination to the third defendant, the Chief of the Army.

The plaintiff enlisted the Australian Army in 1980 and was discharged in 1982.  In 1984 the plaintiff commenced a claim for compensation in respect of his service in the Australian Army.  Following a determination of the AAT a lump sum payment was made for a period between 1982 and 1985 on the basis that any continuance of this disorder since 1985 was probably not related to the stress experienced in the Army’s service.

In this decision the AAT did not address the issue of the plaintiff’s capacity to perform his duties at the time of his retirement in 1982. Later in 2003 the plaintiff sought an order that the Chief of Army inform the Death Benefits Authority that at the time he was retired grounds existed on which he could have been retired relating to physical or mental incapacity to perform his duties. An order to this effect would, under section 37 of the Defence Force Retirement and Death Benefits Act 1973 (Cth), alter the status of his discharge.

In 2005 a delegate of the Chief of Army determined that at the time of his discharge grounds did not exist whereby the plaintiff could have been discharged because of his physical or mental incapacity.  The delegate’s reasons demonstrate reliance on certain medical reports which tended to show that the diagnosis of aggravation of adjustment disorder with emotional features was not established during Mr Rana’s service, along with the fact that the plaintiff absented himself from his workplace, without leave, on numerous occasions.

The plaintiff sought the review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in the Federal Court of Australia. A second decision also made by the same delegate of the Chief of Army in 2002 was also the subject of an application for review.

In the Federal Court Justice Mansfield was able to determine from the plaintiff’s numerous and discursive written submissions a number of possible grounds for review which included that there had been a breach of the rules of natural justice, the taking into account of an irrelevant consideration, a failure to take into account a relevant consideration, unreasonableness, bad faith and a lack of evidence.  Upon consideration of the material before him Justice Mansfield determined that the delegate did not fail to accord procedural fairness to the plaintiff in making his decision. 

His Honour found that the plaintiff was given the opportunity to put material into the brief considered by the delegate and that the plaintiff was also given the opportunity to comment on other adverse material included in the brief.  The plaintiff had made various submissions which were before the delegate.  The other grounds ascertained by Justice Mansfield were not made out.  Accordingly, there was no reviewable error on the part of the delegate and the applications for review were dismissed. 

The plaintiff then appealed this decision to the Full Court of the Federal Court where it was unanimously dismissed with costs on 12 May 2006.  In the Full Court the emphasis of the plaintiff’s challenge appeared to be on an asserted failure to accord procedural fairness.  The court observed that the doctrine of procedural fairness does not necessarily require that each and every new document received by a decision‑maker must be provided to the person affected by the decision. 

After considering the documents before the delegate, their content and the opportunities the plaintiff had to address them, the court found that there was nothing to suggest that the delegate had not afforded the requisite procedural fairness to the plaintiff.  Accordingly, their Honours dismissed the appeal.

Justices Kiefel, Kenny and Graham, the first defendants and Justice Mansfield, the second defendant, have filed submitting appearances.  The third defendant had filed a submitting appearance but that has been withdrawn and counsel appeared today on his behalf and has opposed the application.  Given the course of the proceedings through the appellate structure of the courts below the complaints made by the plaintiff are of a kind that could have been advanced as grounds of appeal to this Court by way of an application for special leave.

In these circumstances, the relief now sought should be refused:  see, for example, R v Cook; Ex parte Twigg (1980) 147 CLR 15 and R v Ross‑Jones; Ex parte Green (1984) 156 CLR 185. The submissions of the plaintiff reveal no grounds for the grant of the relief sought, nor is there anything in the materials that the plaintiff has filed which would support any arguable ground for the grant of relief, nor has there been any matters put today in oral submissions which advance that position. In these circumstances, I am of the opinion that the plaintiff’s application for orders nisi from this Court should be dismissed.

The order of the Court is:  application for orders nisi dismissed with costs of the third defendant to be paid by the applicant.

Nothing further?

MS MAHARAJ:   No, your Honour.

AT 10.27 AM THE MATTER WAS CONCLUDED