Case: Rana v Chief of Army [2008] FMCA 518
Outcome: cited
The applicant sought judicial review of the two decisions made by the second respondent on 5 April and 28 April 2005 which came before Mansfield J. The grounds of the application were referred to in Mansfield J's reasons as being a breach of natural justice due to the non-provision of reports; an improper exercise of power for having taken into account irrelevant considerations; a failure to account for relevant considerations; unreasonableness and that the decision was made in bad faith; that the decision involved an error of law; and, finally, that there was no evidence to justify the decision. The applicant did not raise discrimination as a ground of review. On 14 September 2005 the applicant's application was dismissed by Mansfield J in Rana v Chief of Army [2005] FCA 1283. Mansfield J referred to the claim that the decision was unreasonable and said that there was no material to support the contention that the decision was made in bad faith. 24 On 12 May 2006 an appeal to the Full Federal Court was also dismissed: Rana v Chief of Army Staff [2006] FCAFC 63 ; (2006) 90 ALD 474. 25 On 30 September 2006 the applicant complained to the Human Rights and Equal Opportunity Commission (HREOC) alleging discrimination on grounds of both race and disability and victimisation. 26 On 5 July 2007 the applicant's complaint was terminated by HREOC pursuant to s 46PH(1)(c) of the HREOC Act on the ground that there was "no, or no sufficient, evidence that the A[ustralian] D[efence] F[orce] or Brigadier Orme discriminated against [the applicant] on the ground of disability or race or victimised [the applicant] ...". 37 On 15 May 2007 the respondents in this matter caused the applicant to be served with a bankruptcy notice claiming the sum of $7,582.86 which represents the first respondent's party/party costs which the applicant was ordered to pay by Mansfield J on 14 September 2005 in the applicant's failed judicial review proceeding. On 17 May 2007 the applicant swore an affidavit and made an application disputing the amount and sought an order that the respondent be restrained from proceeding until such time as the appeal in that matter was finalised and until the Administrative Appeals Tribunal (AAT) determined whether he was entitled to compensation from the respondent which could then be used to set off the bankruptcy claim. 38 On 10 July 2007 the application to have the bankruptcy notice set aside was dismissed by Registrar Christie (with costs to be taxed or agreed). The applicant sought review of that decision. On 22 April 2008 Simpson FM dismissed that application: Rana v Chief of Army [2008] FMCA 518. Notwithstanding the applicant's application to set aside the bankruptcy notice, the first respondent has filed a creditor's petition which was required to be done within six months from the date of bankruptcy. 53 The applicant in these proceedings is seeking to have set aside the decisions made by the second respondent for grounds not advanced in the proceeding before Mansfield J and in the Full Court. It is the same decisions as were under attack before Mansfield J and the Full Court. Those decisions were found by the Full Court not to have been actuated by any bad faith on the part of the decision-maker. 54 Whilst the applicant chose not to argue before the Full Court that the particular of bad faith was discrimination on the ground of his mental illness, nevertheless, the primary judge and the Full Court needed to decide whether or not the decision-maker had reached his decision for any reason of bad faith. The finding has been made and must stand. 60 Moreover, I am satisfied that this proceeding, as the respondents have contended, has been brought for a collateral purpose and thereby an improper purpose: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509. This proceeding has been brought for the purpose of calling into question Mansfield J's decision and that of the Full Court. It has also been brought for the further improper purpose to obtain the interlocutory relief which is sought in the application so as to prevent the first respondent from proceeding with the creditor's petition in the Federal Magistrates Court. Clearly, in this proceeding, this Court could not make an interlocutory order of the kind sought in the application. The Court in which the bankruptcy proceeding has been brought might make such an order but, as the reasons of Simpson FM show, the Federal Magistrates Court has declined to make such an order: Rana v Chief of Army [2008] FMCA 518.