Rana v State Ombudsman of South Australia & Ors [2004] HCATrans 480 (19 November 2004)

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Rana v State Ombudsman of South Australia & Ors [2004] HCATrans 480 (19 November 2004)

Last Updated: 9 December 2004

[2004] HCATrans 480

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A20 of 2004

B e t w e e n -

RANJIT RANA

Applicant

and

STATE OMBUDSMAN OF SOUTH AUSTRALIA, BARBARA FERGUSON, ANNE EDWARDS AND FLINDERS UNIVERSITY OF SOUTH AUSTRALIA

Respondents

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 12.41 PM

Copyright in the High Court of Australia

MR R. RANA appeared in person.

MR G.J. PARKER: If the Court pleases, I appear for the first named respondent. (instructed by Crown Solicitor’s Office South Australia)

GUMMOW J: Thank you. I should add that the Deputy Registrar has supplied a certificate indicating that she has been informed by the solicitor for the second, third and fourth named respondents that they will submit to any other of the Court, save as to costs. Yes, Mr Rana.

MR RANA: Yes, your Honour. I would like to start with the maxim, generalia specialibus non derogant, which means general things do not derogate from special things which was applied at the case of GPAO v Northern Territory. In that his Honour Justice Kirby was the only dissenter and I think he was right. Why I say that is that - - -

KIRBY J: That is a very good start to your submission.

MR RANA: Thank you, your Honour. Why I say that is that I am not presenting a case that is vexatious or frivolous. I have totally followed Report No 92 of the Australian Law Reform Commission and related discussion papers and I will strictly follow what their recommendation would be, whether the Court would deem this is a special case or not.

Now, I want to first say is that the magistrate showed bias to me because he was a friend of my Family Court barrister, now Strickland J of the Family Court. I had a falling out with Justice Strickland. He said he will not represent me because I had a mental illness and I will never get access to my son. I put that matters to Federal Magistrate Lindsay and he considered that he was not biased and then I appealed the matter before - - -

GUMMOW J: Now, at the base of all this is an application to issue some subpoenas, is it not?

MR RANA: Yes, your Honour.

GUMMOW J: Yes.

MR RANA: But I say my case is distinguishable than that of the providence of the Family Act which was decided by the High Court. I will say that a little bit on but I have to say that then I appealed to the Federal Court before his Honour Selway J. I asked him that he disqualify because he was representative of the State of South Australia as the Solicitor-General.

I found that very, very strange and he made a decision okay but when I sought transcripts before the Federal Magistrate as well as Justice Selway they said they could not help me, so I do not have any transcript but for I was poor so I could not add any transcripts. So now I am proposing to you a normal principle, how the case of Pinochet was decided before the Bow Street Magistrate Case in the disqualification of Lord Hoffmann by the second committee of the Law Lords.

I have been told that a Full Court of any Australian courts will never entertain that idea so I come before you that you should consider this novel idea, because you see the GPAO Case is a very bad case. In a sense it is good because the section 79 picking up is very, very efficient and a very, very clever device but it does not need to be one for all. One, this is unfit model because it very rarely has - - -

GUMMOW J: Just a minute.

MR RANA: - - - a serious implication - - -

GUMMOW J: Just a minute.

MR RANA: - - - for many people - - -

GUMMOW J: Just listen to me, please. What is the complaint about Mr Justice Selway?

MR RANA: He was the Solicitor-General for the State of South Australia in the GPAO Case.

GUMMOW J: So, what follows from that?

MR RANA: Well, I thought that he might have a pecuniary interest for not - - -

GUMMOW J: A pecuniary interest?

MR RANA: Yes.

GUMMOW J: How?

MR RANA: Sorry, non-pecuniary interest.

GUMMOW J: Yes.

MR RANA: But, nevertheless, I say that he should have disqualified.

GUMMOW J: Why?

MR RANA: In the public interest.

GUMMOW J: Why?

MR RANA: Because he has been a loyal person to his soul.

GUMMOW J: Just a minute. Because he was counsel in a case - - -

MR RANA: Yes, your Honour.

GUMMOW J: - - - one of a rather large number of counsel in a case, if I may say, in Northern Territory v GPAO which produced a majority decision in this Court which favoured the submissions he was putting – is this the idea – but which is a result which does not favour the submissions you want to put in your present dispute?

MR RANA: Yes.

GUMMOW J: That would disqualify an awful lot of judges.

MR RANA: But I have a different idea. I think the automatic disqualification test adopted by the Law Lords at that Pinochet: In Search of the Perfect Judge analogy is a good start off because it will help many, many people because you see you cannot identify who is biased or who has pre-judgment before hell. In some extreme cases I think it is a novel idea in the interests of the administration of this..... Whether you are angry or not, that is a different matter.

Well, I want to now continue. Now, I want to say that the GPAO Case is good for the Family Court but not in administrative process of like the Ombudsman Act because the Ombudsman Act is not otherwise provided for because the State Parliament of South Australia does not say so. So you cannot just go and pick up where there is no meeting of the minds. For example, in recent times, Branson J has said so in a case called Violi v Berrivale Orchards [2000] FCA 797. It considered a conflict between – not a conflict but picking up attempt of the Listening Devices Act (NSW), but that legislation clearly had the intention and section 79 did not pick it up and in a wise decision Branson J clearly said that it was precluded by section 138 of the federal Evidence Act 1995.

So you see there has been many, many cases after GPAO where section 79 does not pick up, so you have a body of law in the Evidence Act which says you can do this because section 79 can pick up and then you go on to say in GPAO Case to denial and saying the whole process of the Federal Court or Family Court does not otherwise provide for in the issue of summons or compelling witnesses just because the federal Ombudsman Act says so that they have special immunity.

I find that bizarre in modern times. I mean, the Head of the State, Pinochet himself, was arrested by a very brave judge, Baltasar Garzon, and under the development of human rights that was the treatment he got and I thought the world was going to see brighter days. What the local parochial Ombudsman Act.....all that. I mean, I find that whether picking up can just be done on a mechanistic thing whether there should be a test which is interest test clearly said by and advocated by the Law Reform Commission in their Report No 92 and so forth.

Now, why I say GPAO Case is a bad one is that by analogy it is like the elephant passes the gate but the tail gets stuck. I mean, Kirby J clearly said that all the Federal Courts laws and rules are otherwise provided for but in the light of the Violi Case decision it is very, very inconsistent and the whole of the Australian legal system is becoming a mocking stock of the world. I listened to that. I said that the Federal Magistrate Court has incredible power, for example, through their approved jurisdiction, through their – as I say, their jurisdiction and through their specific Acts and provisions and rules plus section 39B(1A)(c) when joined together plus because the.....and GPAO said that issue of summons is not a federal law because it has not been otherwise provided for so it can be inferred that it is a common law.

So I say it can still be picked up by section 80 of the Judiciary Act and when three laws like that accumulate, in my humble submission it is otherwise provided for. Therefore, then, the question of section 39B(1A)(c), plus section 80 of the Judiciary Act and the Federal Magistrates Act accumulated have conflict with section 79 of the Judiciary Act because Judiciary Act section 79 is a very bizarre creation because it says it picks up the particular piecemeal legislations of the State as well as common law and it is a procedural Act.

What kind of creation is that? It is bizarre. It seems it has got three heads. And when section 80 you read it says it is a substantive Act. So, in my mind, the doctrine of repugnancy must set in because in the same legislation when two laws conflict all the decisions, Acts, Metwally v University of Wollongong, the doctrine of repugnancy clearly shows that the newer legislation provision in conflict with the older legislation provision, the older one would go into hibernation or whatever you like to call it.

So, in my submission, section 80 and section 39 are modified in recent times in the early 1980s and section 79 has frozen in time since 1903. So in my mind this is a special circumstances when I say that in my case section 79 cannot be used because the GPAO test is an erroneous test and a new test should be brought into play as the Australian Law Reform Commission says whether there should be interest test to be brought in.

Even if you look, the scope of, you know, a case like A v Hayden.....ultimately, it is a question of weighing up whether confidentiality prevails over a public interest case and at the end of the day I would humbly submit that the power of the Australian Secret Intelligence Service in that A v Hayden Case was.....to allow and accommodate the prosecution by the Victorian Police. If that was the situation, then I would say that the power of the Ombudsman are very, very low in the scale when you try to weigh up a public interest case versus confidentiality.

After all, the Ombudsman Act sued – succumbed to the power of Article 2 of the Human – I am sorry, sir – section 2 of the Human Rights and Equal Opportunity Commission Act in Article, I think, 26 which says public access should be given to any member of the public in accessing any documents or any information. Well, it is a very broad idea but what I am trying to say is that if that idea could be applied in special cases like mine because if I cannot call the Ombudsman’s officer or ask him to produce a document for section 106 of the federal Evidence Act in a rebuttal to the detriment of my credibility, I need to explain because I propose the idea of Browne v Dunn, a principle. If I cannot do that, then I would be forever precluded to study in any university in Australia because this case has really damaged my reputation.

I must need a rebuttal and follow examination to explain what my case was all about. Having said that all, the respondent are saying the GPAO Case and that of this Ombudsman case, if you like, sections, are similar. Well, essentially, it is not because the purpose and the objects of the two Acts are totally different. How can I say the State Ombudsman is my father or mother? That is bringing by your.....laws picked up willy-nilly.

I cannot say the Ombudsman is my father in terms of parens patriae jurisdiction. His jurisdiction is administrative. He is no more, no less, a public service principal officer. Whether he has been protected by the Parliament or otherwise is not the question here. The question here is that it is the ultimate issue of being weighed between confidentiality issue and what is in the public interest because, you see, I have been precluded because they say that I am a mad person and the universities are saying that I should be excluded but, as a public policy, any mad person who has episodic illness must go back to university and the only way that I can possibly rebut is by relying on the section 106 of the Evidence Act 1995.

So having said all that, in summarising, essentially, if the Violi decision is a step in the right direction, then why could it not be mine? In addition to that I will say that the Ombudsman Act when I analyse in terms of the object and the purpose of the Disability Discrimination Act, Federal Magistrates Act, the Rules, Human Rights and Equal Opportunity Commission Act 1986, Racial Discrimination Act and many other new federal Acts, I think there is a conflict.

I do not agree the analysis of his Honour Mansfield J in another previous decision in Rana v The Ombudsman. I say that there must be a new test proposed and proffered by Associate Professor of Law Opeskin et al where he said that if there is a inconsistency between the federal surrogate Act and the established federal Acts made by the Parliament then you could actually bring in a new test which is similar along the lines of the repugnancy test.

In this case which is that if the surrogate federal Act is a new one and it is in conflict with the newer legislation like the Disability Act or the Federal Magistrates Act so forth, so forth, then in their terms it must also be repugnant. So I wish that you would give me special leave because this is a special case with all new principles and if you would grant me special leave I will demonstrate the benefit flowing to other people without the mechanical applications. That is because a law goes and picks up – because of its ambulatory effort it does not say when it got picked up or why it got picked up, et cetera, et cetera. It really, really damages basic human rights of people like me who suffer from disability. Having said that - - -

GUMMOW J: The red light is on, Mr Rana.

MR RANA: Okay, your Honour, thank you.

GUMMOW J: We do not need to call on you, Mr Parker.

This application for special leave to appeal from the Federal Court of Australia originally concerned an application by the applicant for the issue of subpoenas against the Ombudsman of South Australia. This was in connection with a dispute between the applicant and the Flinders University of South Australia. The litigation thereafter came before Federal Magistrates Driver and Lindsay, and in the Federal Court before Justice Mansfield and Justice Selway.

The applicant wishes to argue that the Ombudsman Act 1970 (SA) is inconsistent with federal law. He also makes points under the Constitution, in particular, section 109, and other points concerning the construction of provisions of the Judiciary Act 1903 (Cth).

There is no merit in these arguments or in the other points raised. These include alleged bias on the part of the federal magistrate and Justice Selway. There is no prospect of success in the application, and the application is dismissed with costs.

AT 1.04 PM THE MATTER WAS CONCLUDED