Rana v Skycity Adelaide Pty Ltd
[2007] FMCA 398
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANA v SKYCITY ADELAIDE PTY LTD | [2007] FMCA 398 |
| HUMAN RIGHTS – PRACTICE AND PROCEDURE – Proceedings stayed – proceedings based on similar or identical facts potentially on foot in other courts. Motion to amend not an abuse of process. |
| Trade Practices Act 1974, s.52 |
| Applicant: | RANJIT RANA |
| Respondent: | SKYCITY ADELAIDE PTY LTD |
| File number: | ADG 282 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 20 March 2007 |
| Date of last submission: | 20 March 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 20 March 2007 |
REPRESENTATION
Applicant in person.
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
(1)Proceedings No. ADG 282 of 2006 in the Federal Magistrates Court be stayed until further order.
(2)The respondent make an application to re-list this matter before the Federal Magistrates Court within (7) seven days of final disposal of the applicant’s application to the High Court in relation to the South Australian proceedings related to these proceedings.
(3)The applicant’s motion to amend his application and statement of claim be dismissed.
(4)The applicant pay the respondent’s costs of and incidental to the motions heard today, to be agreed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 282 of 2006
| RANJIT RANA |
Applicant
And
| SKYCITY ADELAIDE PTY LTD |
Respondent
REASONS FOR JUDGMENT
On the question of the stay, which was first ordered in this matter by Federal Magistrate Raphael on 23 November 2006, and is one of the matters the subject of application before the court today, his Honour was of the view that a stay of these proceedings was appropriate, given that there was a matter in the South Australian court system in which the matters of fact are sufficiently similar or overlapping with the matters of fact to be decided in these proceedings.
Given that it is inappropriate that two courts seek to resolve the same factual issues, his Honour was of the view that, although the proceedings did not appear to be an abuse of process, nevertheless it was inappropriate that the two proceedings proceed at the same time and, for the reasons his Honour expressed on 23 November 2006, he stayed these proceedings.
I have been informed today by the applicant and, to the extent possible, confirmed by Mr Martin on behalf of the respondent, that the applicant has made an application of some sort to the High Court seeking orders that the orders of Kleinig SM and Forrester SM in the Magistrates Court in Adelaide, together with orders of a single judge of the Supreme Court and the Full Court of the Supreme Court be quashed. As Mr Martin has submitted, the quashing of those orders would see the South Australian proceedings remain on foot. Exactly what the status of those proceedings would be, considering that the applicant is seeking that every order, including first instance and appeal orders, be set aside, I cannot say. However, what it does mean is that if an order quashing those orders is made, then some form of proceedings based on the underlying facts seen in these proceedings would still be on foot in the South Australian system.
Because of that, I do not think that it is appropriate that the stay be lifted in these proceedings. Rather, the stay should remain in place for a period in order to await the outcome of the High Court proceedings.
I will invite the parties to suggest to me how long that stay might usefully be, although I think the way his Honour originally phrased the stay was that it was pending the outcome of a decision of the Supreme Court in South Australia. My inclination is to amend the stay to provide for it to be in place “until further order of the court” subject to the rights of the parties to apply to have the stay lifted.
RECORDED : NOT TRANSCRIBED
Federal Magistrate Raphael directed the respondent to apply to re-list the matter in this court seven days after the outcome in the Supreme Court was known, and that seems to be an appropriate course to adopt on this occasion.
RECORDED : NOT TRANSCRIBED
The applicant filed a motion dated 23 January 2007 and supporting affidavit sworn the same day on that day in this Court seeking, amongst other things, leave to amend his application and statement of claim “under s.52 of the Trade Practices Act”. The Court was provided by the applicant with a draft amended application and a draft amended statement of claim.
The draft amended application seeks final orders under sections of the Trade Practices Act and the Misrepresentation Act, which is a South Australian statute. The way the draft amended application is worded does not actually seek orders in respect of the determination of the applicant’s Human Rights and Equal Opportunity Commission complaint, and I can only imagine that that is an oversight, given that the draft amended statement of claim which was provided to the court at the same time does seek orders under the Disability Discrimination Act.
The proposed amended statement of claim asserts breaches of s.52 of the Trade Practices Act, breach of contract and misrepresentations under the South Australian legislation.
The respondent has, by cross-motion, sought a declaration that the motion to amend the application and statement of claim is an abuse of process. The applicant has also informed the court, as already discussed in my reasons for continuing the stay in these proceedings, that he has commenced proceedings in the High Court seeking orders that the various judgments obtained by the respondent in the South Australian court system all be quashed. As I said in my reasons in relation to the stay, that has the outcome that the South Australian proceedings, in whatever way may occur, will be on foot if the applicant gets the relief he seeks from the High Court.
The difficulty that that raises for the applicant in his motion to amend his application and the statement of claim in these proceedings is that the cause of action upon which he pursues the respondent in the South Australian court system is essentially the same as the one he now seeks to raise in these proceedings by his amended application.
While the High Court proceedings are on foot and there remains the possibility that the South Australian proceedings will see their decisions quashed and the proceedings revived in some form or other, that means that the relief which the applicant seeks in the draft amended application would be an abuse of process because he would be seeking the same relief in this court as he would still be seeking in proceedings on foot, for whatever reason or to whatever extent, in the South Australian court system.
I do not believe, while ever there is the possibility that the South Australian proceedings will be pursued, as may be the case depending on the outcome of the High Court application, that identical relief on an effectively identical basis should be sought in this court. Therefore,
I refuse the applicant leave to amend his application and his statement of claim in the fashion sought. However, that is not to say, once the proceedings in the High Court are dealt with, that he cannot re-make that application, but it depends on the outcome there. But, for the time being, it is not permissible, in my view, that the identical relief be sought here.
RECORDED : NOT TRANSCRIBED
The respondent has reminded me that its motion seeks a declaration that the applicant’s motion to amend is an abuse of process. Even in circumstances where there remain proceedings on foot seeking identical relief, or the chance that that might occur, and that, at the time the application was filed in this court, the applicant was still pursuing his appeal rights in the South Australian Supreme Court, I think it would be an unnecessarily stern construction of the application’s motion to say that it was an abuse of process.
It would have been an abuse of process if the proposed amended application had been filed but the applicant is free to seek interlocutory orders of the Court, and that is what he was doing. He has been unsuccessful in seeking those orders of the Court, and I think it is sufficient that I say that he has been unsuccessful. There will be no declaration.
RECORDED : NOT TRANSCRIBED
There has been an application by the respondent for its costs of today. The applicant brought two applications and the respondent brought one application. The applicant’s application was to lift the stay of the proceedings, and he also sought orders that he be granted leave to amend his application and his statement of claim. In response, the respondent sought a declaration that the motion to amend was an abuse of process.
In effect, I think the respondent’s motion was really a more emphatic way than usual of opposing the motion filed by the applicant.
It identified the primary issue raised by the amendments which were sought by the applicant, being that the applicant’s motion was filed during the course of the applicant pursuing his appeal rights in the Supreme Court and was pursued in circumstances where he was also pursuing his appeal rights in the Supreme Court and is now seeking some form of review in the High Court.
In the circumstances where the applicant has been unsuccessful and the respondent has been successful, I think it is appropriate that costs be awarded today, and the order will be that the applicant pay the respondent’s costs of and incidental to the motions heard today, to be agreed or taxed.
Therefore the orders of the court will be that:
(1)Proceedings No. ADG 282 of 2006 in the Federal Magistrates Court be stayed until further order.
(2)The respondent make an application to re-list this matter before the Federal Magistrates Court within (7) seven days of final disposal of the applicant’s application to the High Court in relation to the South Australian proceedings related to these proceedings.
(3)The applicant’s motion to amend his application and statement of claim be dismissed.
(4)The applicant pay the respondent’s costs of and incidental to the motions heard today, to be agreed or taxed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate: Angela Chong
Date: 20 March 2007
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