Ranjit Shamsher J B Rana v Human Rights & Equal Opportunity Commission [1998] FCA 288 (31 March 1998)

Last Updated: 23 April 1998

FEDERAL COURT OF AUSTRALIA

DISCRIMINATION - review of decisions of Human Rights and Equal Opportunity Commission not to continue to inquire into allegations made by applicant - whether decision of private association to reject application for membership was based on applicant's ethnicity or disability - whether allegations lacking in substance - whether matters complained of did not give rise to unlawful discrimination.

ESTOPPEL - Anshun estoppel - whether HREOC and delegate estopped from concluding applicant's complaints lacking in substance on the basis of an earlier decision to the contrary which had been set aside on review - application of Anshun principle in administrative proceedings.

ADMINISTRATIVE LAW - Judicial review - allegations of fraud and apparent bias - whether material to justify making the allegations - whether decision-maker gave independent consideration to applicant's complaints.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Racial Discrimination Act 1975 (Cth)

Disability Discrimination Act 1992 (Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

R v Australia Broadcasting Tribunal; Ex Parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13, followed

Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, applied

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, followed

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589, followed

McKenzie v McKenzie (1970) 3 A11 ER 1034, cited

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, followed

Assal v Department of Health, Housing & Community Services (1992) EOC 92-409, applied

Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994), cited

Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995), cited

Curragh Queensland Mining Ltd v Daniel (1992) 34 FLR 212, cited

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, followed

Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, cited

Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375, cited

Matter Nos. SG 67 of 1997

SG 85 of 1997

SG 94 of 1997

SG 95 of 1997

RANJIT SHAMSHER J B RANA v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

VON DOUSSA J

ADELAIDE

31 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 67 of 1997

BETWEEN:	RANJIT SHAMSHER J B RANA Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	31 MARCH 1998
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 85 of 1997

BETWEEN:	RANJIT SHAMSHER J B RANA Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	31 MARCH 1998
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 94 of 1997

BETWEEN:	RANJIT SHAMSHER J B RANA Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	31 MARCH 1998
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 95 of 1997

BETWEEN:	RANJIT SHAMSHER J B RANA Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	31 MARCH 1998
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 67 of 1997 SG 85 of 1997 SG 94 of 1997 SG 95 of 1997

BETWEEN:	RANJIT SHAMSHER J B RANA Applicant
AND:	HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION Respondent

JUDGE:	VON DOUSSA J
DATE:	31 MARCH 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

Four separate applications under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") have been listed for hearing together. Whilst each application concerns a challenge to a discrete decision, the decisions were made against a background of interrelated facts.

It will be necessary to go into the facts in more detail later in these reasons but, by way of introduction, the applicant, Mr Rana, has a long running dispute with the Nepal Australia Friendship Association ("NAFA") and a number of its office bearers including its President, Mr Deepak Bista. NAFA has rejected applications by Mr Rana to become a member of NAFA. Mr Rana lodged complaints with the Human Rights & Equal Opportunity Commission ("HREOC") alleging that NAFA had discriminated against him on the grounds of his ethnicity and racial background (a complaint under the Racial Discrimination Act 1975 (Cth)) (the "RDA") and on the ground of a disability (a complaint under the Disability Discrimination Act 1992 (Cth)) (the "DDA"). The progress of these complaints through the procedures required by the respective Acts has been protracted.

In relation to the complaint under the DDA, in August 1996 the Disability Discrimination Commissioner decided in accordance with s.71(2)(d) of the DDA not to continue to inquire into the allegations made by Mr Rana, because in her opinion, the allegations were lacking in substance. Mr Rana, on receipt of notice to that effect, required the Commissioner to refer the complaint to the President of HREOC pursuant to s.71(5) of the DDA. This occurred, and on 13 November 1996 the President Sir Ronald Wilson, A.C., KBE, published his decision confirming the Commissioner's decision not to continue to inquire into Mr Rana's complaint, although on different grounds. Mr Rana challenged the President's decision by application under the ADJR Act.

The ADJR Act proceedings were heard by O'Loughlin J. His Honour set aside the decision and remitted the matter to the President of HREOC for further consideration in accordance with the Reasons for Judgment: Rana v HREOC & Nepal Australia Friendship Association, (unreported, 22 May 1997).

On 27 May 1997 the Advertiser published an article under the headline "Legal win for disabled man seeking club entry" and with the caption "Mr Ranjit Rana yesterday: "They said I was crazy"". It is convenient to set out the whole of the text which followed.

"Ranjit Rana came to Australia to escape political turmoil in Nepal.

Although he wanted to settle down to a quiet life here, he did not want to sever all his ties with home, so he tried to join the Nepal Australia Friendship Association.

Most of the Nepalese community in Adelaide are members of the club.

However, Mr Rana suffered from obsessive-compulsive disorder and the association did not want him as a member. Mr Rana went to the Human Rights and Equal Opportunity Commission, claiming discrimination but the commission ruled against him, saying he had been banned because of his personal differences with the organisation's president.

The matter was referred to the commission president, Sir Ronald Wilson, who also rejected Mr Rana's claim. Mr Rana then appealed to the Federal Court, where yesterday he won a major round in his battle.

Justice O'Loughlin upheld Mr Rana's appeal and ordered the matter be returned to the commission for reconsideration.

Sir Ronald had said that although he believed Mr Rana had been excluded from the club because of his medical condition, the history of conflict between the complainant and the members of the (association) has arisen primarily because of his behaviour which is a result of his disability.

However, Justice O'Loughlin ruled yesterday that although this may have been the case, it was wrong to say that allowing Mr Rana to be a member of the association resulted in "unjustifiable hardship" for the organisation and its members.

Outside the court, Mr Rana, who has represented himself through all the proceedings, said he was happy with the decision.

Despite all the court arguments, he still wanted to be a member of the association.

"It is a major win because they denied my dignity, because they said I was crazy and they didn't want crazy people in their club", he said."

The Judgment of O'Loughlin J contained no description of the disorder suffered by Mr Rana. His Honour said merely that it was sufficient to observe that Mr Rana had or might have had a psychiatric condition (at 6). Mr Rana took exception to the statement published in the Advertiser that he suffered from "obsessive compulsive disorder". He says that the correct description of his disability is "obsessive-compulsive personality disorder". He sought to have the Advertiser correct this description. The Advertiser refused to do so. Mr Rana lodged a complaint with the Australian Press Council ("the APC"). The APC, after considering information supplied by Mr Rana, informed him that there was no matter which the Council could reasonably see as constituting a breach of its principles, and it proposed to take no further action. Mr Rana then lodged a complaint with HREOC under the DDA alleging that both the Advertiser and in turn the APC had discriminated against him on the ground of his disability.

Mr Rana had earlier complained to the Advertiser about an article published on 5 September 1996 about Court proceedings he had taken against one Michael Hudson, which received considerable publicity. The Advertiser had described him as an "invalid pensioner and university student". Mr Rana complained to the APC about that article in February 1997. Pursuant to its policy of requiring complaints to be lodged within three months of the publication of an article the APC refused to deal with that complaint because it was made more than three months after the date of publication. In his complaints to HREOC about the Advertiser and the APC Mr Rana added another complaint that the conduct of the Advertiser and the APC in respect of this earlier publication constituted victimisation on account of his disability.

Following the decision of O'Loughlin J, Mr Rana's complaint under the DDA against NAFA was further considered, this time by a delegate of the President. The President pursuant to s.19(3)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) had delegated his powers for this purpose to The Hon. John Nader QC. On 14 August 1997 Mr Nader, pursuant to s.101(1)(a) of the DDA, dismissed the complaint on the ground that it was lacking in substance. The first of the present applications (SG67 of 1997) challenges that decision.

In relation to the complaint under the RDA against NAFA and Mr Bista, a delegate of the Race Discrimination Commissioner on 8 September 1997 decided, pursuant to s.24(2)(d) of the RDA, not to inquire into the allegations made by Mr Rana because in her opinion the allegations of race discrimination were lacking in substance. Pursuant to s.24(4) of the RDA Mr Rana required that the delegate refer the decision to the President of HREOC. Mr Nader, again acting as a delegate of the President, reviewed the delegate's decision. On 21 October 1997 Mr Nader, pursuant to s.24AA(2)(b)(i) of the RDA, confirmed the delegate's decision as he was satisfied that the complaint was lacking in substance. In the second of the matters now before the Court (SG 85 of 1997) Mr Rana challenges that decision.

On 26 September 1997 the Disability Discrimination Commissioner decided not to continue to inquire into the allegations made by Mr Rana against the APC because she considered the conduct complained of was not unlawful. That decision was referred to the President of HREOC. A review of the decision was conducted by Sir Ronald Wilson as delegate of the President and on 14 November 1997 he dismissed the complaint, agreeing with the decision of the Commissioner. In the third of the matters before the Court (SG 94 of 1997), Mr Rana challenges that decision of Sir Ronald Wilson.

On 26 September 1997 the Disability Discrimination Commissioner decided in accordance with s.71(2)(d) of the DDA not to continue to inquire into the allegations made by Mr Rana against the Advertiser as she considered the allegations were lacking in substance. At Mr Rana's request that decision was referred to the President of HREOC. On 14 November 1997 Sir Ronald Wilson, as delegate of the President, confirmed the decision of the Commissioner, he being satisfied that the matters complained of did not give rise to unlawful discrimination on the ground of Mr Rana's disability. Pursuant to s.101(1)(a) of DDA the complaint was dismissed. In the fourth of the matters now before the Court (SG 95 of 1997) Mr Rana challenges that decision of Sir Ronald Wilson.

In each matter Mr Rana has acted for himself, apparently without the benefit of legal advice. Several of the documents that he has filed in support of his applications are not strictly in accordance with the Rules, and in many respects lack precision and are difficult to follow. The proceedings have not been served on any person other than HREOC. On the first return date of the first matter, counsel instructed by HREOC appeared to acknowledge service, and to indicate to the Court that HREOC would abide the order of the Court in accordance with the observations of members of the High Court in R v Australia Broadcasting Tribunal; Ex Parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13 at 35-36 and of the Full Court of the Federal Court in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 84-85. Counsel said that HREOC did not propose to further participate in the hearing. However at the Court's request, an officer of HREOC has been present during all subsequent hearings and at trial, in case assistance was needed by the Court in identifying matters in HREOC's files that Mr Rana might wish to rely upon. The Court has been assisted by chronologies of documents in the relevant files prepared by HREOC. To ensure that the Court and Mr Rana had full access to all information which was before the decision makers, HREOC produced its complete files to the Court, and they were made available for Mr Rana's inspection.

The rules and procedures of the Court require in an application under the ADJR Act that an applicant precisely identify the grounds upon which a decision is challenged, and place before the Court in affidavit form any factual material that might be relevant to the consideration of the grounds of challenge. In the present case this has not occurred. The applications merely recite as the grounds each of the paragraphs of s.6(1) of the ADJR
Act. Section 6 deals with applications for review of conduct related to the making of decisions. In each case before the Court, as decisions have been made, and those decisions are challenged, the relevant section is s.5 (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321). Affidavits, statutory declarations and other documents filed by Mr Rana do not provide much assistance in understanding what errors of law on the part of the decision makers are alleged to have occurred. At trial Mr Rana made lengthy oral submissions, supplemented by many pages of handwritten submissions. To gain an understanding of the background to the complaints, I have considered all the files lodged at Court by HREOC.

In his submissions Mr Rana complained that he had a legitimate or reasonable expectation that he would be made a member of NAFA and an expectation that the Advertiser, and in turn the APC, would ensure that the mistaken description of his disability published in the newspaper would be corrected. Mr Rana contended that HREOC failed to vindicate his human rights by ensuring that his expectations were fulfilled. Central to Mr Rana's numerous submissions as to legal error is the complaint that the decisions of Mr Nader are inconsistent with factual conclusions reached by Sir Ronald Wilson in his decision of 13 November 1996 (which was set aside). Mr Rana contended on the authority of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 that HREOC and Mr Nader were estopped from concluding that Mr Rana's complaints against NAFA and Mr Bista were lacking in substance. He further submitted that Mr Nader did not consider the matter remitted to HREOC in accordance with O'Loughlin J's reasons for judgment. In relation to the decisions concerning his complaint against NAFA, Mr Rana made other submissions to the effect that officers of HREOC had colluded with NAFA to defeat his claim, and that NAFA itself had not extended natural justice to him in considering his application for membership. The submission was based on Mr Rana's allegation that NAFA did not offer him an opportunity to be heard before rejecting his application, and then advanced fallacious reasons for rejecting it. Mr Rana also submitted that Mr Nader misunderstood, or failed to apply, the reasoning and conclusions of Special Magistrate Ms McInnes and on appeal, Bollen J, in a matter which originated in the Port Adelaide Magistrates Court when Mr Rana sought, and obtained, a summary Protection Order against Mr Bista.

In relation to the decisions relevant to the complaints against the Advertiser and the APC, Mr Rana submitted that Sir Ronald Wilson should not have acted as a decision maker as, by reason of his earlier involvement in the complaints against NAFA, there existed a reasonable apprehension of bias on his part. Further, Mr Rana alleged that Sir Ronald Wilson had merely rubber stamped recommendations of officers of HREOC, at least one of whom was biased against Mr Rana because she had appeared for HREOC in an unrelated case where Mr Rana was acting as a "McKenzie" friend (see McKenzie v McKenzie [1970] 3 A11 ER 1034) for the applicant.

The long and unfortunate history of disputation between Mr Rana and NAFA regarding his application for membership commenced in about December 1992, although it seems that Mr Rana had commenced proceedings against Mr Bista over an alleged breach of the peace towards him some years earlier, in about November 1986. Mr Rana complained to the South Australian Equal Opportunity Commission in January 1993 that he had been discriminated against on grounds of race and disability. The South Australian Commissioner for Equal Opportunity declined to take any action. Mr Rana requested that the complaint be referred for Judicial determination. The matter was referred to the South Australian Equal Opportunity Tribunal. Mr Bista informed the Tribunal that Mr Rana had never applied for membership. Mr Rana then indicated that he wished to withdraw the complaint, and the Tribunal formally dismissed it on 5 April 1993.

On 2 May 1994 Mr Rana wrote to the Commonwealth Disability Discrimination Commissioner complaining that NAFA, through its President Mr Bista, had discriminated against him on the ground of his psychiatric disability. This complaint was apparently also referred to the South Australian Commissioner for Equal Opportunity. On 25 September 1994 Mr Bista, as President of NAFA, supplied HREOC with a detailed response to the complaint.

On 13 December 1994 Mr Rana advised HREOC that the subject matter of his complaint had been settled on terms that NAFA would provide Mr Rana with a membership application within fourteen days.

However, the settlement was shortlived. On 27 December 1994 Mr Rana lodged another complaint with HREOC alleging that he had been discriminated against by NAFA on the ground of a disability because membership had been refused. On 13 July 1995 a delegate of the Disability Discrimination Commissioner advised Mr Rana that she considered that the subject matter of his complaint had been satisfactorily dealt with by the South Australian Equal Opportunity Commission. In particular Mr Rana had withdrawn his complaint in December 1994, and had been forwarded a NAFA membership form on 3 January 1995.

On 4 September 1995 Mr Rana again complained to the Disability Discrimination Commissioner that Mr Bista was continuing a campaign of discrimination against him such that NAFA would not grant him membership. Upon enquiries being made, Mr Bista informed HREOC that the application for membership form had not been lodged with NAFA by Mr Rana. Mr Rana also indicated to HREOC that he was not prepared to pay a membership fee to NAFA. In an effort to resolve the matter HREOC obtained another application form from NAFA which was sent to Mr Rana on 2 May 1996.

It is necessary at this stage to refer to the proceedings in the Port Adelaide Magistrates Court commenced by Mr Rana against Mr Bista. In May 1995 Mr Rana applied for a Summary Protection Order. On 15 December 1995 after a hearing at which a number of witnesses including Mr Rana and Mr Bista gave evidence, an order was made in the following terms by Ms McInnes SM:

"Order: Restraining the Respondent (from) engaging in provocative behaviour in the form of stating to any person that RANJIT S J RANA is mad, or that RANJIT S J RANA suffers a mental illness and from making any like statements save and except (a) in a court of law during litigation or (b) in circumstances covered by legal professional privilege or (c) while making a statement to an investigator employed as a servedore agent of an agency which is considering instituting proceedings against the applicant S J RANA in circumstances in which legal professional privilege would apply if the statement was being made to a solicitor."

Reasons for making the order were published by Ms McInnes SM. She was not prepared to make the order upon the basis on which it was claimed by Mr Rana. However, she said that the conduct of Mr Bista before her in the Court caused her concern. At various times during the trial Mr Bista had said that Mr Rana was mad, and his witnesses made statements to the like effect. The Magistrate observed that Mr Rana is "clearly psychologically dysfunctional, manipulative and impulsive" but as best she could tell he was not suffering any mental illness. She considered Mr Bista's statements were made in frustration and as "a weapon in a competition for attention from Australians not of Nepalese descent". She was concerned that if Mr Bista were to state to others that Mr Rana was mad, when he was not, in circumstances where Mr Rana could not challenge that statement, a breach of the peace would probably result given the tender sensibilities of all the witnesses who gave evidence before her. In the circumstances she thought it appropriate to make an order restraining Mr Bista from engaging in provocative behaviour in the form of stating to any person that Mr Rana was mad, or that he suffered a mental illness. The Magistrate further observed that Mr Bista had at an earlier time obtained a Protection Order against Mr Rana, but she said that any perceived power imbalance between the two by reason of that fact was not a consideration in her reasons.

Mr Bista appealed against the Magistrate's decision to the Supreme Court of South Australia. The appeal was decided by Bollen J on 8 March 1996. Bollen J considered that the Magistrate had exercised a "preventive jurisdiction" based on what she saw and heard to prevent a repetition of abuse which could lead to a breach of the peace out of Court. His Honour said that he could find no fault with what the Magistrate did, and he dismissed the appeal. He ordered that Mr Bista pay Mr Rana the sum of $150 costs.

Mr Rana's concern about paying a membership fee to NAFA was in part due to the fact that he sought to set off the costs due by Mr Bista against any membership fee that might become payable.

On 17 May 1996 the Disability Discrimination Commissioner wrote to Mr Rana saying, relevantly,

"Our investigations have revealed that NAFA will allow you membership. A membership form has been forwarded to you but that you refuse to pay the required membership fee because of a debt that you claim is owed to you by the President of the Association.

As NAFA has demonstrated a willingness to admit you as a member, and the only barrier to your membership is a dispute over a common law debt, I must come to the conclusion that your original complaint has no substance. There is no barrier to your membership related to an imputed disability. For this reason I have decided to discontinue my inquiry into your complaint."

Mr Rana initially expressed his dissatisfaction with this decision, but on 24 June 1996 he informed the Commissioner that he was satisfied with the resolution of his problem, and he did not seek to have any further action taken on his complaint.

Matters did not turn out as the Commissioner anticipated. On 31 July 1996 Mr J Paterson on behalf of the Committee of NAFA wrote to HREOC in the following terms:

"This application was presented to the Executive committee of the Association (as specified in the constitution) at a meeting held on July 26 1996. Nine members of the committee were present at that meeting.

It was agreed not to accept the application on the following grounds:

(1) Mr. Rana is the subject of Summary Protection Orders obtained by two members of the committee, and has himself obtained a Summary Protection against the current president. We have obtained advice that it would be legally impossible for him to attend functions of the Association at which these duly elected members were present.

(2) The constitution of the Association states that "The objectives of the Association shall be to promote friendship understanding and goodwill between the people of Nepal and Australia". During the past several years Mr Rana has on several occasions made threats and abusive statements against several members of the Association, both in writing and by telephone. It was therefore felt that it would not promote the objectives of the Association for him to be admitted to membership. Details of letters which Mr Rana has written may be obtained from the legal representatives of the members concerned.

Mr Rana's application form and membership fee are therefore returned in accordance with the procedure agreed to."

It is apparent from HREOC's files that the letter of 31 July 1996 was made known to Mr Rana. On 12 August 1996 Mr Rana responded to the reasons advanced by NAFA for the rejection of his membership application. In his response he asserted that HREOC was obliged, among other things, to order Mr Bista to grant him membership to NAFA, and if HREOC did not agree, his response was to be treated as another complaint under both the DDA and RDA. On 30 August 1996 the Disability Discrimination Commissioner wrote to Mr Rana. She referred to NAFA's reasons for rejecting the application for membership. She said that she had considered all the evidence collected in previous inquiries, and had read the Judgment of Bollen J (which also sets out relevant parts of the reasons of Ms McInnes). The Commissioner noted that there was a history of conflict between Mr Rana and members of NAFA. She said "to refuse you membership because of this conflict or because of your behaviour in relation to this conflict may seem unfair to you but it does not amount to unlawful disability discrimination". She gave reasons why she did not consider that matters mentioned by Bollen J in his reasons did not hide an intention on Mr Bista's part to discriminate against Mr Rana because he had a disability. The Commissioner said that for the reasons given in her letter she had decided to discontinue the inquiry into Mr Rana's complaint because she considered his allegations lacked substance.

Mr Rana requested that this decision be referred to the President and made submissions in writing why the decision should be overturned. On 13 November 1996 Sir Ronald Wilson, as President, dismissed the complaint pursuant to s.101(1)(b) of the DDA. The President's reasons for doing so appear in the following portion of his decision:

"Having considered the materials referred to in the foregoing paragraphs, I have decided to confirm the decision of the Commissioner not to continue to inquire into this complaint. I am satisfied that the acts complained of are not unlawful, by reason of the following matters:

(a) I am satisfied that the complainant suffers from a disability within the

meaning of s.4(1) of the Act, in that he suffers from an obsessive-compulsive personality disorder, and exhibits symptoms of anxiety and depression.

(b) I am satisfied that the decision by the respondent to refuse membership

to the complainant constitutes discrimination within the meaning of s.5(1) of the Act. In my opinion the respondent has, because of the complainant's disability, treated him less favourably than it would have treated a person without the disability, in circumstances that are the same or are not materially different.

(c) I am satisfied that the history of conflict between the complainant and

the members of the respondent has arisen primarily as a result of the conduct of the complainant because of his behaviour which is the result his disability. In view of this history of conflict, I am of the opinion that it would impose an unjustifiable hardship upon the respondent within the meaning of s.24(2), s.27(3) and s.11 of the Act to require it to extend membership to the complainant."

On Mr Rana's application for judicial review of the President's decision, O'Loughlin J held that s.24(2) of the DDA had no application to a person seeking membership of a club, and that s.27(3) only applied to an existing member. The decision of the President was therefore made in excess of power, and the matter was remitted to HREOC for further consideration.

The effect of the order of O'Loughlin J was to refer back to HREOC for further consideration Mr Rana's complaint of 12 August 1996 which had been referred to the President under s.71(5) of the DDA. It was this complaint that the President's delegate, Mr Nader, determined in his reasons for decision dated 14 August 1997 which are now under challenge.

In his reasons for decision Mr Nader pointed out that he was considering only the complaint under the DDA, and the parallel complaint under the RDA was a separate matter. The complaint was to be considered under s.27(1) of the DDA which, relevantly, made it unlawful for a club, the committee of management of a club, or a member of the committee of management to discriminate against a person who is not a member of the club on the ground of the person's disability by refusing or failing to accept the person's application for membership. Mr Nader referred to the history of complaints made by Mr Rana, and to the reasons given by NAFA on 31 July 1996 for rejecting Mr Rana's application. He referred to the submissions made by Mr Rana when he required the matter to be considered by the President. Mr Nader then gave his reasons for his decision to dismiss the complaint pursuant to s.101(1)(a) of the DDA on the ground that it lacked substance:

"14. Having read all that material and carefully considered all matters

concerning this complaint, I have decided to confirm the decision of the Commissioner not to inquire into the acts complained of. I am not

persuaded by Mr Rana's further submissions that there is any basis for disagreeing with the Disability Discrimination Commissioner that the complaint insofar as it concerns disability discrimination, is lacking in substance.

15. I am satisfied that the refusal to admit Mr Rana as a member of NAFA

does not constitute unlawful discrimination. There is no evidence or no sufficient evidence that NAFA treated Mr Rana less favourably because of his disability. The material before me suggests that there is a long history of ill-will between Mr Rana and various members of NAFA and this has led to several complaints before other administrative bodies and court proceedings leading to the imposition of mutual Summary Protection Orders. I am satisfied that in all the circumstances the reasons for refusing Mr Rana membership of NAFA on 26 July 1996 are those set out in the letter dated 31 July 1996 and the decision to reject the application was not motivated by Mr Rana's disability be it actual or imputed. Like the Disability Discrimination Commissioner, I understand that the NAFA's reasons may seem unfair and I accept that Mr Rana may well argue that NAFA's decisions may raise an issue about compliance with its internal rules. However, unfairness and the internal workings of a club are not matters which may be investigated under the Act unless there is a connection between the alleged treatment and the complainant's disability."

In respect of the parallel complaint under the RDA, when the delegate of the Race Discrimination Commissioner decided on 8 September 1997 not to inquire into Mr Rana's allegations on the ground that his complaint was lacking in substance, Mr Rana required that the complaint be referred to the President. Mr Nader, as delegate of the President, reviewed the decision pursuant to s.24AA of the RDA.

In his reasons for decision dated 21 October 1997 Mr Nader considered whether Mr Rana's complaints came within s.9 of the RDA. He found that they did so, as they were complaints concerning Mr Rana's right to equal participation in cultural activities. He accepted that participation in a club, such as NAFA, related to cultural activities. However, having considered all of the material contained on the HREOC files, including material provided by Mr Rana, Mr Nader concluded that there was no evidence to support Mr Rana's claim that the refusal to allow him to join NAFA was because of his race. Mr Nader said:

"14. As I observed in my reasons dismissing the complaint under the DDA,

the material indicates a history of ill-will between the parties and it is this history of ill-will which has resulted in Mr Rana being refused membership. I therefore must agree with the Delegate that Mr Rana's complaint of discrimination on the basis of ethnic origin is lacking in substance. In reaching this conclusion, I have revisited the Commission's decisions which have considered the meaning of the phrase "lacking in substance". In Assal v Department of Health, Housing & Community Services (formerly Department of Community Services & Health) which is reported in (1992) EOC 92-409, the then president of the Commission considered the various ways in which the phrase had been construed.

15. In this case, Mr Rana's claim is based on his belief and his assertion that the reason NAFA denied him membership was causally linked to his ethnic origin. Beyond Mr Rana's belief, there is nothing material before me which would in any way give substance to his complaint. As the former President has said, "A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance." This is a case where there is no more than the most remote possibility of a meritorious claim and for this reason, I am satisfied that the complaint is lacking in substance."

Central to Mr Rana's challenge to the decisions of Mr Nader is the submission that both the primary decision maker, and on review, Mr Nader, were estopped from concluding that his complaints were lacking in substance. Mr Rana argues that because Sir Ronald Wilson, in the decision subsequently set aside by O'Loughlin J, concluded that he was satisfied that Mr Rana suffered a disability within the meaning of the DDA and that the decision of NAFA to refuse membership constituted discrimination, these conclusions continue to have binding force in law. Further, Mr Rana argues that the effect of O'Loughlin J's decision was only to require a reconsideration of the further conclusion of Sir Ronald Wilson that the history of conflict between Mr Rana and members of NAFA would impose unjustifiable hardship upon the respondent within the meaning of ss.24(2), 27(3), and 11 of the DDA. Mr Rana argues that by reaching a conclusion inconsistent with the first two conclusions reached by Sir Ronald Wilson, Mr Nader exceeded power, and acted contrary to the direction of O'Loughlin J.

The first point to note about Mr Rana's submissions is that they complain of inconsistency between Sir Ronald Wilson's decision on the complaint under the DDA, and the decision on that complaint by Mr Nader. The submissions, if correct, would not establish error of law on the part of Mr Nader in deciding the RDA complaint.

On a number of occasions in the course of his submissions Mr Rana stressed that the decision in Port of Melbourne Authority v Anshun Pty Ltd supported his submissions. That decision is, however, not relevant to the present proceedings. In Anshun the primary question was whether a party was allowed in subsequent proceedings between the same parties to raise an issue so closely connected with the first action that it should have been pleaded then, and where the new cause of action, if made out, would conflict with the judgment in the first proceedings. In the present case, all the information which was before Mr Nader was before the original decision maker, Sir Ronald Wilson. Even if the Anshun principle had any application in administrative proceedings, in this instance there is no question of new issues being raised by those against whom Mr Rana complained after the decisions of the Commissioner and Sir Ronald Wilson, and before Mr Nader considered the matter.

As the decision of Sir Ronald Wilson on the DDA complaint was set aside by O'Loughlin J, there can be no question that the decision itself continues to operate as a decision on Mr Rana's complaint. In judicial proceedings, even where there is no prior binding decision on the exact same matter before the Court, the principle of issue estoppel may apply. In Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 Dixon J stated the principle as follows:

"A judicial determination directly involving an issue of fact or of law disposes once [sic - and ?] for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."

The decision of Sir Ronald Wilson was not a judicial determination, and in my opinion the principle has no application to an administrative decision of the kind made by Sir Ronald Wilson. In any event, for the principle to arise, the earlier determination must be one that continues to bind the parties. In the present case, once the decision of Sir Ronald Wilson was set aside, it thereafter had no binding force. Any observations or findings as to matters of fact made in the course of the reasons for that decision have no relevance in the future determination of the outstanding complaint.

When the matter was referred to Mr Nader for consideration, his statutory duty was to consider the complaint afresh and to form his own independent assessment of the facts and of the merits of the complaint. There is nothing in the files of HREOC or in the submissions of Mr Rana which suggests that Mr Nader did not perform this function. It is clear from the reasons for decision that Mr Nader considered the material on all the HREOC files, and gave consideration to the grounds raised by Mr Rana in support of his allegation that the Commissioner's decision was flawed. I too have read that material. The material amply supports the conclusion reached by Mr Nader that the decision of NAFA not to admit Mr Rana to membership was not on account of his disability.

The reasons for decision of Ms McInnes SM and Bollen J do not contain material, or factual findings, which are inconsistent with Mr Nader's conclusions. Ms McInnes rejected the various allegations made by Mr Rana in support of his claim for a Protection Order, and based the order which she ultimately made not upon those allegations, but upon her assessment of Mr Bista's behaviour in the courtroom, and did so as a protective measure for the reasons which she then gave. The reasons for decision of Bollen J recite at length what occurred before Ms McInnes, and conclude that there was no error in the course which she took. The reasons for judgment do not assist Mr Rana.

In the case of the RDA complaint, again there is ample support in the material on the HREOC files for the conclusion that Mr Rana's complaint that he was refused admission to membership by NAFA on the basis of his ethnic origin was lacking in substance. The test adopted by Mr Nader to determine whether the complaint was "lacking in substance" within the meaning of ss.24(2)(d) of the RDA was that stated by the then President of HREOC in Assal v Department of Health, Housing & Community Services (1992) EOC 92-409. That test has been adopted in this Court: Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) and Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995 at 54). It has not been suggested by Mr Rana that Mr Nader applied the wrong test in deciding that his complaint was lacking in substance. Rather, Mr Rana's submission is that Mr Nader reached a conclusion on the facts which was not in accordance with the material in the HREOC files. On an application for judicial review under the ADJR Act, the applicant must establish an error of law, not merely an error of fact. An error of law will occur if there was no evidence or other material before the decision maker to justify the making of the decision: see ss.5(1)(h) and 5(3) of the ADJR Act and Curragh Queensland Mining Ltd v Daniel (1992) 34 FLR 212 at 220-221. However, as I have already observed, there was ample information in the present case to support Mr Nader's decisions.

Mr Rana argues that NAFA supplied false information as to its reasons for refusing him admission, and that such fraudulent conduct invalidates Mr Nader's conclusions: see s.5(1)(g) of the ADJR Act. The material on the HREOC file fails to raise even a suspicion that NAFA supplied false reasons for the refusal of membership. On the contrary, the material establishes that there were protection orders in place, and that there had been past threats and abusive statements to or about members of the NAFA committee, these being facts relied upon in the reasons given by NAFA. Mr Rana complains that NAFA did not extend to him natural justice in considering his application because NAFA did not give him the opportunity to be heard before the decision was made to reject his application. That is a complaint that goes to the internal procedures of NAFA, and it is not a matter which gives rise to any ground for impugning decisions made by the Commissioner or the President, or their delegates, under the DDA or RDA.

There is nothing in the material before the Court that gives rise to the faintest suspicion that officers of HREOC colluded with NAFA to defeat Mr Rana's complaint. That appears to be a wild and baseless allegation. The HREOC files show that Mr Rana's complaints were patiently and thoroughly considered.

In my opinion the applications for judicial review of the decisions of Mr Nader in the first and second of the applications now before the Court should be dismissed.

In relation to the complaints made by Mr Rana under the DDA against the Advertiser and the APC, Sir Ronald Wilson in his decision of 14 November 1997 confirmed the decisions of the Disability Discrimination Commissioner which declined to further investigate the complaints against the Advertiser on the ground that the allegations did not assert unlawful conduct under the Act. He also declined to further investigate the complaints against the APC on the ground that Mr Rana had advanced no or insufficient evidence to suggest that his complaints had been dealt with by APC differently or less favourably because of his disability. Insofar as Mr Rana's submissions raise a complaint that there was insufficient material before the decision makers to justify these conclusions the submission is without justification. There is ample information in the files to support the conclusions.

Mr Rana's primary complaint however against these decisions is that Sir Ronald Wilson should not have acted as a decision maker because his earlier involvement in Mr Rana's complaints against NAFA gave rise to a reasonable apprehension of bias on his part.

In judicial proceedings the principle as to apparent bias is clear. It is "whether, in all the circumstances, a fair minded lay observer with knowledge of the material objective facts `might entertain a reasonable apprehension that [the Judge] might not bring an impartial or unprejudiced mind to the resolution of the question' in issue". Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 67-68. See also Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294. There are circumstances where this principle may not apply to a decision maker vested with a statutory power to make an administrative decision: see Century Metals and Mining NL v Yeomans [1989] FCA 273; (1989) 100 ALR 383 at 417. But where the decision maker is a statutory officeholder appointed to make decisions which concern the rights and entitlements of people arising under an Act, the decision maker will, generally speaking, be required to accord procedural fairness to parties affected by a decision, and the apparent bias principle will apply: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 and Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375 at 397. Whilst the question has not been argued before me, I am prepared to assume for the purpose of the present applications that the apparent bias principle has application.

However, I am unable to understand how the earlier involvement of Sir Ronald Wilson in the consideration of Mr Rana's complaint against NAFA could give rise to any apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question before him. The mere fact that a decision maker has on an earlier occasion in the course of his functions considered a matter involving the same party does not give rise to an apprehension of bias. Even if the earlier decision was adverse to the party something more would be required to give rise to an apprehension of bias in a fair minded lay observer with knowledge of the material objective facts. Had the earlier decision, for example, involved a decision on credit adverse to the party, that might be sufficient in the circumstances to give rise to an apprehension of bias. However, in the present case the conclusions reached by Sir Ronald Wilson in his reasons for decision on 13 November 1996 did not involve any adverse assessment of Mr Rana's credit. On the contrary, Mr Rana's assertions of fact were accepted as the basis for the decision. In my opinion the allegation of apprehended bias on the part of Sir Ronald Wilson is wholly without foundation.

I also consider the submission that Sir Ronald Wilson failed to independently consider the complaints, but merely rubber stamped recommendations of officers of HREOC is a further submission advanced without any basis to justify it. Within the HREOC file C206274FCD (which relates to Mr Rana's complaints against the Advertiser and APC) there is a summary of the history of the file prepared by a legal officer of the Commission addressed to Sir Ronald Wilson which says that "I have prepared draft decisions for your consideration for both the Advertiser and the Press Council complaints together with a covering letter. Please let me know whether you wish to make any amendments" and at the foot of the summary there is a handwritten endorsement "I agree" initialled by Sir Ronald Wilson. It is a reasonable inference from the file that the reasons for decision and covering letter to Mr Rana signed by Sir Ronald Wilson on 14 November 1997 are in the terms of the drafts prepared by the legal officer. However it does not follow that Sir Ronald Wilson did not independently consider the merits of the complaint. In both the reasons for decision and the covering letter to Mr Rana, Sir Ronald Wilson states that he has read and considered the material before him. There is no reason to doubt that this was so or that the decisions reflect the independent consideration and opinion of Sir Ronald Wilson made independently of any view expressed within the file by officers of HREOC.

In relation to Mr Rana's submission that one of the HREOC officers was biased against him because Mr Rana had assisted another person in an unrelated complaint lodged with HREOC, there is no information in the file, or otherwise placed before the Court, to support the submission. The particular officer named by Mr Rana prepared the draft decisions for the consideration of Sir Ronald Wilson. However those drafts are in accordance with earlier recommendations by other officers of HREOC, and with the decisions of the Disability Discrimination Commissioner.

There is no substance in the applications for judicial review concerning the decisions under the DDA made by Sir Ronald Wilson in respect of Mr Rana's complaints against the Advertiser and the APC.

For these reasons all the applications will be dismissed.

I certify that this and the preceding nineteen (19) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa J

Associate:

Dated: 31 March 1998

The Applicant appeared in person
Representative of the Respondent:	Mr J Armstrong
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	4 March 1998
Date of Judgment:	31 March 1998