Rana v Skycity Adelaide Pty Ltd
[2006] FMCA 1783
•23 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANA v SKYCITY ADELAIDE PTY LTD | [2006] FMCA 1783 |
| HUMAN RIGHTS – Where proceedings with similar or identical facts are pending in another court − whether a stay should be granted. |
| Sterling Pharmaceutical v Boots Company (Australia) Pty Limited (1992) 34 FCR 287 |
| Applicant: | RANJIT RANA |
| Respondent: | SKYCITY ADELAIDE PTY LTD |
| File Number: | ADG 282 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 November 2006 |
| Date of Last Submission: | 23 November 2006 |
| Delivered at: | Adelaide |
| Delivered on: | 23 November 2006 |
REPRESENTATION
| Applicant in Person |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Proceedings No. ADG282 of 2996 in the Federal Magistrates Court be stayed pending the decision of the Supreme Court of South Australia in its review of the decision of the Local Court Magistrate in proceedings No. 3511 of 2006.
The respondent make an application to re-list this matter before the Federal Magistrates Court within seven (7) days of the decision of the Supreme Court of South Australia being promulgated for the purposes of considering any extension of the said stay which shall remain in force until further order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 282 of 2006
| RANJIT RANA |
Applicant
And
| SKYCITY ADELAIDE PTY LTD |
Respondent
REASONS FOR JUDGMENT
I have before me an application to dismiss the substantive proceedings because they are alleged to be an abuse of process or, alternatively, to stay the current proceedings on the grounds that were most seminally discussed by Lockhart J in Sterling Pharmaceutical v Boots Company (Australia) Pty Limited (1992) 34 FCR 287, namely that there are other proceedings in which similar and often identical facts are to be considered but have been commenced prior to these proceedings.
I will explain.
In March 2006, Mr Rana went to the Adelaide Casino to celebrate his birthday. He went with friends. He may or may not have consumed a small quantity of alcohol. A dispute arose between Mr Rana and staff at the Casino in which Mr Rana was accused of being inebriated.
Mr Rana says that he protested that he was a Class 2 diabetic and was suffering from an absence of sugar which caused him to have symptoms that may appear similar to those of a person who was inebriated. Mr Rana was eventually ejected from the casino.
On or about 8 April 2006, Mr Rana commenced proceedings against the Adelaide Casino citing contract, the Trade Practices Act 1974 and the Misrepresentation Act 1972 (SA) in the State Magistrates Court of South Australia. His particulars of claim are found annexed to the affidavit of Thomas Patrick Martin sworn on 2 November 2006 and filed in these proceedings. The particulars of claim recite some of the facts which I have already referred to in these reasons. According to Mr Martin, and this is not disputed by Mr Rana, the proceedings in the Magistrates Court have moved along in a reasonably speedy manner.
I understand that a list of witnesses has been submitted and discovery has been held. I am also informed by Mr Martin that shortly before the proceedings were due to be heard, an application was made by the defendant for security for costs. This application was granted and the effect was to put a stay on the proceedings as Mr Rana was unable to pay $12,000-odd required by way of security.
I am advised by Mr Martin that Mr Rana has sought review of the decision of the Local Court Magistrate to require him to pay $12,000 by way of security for costs. I am told that this application for review is to be heard in the Supreme Court of South Australia on 12 December 2006. During the course of the hearing today, Mr Rana advised me that he doubted whether the case would be heard at that time because of commitments that he had.
I am satisfied from the authorities that it is not considered to be in the interests of justice for two courts to be seized of the same factual matrix as this might lead to the possibility of two different decisions being given on the same facts. Multiplicity of proceedings is, in itself, a possible abuse of the processes of justice. However, it is important to recall the differences between the causes of action pleaded by Mr Rana in the Magistrates Court and the causes of action pleaded by Mr Rana in this Court where he relies upon acts of discrimination.
One of the most important differences in relation to acts of discrimination is there is no need for any motive for such an act and even if discrimination is entirely unwitting it can still exist and can still be relieved against. These different concepts of law may give rise to a different manner in the presentation of facts, even though those facts may well be similar. It is for this reason that I do not believe that the commencement of proceedings by Mr Rana in this Court constitutes an abuse of process as suggested by Mr Martin.
In any event, in addition to claims concerning disability discrimination raised by Mr Rana arising out of his diabetic situation, he also raises an allegation of disability discrimination arising out of his psychiatric condition which is not a matter raised in the Magistrates Court proceedings.
On the other hand, I am not as sanguine in relation to the Sterling Pharmaceutical (supra) point. There is set out in the headnote the matters to be taken into consideration when deciding whether or not to grant a stay of proceedings on the basis that other proceedings involving similar facts have been commenced. These are:
“(i) which proceedings was commenced first;
(ii)whether the termination of one proceeding is likely to have a material effect on the other;
(iii) the public interest;
(iv)the undesirability of two courts competing to see which of them determines common facts first;
(v) the circumstances relating to witnesses;
(iv)whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted;
(vii)the undesirability of substantial waste of time and effort if it becomes a common practise to bring actions in two courts involving substantially the same issues;
(viii) how far advanced the proceedings are in each Court;
(ix)that the law should strive against permitting multiplicity of proceedings in relation to similar issues;
(x) the general balancing of the advantages and disadvantages of each party.”
If I took these matters into consideration, it is clear that the Magistrates Court proceedings were commenced first. It is not clear that the termination of one proceeding is likely to have a material affect on the other because I am aware that Mr Rana is a man who has brought a substantial number of proceedings in this Court, the Federal Court and other courts of this state. The public interest most certainly would be served by reducing the number of proceedings to one but it is clear that allegations of breaches of the Disability Discrimination Act 1992 cannot be heard in the Local Court of South Australia.
It is certainly undesirable for two courts to compete to see which of them determines common facts first. I do not know anything about the circumstances relating to witnesses but I do know, from what I have already set out, that work has been done on pleadings, particulars and discovery in the Local Court proceedings. Whether or not that would be wasted by allowing these proceedings to go ahead, I am afraid I am unclear. I also accept that it is undesirable and that there would be a substantial waste of time and effort if it becomes common practice to bring actions in two courts involving substantially the same issues.
The proceedings in the Local Court are well advanced whereas the proceedings in this Court have only just commenced, but the difficulty that I am faced with is that by its own action the respondents have effectively stayed the Local Court proceedings by demanding a payment of security for costs which Mr Rana is unable to meet. I agree the law should strive against permitting multiplicity of proceedings.
In balancing the advantages and disadvantages of each party, and considering all the matters of law raised above, I conclude that if the stay had not been obtained by the respondents I would have had no hesitation whatsoever in putting my own stay on these proceedings so that the facts which I am clear are substantially the same in both cases can be tried by the Court to which they were first brought. But if I am to grant a general stay at a time when the proceedings in the Magistrates Court have been stayed by virtue of the orders regarding security for costs, then the effect would be that Mr Rana's access to any Court would be denied and I do not think that this is appropriate.
Mr Rana is seeking to have the Magistrates Court order set aside and he is doing it in the appropriate manner by asking for a review from the Supreme Court of South Australia. He should proceed with that as expeditiously as possible. My decision in relation to these proceedings is that they should be stayed pending the result of the application for review in the Supreme Court. If the application for review in the Supreme Court is unsuccessful and there remains a stay on those proceedings in that Court, then Mr Rana can approach this Court for a lifting of the stay which I am about to order.
If the Supreme Court of South Australia removes the stay so that the proceedings in the Magistrates Court can proceed, then it is my view that they should proceed as in that Court they are far more advanced than matters are in this Court. It is true, as I have already stated, that Mr Rana has a cause of action arising out of alleged discriminatory conduct which cannot be decided by the State Magistrate but it is possible that if he is successful in his claim, that any damages awarded for what he claims to be breach of contract or breaches of the Trade Practices Act would be adequate to compensate him so that proceedings for damages for discrimination would not be required.
It is also possible that if Mr Rana's allegations are found not to have been made out, then he will take the sensible approach and not continue with the proceedings in this Court for, if Mr Rana is found to have been inebriated then it cannot be said that he was discriminated against on the grounds of a diabetic symptom that mimicked inebriation or a psychiatric disorder that may have done the same.
I will therefore order:
(1)that proceedings number ADG 282 of 2006 in this Court be stayed pending the decision of the Supreme Court of South Australia in its review of the decision of the Local Court Magistrate in proceedings numbered 3511 of 2006 ;
(2)that the respondent make application to re-list this matter before this Court within seven days of the decision of the Supreme Court of South Australia being promulgated for the purposes of considering any extension of the said stay and shall remain in force until further order.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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