Rana v The University of South Australia

[2004] FCA 231

FEDERAL COURT OF AUSTRALIA

Rana v The University of South Australia
[2004] FCA 231

Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth)
Disability Discrimination Act 1992 (Cth)

RANJIT RANA v UNIVERSITY OF SOUTH AUSTRALIA

No S 826 of 2003

LANDER J
ADELAIDE
5 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 826 OF 2003

BETWEEN:	RANJIT RANA APPELLANT
AND:	UNIVERSITY OF SOUTH AUSTRALIA RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	5 MARCH 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.   The notice of motion filed by the appellant on 26 February 2004 be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 826 OF 2003

BETWEEN:	RANJIT RANA APPELLANT
AND:	UNIVERSITY OF SOUTH AUSTRALIA RESPONDENT

JUDGE:	LANDER J
DATE:	5 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by Mr Rana for an order of this court directed to the President of the Human Rights and Equal Opportunity Commission, to provide the Court with a report of the proceedings before the Human Rights and Equal Opportunity Commission brought by the applicant.

2. The jurisdiction of this Court was invoked by the applicant when on 21 November 2003 he filed a notice of appeal from a decision of a federal magistrate given on 4 November 2003.  Subsequently the applicant filed an application for leave to appeal from that same decision.  That appeal and that application is to be heard by me on 13 April 2004. 

3. The proceedings before the federal magistrate were brought pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act). On the application of the respondent, the magistrate summarily dismissed the applicant's proceedings pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules. He was satisfied the respondent has shown that the respondent has no case to answer under the Racial Discrimination Act1975 (Cth) (Racial Discrimination Act) and he was satisfied that the applicant had shown no reasonable cause of action in respect of his complaints under the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act). In those circumstances he dismissed the application summarily. The applicant has appealed from that decision and, as a matter of safeguard, sought leave to appeal. I am to hear those matters pursuant to s 25(1)(a) of the Federal Court of Australia Act 1976 (Cth).

4. The applicant has asserted to me this morning that the person charged at the Human Rights and Equal Opportunity Commission with investigating his complaints under the Racial Discrimination Act and the Disability Discrimination Act, was biased against him. He has asserted that she demonstrated her bias in relation to comments she made about his ancestry and in particular about his connection with the royal family in Nepal. He has said that her bias tainted her investigation and tainted the decision made by the Commission.

5. He said, therefore, I should order the President of the Commission to provide a report to this Court indicating, apparently I think, her bias.  The application is opposed by the respondent.  The respondent has put forward three propositions as to why I should not make the order sought.

6. First, the respondent argued that the report was not admissible on an appeal because it was not new evidence within the meaning of O 52 r 36 of the Federal Court Rules.  In that submission Mr Douglas asserted that the applicant did not get over the threshold test for new evidence on appeal.  For example, he submitted the applicant had not satisfied me that the evidence was not available at the time of the hearing before the federal magistrate.

7. Secondly, he said that I should refuse the order because the application was irrelevant to the subject matter of the claim before the federal magistrate, the appeal and the application for leave to appeal before me.  Thirdly, and I suppose even more importantly than the first two submissions, he said I had no power to make the order. 

8. Section 46PS of the HREOC Act provides that the President of the Commission may provide the Federal Court with a written report on a complaint that has been terminated under s 46PH. The proceeding before the magistrate involved a complaint that had been terminated under s 46PH of the HREOC Act. No application was made to the magistrate to have the President provide the Federal Magistrates Court with a written report. The President did not choose, of his own motion, to do so.

9. Mr Douglas has argued that although s 46PS entitles the President to provide both the Federal Magistrates Court and this Court with a written report, it does not, at the same time, provide a power to this Court to require the President to so report. I am satisfied that Mr Douglas is correct in relation to two of his submissions. I do not believe that the report sought by the applicant is relevant to the matters before me and, for that reason alone, I would not order the President to provide a report. I do not believe that it is new evidence as new evidence is understood under O 52 r 36 and, for that reason also, I would not order a report.

10. I need not, in those circumstances, determine whether I have jurisdiction to require the President to so report.  I am inclined to agree with Mr Douglas that I do not.  In the circumstances, however, the application for an order that I require the President to report is refused.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:            12 March 2004

Counsel for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr M. Douglas
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	5 March 2004
Date of Judgment:	5 March 2004