Rana v Commonwealth of Australia [2008] FCAFC 192 (21 November 2008)

Last Updated: 23 December 2008

FEDERAL COURT OF AUSTRALIA

Rana v Commonwealth of Australia [2008] FCAFC 192

RANJIT SHAMSHER JUNG BAHADUR RANA v COMMONWEALTH OF AUSTRALIA and BRIGADIER CRAIG ORME AS DELEGATE OF CHIEF OF ARMY
SAD 83 of 2008

SPENDER, GRAHAM AND TRACEY JJ
21 NOVEMBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 83 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RANJIT SHAMSHER JUNG BAHADUR RANA Appellant

AND:	COMMONWEALTH OF AUSTRALIA First Respondent BRIGADIER CRAIG ORME AS DELEGATE OF CHIEF OF ARMY Second Respondent

JUDGES:	SPENDER, GRAHAM AND TRACEY JJ
DATE OF ORDER:	21 NOVEMBER 2008
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant to pay the respondents’ costs of and incidental to the appeal including any reserved costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 83 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RANJIT SHAMSHER JUNG BAHADUR RANA Appellant

AND:	COMMONWEALTH OF AUSTRALIA First Respondent BRIGADIER CRAIG ORME AS DELEGATE OF CHIEF OF ARMY Second Respondent

JUDGES:	SPENDER, GRAHAM AND TRACEY JJ
DATE:	21 NOVEMBER 2008
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 The Court has considered the question of whether the basis for Mr Rana’s appeal to this Court from the judgment of Lander J on 17 June 2008 can be made out.

2 As Mr Rana has frankly conceded in his substituted outline of submission and in the oral discussion in his submissions to this Court today, this appeal involves a collateral attack on the decisions of Mansfield J at first instance, and of the Full Court on appeal, concerning the applications by Mr Rana for judicial review of the two decisions of Brigadier Orme, as delegate of the Chief of Army, made on 5 April 2005 and on 28 April 2005. Those applications were unsuccessful.

3 Mr Rana has made plain that in asking us to receive the transcripts of his Administrative Appeal Tribunal hearing in 1988 as "fresh evidence", he wishes this Court to distinguish the decision of the House of Lords in Hunter v Chief Constable of West Midlands [1982] AC 529 concerning what would otherwise be an abuse of process.

4 In his outline of submissions filed on 5 August 2008, Mr Rana says:

For collateral attack on other court decisions and per the underlined words "In the interest of justice" fresh evidence will be sought by leave to be tendered. Before, Mansfield J and above it all the way, the Counsel improperly opposed fresh evidence to hide Orme’s misrepresentation about the appellant’s psychiatrists Hoff and de Pasquale at AAT of 1998.

5 We have considered the basis for Mr Rana’s appeal and in particular the question of whether the evidence Mr Rana seeks to tender satisfies the requirements in the authorities for evidence to be regarded as fresh.

6 We have reached the view that the evidence which Mr Rana seeks to rely on and which is fundamental to his appeal to us, should not be received, because it does not satisfy the requirements of "fresh evidence". In that regard we refer, amongst other things, to the decision of Mansfield J of 14 September 2005, Rana v Chief of Army [2005] FCA 1283, in proceedings SAD 74 and SAD 79 of 2005 and in particular what his Honour said at paragraph 20:

At the hearing, counsel for the delegate for the Chief of Army produced a folder containing ‘relevant documents’. It is not necessary to refer to all of them at present. In the light of that folder, only one additional document was adduced in evidence. That is the record of the second decision. Mr Rana accepted that was the material before the delegate, and was the material upon which his applications should be determined. He elected not to read the extensive affidavits which he had sworn in the proceedings in the light of that documentary material.

7 Mr Rana today confirmed that he sought to tender the transcript of the AAT proceedings in 1988 before Mansfield J, but that material was not received.

8 What happened before the Full Court in respect of that rejection of material, which Mr Rana claims had occurred, is not clear from the material before us, but regardless of what occurred in the Full Court concerning that matter, that circumstance – that Mr Rana sought to tender the transcript of the AAT proceedings in 1988 at the hearing before Mansfield J – has the consequence that the transcript does not qualify as fresh evidence.

9 It was, to the knowledge of Mr Rana, in existence at the time of the proceedings before Mansfield J, whether it was correctly or incorrectly received by him, and it was in existence at the time of the appeal to the Full Court. In those circumstances, it cannot satisfy the test of fresh evidence in the proceedings of this appeal.

10 There is further material which confirms the conclusion by all members of this Court, that the evidence does not satisfy the requirement for reception by this appeal court as fresh evidence. That is contained in a judgment of the Full Court, comprising Keifel, Kenny and Graham JJ, in Rana v Chief of Army Staff [2006] FCAFC 63.

11 We refer, in particular, to the contents of the Full Court’s reasons for judgment in par 20, in particular the first bullet point of that paragraph; par 23, and in particular the last six lines of that paragraph; par 25, and in particular the last sentence of that paragraph; and finally, paragraph 34.

12 As we sought to make plain at the outset of the hearing today, the Court acknowledges the candour and the thoroughness of the submissions which Mr Rana has made to the Court.

13 For the reasons which we have given, however, the evidence should not be received as fresh evidence, with the consequence that the basis for the appeal to this court is not made out. It is therefore unnecessary to hear further from Mr Rana, or from counsel for the respondents.

14 In those circumstances, there is no basis on which this Court should interfere with the judgment of Lander J. For the reasons which we have expressed, the appeal to this court from that judgment is dismissed.

15 The order of the Court is that the appeal to this Court is dismissed, and the appellant is to pay the respondents’ costs of and incidental to the appeal, including any reserved costs to be taxed, if not agreed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Graham and Tracey.

Associate:

Dated: 17 December 2008

The Appellant appeared in person
Counsel for the Respondents:	Ms S Maharaj QC with Mr G Camilos
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	21 November 2008
Date of Judgment:	21 November 2008