Rebutting the lies of the Library Board of South Australia and falsehood of Darda Gregurev that "Ranjit Rana is banned at State Library".

Rana v Libraries Board of SA & Ors [2008] FMCA 911 (4 July 2008)
Last Updated: 14 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
RANA v LIBRARIES BOARD OF SA & ORS
[2008] FMCA 911
TRADE PRACTICES – Application for summary dismissal of four causes of action – s.17A Federal Magistrates Act 1999 (Cth) – r.13.10 Federal Magistrates Court Rules – “no reasonable prospect of successfully prosecuting claim” – test to be applied – principles to be borne in mind – s.52 Trade Practices Act 1974 (Cth) – Crown immunity – circumstances where Crown immunity to be enjoyed by bodies other than the Crown – whether conduct “in trade or commerce” – whether conduct “misleading or deceptive” – negligence – whether the conduct pleaded could be breach of a duty of care – causation – non est factum – contract – whether facts as pleaded could result in a breach of contract.
Federal Court Rules, O.11 r.16Trade Practices Act 1974 (Cth), ss.2B, 52, Pt.VFederal Magistrates Act 1999 (Cth), s.17AFederal Magistrate Court Rules, r.13.10Residential Tenancies Act 1995 (SA), s.90Federal Court of Australia Act 1975 (Cth) s.31ALibraries Act 1982 (SA) ss.7, 8, 9, 12, 14, 15, 17-22, 42
Bass v Permanent Trustees Co Ltd (1999) 198 CLR 334Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720Bradken Consolidated Limited v Broken Hill Pty Co Ltd (1978) 145 CLR 107Commonwealth Bank of Australia v ACN 000247601 Pty Ltd (in liquidation) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416Corporate Affairs Commissioner v Solomon (unreported, New South Wales Court of Appeal, 1 November 1989, Mahoney APElectricity Trust of South Australia v Linterns Limited [1950] SASR 133General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125Grain Elevators Board (Vic) v Dunmukle Corporation (1946) 73 CLR 70Hearn v O’Rourke [2003] 129 FCR 64Howard v Australian Fisheries Management Authority [2006] FMCA 975Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191Province of Bombay v Municipal Corporation of Bombay [1947] AC 58Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986Seddon Government Contracts: Federal, State and Local (3rd Ed, 2004)Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 2 TPR 48Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282Ventana Pty Ltd v Federal Airports Corporation (1997) 75 FCR 400Vivid Entertainment v Digital Sinima Aust Pty Ltd & Ors [2007] FMCA 157Wentworth v Rogers (No 5) (1986) NSWLR 534
Applicant:
RANJIT SHAMSHER JUNG BAHADUR RANA
First Respondent:
LIBRARIES BOARD OF SOUTH AUSTRALIA
Second Respondent:
HOUSING TRUST OF SOUTH AUSTRALIA
Third Respondent:
INTERCONTINENTAL CATERERS PTY LTD
File Number:
ADG 86 of 2007
Judgment of:
Simpson FM
Hearing date:
13 September 2007
Date of Last Submission:
13 September 2007
Delivered at:
Adelaide
Delivered on:
4 July 2008
REPRESENTATION
The Applicant:
Appears in person
Counsel for the First and Second Respondents:
Mr Wait
Solicitors for the First and Second Respondents:
Crown Solicitors Office
Counsel for the Third Respondent:
Mr N Minicozzi
Solicitors for the Third Respondent:
N Minicozzi
ORDERS
(1) There be judgment for the first respondent against the applicant in relation to the whole of the proceeding herein brought against the first respondent.(2) There be judgment for the second respondent against the applicant in relation to the whole of the proceeding herein brought against the second respondent.(3) There be judgment for the third respondent against the applicant in relation to the whole of the proceeding herein brought against the third respondent.
FEDERAL MAGISTRATESCOURT OF AUSTRALIA ATADELAIDE
ADG 86 of 2007
RANJIT SHAMSHER JUNG BAHADUR RANA
Applicant
And
LIBRARIES BOARD OF SOUTH AUSTRALIA
First Respondent
HOUSING TRUST OF SOUTH AUSTRALIA
Second Respondent
INTERCONTINENTAL CATERERS PTY LTD
Third Respondent
REASONS FOR JUDGMENT
The applications
I have before me applications by each of the three respondents who are seeking orders that the applicant’s case against each of them be dismissed.
The first respondent, State Libraries Board of South Australia, and the second respondent, Housing Trust of South Australia, jointly rely upon an amended application filed on 21 May 2007 seeking an order striking out the statement of claim against them pursuant to O.11 r.16 of the Federal Court Rules as no cause of action was disclosed and, alternatively, that it had no reasonable prospect of success. During submissions Counsel for the first and second respondent made oral application for summary dismissal of the applicant’s case against them on alternate bases, namely, pursuant to subs.17A(2) of the Federal Magistrates Act 1999 (Cth) (“FM Act”) and r.13.10 of the Federal Magistrate Court Rules (“FMCA Rules”) as the applicant had no reasonable prospect of successfully prosecuting the claims.
The third respondent, Intercontinental Caterers Pty Ltd, filed an application on 11 May 2007 seeking dismissal of the statement of claim or, alternatively, further and better particulars. During submissions Counsel for the third respondent made oral application for summary dismissal of the applicant’s case against it on the same alternate basis as raised by the other respondents namely pursuant to subs.17A(2) of the FM Act and FMC Rules r.13.10 as no cause of action was disclosed or, alternatively, that there was no cause of action raised that had a reasonable chance of success.
The proceedings
The applicant, Ranjit Shamsher Jung Bahadur Rana, is an unrepresented litigant. Although he has no formal legal training he has many years of experience in commencing and prosecuting legal proceedings in a variety of jurisdictions including but not limited to this Court, the Federal Court, the High Court, the Supreme Court of South Australia and the Adelaide Magistrates Court. Notwithstanding his experience I am conscious of the special care that is needed when considering applications to dismiss proceedings such as the applications here brought by the respondents where the proceedings are being prosecuted by an unrepresented litigant (see Wentworth v Rogers (No 5) (1986) NSWLR 534 at 536 per Kirby P; Rajski v Scitec Corporation Pty Ltd (unreported, New South Wales Court of Appeal, 16 June 1986; Corporate Affairs Commissioner v Solomon (unreported, New South Wales Court of Appeal, 1 November 1989, Mahoney AP). In deciding the matters sought to be ventilated by the respondents’ applications I therefore look beyond the ill expressed and unstructured pleading and submissions filed by the applicant and ask myself whether the proceedings should nevertheless be dismissed.
The applicant commenced his proceedings on 12 April 2007 by filing an application and statement of claim. The application sought final orders as follows:
1. Under s.82 of TPA
2. Under s.80 and 87 of TPA
3. Under Negligence (sic) and breaches of contract cumulatively as of 1 and 2 above and damages for loss of shelter and reputation and aggravation of paranoid schizophrenia and diabetes type 2 cumulatively for A$250,000.
The statement of claim is a confusing document both as to form and content. There are 57 paragraphs in the statement of claim that are not consecutively numbered. The content is confusing as it does not state in an unambiguous fashion the facts necessary (and only the facts necessary) to establish the cause of action. The statement of claim can be summarised as follows:
The first paragraph (numbered 1) is a plea against all respondents that they were at all material times corporations within the meaning of the Trade Practices Act 1974 (Cth) (“the TP Act”) being incorporated under the Corporations Law.
The next 13 paragraphs (numbered consecutively 1(a) to 13 under the heading “Breach under s.52 and reliance on s.51A of the Trade Practices Act 1974 (Cth)” together with a prayer for relief of 3 paragraphs) attempt to plead a contravention of s.52 of the TP Act by the first respondent said to have occurred between 7 August and 30 December 2006 (“the First Claim”).
The next 14 paragraphs (numbered consecutively 1 to 11 under the headings “Negligence” and “The duty of care” and then 1, 2 and 4 under the heading “The loss caused by the breach”) plead a negligence cause of action against the first respondent (“the Second Claim”).
The next 21 paragraphs (numbered consecutively 1 to 14 under the heading “Breach of Contract” and then consecutively 1 to 7 under the heading “The loss caused by the breach”) plead a breach of contract cause of action against the second respondent (“the Third Claim”).
The next 9 paragraphs (numbered consecutively 1 to 9 under the heading “Breach under s.52 of the Trade Practices Act 1974 (Cth)”) plead a contravention of s.52 of the TP Act by the third respondent said to have occurred from 25 May 2006 (“the Fourth Claim”).
The materials before the Court
The applicant relies upon the following materials:
Application filed on 12 April 2007;
Statement of Claim filed on 12 April 2007;
Notice titled “S78 Judiciary Act of 1903 (Cth)” filed on 13 April 2007;
Affidavit of applicant affirmed and filed on 16 April 2007;
Applicant’s document titled “Outline of Submission” filed on 16 April 2007;
Affidavit of the applicant affirmed and filed on 17 April 2007;
Affidavit of the applicant affirmed and filed on 27 April 2007;
Affidavit of the applicant affirmed and filed on 7 May 2007;
Applicant’s document titled “Outline of Submission” filed on 7 May 2007;
Affidavit of the applicant affirmed and filed on 14 May 2007;
Applicant’s document titled “Addendum Outline of Submissions” filed on 16 May 2007;
Affidavit of the applicant affirmed and filed on 16 May 2007;
Affidavit of the applicant affirmed and filed on 21 May 2007;
Applicant’s document titled “Rebuttal Outline of Submission” filed on 24 May 2007;
Applicant’s document titled “Rebuttal Outline of Submission” filed on 25 May 2007;
Applicant’s document titled “Amended Rebuttal Outline of Submission” filed on 6 June 2007;
Affidavit of the applicant affirmed and filed on 15 June 2007;
Affidavit of the applicant affirmed and filed on 16 June 2007;
Affidavit of the applicant affirmed and filed on 20 June 2007;
Affidavit of the applicant affirmed and filed on 4 July 2007;
Affidavit of the applicant affirmed and filed on 31 August 2007; and
Applicant’s document titled “Rebuttal to further submission” filed on 5 September 2007.
The first and second respondents rely on the following materials:
Amended application filed on 21 May 2007;
Document titled “Outline of Submissions” filed on 15 May 2007; and
Document titled “Further Outline of Submissions” filed on 31 August 2007.
The third respondent relies upon the following material:
Response filed on 26 April 2007;
Application filed on 11 May 2007;
Affidavit of Nicola Minicozzi sworn on 3 May 2007 and filed on 11 May 2007; and
Affidavit of Nicola Minicozzi sworn on 11 May 2007 and filed on 14 May 2007.
Some of the above material contains hearsay material. I have thought it appropriate to ignore this hearsay material as I am here principally considering applications for summary dismissal.
Background facts
Before looking at the pleadings in any more detail it is helpful to know something of the factual background to each of the claims as disclosed by the pleadings and the affidavits filed.
The First and Second Claims
On 17 October 2005 the first respondent passed a resolution banning the applicant from being present in the State Library precinct for 12 months. The minutes of a meeting of the first respondent on 17 October 2005 (which were annexed to an affidavit of the applicant filed on 7 May 2007) contains the following entry:
Ban on customer
The Director endorsed the move to ban State Library customer Mr Rana as a last resort. Staff had been extremely forbearing but were forced to recommend a ban because Mr Rana’s behaviour was adversely affecting other customers.
ACTION: The Board asked the Director to investigate whether the Board was able to delegate to the Director the authority to ban customers.
The Libraries Board agreed to ban Mr Ranjit Rana from the State Library precinct for a period of 12 months due to an ongoing pattern of unacceptable behaviour towards other library customers and staff.
Moved Mr McDonnell Seconded Ms Davidson-Park
As with all such minutes of the first respondent, they were made available to members of the public by publication on the first respondent’s website.
The applicant subsequently commenced judicial review proceedings in the Supreme Court of South Australia to challenge the first respondent’s decision to have him banned.
On 10 August 2006 the Director of the first respondents set aside the ban on the basis that the applicant had not been afforded procedural fairness at the time that the ban was imposed. The applicant then discontinued the judicial review proceedings in the Supreme Court.
On 30 August 2006 the Director wrote to the applicant concerning amendments that had been made to the minutes of meetings of the first respondent reflecting that the ban imposed upon the applicant had been lifted and enclosing a cheque for $30. That letter was unfortunately inadvertently sent to the wrong address, namely to the applicant’s former neighbour. It would appear that the neighbour opened the envelope addressed to the applicant, wrote comments on the letter contained therein that were derogatory of the applicant and forwarded the letter to the applicant. The first respondent became aware that the letter had been sent to the incorrect address. On 1 September 2006 the Director sent a further letter to the applicant in the same terms as the letter of 30 August 2006 but this time sent the letter to the applicant’s correct address.
On 12 April 2007 the applicant commenced these proceedings alleging that the first respondent’s conduct was both contrary to s.52 of the TP Act and negligent.
The Third Claim
From 27 May 2006 the applicant was a tenant of the second respondent’s property known as Unit 1, 25 Hackney Road, Hackney.
On 27 March 2007 the second respondent filed an application in the Residential Tenancies Tribunal (“the RTT”) seeking to terminate the applicant’s residential tenancy agreement pursuant to s.90 of the Residential Tenancies Act 1995 (SA). The basis for the second respondent’s application to the RTT was the second respondent’s belief that the applicant had, amongst other things, been harassing his neighbours who happened to also be tenants of the second respondent.
On 12 April 2007 the applicant commenced these proceedings alleging that the second respondent was in breach of the tenancy agreement for taking steps to have him evicted.
On 13 April 2007 the RTT dismissed the second respondent’s application and the applicant was not evicted.
The Fourth Claim
The third respondent is a family company owned by the Minicozzi family. Certain members of the Minicozzi family owned a property at 23 Hackney Road, Hackney (“the Minicozzi property”) which they leased to the third respondent to conduct its catering business. The applicant lived next door to the Minicozzi property at Unit 1, 25 Hackney Road in premises owned by the second respondent.
According to the statement of claim a certain member or members of the Minicozzi family (it is not clear who) made what the applicant says were false complaints to the police and to the second respondent (the applicant’s landlord) about the applicant’s conduct suggesting that he was a troublemaker. The applicant says in his plea that they thereby damaged his relationship with the second respondent. There is no plea in the statement of claim of the facts needed to establish that the conduct complained of was the third respondent’s conduct.
The law regarding summary dismissal
Significant amendments were made to the summary judgment provision contained in the FM Act and FMC Rules that came into effect on 1 December 2005. Section 17A of the FM Act provides:
(1) ...
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Section 17A of the FM Act is to the same effect as s.31A of the Federal Court of Australia Act 1975 (Cth) (“FCA Act”) which also came into effect on 1 December 2005.
Amendment was also made to the FMC Rules to reflect the change to the FM Act. Federal Magistrates Court r.13.10(1) provides as follows:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
This rule should be read in light of s.17A of the FM Act.
In the explanatory memorandum for the introduction of s.17A the Minister said:
“Subsection 17A(3) provides that for the purposes of giving summary judgment, a proceeding ... need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the Courts in construing the conditions for summary judgment by reference to the “no reasonable cause of action”.”
In Howard v Australian Fisheries Management Authority [2006] FMCA 975, Lindsay FM considered both s.17A and r.13.10 of the FMC Rules in the light of the general legal principles. His Honour indicated that the new section moved away from the rigour of the approach taken previously by the Courts to summary dismissal under the general law. This decision was approved by Driver FM in Vivid Entertainment v Digital Sinima Aust Pty Ltd & Ors [2007] FMCA 157 at para.18.
Section 31A of the FCA Act was recently considered in the Full Federal Court decision of Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60 delivered on 15 April 2008. Commenting on the significant change in approach that the new summary judgment heralded Rares J said:
“By enacting s.31A, the Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised. It is inherent in the power conferred by s.31A that the Court need not, and does not ordinarily determine the proceedings of their merits after a full trial. A decision under s.31A is that the claim or defence has “no reasonable prospect of success”. It is not that the claim or defence has been proved so that the right or cause of action or defence merges into judgment and loses its independent existence. Rather the power conferred by the section authorises the Court to make a decision summarily that there is no reasonable prospect that if a trial were to take place the claim or defence would succeed. The section requires a prediction of the outcome of a trial on the merits but is not an actual adjudication on the merits.”[1]
A little later in his reasons, His Honour said:
“The purpose of introducing s.31A into the Court’s armoury or dealing with litigation which ought not be allowed to go to trial was to expand the capacity of the Court summarily to dismiss matters.”[2]
In deciding these applications I take into account what Rares J said in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 esp at 731 [45] concerning the test to be applied under s.31A of the FCA Act[3] which he paraphrased in Jefferson Ford as being whether there is “a real issue of fact or a real issue of law capable of being decided in (the applicant’s) favour then, subject to the Court’s discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way”.[4]
I also take into account what Gordon J said in Jefferson Ford in which he approached the application of s.31A somewhat differently by identifying a number of principles to be borne in mind when such applications are made. These principles are:
Section 31A imposes a different and less stringent test to that described in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129-130 aimed at reducing cost and delay in proceedings without at the same time doing injustice to a party.
An assessment of whether a proceeding or part of a proceeding has no reasonable prospects of success should only be made after:
identification of the cause(s) of action pleaded;
identification of the pleaded facts said to give rise to the cause(s) of action;
a review of the evidence (if any) tendered in support of the claim for judgment;
identification of the defence pleaded;
identification of any facts pleaded which are said to give rise to the defence; and
a review of the evidence (if any) tendered in defence of the claim;
Each case must be considered separately. There are no particular hard and fast rules that can be set down, only general principles. One such principle is that the moving party bears the onus of persuading the Court that the opponent has no reasonable prospect of success;
The trial Court’s decision to grant summary judgment is to be made as a question of law, not as the exercise of a discretion;
Where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success. A real issue of law does not necessarily preclude summary judgment; and
In determining whether a real issue of fact exists such as to preclude summary judgment, the Court must draw all reasonable inferences – but only reasonable inferences – in favour of the non-moving party. (Commonwealth Bank of Australia v ACN 000247601 Pty Ltd (in liquidation) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at (30); Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at (45).
In relation to this final principle His Honour went on to say:
“I emphasise “reasonable” because it is on this point that the lowering of the bar affected by s.31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the Court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.”
As was stressed by Lander J in Rana v Commonwealth of Australia (unreported decision, 17 June 2008, [2008] FCA 907), notwithstanding that the purpose of s.31A was to relax the tests, a Court need still to be cautious about finding that an applicant has no reasonable prospect of successfully prosecuting a proceeding.
Bearing these matters in mind I turn to address each of the causes of action raised by the applicant in these proceedings.
The First Claim
The First Claim pleads that the first respondent acted contrary to s.52 of the TP Act as a result of inadvertently sending the Director’s letter of 30 August 2006 from the Director to the applicant’s former neighbour as detailed earlier in these reasons.[5] On the basis of the first respondent’s submissions, there is no real issue of fact to be decided.
The first respondent submits that there are three reasons why the First Claim should be dismissed and judgment given for the first respondent. Firstly, it is put that the first respondent enjoys the immunity of the Crown in relation to s.52 of the TP Act. It is put that s.2B of the TP Act specifically identifies those parts of the TP Act that are to apply to the Crown in right of the States. Part V of the TP Act is not identified as applying. It is put that as a matter of general statutory interpretation legislation does not generally bind the Crown unless express provision is made to that effect (see Province of Bombay v Municipal Corporation of Bombay [1947] AC 58). It is therefore submitted that in the absence of any express provision to the contrary, the Crown is not bound by s.52 of the Act and enjoys immunity from it (see Bradken Consolidated Limited v Broken Hill Pty Co Ltd (1978) 145 CLR 107; Bass v Permanent Trustees Co Ltd (1999) 198 CLR 334).
It is then submitted on behalf of the first respondent that the first respondent, although not the Crown as such, nevertheless enjoys the immunity of the Crown in relation to s.52 of the TP Act. It is put that it is necessary to look at the intention to be derived from the statute under which the first respondent is constituted (see Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282 at 289 per Gibbs CJ). I accept those submissions. It is put that where the Crown continues to exercise a high degree of control over a body such as the first respondent then, unless express provision is made to the contrary, that body enjoys Crown immunity. Counsel for the first respondent points to the following matters to determine whether or not the first respondent is subject to a high degree of control by the Crown namely:
Whether the body “is subject to control and direction by its Minister” (considered relevant in Grain Elevators Board (Vic) v Dunmukle Corporation (1946) 73 CLR 70 at 76 per Latham CJ; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 342 per Steven J; Bradken Consolidated Limited v Broken Hill Pty Co Ltd (1978) 145 CLR 107 at 115 per Gibbs ACJ);
Whether the body “holds its property on behalf of the Crown” (considered relevant in Electricity Trust of South Australia v Linterns Limited [1950] SASR 133);
Whether the body must report to or provide certain information to the Crown (considered relevant in Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 353-355 per Mason J);
Whether the liabilities of the body are guaranteed by the Crown (considered relevant in Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 353-355 per Mason J);
Whether the objects of the body are public in nature (despite the fact that the function’s test has fallen into disfavour, consideration of the public purpose of the statutory authority remains one relevant feature in determining statutory intention – see for example Ventana Pty Ltd v Federal Airports Corporation (1997) 75 FCR 400 per Ryan J; Seddon Government Contracts: Federal, State and Local (3rd Ed, 2004) at [4.8]);
In the case of an incorporated body, whether or not there are any corporators; and
The extent to which the Crown controls appointments to the body’s governing board.
Counsel for the first applicant then points to the following sections of the Libraries Act 1982 (SA) (“Libraries Act”) namely ss.7, 8, 9, 12, 14, 15, 17-22, 42 which it is submitted together demonstrate that the Crown exercises a high degree of control in relation to the first respondent.
Perusal of the provisions of the Libraries Act referred to make it clear that there is much weight to be given to these submissions on behalf of the first respondent. The sections referred to show the following: that the first respondent holds its property on behalf of the Crown; that subject to certain exceptions, the Board is subject to the control and direction of the Minister; that appointments to the first respondent are made by the Governor; that a liability that would lie against a member of the Board if the Libraries Act did not provide for an immunity, will lie against the Crown; that the Board may only establish sub-committees with the consent of the Minister; that the Board’s budget has to be approved by the appropriate Minister; that the first respondent may only borrow or invest money for the purposes of the Libraries Act with the consent of the Treasurer of the State; and, that the first respondent shall only have such staff as the Governor considers necessary for the administration of the Act.
In relation to this Crown immunity argument the applicant submits that the first respondent has failed to put sufficient evidence before the Court to establish Crown immunity. The applicant failed to explain what further evidence was needed to establish this matter. It was also put on behalf of the applicant that if I were to decide that the applicant has no reasonable prospect of successfully prosecuting the First Claim against the first respondent that he would wish to rely upon “similar section equivalent to s.52 of TPA that is in the Fair Trading Act of SA”.
It is clear that Pt.V of the TP Act does not apply to the Crown in right of the State of South Australia. The more difficult question is whether the first respondent enjoys the immunity that is provided to the State Crown. I have come to the conclusion that the first respondent does enjoy that immunity. The provisions of the Libraries Act earlier referred to make it clear that the first respondent does not have the degree of independence from the Crown that needs to be present to be able to say that the first respondent does not have the protection of the Crown immunity enjoyed by the State. The Libraries Act and the cases that have earlier been referred to lead me to the conclusion that there is no plausible argument that could be put on behalf of the applicant to suggest that the first respondent does not enjoy Crown immunity. On this basis alone, I would find that the applicant has no reasonable prospect of successfully prosecuting his proceedings against the first respondent in relation to the First Claim and would give judgment for the first respondent.
The second reason why the first respondent submits that the applicant has no reasonable prospect of successfully prosecuting his proceedings against the first respondent in relation to the First Claim is that the conduct of the first respondent that the applicant complains of was not conduct by the first respondent “... in the course of trade or commerce”. On behalf of the first respondent it is put that the conduct complained of by the applicant, namely the sending of a letter informing the applicant that his ban from the library had been revoked and enclosing a cheque for $30 to cover any costs associated with his judicial review proceedings before the Supreme Court, cannot be characterised as conduct in trade or commerce. Counsel for the first respondent referred me to the case of Concrete Constructions v Nelson (1990) 169 CLR 594 at 604 in which Mason CJ and Deane, Dawson and Gaudron JJ jointly said:
“It is plain that s.52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business ... [T]he reference to conduct “in trade or commerce” in s.52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character.”
According to Dowsett J in Hearn v O’Rourke [2003] 129 FCR 64 “the correct approach is to determine whether or not the relevant conduct can, according to ordinary usage, be described as having occurred in the course of dealings “which, of their nature, bear a trading or commercial character”. I cannot see that the sending of the letter providing the information earlier referred to in these reasons can have the trading or commercial character necessary to be able to say that it was conduct by the first respondent whilst it was engaged in trade or commerce.
The applicant submits that the conduct he complains of was engaged in by the first respondent in trade or commerce when one looks at the activities of the first respondent that it is generally engaged in. It seems to me that the applicant falls into significant error in focussing on this range of activities that the first respondent is generally involved in rather than the particular activity that he says resulted in the misleading or deceptive conduct that he now complains of. Whilst not wishing to infer that the first respondent’s general range of activities as identified by the applicant can be described as trading or commercial activities, I have no hesitation in coming to the conclusion that there is no sufficiently arguable case that the conduct of the first respondent that the applicant complains in relation to the First Claim was conduct in trade or commerce. On this basis also I conclude that the applicant has no reasonable prospect of successfully prosecuting the proceedings in relation to the First Claim.
The third submission that is put on behalf of the first respondent in relation to the First Claim is that the conduct of the first respondent that the applicant complains of was not conduct that was capable of inducing error: it was not misleading or deceptive.
It is submitted on behalf of the first respondent that in order for conduct to be misleading or deceptive it must be capable of inducing error. (See Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198 per Gibbs CJ). It is submitted further that the first respondent’s Minutes published on the first respondent’s website did not contain any misleading or deceptive material as they were not inaccurate. As much does not appear to be in dispute. Clearly whether particular conduct is misleading or deceptive is a question of fact that cannot be found to exist unless in all of the circumstances it comprises or conveys a misrepresentation (see Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 2 TPR 48).
The applicant submits that the conduct was misleading or deceptive as the conduct of the first respondent has “a tendency or capacity to lead others like the former neighbours or website users to believe that the applicant is still banned from the library, which in fact is false”.
In my view the letter that was sent contained no factual inaccuracy. I cannot see in the pleadings relating to the First Claim that the applicant alleges that he was misled or deceived by any conduct on behalf of the first respondent. From my knowledge of the matter I do not believe that it would be open to him to do so. On this basis also (ie conduct not misleading or deceptive) I conclude that the applicant has no reasonable prospect of successfully prosecuting the proceedings against the first respondent in relation to the First Claim.
For any or all of these three reasons I would dismiss the applicant’s First Claim and give judgment for the first respondent.
Second Claim
The applicant relies upon the same facts for the Second Claim as he does for the First Claim.[6] On the basis of the argument put on behalf of the first respondent there is no real issue of fact be decided.
Counsel for the first respondent mentioned at the outset that the first respondent does not concede that a duty of care existed between the first respondent and the applicant in relation to the matters pleaded in the statement of claim namely the sending of the letter to the applicant and the placing of information about the applicant on the first respondent’s website but does not suggest this issue can be resolved at this stage.
It is submitted on behalf of the first respondent that even if there was a duty of care, the sending of the letter and the putting of the information on the website does not amount to a breach of any such duty. Further, it is put that the first respondent cannot be said to have caused the applicant’s alleged loss and that the applicant’s neighbours’ acts of opening the incorrectly addressed letter, writing on it and sending it on to the applicant were novus actus interveniens.
The applicant’s submissions in relation to the Second Claim are unhelpful as is demonstrated by his most recent written submission in which he states:
(The first respondent’s submission in relation to the Second Claim) is just absurd, illogical and unreasonable per (sic) reliance on novice actus interveniens. They have failed (sic) adduce evidence to show otherwise that it was a genuine mistake. They have been dealing with the applicant legally and (sic) was police matter as the first respondent had informed the police that he was falsifying documents, that he was a abu jihad, harassed others and goes on the list and knew all about his profession and abode and sent the letter “but for his enemy at unit 63/40 Park Terrace, Gilberton. That tenant notified the Housing Trust and the manager of the Housing Trust formed the view that the applicant was lunatic and in all chain of events that was known to Amanda Taylor eventually, the applicant was detained under the Mental Health Act falsely and has suffered harm. He has suffered damage like he could not sit for exam and lost money that can be proven.
The real issues of law to be decided in relation to this submission on behalf of the first respondent are whether the first respondent’s actions as complained of by the applicant could amount to a breach of a duty of care and, if so, whether the loss that the applicant says he suffered was caused by that breach. Having considered all the material and the submissions put by the parties I have come to the conclusion that the inadvertent sending of an innocuous letter such as the second respondent’s letter of 30 August 2006 to someone – or anyone – other than the person that it was intended, namely the applicant, is unlikely in the extreme to be a breach of any duty of care that might be found to exist between the applicant and the first respondent. The applicant’s real complaint can only be with what the unintended recipient of the letter did with it. The statement of claim does not make it clear what it was that the recipient did with the letter or even what use the recipient made of the contents of the letter. He simply pleads that “by sending the letter ... to the applicant’s known enemies (the first respondent) has damaged the (applicant’s) relationship with the 2nd respondent and its tenants and his neighbour the 3rd respondent (known now as the troublemaker)”. On the material before me I conclude that the applicant is in reality complaining about the neighbour’s action after receiving the letter.
The applicant’s substantive complaint is about the recipient’s actions after receiving the letter. As such I consider a cause of action against the first respondent relying on such facts would have no reasonable prospects of being successfully prosecuted either because the actions were not those of the first respondent or because the recipient’s actions break the chain of causation after the suggested negligent act of the first respondent.
Having taken into account all of the applicant’s submissions on this topic and for the above reasons I have come to the conclusion that the applicant has no reasonable prospect of successfully prosecuting the proceedings in relation to the Second Claim. I conclude that the applicant’s Second Claim should be dismissed and that judgment should be given for the first respondent.
Third Claim
The Third Claim is brought against the second respondent and alleges a cause of action for breach of contract in relation to the applicant’s tenancy agreement. The alleged breach was for failing “... to provide peace, comfort and privacy ...” contrary to s.65 of the Residential Tenancies Tribunal Act 1995 (SA), which section imposes a “quiet enjoyment” provision in all residential tenancy agreements. The relevant facts are stated earlier in these reasons.[7]
It is submitted on behalf of the second respondent that the Third Claim should be dismissed for two reasons: firstly that the statement of claim does not (and cannot) properly identify any breach of contract by the second respondent; and secondly, that even if a breach of contract is identified and sufficiently pleaded, the claim should be dismissed as it does not fall within the accrued jurisdiction of this Court.
In relation to the first submission put by the second respondent the applicant seems to plead that the breach occurred when the second respondent sought to have the applicant evicted by commencing and prosecuting proceedings in the RTT. The applicant then seems to plead that the second respondent’s application to have the applicant evicted was based on the second respondent’s falsely held belief that they were entitled to do so because the applicant had contacted the police regarding one of his neighbours which resulted in that neighbour being arrested for “cooking chemicals and selling them to the public”. Further, the applicant pleads that the second respondent also falsely believed that they were entitled to have the applicant evicted because they believed that the applicant had taken two of his neighbours to the RTT, one for stealing a computer from another tenant and being involved in a drug bust and the other for colluding in hiding stolen computer parts.
The applicant has filed numerous submissions in relation to these applications. It is impossible to extract from these submissions any coherent response to the second respondent’s submissions that a breach of contract cause of action has not been identified and properly pleaded. I accept the submissions put on behalf of the second respondent in this regard. If what the applicant is attempting to mount is a claim that the second respondent was in breach of the tenancy agreement for bringing proceedings in the RTT for eviction I do not see how this has any hope of succeeding. Making all proper allowances for the applicant being unrepresented, I consider that there is no reasonable prospect of the applicant successfully prosecuting the Third Claim against the second respondent.
For the above reasons I would dismiss the applicant’s claim against the second respondent and give judgment for the second respondent. Having done so I do not consider it necessary to address the second basis upon which the second respondent seeks to have the Third Claim dismissed and judgment given.
The Fourth Claim
The Fourth Claim is brought against the third respondent and alleges that in making false statements about the applicant to the second respondent, the police and other tenants of the second respondent, the third respondent engaged in conduct that contravened s.52 of the TP Act. The relevant facts are stated earlier in these reasons.[8] In the statement of claim the applicant provided particulars as follows:
In (sic) many occasions has called police to harass all stakeholders of the commercial premises;
In (sic) many occasions has thrown rubbish at 23 Hackney Road surroundings and its owner’s property at 27 Hackney Road; and
The applicant is a troublemaker.
The applicant further pleads that as a result of the third respondent’s conduct his relationship with the second respondent and others including the police has deteriorated.
Although the applicant pleads that the statements were made “in trade and (sic) commerce” no facts are pleaded from which it can be concluded that the statements were so made. Taking the facts at their most favourable from the applicant’s point of view as detailed earlier in these reasons, the applicant has no reasonable prospect of successfully establishing that the statements complained of were made by someone on behalf of the third respondent or that they were made in trade or commerce. The inevitable eventual finding if this matter were to go to trial is that this was simply a dispute between neighbours who were individuals.
Conclusion
For these reasons I dismiss the Fourth Claim and give judgment for the third respondent.
In these reasons I have so far dealt only with the applications for summary judgment. I am conscious that all respondents sought in the alternative orders striking out those portions of the statement of claim that are pleaded against each of them. Having decided to give judgment to each of the respondents it is unnecessary to consider the strike-out applications.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Simpson FM
Associate: Julie Davey
Date: 4 July 2008
[1] Paragraph 45. Citation excluded.[2] Paragraph 57.[3] And therefore s.17A of the FM Act.[4] Jefferson Ford supra at paras.73 and 74.[5] See paras.12 to 16 of these reasons.[6] See paras.12 to 16 of these reasons.[7] See paras.17 to 20 of these reasons.[8] See paras.21 and 22 of these reasons.
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