Rana v Commonwealth of Australia [2008] FCA 907 (17 June 2008) – the joys of self represented litigants and abuse of process applications

June 18, 2008 |

Everyone has a right to appear in a court in his or her own case.  Things don’t get any more fundamental than that.  But facing off against a self represented litigant fighting over an “injustice” meted out eons before is the type of case that sends a chill through even the most battle scarred barrister.  The alarm bells ring loud and long and the fight is almost always hard.  Judges bend over backward to give the punter a fair go and counsel are often kept on a tight leash in the objections they make, how hard they can press points and the vigor of their cross examination.

Rana is in many ways the run of the mill litigant in person case where the applicant claims injustice by the Commonwealth in the method of his discharge from the Australian Army.   It is a useful decision for setting out the relevant legal principles including:

When a summary dismissal will be successful

39 The respondents acknowledged that although it is only in the clearest of cases that an application for summary dismissal would succeed: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J, in this case, because the applicant’s claim failed to disclose a reasonable cause of action, it was appropriate for the Court to exercise its power and dismiss the proceeding.

Basis of dismissing proceedings summarily in the Federal Court

48 The power of the Court to dismiss a proceeding summarily is conferred by s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). The Court is empowered to give judgment for a respondent to a proceeding if the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. In considering whether a party has a reasonable prospect of success, the Court need not be satisfied that the proceeding is hopeless or bound to fail.49 Section 31A of the Federal Court Act was enacted by the legislature with full knowledge of the decisions of the High Court in relation to the summary dismissal of proceedings and, in particular, the decision of the High Court in Dey 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. It may be thought, in those circumstances, that the purpose of the enactment of s 31A was to relax the rigours of the test imposed by the High Court in General Steel Industries 112 CLR 125 as to the necessary circumstances in which a proceeding may be struck out summarily: Jewiss v Deputy Commissioner of Taxation (2006) 65 ATR 222 and White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298. So much is supported by the Attorney-General’s second reading speech on the Migration Litigation Reform Bill 2005 (Cth) which was the legislative vehicle which introduced s 31A. He said:

The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts’ powers in dealing with any unsustainable case.

50 Order 20 rule 5 has to be considered in the light of s 31A.

51 Notwithstanding that the purpose of s 31A was to relax those tests, a Court will still be cautious about finding that an applicant has no reasonable prospect of successfully prosecuting a proceeding.

Approach taken by courts in considering whether a claim is an abuse of process

55 This Court has an implied incidental power to prevent an abuse of its processes. The jurisdiction of a superior court to prevent its processes from an abuse of process was considered by the High Court in Walton v Gardiner (1993) 177 CLR 378. In that case, the High Court was concerned with complaints against three medical practitioners which were laid but not prosecuted in the Medical Tribunal and then re-laid after a Royal Commission had reported adversely on the conduct of the practitioners. On an application to the Court, the Court of Appeal in New South Wales stayed the new complaints on the ground that they were so unfairly and unjustly oppressive as to constitute an abuse of process.56 Chief Justice Mason, Deane and Dawson JJ said at 392-393:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. … Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate a newer case which has already been disposed of by earlier proceedings. (Footnotes omitted.)

57 The respondents contended that this Court should find that this proceeding is an abuse of process.

58 There is no doubt that the issues which are said to arise in this proceeding should have been raised in the proceeding before Mansfield J: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 146 FCR 1. No explanation has been given for the failure to raise these issues in that proceeding. In those circumstances, this proceeding is a manifest abuse.

59 In Rogers v The Queen (1994) 181 CLR 251 at 286, Mason CJ, after remarking that categories of abuse of process remain open, identified three categories within which abuse of process usually falls:

(1) the court’s procedures are invoked for an illegitimate purpose;

(2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or

(3) the use of the court’s procedures would bring the administration of justice into disrepute.

See also Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.

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