Rana v University of Adelaide (No 2) [2008] FCA 494

FEDERAL COURT OF AUSTRALIA

Rana v University of Adelaide (No 2) [2008] FCA 494

RANJIT SHAMSHER JUNG BAHADUR RANA v UNIVERSITY OF ADELAIDE, REPATRIATION COMMISSION, UNIVERSITY OF SOUTH AUSTRALIA, AUSTRALIAN GOVERNMENT SOLICITOR and CHIEF OF ARMY

SAD 12 of 2008

LANDER J

7 APRIL 2008

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 12 of 2008

BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA

Applicant

AND: UNIVERSITY OF ADELAIDE

First Respondent

REPATRIATION COMMISSION

Second Respondent

UNIVERSITY OF SOUTH AUSTRALIA

Third Respondent

AUSTRALIAN GOVERNMENT SOLICITOR

Fourth Respondent

CHIEF OF ARMY

Fifth Respondent

JUDGE: LANDER J

DATE OF ORDER: 7 APRIL 2008

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The proceeding against the third respondent be dismissed. 2. The applicant pay the costs of the third respondent on an indemnity basis. 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 SAD 12 of 2008

BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA

Applicant

AND: UNIVERSITY OF ADELAIDE

First Respondent

REPATRIATION COMMISSION

Second Respondent

UNIVERSITY OF SOUTH AUSTRALIA

Third Respondent

AUSTRALIAN GOVERNMENT SOLICITOR

Fourth Respondent

CHIEF OF ARMY

Fifth Respondent

JUDGE: LANDER J

DATE: 7 APRIL 2008

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This matter was last before me on 17 March 2008, when I gave reasons for dismissing the application against the first, second, fourth and fifth respondents. On that day, the third respondent made an oral application for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the Act). I made a direction that the third respondent file any affidavits upon which the third respondent intended to rely by 1 April 2008 and adjourned the oral application for hearing before me this morning. When the matter was called on at the appointed time, there was no appearance by the applicant. The third respondent asked me to hear the application for summary judgment. I acceded to that request. 2 On this application the third respondent has read three affidavits, being those of the third respondent's solicitor, Thomas Patrick Martin; the School of Nursing and Midwifery Executive Officer employed by the third respondent, Hellen Gysberta McIver; and the IT Security Specialist employed by the third respondent, Kevin Roger Dronfield. The proceeding against the third respondent is based upon an email said to have been sent on Friday, 21 December 2007 by Hellen McIver to Andy Koronios and Tom Martin and the South Australian Police Department. The body of the email contained the following: This email responds to your email sent to robert.webb@police.sa.gov.au and copied to legal@adelaide.edu.au (and others) on 19 December 2007 at 9.30 am. It is confirmed that you do not have permission to attend the Art department or elsewhere in the Adelaide University at the nominated time or otherwise. Only the Vice Chancellor or this office may give consent for you to attend University premises. You do not have permission to attend University premises. You are reminded of the terms of the Deed of Settlement between the University and yourself. The University of South Australia's City Esat (sic) Campus based security has provided information that you have threatened Nina Gregurev with rape. She has confirmed that you are known as the "Hookah Dookah" rapist aka Vinceneswaran Rajaranam on bail from Paramatta (sic). You are also wanted by karen Brumpton of the Sa Police's Sexual Assault Unit for various rape attacks in the Botanic Gardens on various university students with your Phil of Unit 2/25 Hackney Road, Hackney, SA 5069. Your travel path fits various incidents in the Botanic Park on 5/4/06, 27/7/07, 31/7/07 and 15/11/07. Your photo identity fit has provided to us with Police Media release by UNISA security. We will be passing this information to others. Yours faithfully, Celine McInerney Chief Prudential Officer Prudential Services The University of Adelaide, AUSTRALIA 5005 3 The applicant has filed a statement of claim in support of the application against the third respondent and he complains that the information contained in the email, to which I have referred, is false in that he has never made any threats to Nina Gregurev and any such claim that he has, is false. He complains that the conduct of the University in sending the email amounts to misleading and deceptive conduct in trade or commerce. 4 The third respondent relies upon the affidavit of Hellen McIver who has deposed, under oath, that she did not create the email nor did she send that email to any person. She says that she first saw the email when she was shown a copy of it, exhibited to an affidavit of the applicant sworn in other proceedings, in action SAD32/2007. Mr Martin deposes that, at virtually the same time as the email was supposed to have been sent by Hellen McIver, he received an email in exactly the same terms but from an email address rran@deakin.edu.au. Mr Dronfield deposes that he has been employed by UNISA in the IT department since 1978 and has exclusively worked in the Information Technology field for more than 29 years. He says he is familiar with the University's IT systems and his main line of responsibilities relates to the analysis and supervision of the UNISA's IT security systems. He says that he has read the affidavit of the applicant sworn on 3 January 2008 in those other proceedings which includes as Exhibit C to the affidavit, the email to which I have referred. He says that on 25 March 2008 he was asked by Mr Martin, the third respondent's solicitor, to test the authenticity of the email and, in particular, to determine whether it was sent from the UNISA email address of hellen.mciver@unisa.edu.au. 5 He says that he has checked the mail server logs of UNISA to see which emails emanated out of Hellen McIver's mailbox on 21 December 2007 and he says the mail server log indicates that two emails were sent from Hellen McIver's mailbox on that day and both of those were "Out of Office Auto Replies" which were generated in response to incoming emails to her mailbox. He said that those two response emails were not sent to the addresses shown in the email to which I have referred. 6 He says he has checked the mail server logs of UNISA to see if any of the persons within the University listed as recipients in the "To" and "BCC" fields of email, namely Andy Koronios and Annabel Mansfield, ever received any email from Hellen McIver on 21 December 2007. He said that their mail server log indicates that neither of those persons received an email from Hellen McIver on that day. He says "on 21 December 2008", but that is clearly an error, he means "on 21 December 2007". 7 The evidence is all one way and that is to the effect that Hellen McIver did not send the email as the email purports. In those circumstances, that aspect of the applicant's case is bound to fail. The applicant also relies in his statement of claim on the email as evidence of the breach of the Deed which was entered into on 2 March 2006 between the applicant and the University of South Australia, after a mediation between the applicant and the third respondent in other proceedings. As, of course, I found that the email was not sent by the University of South Australia and is not authentic, no such breach could be established. On the previous occasion when he did appear, he said that his case depended entirely upon establishing that the email was sent and that it was authentic. The University has satisfied me that the email was never sent by Hellen McIver. It follows that the email is not authentic. On both grounds therefore, the applicant's proceeding is bound to fail within the meaning of s 31A of the Act in that there is no reasonable prospect of successfully prosecuting the proceeding. In those circumstances I am satisfied that the claim is frivolous, vexatious and an abuse of process of the Court. The proceeding will be dismissed. 8 The third respondent has sought costs on an indemnity basis. It seems to me appropriate that an order in those terms should be made in view of the finding that I have made, that the proceeding is frivolous, vexatious or an abuse of process. For those reasons the order will be that the applicant pay the third respondent's costs on an indemnity basis. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 7 April 2008 Counsel for the Applicant: The Applicant did not appear

Counsel for the Third Respondent: Mr T Martin

Solicitor for the Third Respondent: Minter Ellison

Date of Hearing: 7 April 2008

Date of Judgment: 7 April 2008