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Author: Rajya Laxmi Rana
ISBN: 9994629800
Title: Joonle Pani Polchha
Author: Rajya Laxmi Rana
Edition Year: 2007
Cover: Paperback
Subject: Poetry
Language: Nepali
Abstract: This book includes several of the authors aunts moving poems and the only short story that was important to put this anthology ofpoems together to dispel her own ignorance, to honour a woman who braved so many obstacles.
Edition: First Edition
Pages: 85
Size(mm): 135 x 214
Weight(grams): 130
Price: US$ 2.95
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Friday, October 24, 2008
Rajni Malla the famous Nepalese fashion designer cousin of Ranjit Rana
This is Google's cache of http://www.jaisalmer-in-jeopardy.org/pressroom.html. It is a snapshot of the page as it appeared on 23 Aug 2008 20:48:06 GMT. The current page could have changed in the meantime. Learn more
Text-only versionThese search terms are highlighted: rajni malla
Home
About Jaisalmer
About us
Our achievements Newsroom
Pressroom
Contact us
OUR OBJECTS
Press articles
'Collapse of the Golden City' by Sue Carpenter. New Scientist, 17 December 1994
'Last Chance to save Jaisalmer' by Sue Carpenter. New Scientist, 17 June 1995
'Campaign to save India's golden city'. Daily Telegraph, 6 July 1995
'Return to the Golden City' by Sue Carpenter. New Scientist, 23 November 1995
Rajasthan Patrika, 1 October 1995
'Campaign to save Golden City' by Oliver Bennett. Daily Telegraph, 11 November 1995
'Best Ideas of 1995'. Planetary Connections, Autumn 1995
'Barometer'. Harpers & Queen, July 1996
'Roundelay'. House & Garden, July 1996
'Exhibition Diary'. World of Interiors, July 1996
'To the rescue of Jaisalmer' by Sunil Sethi. The Asian Age, July 1996
'Jaisalmer fort will be restored'. The Times of India, 30 June 1996
Hot Tickets, Evening Standard, 9 July 1996
William Hickey. Daily Express, 9 July 1996
'Just Deserts'. India Today, 31 July 1996
'The ruin of Jaisalmer'. Perspectives on Architecture, August/September 1996
'Travel Snapshots'. The Observer Life, 4 August 1996
'State of Grace' by Sue Carpenter. Swarovski Magazine, April 1998
'On the edge' by Trevor Fishlock. Condé Nast Traveller, July 1998
The Geographical Magazine, September 1998
Hot Tickets, Evening Standard, 24 September 1998
'India's dream castle in the sands' by Andrew Robinson. Independent on Sunday, 7 February 1999
'Intach meeting in Jaisalmer'. Rajasthan Patrika, 5 February 1999
' 'Awe-inspiring' fort in need of urgent help'. Indo-British Business, Spring 1999
'Indian Women's Association sponsors benefit fashion show'. Austria Today, 4 April 2000
'Holding the fort' by Sue Carpenter. The Times, 1 May 2000
'Fight to save India's famous fort'. Indo-British Business, Summer 2000
Wanderlust, June/July 2000
'The Asian bulletin'. The Asian Age, 10 June 2000
'How India changed my life' by Sue Carpenter. You Magazine (The Mail on Sunday), 22 June 2000
'Jaisalmer in Jeopardy'. The Asian, 8-14 June 2000
Departures, The Sunday Times, June 11 2000
'Diary of the Week'. Hello!, 11 July 2000
'Where in the world?'. Telegraph Travel, 7 October 2000
'Women with a mission' by Melanie Hart. PS Magazine, December/January 2001
News report, Jaisalmer Sun, Nov 2000
News report, Jaisalmer Sun, Feb 2001
'Historical havelis on verge of collapse' by Prabhu Razdan. Hindustan Times, 30 January 2001
'Jaisalmer, un rêve d'or et de miel' by Joëlle Balaresque. Côte de Sud magazine.
'Jewel in the crown'. Helena (Christensen)'s Diary in Jaisalmer. Red Magazine
'Restoring the falling fort's old glory' by Vidya Deshpande. Indian Express, 4 April 2001
'London in Jeopardy: A date with a Maharajah. Note from London' by Nabanita Sircar. Asian Age, 22 November 2001
'A Royal Treat' by Ishara Bhasi. India Today 26 November 2001
'Jaisalmer, City of Golden Sands and Strange Spirits' by Prashun Dutt. India Weekly 1 December 2001
'Diary of the Week', Hello! 4 December 2001
'Jaisalmer in Jeopardy' by Prashun Dutt. India Weekly 14 December 2001
Pakistani Post
'The Maharawal of Jaisalmer flies into Chelsea', Menu Magazine, December 2001
'People 'n' Parties, Eastern Eye Magazine, 4 January 2002
Society Magazine January 2002
'Holding Fort' Marwar Magazine January-April 2002
'Jaisalmer in Jeopardy' by Sue Carpenter Asian Art Architecture, Asian Art Newspaper, May 2002
'Unesco Asia-Pacific Heritage Awards for Cultural Heritage Preservation' Bangkok Post, 25 September 2002
'The Joy of Jaisalmer' by Mick Brown The Daily Telegraph Travel. 30 November 2002
Photo Archive
Solent Sail for Jaisalmer
2002 Diwali Dinner at Westminster's Cinnamon Club
Newsletters and press releases
Number 1: Autumn/Winter 2000
Number 2: Spring/Summer 2001
Number 3: Autumn/Winter 2001
Number 4: Autumn/Winter 2002
Number 5: Summer 2003
Number 6: Spring/Summer 2004
Press release 28.06.01
Links to articles on other websites
Good News India
link to http://www.goodnewsindia.com/Pages/content/friends/carpenter.HTML
Institute for Social Innovations
link to http://www.globalideasbank.org/diyfut/DIY-200.HTML )
HindustanTimes.com "London Diary" November 20 2002
link to http://hindustantimes.com/news/181_105692,0041.htm
The Business Line January 20, 2003 "Restoring a historic city" by Rasika Dhavse.
link to http://www.thehindubusinessline.com/life/stories/2003012000140200.htm
Time Magazine February 03 2003, "In A Wasteland of Wonders" by Tessa Laughton
link to http://www.time.com/asia/magazine/article/0,13673,501030203-411455,00.html">
HindustonTimes.com "London Diary" September 26 2003
link to http://www.hindustantimes.com/2003/Sep/05/5983_361100,00430005.htm http//www.hindustantimes.com/2003/Sept/26/5983_390399%2COO43005.htm
Previous Events
JiJ has been holding fundraising events in the UK since 1998. Ranging from shopping evenings and gallery talks to highly successful oversubsribed major events in London's smartest venues gaining an enviable reputation of providing incredibly enjoyable evenings for 'Friends of Jaisalmer' - whilst never losing sight of the main objective - the need to raise funds and awareness for its ongoing commitments in Jaisalmer.
INDIA TALK ; AA GILL AT ASIA HOUSE
JiJ’s 2006 fundraiser took place on Thursday 18th May in the sumptuous new headquarter building of Asia House in London’s New Cavendish Street. Introduced by JiJ Chairman Mehra Dalton, AA Gill and interviewer Paul Blezard of OneWord Radio held an amusing insightful and at times irreverent discussion on a wide ranging India theme, touching on food, travel, history and the fascination in which India is held in the collective imagination.
The talk was preceded by a champagne reception, courtesy of Oberoi Hotels and followed by drinks and canapés in the two fine rooms on the first floor of the recently restored townhouse. Guests from the worlds of business, travel, media and the arts including Chairman of the Staples Trust Jessica Sainsbury with her husband Peter, Prince Francopan, painter Tobit Roche, author’s Chris Caldicott and Martin Buckley, Zaffar Rushdie, Sloane Ranger Diary author Ann Barr, internationally syndicated astrologer Shelley von Strunckle, Tatler's Editor-at-Large Nicola Formby, joined chief guests HH The Rajmata of Jaipur and Asia House founder Sir Peter Wakefield accompanied by Lady Wakefield. The evening raised funds to continue the restoration of Har Raj Ji Ka Mahal, a landmark building within the fort and now in its second Phase.
UK FUNDRAISING INITIATIVES
2 June 2005 -
For two days in June, Kensington Town Hall shook off its staid Royal Borough image and played host to an eclectic group of India's most exciting young designers of clothes, accessories and jewellery.
Kicking off on the 2nd with a private view and reception, generously sponsored by Vedanta and hosted by the Ladies' Wing of the Indian Merchants' Chamber in support of JiJ, the opening night's special preview brought together prominent members of London's Indian community, fashionistas, Indophiles and JiJ's party-going supporters joining chief guests, Her Highness the Rajmata of Jaisalmer, His Excellency the Indian High Commissioner accompanied by Mrs Shah, and Baroness Flather to declare open the exhibition of 33 of Mumbai's cutting edge designers gathered together for the first time in the UK.
Following the welcoming speeches, an enchanting rendition of the Peacock Dance by exhibitor Meena Mehadevia and the traditional 'lighting of the lamp' by HH the Rajmata, guests including MP Keith Vaz, author and journalist Polly Devlin, Harpers & Queen Travel Editor Catherine Fairweather and design guru Andrew Logan were invited to view the special preview before the exhibition opened to the general public.
Whilst some guests carried on partying, the dedicated shoppers amongst them hurried to snap up exclusive jewellery and designer fashion bargains displayed in the Great Hall extravegantly decked out to resemble an Eastern bazaar. Two hours of shopping later, with the occasional pit stop to enjoy the drinks and canapes on offer, many guests were seen to leave the party with far more bags than they arrived with!
(left) Exhibitor Meena Mehadevia performing the Peacock Dance
(right) Nicholas, Prince Frankopan and Miss Natasha Oppenheim
The exhibition and sale held on the following two days had a large proportion of London's shopaholics beating a path to the town hall door. Exceeding the target set by the Ladies Wing of 3000 visitors, the exhibitors found themselves literally overwhelmed by eager buyers desperate to snap up a bargain Indian-glam outfit.
Declared a huge success by everyone involved, it is hoped that this opportunity to highlight India's leading fashion designers will become an annual event and a looked-forward to part of the London fashion and social calendar
JiJ is grateful to the Ladies' Wing for including them, and to all the guests and supporters who donated c£3,000 towards JiJ's restoration projects in Jaisalmer, and looks forward to working with the Indian Merchants' Chamber on future fundraising initiatives.
(right) The Exhibition Committee, The Ladies' Wing of the Indian Merchants' Chamber with Mr Anil Agarwal
April 2005 ART SHOW BY PARESH MAITY IN AID OF JIJ
Paresh Maity’s wonderful sell-out show in Cork Street, sponsored by ICICI Bank and Kiki’s London Contemporary Indian Art, provided an ideal opportunity for JiJ supporters to meet up at the private view held on 26th April. With most of the paintings being snapped up by collectors of contemporary Indian art at the private view, JiJ was most grateful to receive a generous percentage of sales as a donation from the sponsors, promoters and artist.
8 OCTOBER 2004
JIJ EXTRAVAGANZA AT THE V&A
26th
JiJ's 2004 major fundraising event was held on Friday 8th October in association with the Victoria and Albert Museum, to celebrate the V&A's autumn exhibition, Encounters: The Meeting of Asia and Europe 1500-1800.
The highlight of the evening was a stimulating conversation between two luminaries in the field of film - leading UK critic and broadcaster Barry Norman together with award winning director Shekar Kapur discussing the differences (and similarities) between Hollywood and Bollywood and the diverse influences that resulted in Kapur's Oscar-nominated movie 'Elizabeth'.
JiJ Chairman and Founder Sue Carpenter with guest speaker Barry Norman (left)
INTACH'S Jaislamer Project Director Bindu Manchanda with guest speaker Shekhar Kapur (right)
Guests of Honour, Their Highnesses the Maharawal and Maharani of Jaisalmer, accompanied by INTACH Jaisalmer project Director Bindu Manchanda, newly appointed Director of the Nehru Centre, Pavan Varma attending with Mrs Varma and Frau Ursula Matussek, wife of the German Ambassador to Britain mingled with fellow guests splendidly attired in keeping with the dress code of 'Extravagantly Indian'.
Their Highnesses the Maharawal and Maharani of Jaisalmer (right)
The Bollywood Brass Band (left)
Other guests, greeted at the Museum's main Cromwell Road entrance by the traffic-stopping Bollywood Brass Band, included Princess Pignatelli, explorer and travel writer Mark Shand, Baroness Erika Von Schubert, internationally acclaimed astrologer Shelley von Strunkle, and West End theatre impressario Michael Ward, producer of the eagerly awaited musical, 'The Far Pavilions' along with JiJ's band of committed supporters all contributing to the continuation of JiJ's tradition of glamorous Indian-themed parties, held in London's smartest venues.
Following a lavish champapgne reception courtesy of British Airways, Sue Carpenter thanked both the Staples Trust - who have sponsored all phases of the Streetscape Project, and the evening's main sponsors - India Tourism, Greaves Travel, Cobra Beer, British Airways and Vama Direct for their ongoing support of the charity's efforts to raise funds and awareness for Jaisalmer, before introducing the two guest speakers who enthralled the audience with their anecdotes of movie-watching and movie-making.
Supper, an authentic Indian street food experience, was served from Vama Direct's street stalls dotted around the Museum and inside specially erected luxurious Raj Tent Club marquees in the Pirelli Garden - remaining open exclusively for JiJ guests before its closure to the public for the foreseeable future.
The Raj Tents, luxuriously decked out with bolsters and floor cushions where guests reclined Maharaja-like whilst sipping General Bilimoria wine and Cobra Beer and chatting with fellow guests were a huge draw, providing a relaxing counterpoint to the central dome and medeival gallery of the museum where the Bollywood Brass Band continued to entertain guests alongside screens showing the best of Bollywood's musical hits courtesy of Eros Entertainment.
Guests also had the opportunity to take an unhurried private view of the Encounters exhibition, or listen to an illuminating talk on Sikh jewellery in the India Galleries from the British Library's Jasleen Khandaria, before joining in the music and entertainment.
Sue Carpenter with internationally syndicated astrologer Shelley von Strunckle and Lalita James of Greaves Travel
INDIAN INK SALMAN RUSHDIE AND WILLIAM DALRYMPLE IN CONVERSATION AT CHRISTIE'S The 2003 autumn social season opened in glittering style with JiJ's eagerly awaited fund-raising event, a champagne reception and private view of the Arts of India sale at Christie's, King Street, followed by a memorable stage encounter between writers Salman Rushdie and William Dalrymple, who met for the first time in public over a lively and provocative discussion that ranged across politics, religion, art and culture and the great bonds that unite and sometimes divide the cultural mindsets of India and the West. Held in the presence of HH The Maharawal of Jaisalmer, the evening's special event sparkled to a backdrop of breathtaking Indian works of art and jewellery, while guests, sticking splendidly to the dress code of 'Indian glamour', included HH The Rajmata of Jaipur and the Hon Jessica Sainsbury, chairman of the Staples Trust (which has funded all three phases of JiJ's award-winning Streetscape Project), with husband, Peter, Prince Francopan. Also present at the event were The Marchioness of Bute, Lucia Silver of L Boutique and husband Hugo Bulmer, Princess Lucia Pignatelli and Bollywood composer Biddu. The evening was introduced by Sue Carpenter, Chairman of Jaisalmer in Jeopardy, the British charity founded to save the crumbling fortress city in Rajasthan. Thanking the India Tourism Office, Greaves Travel and British Airways for their generous sponsorship of the evening's event, Carpenter highlighted the need for those in conservation and those in tourism to join hands to save the heritage of the sights and cities that tourists go to experience. The funds raised will go to conservation projects in Jaisalmer fort which are administered on JiJ's behalf by the Indian National Trust for Art and Cultural Heritage (INTACH). INTACH was represented at the event by Mr S K Misra, Vice-Chairman and Miss Bindu Manchanda, Jaisalmer Project Director. The unlikely star of the evening was the Director of India Tourism, London, Mr Vivek Angra. With great comic timing, he declared that he had 'tried' to read Salman Rushdie's Booker-prize-winning novel, Midnight's Children, when he was a student. But, he said, gesturing with his hand flying over his head, it was 'OHT - Overhead transmission'. In the chair, fielding the conversation between Rushdie and Dalrymple was Paul Blezard of One Word Radio, Britain's most prolific author-interviewer He maintained the mood of levity set by Angra, while giving Rushdie rein to dive into the most controversial of subjects - given the company present - from government corruption to art smuggling. Christie's auctioneer William Robinson then invited bids for one lot - the signed, collected works of both authors, which together amounted to 20 books. Bidding was fast and furious, rapidly topping £1,000, with the collection finally going to Ra Sharma and his wife Jane Withey for £1,020. Not to be outdone, runners-up including Peter, Prince Francopan, and Mr Asit Chandmal matched the winning bid in order to secure their own sets of signed books. With the auction raising over £,4000, the total income for the evening was approximately £18,000. JiJ would like to thank everyone who helped to make the evening so memorable, in particular its major sponsors, India Tourism and Greaves Travel
CITY INDEX HOSTS CELEBRATORY 2002 DIWALI DINNER AT CINNAMON CLUB IN AID OF JIJ
London's Indophile glitterati turned out in force on Tuesday 19th November to a splendid celebratory Diwali dinner at the Cinnamon Club in Westminster, generously sponsored by the City finance firm, City Index.
50 guests,specially invited by City Index,including former High Commissioner to India Sir Nicholas Fenn,accompanied by Lady Fenn, along with the Marchioness of Bute, Valentine and Lulu Guinness, Hugo Bulmer and Lucia Silver, Viscountess de Vesci and her aunt, the Maharani Kumari Karuna Devi of Burdwan, and City Index COO Simon Price sipped decorative but lethal mango lassis, laced with vodka, before proceeding to the glassy private dining room for dinner.
The aim of the evening was to bring Jaisalmer's plight to the attention of a new circle of India-lovers, and to celebrate the two awards, UNESCO and British Airways, won this year by JiJ.
It was also an opportunity for Simon Chambers, Director Secretariat of UK UNESCO to present the citation on behalf of the 2002 UNESCO South East Asian Cultural Heritage Conservation Awards.
Introduced by Sailesh Barchha, Business Development Manager of City Index, Sue Carpenter spoke about the
dangers facing the desert city, and the great strides that have been made to arrest the damage through JiJ's Streetscape Revitalisation Project, implemented in Jaisalmer by INTACH, the Indian National Trust for Art and Cultural Heritage, and funded by the UK based Staples Trust.
'Indian glam' was the dress code for the event, to which guests responded enthusiastically.
The fashion hit of the evening was Sue Carpenter's Schiaparelli-pink embroidered organza kurta, designed by fellow guest, Rajni Malla, whose Nepalese design company was inundated with requests for similar showstoppers from, among others, two of the most stylish men in the room - Bollywood music producer Biddu and conservation architect Karan Grover.
Continuing the glittering theme, Lucia Silver of L Boutique wowed the guests in a belly-baring gilt-encrusted turquoise number, while her husband Hugo Bulmer looked resplendent in another of her Indian creations in cream and gold.
The evening was further enhanced by the presence of HH The Maharani Kumari Karuna Devi of Burdwan, in London visiting her niece and fellow guest The Viscountess de Vesci, and Valentine and Lulu Guinness, who attended before jetting off to Los Angeles for the opening of Lulu's new shop.
'Stage designer Will Bowen, resplendent in Indian Nehru jacket, chatted to Hester Marriott of the Staples Trust, funders of JiJ's Streetscape Project, while jewellery designer Eileen Coyne and her daughter Jacina, also a designer, looked a vision in their flowing robes and Nepalese baubles - plus the odd member of Westminster's political fraternity, who had wandered off course into the wrong party.
We are most grateful to Simon Price, Sailesh Barchha and City Index for their supprt and hard work in making this evening memorable. We would also like to thank the staff of the Cinnamon Club and Karan Bilimoria for his continued support of JiJ’s events with his generous donation of Cobra beer and General Billy’s wine.
All photographs reproduced by kind permission of Henrietta van den Bergh
FUTURE TOURS TO JAISALMER
Text-only versionThese search terms are highlighted: rajni malla
Home
About Jaisalmer
About us
Our achievements Newsroom
Pressroom
Contact us
OUR OBJECTS
Press articles
'Collapse of the Golden City' by Sue Carpenter. New Scientist, 17 December 1994
'Last Chance to save Jaisalmer' by Sue Carpenter. New Scientist, 17 June 1995
'Campaign to save India's golden city'. Daily Telegraph, 6 July 1995
'Return to the Golden City' by Sue Carpenter. New Scientist, 23 November 1995
Rajasthan Patrika, 1 October 1995
'Campaign to save Golden City' by Oliver Bennett. Daily Telegraph, 11 November 1995
'Best Ideas of 1995'. Planetary Connections, Autumn 1995
'Barometer'. Harpers & Queen, July 1996
'Roundelay'. House & Garden, July 1996
'Exhibition Diary'. World of Interiors, July 1996
'To the rescue of Jaisalmer' by Sunil Sethi. The Asian Age, July 1996
'Jaisalmer fort will be restored'. The Times of India, 30 June 1996
Hot Tickets, Evening Standard, 9 July 1996
William Hickey. Daily Express, 9 July 1996
'Just Deserts'. India Today, 31 July 1996
'The ruin of Jaisalmer'. Perspectives on Architecture, August/September 1996
'Travel Snapshots'. The Observer Life, 4 August 1996
'State of Grace' by Sue Carpenter. Swarovski Magazine, April 1998
'On the edge' by Trevor Fishlock. Condé Nast Traveller, July 1998
The Geographical Magazine, September 1998
Hot Tickets, Evening Standard, 24 September 1998
'India's dream castle in the sands' by Andrew Robinson. Independent on Sunday, 7 February 1999
'Intach meeting in Jaisalmer'. Rajasthan Patrika, 5 February 1999
' 'Awe-inspiring' fort in need of urgent help'. Indo-British Business, Spring 1999
'Indian Women's Association sponsors benefit fashion show'. Austria Today, 4 April 2000
'Holding the fort' by Sue Carpenter. The Times, 1 May 2000
'Fight to save India's famous fort'. Indo-British Business, Summer 2000
Wanderlust, June/July 2000
'The Asian bulletin'. The Asian Age, 10 June 2000
'How India changed my life' by Sue Carpenter. You Magazine (The Mail on Sunday), 22 June 2000
'Jaisalmer in Jeopardy'. The Asian, 8-14 June 2000
Departures, The Sunday Times, June 11 2000
'Diary of the Week'. Hello!, 11 July 2000
'Where in the world?'. Telegraph Travel, 7 October 2000
'Women with a mission' by Melanie Hart. PS Magazine, December/January 2001
News report, Jaisalmer Sun, Nov 2000
News report, Jaisalmer Sun, Feb 2001
'Historical havelis on verge of collapse' by Prabhu Razdan. Hindustan Times, 30 January 2001
'Jaisalmer, un rêve d'or et de miel' by Joëlle Balaresque. Côte de Sud magazine.
'Jewel in the crown'. Helena (Christensen)'s Diary in Jaisalmer. Red Magazine
'Restoring the falling fort's old glory' by Vidya Deshpande. Indian Express, 4 April 2001
'London in Jeopardy: A date with a Maharajah. Note from London' by Nabanita Sircar. Asian Age, 22 November 2001
'A Royal Treat' by Ishara Bhasi. India Today 26 November 2001
'Jaisalmer, City of Golden Sands and Strange Spirits' by Prashun Dutt. India Weekly 1 December 2001
'Diary of the Week', Hello! 4 December 2001
'Jaisalmer in Jeopardy' by Prashun Dutt. India Weekly 14 December 2001
Pakistani Post
'The Maharawal of Jaisalmer flies into Chelsea', Menu Magazine, December 2001
'People 'n' Parties, Eastern Eye Magazine, 4 January 2002
Society Magazine January 2002
'Holding Fort' Marwar Magazine January-April 2002
'Jaisalmer in Jeopardy' by Sue Carpenter Asian Art Architecture, Asian Art Newspaper, May 2002
'Unesco Asia-Pacific Heritage Awards for Cultural Heritage Preservation' Bangkok Post, 25 September 2002
'The Joy of Jaisalmer' by Mick Brown The Daily Telegraph Travel. 30 November 2002
Photo Archive
Solent Sail for Jaisalmer
2002 Diwali Dinner at Westminster's Cinnamon Club
Newsletters and press releases
Number 1: Autumn/Winter 2000
Number 2: Spring/Summer 2001
Number 3: Autumn/Winter 2001
Number 4: Autumn/Winter 2002
Number 5: Summer 2003
Number 6: Spring/Summer 2004
Press release 28.06.01
Links to articles on other websites
Good News India
link to http://www.goodnewsindia.com/Pages/content/friends/carpenter.HTML
Institute for Social Innovations
link to http://www.globalideasbank.org/diyfut/DIY-200.HTML )
HindustanTimes.com "London Diary" November 20 2002
link to http://hindustantimes.com/news/181_105692,0041.htm
The Business Line January 20, 2003 "Restoring a historic city" by Rasika Dhavse.
link to http://www.thehindubusinessline.com/life/stories/2003012000140200.htm
Time Magazine February 03 2003, "In A Wasteland of Wonders" by Tessa Laughton
link to http://www.time.com/asia/magazine/article/0,13673,501030203-411455,00.html">
HindustonTimes.com "London Diary" September 26 2003
link to http://www.hindustantimes.com/2003/Sep/05/5983_361100,00430005.htm http//www.hindustantimes.com/2003/Sept/26/5983_390399%2COO43005.htm
Previous Events
JiJ has been holding fundraising events in the UK since 1998. Ranging from shopping evenings and gallery talks to highly successful oversubsribed major events in London's smartest venues gaining an enviable reputation of providing incredibly enjoyable evenings for 'Friends of Jaisalmer' - whilst never losing sight of the main objective - the need to raise funds and awareness for its ongoing commitments in Jaisalmer.
INDIA TALK ; AA GILL AT ASIA HOUSE
JiJ’s 2006 fundraiser took place on Thursday 18th May in the sumptuous new headquarter building of Asia House in London’s New Cavendish Street. Introduced by JiJ Chairman Mehra Dalton, AA Gill and interviewer Paul Blezard of OneWord Radio held an amusing insightful and at times irreverent discussion on a wide ranging India theme, touching on food, travel, history and the fascination in which India is held in the collective imagination.
The talk was preceded by a champagne reception, courtesy of Oberoi Hotels and followed by drinks and canapés in the two fine rooms on the first floor of the recently restored townhouse. Guests from the worlds of business, travel, media and the arts including Chairman of the Staples Trust Jessica Sainsbury with her husband Peter, Prince Francopan, painter Tobit Roche, author’s Chris Caldicott and Martin Buckley, Zaffar Rushdie, Sloane Ranger Diary author Ann Barr, internationally syndicated astrologer Shelley von Strunckle, Tatler's Editor-at-Large Nicola Formby, joined chief guests HH The Rajmata of Jaipur and Asia House founder Sir Peter Wakefield accompanied by Lady Wakefield. The evening raised funds to continue the restoration of Har Raj Ji Ka Mahal, a landmark building within the fort and now in its second Phase.
UK FUNDRAISING INITIATIVES
2 June 2005 -
For two days in June, Kensington Town Hall shook off its staid Royal Borough image and played host to an eclectic group of India's most exciting young designers of clothes, accessories and jewellery.
Kicking off on the 2nd with a private view and reception, generously sponsored by Vedanta and hosted by the Ladies' Wing of the Indian Merchants' Chamber in support of JiJ, the opening night's special preview brought together prominent members of London's Indian community, fashionistas, Indophiles and JiJ's party-going supporters joining chief guests, Her Highness the Rajmata of Jaisalmer, His Excellency the Indian High Commissioner accompanied by Mrs Shah, and Baroness Flather to declare open the exhibition of 33 of Mumbai's cutting edge designers gathered together for the first time in the UK.
Following the welcoming speeches, an enchanting rendition of the Peacock Dance by exhibitor Meena Mehadevia and the traditional 'lighting of the lamp' by HH the Rajmata, guests including MP Keith Vaz, author and journalist Polly Devlin, Harpers & Queen Travel Editor Catherine Fairweather and design guru Andrew Logan were invited to view the special preview before the exhibition opened to the general public.
Whilst some guests carried on partying, the dedicated shoppers amongst them hurried to snap up exclusive jewellery and designer fashion bargains displayed in the Great Hall extravegantly decked out to resemble an Eastern bazaar. Two hours of shopping later, with the occasional pit stop to enjoy the drinks and canapes on offer, many guests were seen to leave the party with far more bags than they arrived with!
(left) Exhibitor Meena Mehadevia performing the Peacock Dance
(right) Nicholas, Prince Frankopan and Miss Natasha Oppenheim
The exhibition and sale held on the following two days had a large proportion of London's shopaholics beating a path to the town hall door. Exceeding the target set by the Ladies Wing of 3000 visitors, the exhibitors found themselves literally overwhelmed by eager buyers desperate to snap up a bargain Indian-glam outfit.
Declared a huge success by everyone involved, it is hoped that this opportunity to highlight India's leading fashion designers will become an annual event and a looked-forward to part of the London fashion and social calendar
JiJ is grateful to the Ladies' Wing for including them, and to all the guests and supporters who donated c£3,000 towards JiJ's restoration projects in Jaisalmer, and looks forward to working with the Indian Merchants' Chamber on future fundraising initiatives.
(right) The Exhibition Committee, The Ladies' Wing of the Indian Merchants' Chamber with Mr Anil Agarwal
April 2005 ART SHOW BY PARESH MAITY IN AID OF JIJ
Paresh Maity’s wonderful sell-out show in Cork Street, sponsored by ICICI Bank and Kiki’s London Contemporary Indian Art, provided an ideal opportunity for JiJ supporters to meet up at the private view held on 26th April. With most of the paintings being snapped up by collectors of contemporary Indian art at the private view, JiJ was most grateful to receive a generous percentage of sales as a donation from the sponsors, promoters and artist.
8 OCTOBER 2004
JIJ EXTRAVAGANZA AT THE V&A
26th
JiJ's 2004 major fundraising event was held on Friday 8th October in association with the Victoria and Albert Museum, to celebrate the V&A's autumn exhibition, Encounters: The Meeting of Asia and Europe 1500-1800.
The highlight of the evening was a stimulating conversation between two luminaries in the field of film - leading UK critic and broadcaster Barry Norman together with award winning director Shekar Kapur discussing the differences (and similarities) between Hollywood and Bollywood and the diverse influences that resulted in Kapur's Oscar-nominated movie 'Elizabeth'.
JiJ Chairman and Founder Sue Carpenter with guest speaker Barry Norman (left)
INTACH'S Jaislamer Project Director Bindu Manchanda with guest speaker Shekhar Kapur (right)
Guests of Honour, Their Highnesses the Maharawal and Maharani of Jaisalmer, accompanied by INTACH Jaisalmer project Director Bindu Manchanda, newly appointed Director of the Nehru Centre, Pavan Varma attending with Mrs Varma and Frau Ursula Matussek, wife of the German Ambassador to Britain mingled with fellow guests splendidly attired in keeping with the dress code of 'Extravagantly Indian'.
Their Highnesses the Maharawal and Maharani of Jaisalmer (right)
The Bollywood Brass Band (left)
Other guests, greeted at the Museum's main Cromwell Road entrance by the traffic-stopping Bollywood Brass Band, included Princess Pignatelli, explorer and travel writer Mark Shand, Baroness Erika Von Schubert, internationally acclaimed astrologer Shelley von Strunkle, and West End theatre impressario Michael Ward, producer of the eagerly awaited musical, 'The Far Pavilions' along with JiJ's band of committed supporters all contributing to the continuation of JiJ's tradition of glamorous Indian-themed parties, held in London's smartest venues.
Following a lavish champapgne reception courtesy of British Airways, Sue Carpenter thanked both the Staples Trust - who have sponsored all phases of the Streetscape Project, and the evening's main sponsors - India Tourism, Greaves Travel, Cobra Beer, British Airways and Vama Direct for their ongoing support of the charity's efforts to raise funds and awareness for Jaisalmer, before introducing the two guest speakers who enthralled the audience with their anecdotes of movie-watching and movie-making.
Supper, an authentic Indian street food experience, was served from Vama Direct's street stalls dotted around the Museum and inside specially erected luxurious Raj Tent Club marquees in the Pirelli Garden - remaining open exclusively for JiJ guests before its closure to the public for the foreseeable future.
The Raj Tents, luxuriously decked out with bolsters and floor cushions where guests reclined Maharaja-like whilst sipping General Bilimoria wine and Cobra Beer and chatting with fellow guests were a huge draw, providing a relaxing counterpoint to the central dome and medeival gallery of the museum where the Bollywood Brass Band continued to entertain guests alongside screens showing the best of Bollywood's musical hits courtesy of Eros Entertainment.
Guests also had the opportunity to take an unhurried private view of the Encounters exhibition, or listen to an illuminating talk on Sikh jewellery in the India Galleries from the British Library's Jasleen Khandaria, before joining in the music and entertainment.
Sue Carpenter with internationally syndicated astrologer Shelley von Strunckle and Lalita James of Greaves Travel
INDIAN INK SALMAN RUSHDIE AND WILLIAM DALRYMPLE IN CONVERSATION AT CHRISTIE'S The 2003 autumn social season opened in glittering style with JiJ's eagerly awaited fund-raising event, a champagne reception and private view of the Arts of India sale at Christie's, King Street, followed by a memorable stage encounter between writers Salman Rushdie and William Dalrymple, who met for the first time in public over a lively and provocative discussion that ranged across politics, religion, art and culture and the great bonds that unite and sometimes divide the cultural mindsets of India and the West. Held in the presence of HH The Maharawal of Jaisalmer, the evening's special event sparkled to a backdrop of breathtaking Indian works of art and jewellery, while guests, sticking splendidly to the dress code of 'Indian glamour', included HH The Rajmata of Jaipur and the Hon Jessica Sainsbury, chairman of the Staples Trust (which has funded all three phases of JiJ's award-winning Streetscape Project), with husband, Peter, Prince Francopan. Also present at the event were The Marchioness of Bute, Lucia Silver of L Boutique and husband Hugo Bulmer, Princess Lucia Pignatelli and Bollywood composer Biddu. The evening was introduced by Sue Carpenter, Chairman of Jaisalmer in Jeopardy, the British charity founded to save the crumbling fortress city in Rajasthan. Thanking the India Tourism Office, Greaves Travel and British Airways for their generous sponsorship of the evening's event, Carpenter highlighted the need for those in conservation and those in tourism to join hands to save the heritage of the sights and cities that tourists go to experience. The funds raised will go to conservation projects in Jaisalmer fort which are administered on JiJ's behalf by the Indian National Trust for Art and Cultural Heritage (INTACH). INTACH was represented at the event by Mr S K Misra, Vice-Chairman and Miss Bindu Manchanda, Jaisalmer Project Director. The unlikely star of the evening was the Director of India Tourism, London, Mr Vivek Angra. With great comic timing, he declared that he had 'tried' to read Salman Rushdie's Booker-prize-winning novel, Midnight's Children, when he was a student. But, he said, gesturing with his hand flying over his head, it was 'OHT - Overhead transmission'. In the chair, fielding the conversation between Rushdie and Dalrymple was Paul Blezard of One Word Radio, Britain's most prolific author-interviewer He maintained the mood of levity set by Angra, while giving Rushdie rein to dive into the most controversial of subjects - given the company present - from government corruption to art smuggling. Christie's auctioneer William Robinson then invited bids for one lot - the signed, collected works of both authors, which together amounted to 20 books. Bidding was fast and furious, rapidly topping £1,000, with the collection finally going to Ra Sharma and his wife Jane Withey for £1,020. Not to be outdone, runners-up including Peter, Prince Francopan, and Mr Asit Chandmal matched the winning bid in order to secure their own sets of signed books. With the auction raising over £,4000, the total income for the evening was approximately £18,000. JiJ would like to thank everyone who helped to make the evening so memorable, in particular its major sponsors, India Tourism and Greaves Travel
CITY INDEX HOSTS CELEBRATORY 2002 DIWALI DINNER AT CINNAMON CLUB IN AID OF JIJ
London's Indophile glitterati turned out in force on Tuesday 19th November to a splendid celebratory Diwali dinner at the Cinnamon Club in Westminster, generously sponsored by the City finance firm, City Index.
50 guests,specially invited by City Index,including former High Commissioner to India Sir Nicholas Fenn,accompanied by Lady Fenn, along with the Marchioness of Bute, Valentine and Lulu Guinness, Hugo Bulmer and Lucia Silver, Viscountess de Vesci and her aunt, the Maharani Kumari Karuna Devi of Burdwan, and City Index COO Simon Price sipped decorative but lethal mango lassis, laced with vodka, before proceeding to the glassy private dining room for dinner.
The aim of the evening was to bring Jaisalmer's plight to the attention of a new circle of India-lovers, and to celebrate the two awards, UNESCO and British Airways, won this year by JiJ.
It was also an opportunity for Simon Chambers, Director Secretariat of UK UNESCO to present the citation on behalf of the 2002 UNESCO South East Asian Cultural Heritage Conservation Awards.
Introduced by Sailesh Barchha, Business Development Manager of City Index, Sue Carpenter spoke about the
dangers facing the desert city, and the great strides that have been made to arrest the damage through JiJ's Streetscape Revitalisation Project, implemented in Jaisalmer by INTACH, the Indian National Trust for Art and Cultural Heritage, and funded by the UK based Staples Trust.
'Indian glam' was the dress code for the event, to which guests responded enthusiastically.
The fashion hit of the evening was Sue Carpenter's Schiaparelli-pink embroidered organza kurta, designed by fellow guest, Rajni Malla, whose Nepalese design company was inundated with requests for similar showstoppers from, among others, two of the most stylish men in the room - Bollywood music producer Biddu and conservation architect Karan Grover.
Continuing the glittering theme, Lucia Silver of L Boutique wowed the guests in a belly-baring gilt-encrusted turquoise number, while her husband Hugo Bulmer looked resplendent in another of her Indian creations in cream and gold.
The evening was further enhanced by the presence of HH The Maharani Kumari Karuna Devi of Burdwan, in London visiting her niece and fellow guest The Viscountess de Vesci, and Valentine and Lulu Guinness, who attended before jetting off to Los Angeles for the opening of Lulu's new shop.
'Stage designer Will Bowen, resplendent in Indian Nehru jacket, chatted to Hester Marriott of the Staples Trust, funders of JiJ's Streetscape Project, while jewellery designer Eileen Coyne and her daughter Jacina, also a designer, looked a vision in their flowing robes and Nepalese baubles - plus the odd member of Westminster's political fraternity, who had wandered off course into the wrong party.
We are most grateful to Simon Price, Sailesh Barchha and City Index for their supprt and hard work in making this evening memorable. We would also like to thank the staff of the Cinnamon Club and Karan Bilimoria for his continued support of JiJ’s events with his generous donation of Cobra beer and General Billy’s wine.
All photographs reproduced by kind permission of Henrietta van den Bergh
FUTURE TOURS TO JAISALMER
Appealing the decision of David J in Rana v Police in question of law
FDN
IN THE SUPREME COURT OF SOUTH AUSTRALIA
No of
BETWEEN
Ranjit Shamsher Jung Bahadur Rana
Appellant
and
Police
Defendant
OUTLINE OF SUBMISSION
Date of document:
Filed by the appellant Ranjit S.J.B. Rana of Unit 1/25 Hackney Road, Hackney SA 5069
Settled by Ranjit Rana
Date and time of filing or transmission:
OUTLINE OF SUBMISSION
Grounds seeking leave to appeal
"The learned judge:
(a) erred in law, discretion and fact in dismissing making the Restraining Order against the appellant when there were no grounds either in law or fact under sections 99 and 99C of the Summary Procedures Act 1921 (SA) for making the said order by the learned magistrate below him;
(b) erred in law in allowing the introduction of hearsay evidence ;
(c) erred in law in making the said order while effectively acknowledging while making
the order that there was no proper basis for it, and that as a matter of law it was not
appropriate;
(d) erred by comparing and contrasting the sworn affidavit by his motion and this was unfair and unreasonable to the appellant, as he had only been given access to the material just prior to the appeal hearing in Federal Administrative Appeals Tribunal, concerning the appellant’s Veteran’s disability pension claims under subpoena of Australian Government Solicitors."
The test for seeking to leave to appeal is per Rana v University of South Australia (2004) FCA 559 at [16]-[17] per His Honourable Justice Lander.
The appellant believes that the decision of His Honourable David is attended by sufficient doubt to warrant it being considered by the appellate court, and substantial injustice will result if leave were refused supposing the decision to be wrong.
1. This is ground (a) per seeking to leave to appeal. The appellant had argued that the unsworn and unsigned affidavit that was provided to the appellant by Police Prosecutor Hoang on 29/2/2008, which was contrary to s. 75 of the Evidence Act 1995 (Cth). This was in the outline of submission to the magistrate on 14/3/2008. The authority was known to the appellant per Rana v University of South Australia (2004) FCA 559 at [40] per His Honourable Justice Lander, which says, “An affidavit which is to be used on an interlocutory application may contain hearsay evidence if the party who adduces the evidence also adduces evidence of its source: s. 75 Evidence Act 1995 (Cth).” This material was also before His Honourable Justice David. His Honour simply overlooked the submission for an improper purpose. The learned judge at [18] of the judgment erred in law, fact and discretion and the particulars are:
(i) The unsworn and unsigned affidavit was provided to the appellant in 29/2/2008 and was inadmissible per s. 75 of the Evidence Act 1995 (Cth) in the interlocutory hearing, and the appellant did not know about the existence of the signed affidavit that was provided to him after 2/7/2008 under subpoena in Federal Administrative Appeals Tribunal. Thus, the appellant was prejudiced to prepare himself for confirmation hearing. Further, the learned magistrate refused discovery and issue of subpoenas to defend the allegations of the alleged victim.
(ii) The sworn affidavit also contains inadmissible evidence, as it is contrary to s. 75 of the Evidence Act 1995 (Cth). For example, at [14] of the judgment there is a reference that the appellant may have known at hearing date about the existence of the sworn affidavit. This is not supported by evidence, and was unreasonable. His Honour specifies that the alleged victim to be reliable that it was sent by the appellant to cause her fear of rape. However, it is inconsistent with Rana v University of Adelaide (No 2) [2008] FCA 494 at [2]-[8]. It could had come from the police (the alleged victim’s brother is a serving police officer) to harm the reputation of the appellant.
(iii) The learned magistrate whether the appellant attended the confirmation hearing or not would confirm the hearing as he had already sounded it on 24/1/2008, as to the emails allegation of the police intelligence that the alleged victim was going to raped by the appellant per [9] of the judgment in dot point in page 7, which says, “sent an email on 21 December 2007 threatening to rape the alleged victim;”. This is also to reference of the appellant’s reference in Rana v University of Adelaide (No 2) [2008] FCA 494 at [2]-[8]. The Court found unknown people falsely sent it (email of 21/12/2008 to Police and others, including the appellant). The above italics of the judgment of the learned judge is contrary to the sworn affidavit of the alleged victim. Such erroneous inference was unfair to the appellant for his assessment of the danger to the alleged victim in reference to the appellant’s disability. The exhibit “A” to support this notice of appeal in the appellant’s affidavit at [1] is the sworn affidavit of Nina Gregurev. The exhibit “B” of the appellant contains the reports of the appellant’s psychiatrist Professor Bal Jha and Dr. David Miller about the diabetes related disability of the appellant at [2] of the affidavit now before this Court. It was an error of fact of the learned judge to irrationally connect the appellant’s paranoid schizophrenia as to the foreseeable danger or potential danger or otherwise to the alleged victim purported to the issue of forced rape or otherwise as she inferred from the police. The details are lacking as to how, where, when and what basis.
(iv) The appellant has come to learn the police SA police and specifically Greg Hill has misled the court that actually the email was sent by Nina Gregurev to the appellant’s university as it appears in page 1 and last paragraph, and at page 4 to page 18 in the certificate identifying exhibit of Linley Martin in a matter between Rana Ranjit and Deakin University and Lin Martin in the Victorian Civil and Administrative Tribunal. This certificate related exhibit of Lin Martin will be exhibit “E” that matters the affidavit of this appellant in this appeal arising the fraud or deception or misleading information of the SA Police.
(v) Obviously, the SA Police and Nina Gregurev colluded and a pay back scheme was organized to get the appellant when they had failed before in to convict the appellant in false stalking charge. Apparenly, the police provided the Deakin University after notifying Nina Gregurev the threat of Rana was low. See the affidavit of Nina Geguerv dated 16/1/2008 at paragraph 20, which says, “20. On 21st December 2007, I received a telephone call from police officer advising us that police received an email from Rana stating that he intend to rape me. As a result, I have been left extremely scared and frightened and my mother has been staying at my house a lot more frequently.” The actual copy of the email that the appellant got about rape related email in his Deakin University’s email system is exhibit “C” in his affidavit at [2A] before this Court.
(vi) His Honour at [10], [11] and [12] of the judgment came to conclude by inference that the alleged victim was more believable than the appellant on balance of probabilities was. He emphasizes at [12] of the judgment that the appellant suffered from type-II diabetes mellitus and paranoid schizophrenia and was receiving treatment. Further, at [11] of the judgment, the learned judge indicated that alleged victims whether sworn and unsworn affidavits supported the fact that the appellant was dangerous to the alleged victim and the magistrate had all the basis of making of the order as he was correct in his forecast about the conduct and mental instability and related danger of the appellant, and so called hearsay evidence was immaterial per ss. 9 and 34C of the Evidence Act 1929 (SA).
(vii) The allegations of rape and that the appellant was or is Indian rapist Rajaratnam that the psychotic Nina Gregrev made to SA Police in 1996/97 is exhibit “E” in the affidavit of this appellant to show her inconsistency at paragraph 14 of the sworn affidavit Nina Gregurev that the judge believed to be such sufficient evidence and being reasonable on the part of the learned magistrate to confirm the restraining order at his judgment at [10]-[13]. This was unsatisfactory and unfair pronouncement and not supported by reasonable evidence. The affidavit now before this Court and exhibit “D” shows a recent greeting card from Nina Gregurev to the appellant at [4] of the affidavit. This is conclusive proof that she does not and never have feared the appellant and is only a beat up making believe of the police.
(viii) The learned judge erred contrary to his in-depth knowledge of Rana v Hyatt Regency Hotel Ltd [2007] SASC dated 19/1/2007 also involved Nina Gregurev and related Hyatt Gym. He upheld the appeal from the same magistrate at [39]-[42]. It was upheld based on s. 52A of the Trade Practices Act and involved a security guard and a fried of Nina Gregurev. Such was the learned judge’s fair application to law as he found that the appellant was not danger to himself and the public as alleged by the Hyatt Hotel and its staff. The appellant had also cited a past decision of His Honourable Justice Bollen of the SA Supreme Court in an appeal of Deepak Bista that was a restraining order of the appellant against Mr. Bista. The appeal of Mr. Bista failed as he called the appellant mad when in fact he was not in 1995 (this decision is unreported). It was appeal made by the learned magistrate in Port Adelaide Mgistrates Court, and the appellant’s psychiatrist had provided a report (Dr. Alan Cotton) indicating the appellant was not danger to himself and others. This occasion the learned judge erred in his discretion in applying to the erroneous and/or inadmissible facts the wrong legal rule. See Norbis v Norbis (1986) 161 CLR 513 at 519. Thus, leave to appeal should be allowed. The exhibits “E” and “F” in the affidavit material before this Court clearly negates the hearsay evidence of Nina Gregurev be it sworn and unsworn that I never sent her alleged rape threat laden email to her “but for” the police.
In sum, from (i) to (viii) points shows that the appellant has reasonable cause of action and is arguable, and such the prospect of success in probably reasonable, and accordingly this court should grant leave to appeal in the interest of justice.
2. This is per ground (b) of the appeal (the judge erred in law in allowing the
introduction of hearsay evidence). His Honour overlooked the outline of
submission of the appellant before him and the learned magistrate. The appellant
had clearly argued the precedent known to him in Rana v University of South Australia (2004) FCA 559 at [40] relating to s. 75 of the Evidence Act 1995 (Cth). The same case also involved allegation of rape by the psychotic Nina Gregurev and the appellant had been alleged in that university many things and to this date no police has convicted him about her allegations and/or the university ever took any action against him about her email related vexatious allegations. The learned judge did judicial analysis of both sworn and unsworn affidavits of Nina Gregurev, when it was not necessary in fact and law and only his erroneous discretion. The appellant’s argument that the unsworn affidavit was not known in law was not properly considered. The accepted evidence by the learned magistrate and the learned judge was scant and insufficient per Hasluck J in Smith v Vivian [2002] WASCA 227 (24 July 2002) at [47]-[58]. Thus, leave to appeal should be allowed. Furthermore, it was inadmissible in law. Significant miscarriage of justice has occurred or is occurring to the appellant or will occur to the appellant arising this known fact. See also Gleeson CJ in R v Frawley at 220 concerning the question of hearsay evidence. This is at [34] of R v Ramage [2004] VSC 391. They are related to hearsay evidence, statement of the mind of the accused at the relevant time and much more.
3. This is ground (c) of the leave to appeal (erred in law in making the said order
while effectively acknowledging while making the order that there was no proper basis for it, and that as a matter of law it was not appropriate). His Honour Justice David is not being consistent with this matter and what he ruled in Rana v Hyatt Regency Hotel Ltd [2007] SASC dated 19/1/2007, which also involved Nina Gregurev and related Hyatt Gym (allegations of knife stabbing threat). He upheld the appeal from the same magistrate. Now, how is he saying that the appellant is a danger to the alleged victim with no reasonable and satisfactory evidence in law was just not there? What admissible evidence was there in making a justifiable future prediction that the appellant would be unless restrained would do all the kinds of things that the alleged victim alleges so that the threshold test would be met? This matter is not like Suter v Suter [2003] WASCA 169 (1 August 2003) at [13], which says, “Hearsay evidence
13 It is submitted that his Worship erred in admitting evidence given by the
respondent that the appellant had told her that he had been violent to a former wife. During the course of argument on the appeal, I accepted that, if such evidence had been given for the purpose of establishing its truth, that is, if it had been given in order to establish that the appellant had been violent to a former wife, the admission of the evidence was in error. The use made of that evidence by his Worship appears to have been twofold. On p 17 of the appeal book he refers to confirmation, apparently recently received by the respondent as to the appellant's conduct in the former marriage, as a factor tending to suggest that the fear which she expressed was "genuine and sincere". The question of the genuineness of the respondent's fear was not a central issue which his Worship had to decide. Section 11 of the Restraining Orders Act requires the making of a prediction as to the future behaviour of a respondent to an application, which finding rests upon the satisfaction of the court, not upon any subjective fear of the applicant for the order and therefore assists in determining the issues which do arise under s 11 of the Restraining Orders Act. In my view, at that passage at p 17, his Worship was looking not to the question of whether such violent conduct had occurred in
the previous marriage, but rather to the respondent's state of mind. Information which she had received, accurate or not, would be relevant and admissible for that purpose.”
There was no evidence before the learned judge or the magistrate that the appellant by his psychiatric and diabetes career has had convictions of violence or if any restraining orders exists, and as such would give any basis for the making of the order. This in terms of some reasonable hypothesis or evidence or any justifications. Thus, the Court should allow leave to appeal in this matter.
4. This is per ground (d) of seeking leave to appeal (erred by comparing and contrasting the sworn affidavit by his motion and this was unfair and unreasonable to the appellant, as he had only been given access to the material just prior to the appeal hearing in Federal Administrative Appeals Tribunal, concerning the appellant’s Veteran’s disability pension claims under subpoena of Australian Government Solicitors).
This ground is argued upon the basis that the appellant had only produced the sworn affidavit of Nina Gregurev that he obtained from the subpoena of the Australian Government Solicitors at AAT after 2/7/2008. The appellant had argued before the learned judge that this affidavit is being tendered to show how disadvantaged he would had been at confirmation hearing without knowing the existence of the sworn affidavit in terms of greater details consisting of further hearsay evidence and contrary to s. 75 of the Evidence Act 1995 (Cth). The basis of the tendering the sworn affidavit was not for the learned judges own introduction of comparing and contrasting test to arrive at a conclusion whether it was prejudicial and probative to the forecasting of alleged danger to the alleged victim by the appellant based on his self confessed lunacy of paranoia etc.
The learned judge was unfair by his motion to apply the comparing and contrasting of the sworn and unsworn affidavits of Nina Gregurev for predicting the danger or harm or known or otherwise intimidation, harassment or stalking misconduct or any such items that may or likely occur in the future were contained in the materials for reasonable use of making of the confirmation order by the learned magistrate or the learned judge. This aspect of new parameter being introduced in the appeal was impermissible in law at the de novo hearing. Why?
Because, it was unfair and unreasonable to the appellant. See Minister of Immigration and Ethnic affairs v Eshetu (1999) 197 CLR 611.
Conclusion
The appellant argues that there is reasonable prospect of success for the appeal to succeed. This is based per the test related criterion have been met. The decision is manifestly unreasonable and is very doubtful. If it is allowed to stand then the appellant will suffer significant miscarriage of justice, and in future grave police related brutality.
Date:
-----------------------------------
Appellant Ranjit Rana
IN THE SUPREME COURT OF SOUTH AUSTRALIA
No of
BETWEEN
Ranjit Shamsher Jung Bahadur Rana
Appellant
and
Police
Defendant
OUTLINE OF SUBMISSION
Date of document:
Filed by the appellant Ranjit S.J.B. Rana of Unit 1/25 Hackney Road, Hackney SA 5069
Settled by Ranjit Rana
Date and time of filing or transmission:
OUTLINE OF SUBMISSION
Grounds seeking leave to appeal
"The learned judge:
(a) erred in law, discretion and fact in dismissing making the Restraining Order against the appellant when there were no grounds either in law or fact under sections 99 and 99C of the Summary Procedures Act 1921 (SA) for making the said order by the learned magistrate below him;
(b) erred in law in allowing the introduction of hearsay evidence ;
(c) erred in law in making the said order while effectively acknowledging while making
the order that there was no proper basis for it, and that as a matter of law it was not
appropriate;
(d) erred by comparing and contrasting the sworn affidavit by his motion and this was unfair and unreasonable to the appellant, as he had only been given access to the material just prior to the appeal hearing in Federal Administrative Appeals Tribunal, concerning the appellant’s Veteran’s disability pension claims under subpoena of Australian Government Solicitors."
The test for seeking to leave to appeal is per Rana v University of South Australia (2004) FCA 559 at [16]-[17] per His Honourable Justice Lander.
The appellant believes that the decision of His Honourable David is attended by sufficient doubt to warrant it being considered by the appellate court, and substantial injustice will result if leave were refused supposing the decision to be wrong.
1. This is ground (a) per seeking to leave to appeal. The appellant had argued that the unsworn and unsigned affidavit that was provided to the appellant by Police Prosecutor Hoang on 29/2/2008, which was contrary to s. 75 of the Evidence Act 1995 (Cth). This was in the outline of submission to the magistrate on 14/3/2008. The authority was known to the appellant per Rana v University of South Australia (2004) FCA 559 at [40] per His Honourable Justice Lander, which says, “An affidavit which is to be used on an interlocutory application may contain hearsay evidence if the party who adduces the evidence also adduces evidence of its source: s. 75 Evidence Act 1995 (Cth).” This material was also before His Honourable Justice David. His Honour simply overlooked the submission for an improper purpose. The learned judge at [18] of the judgment erred in law, fact and discretion and the particulars are:
(i) The unsworn and unsigned affidavit was provided to the appellant in 29/2/2008 and was inadmissible per s. 75 of the Evidence Act 1995 (Cth) in the interlocutory hearing, and the appellant did not know about the existence of the signed affidavit that was provided to him after 2/7/2008 under subpoena in Federal Administrative Appeals Tribunal. Thus, the appellant was prejudiced to prepare himself for confirmation hearing. Further, the learned magistrate refused discovery and issue of subpoenas to defend the allegations of the alleged victim.
(ii) The sworn affidavit also contains inadmissible evidence, as it is contrary to s. 75 of the Evidence Act 1995 (Cth). For example, at [14] of the judgment there is a reference that the appellant may have known at hearing date about the existence of the sworn affidavit. This is not supported by evidence, and was unreasonable. His Honour specifies that the alleged victim to be reliable that it was sent by the appellant to cause her fear of rape. However, it is inconsistent with Rana v University of Adelaide (No 2) [2008] FCA 494 at [2]-[8]. It could had come from the police (the alleged victim’s brother is a serving police officer) to harm the reputation of the appellant.
(iii) The learned magistrate whether the appellant attended the confirmation hearing or not would confirm the hearing as he had already sounded it on 24/1/2008, as to the emails allegation of the police intelligence that the alleged victim was going to raped by the appellant per [9] of the judgment in dot point in page 7, which says, “sent an email on 21 December 2007 threatening to rape the alleged victim;”. This is also to reference of the appellant’s reference in Rana v University of Adelaide (No 2) [2008] FCA 494 at [2]-[8]. The Court found unknown people falsely sent it (email of 21/12/2008 to Police and others, including the appellant). The above italics of the judgment of the learned judge is contrary to the sworn affidavit of the alleged victim. Such erroneous inference was unfair to the appellant for his assessment of the danger to the alleged victim in reference to the appellant’s disability. The exhibit “A” to support this notice of appeal in the appellant’s affidavit at [1] is the sworn affidavit of Nina Gregurev. The exhibit “B” of the appellant contains the reports of the appellant’s psychiatrist Professor Bal Jha and Dr. David Miller about the diabetes related disability of the appellant at [2] of the affidavit now before this Court. It was an error of fact of the learned judge to irrationally connect the appellant’s paranoid schizophrenia as to the foreseeable danger or potential danger or otherwise to the alleged victim purported to the issue of forced rape or otherwise as she inferred from the police. The details are lacking as to how, where, when and what basis.
(iv) The appellant has come to learn the police SA police and specifically Greg Hill has misled the court that actually the email was sent by Nina Gregurev to the appellant’s university as it appears in page 1 and last paragraph, and at page 4 to page 18 in the certificate identifying exhibit of Linley Martin in a matter between Rana Ranjit and Deakin University and Lin Martin in the Victorian Civil and Administrative Tribunal. This certificate related exhibit of Lin Martin will be exhibit “E” that matters the affidavit of this appellant in this appeal arising the fraud or deception or misleading information of the SA Police.
(v) Obviously, the SA Police and Nina Gregurev colluded and a pay back scheme was organized to get the appellant when they had failed before in to convict the appellant in false stalking charge. Apparenly, the police provided the Deakin University after notifying Nina Gregurev the threat of Rana was low. See the affidavit of Nina Geguerv dated 16/1/2008 at paragraph 20, which says, “20. On 21st December 2007, I received a telephone call from police officer advising us that police received an email from Rana stating that he intend to rape me. As a result, I have been left extremely scared and frightened and my mother has been staying at my house a lot more frequently.” The actual copy of the email that the appellant got about rape related email in his Deakin University’s email system is exhibit “C” in his affidavit at [2A] before this Court.
(vi) His Honour at [10], [11] and [12] of the judgment came to conclude by inference that the alleged victim was more believable than the appellant on balance of probabilities was. He emphasizes at [12] of the judgment that the appellant suffered from type-II diabetes mellitus and paranoid schizophrenia and was receiving treatment. Further, at [11] of the judgment, the learned judge indicated that alleged victims whether sworn and unsworn affidavits supported the fact that the appellant was dangerous to the alleged victim and the magistrate had all the basis of making of the order as he was correct in his forecast about the conduct and mental instability and related danger of the appellant, and so called hearsay evidence was immaterial per ss. 9 and 34C of the Evidence Act 1929 (SA).
(vii) The allegations of rape and that the appellant was or is Indian rapist Rajaratnam that the psychotic Nina Gregrev made to SA Police in 1996/97 is exhibit “E” in the affidavit of this appellant to show her inconsistency at paragraph 14 of the sworn affidavit Nina Gregurev that the judge believed to be such sufficient evidence and being reasonable on the part of the learned magistrate to confirm the restraining order at his judgment at [10]-[13]. This was unsatisfactory and unfair pronouncement and not supported by reasonable evidence. The affidavit now before this Court and exhibit “D” shows a recent greeting card from Nina Gregurev to the appellant at [4] of the affidavit. This is conclusive proof that she does not and never have feared the appellant and is only a beat up making believe of the police.
(viii) The learned judge erred contrary to his in-depth knowledge of Rana v Hyatt Regency Hotel Ltd [2007] SASC dated 19/1/2007 also involved Nina Gregurev and related Hyatt Gym. He upheld the appeal from the same magistrate at [39]-[42]. It was upheld based on s. 52A of the Trade Practices Act and involved a security guard and a fried of Nina Gregurev. Such was the learned judge’s fair application to law as he found that the appellant was not danger to himself and the public as alleged by the Hyatt Hotel and its staff. The appellant had also cited a past decision of His Honourable Justice Bollen of the SA Supreme Court in an appeal of Deepak Bista that was a restraining order of the appellant against Mr. Bista. The appeal of Mr. Bista failed as he called the appellant mad when in fact he was not in 1995 (this decision is unreported). It was appeal made by the learned magistrate in Port Adelaide Mgistrates Court, and the appellant’s psychiatrist had provided a report (Dr. Alan Cotton) indicating the appellant was not danger to himself and others. This occasion the learned judge erred in his discretion in applying to the erroneous and/or inadmissible facts the wrong legal rule. See Norbis v Norbis (1986) 161 CLR 513 at 519. Thus, leave to appeal should be allowed. The exhibits “E” and “F” in the affidavit material before this Court clearly negates the hearsay evidence of Nina Gregurev be it sworn and unsworn that I never sent her alleged rape threat laden email to her “but for” the police.
In sum, from (i) to (viii) points shows that the appellant has reasonable cause of action and is arguable, and such the prospect of success in probably reasonable, and accordingly this court should grant leave to appeal in the interest of justice.
2. This is per ground (b) of the appeal (the judge erred in law in allowing the
introduction of hearsay evidence). His Honour overlooked the outline of
submission of the appellant before him and the learned magistrate. The appellant
had clearly argued the precedent known to him in Rana v University of South Australia (2004) FCA 559 at [40] relating to s. 75 of the Evidence Act 1995 (Cth). The same case also involved allegation of rape by the psychotic Nina Gregurev and the appellant had been alleged in that university many things and to this date no police has convicted him about her allegations and/or the university ever took any action against him about her email related vexatious allegations. The learned judge did judicial analysis of both sworn and unsworn affidavits of Nina Gregurev, when it was not necessary in fact and law and only his erroneous discretion. The appellant’s argument that the unsworn affidavit was not known in law was not properly considered. The accepted evidence by the learned magistrate and the learned judge was scant and insufficient per Hasluck J in Smith v Vivian [2002] WASCA 227 (24 July 2002) at [47]-[58]. Thus, leave to appeal should be allowed. Furthermore, it was inadmissible in law. Significant miscarriage of justice has occurred or is occurring to the appellant or will occur to the appellant arising this known fact. See also Gleeson CJ in R v Frawley at 220 concerning the question of hearsay evidence. This is at [34] of R v Ramage [2004] VSC 391. They are related to hearsay evidence, statement of the mind of the accused at the relevant time and much more.
3. This is ground (c) of the leave to appeal (erred in law in making the said order
while effectively acknowledging while making the order that there was no proper basis for it, and that as a matter of law it was not appropriate). His Honour Justice David is not being consistent with this matter and what he ruled in Rana v Hyatt Regency Hotel Ltd [2007] SASC dated 19/1/2007, which also involved Nina Gregurev and related Hyatt Gym (allegations of knife stabbing threat). He upheld the appeal from the same magistrate. Now, how is he saying that the appellant is a danger to the alleged victim with no reasonable and satisfactory evidence in law was just not there? What admissible evidence was there in making a justifiable future prediction that the appellant would be unless restrained would do all the kinds of things that the alleged victim alleges so that the threshold test would be met? This matter is not like Suter v Suter [2003] WASCA 169 (1 August 2003) at [13], which says, “Hearsay evidence
13 It is submitted that his Worship erred in admitting evidence given by the
respondent that the appellant had told her that he had been violent to a former wife. During the course of argument on the appeal, I accepted that, if such evidence had been given for the purpose of establishing its truth, that is, if it had been given in order to establish that the appellant had been violent to a former wife, the admission of the evidence was in error. The use made of that evidence by his Worship appears to have been twofold. On p 17 of the appeal book he refers to confirmation, apparently recently received by the respondent as to the appellant's conduct in the former marriage, as a factor tending to suggest that the fear which she expressed was "genuine and sincere". The question of the genuineness of the respondent's fear was not a central issue which his Worship had to decide. Section 11 of the Restraining Orders Act requires the making of a prediction as to the future behaviour of a respondent to an application, which finding rests upon the satisfaction of the court, not upon any subjective fear of the applicant for the order and therefore assists in determining the issues which do arise under s 11 of the Restraining Orders Act. In my view, at that passage at p 17, his Worship was looking not to the question of whether such violent conduct had occurred in
the previous marriage, but rather to the respondent's state of mind. Information which she had received, accurate or not, would be relevant and admissible for that purpose.”
There was no evidence before the learned judge or the magistrate that the appellant by his psychiatric and diabetes career has had convictions of violence or if any restraining orders exists, and as such would give any basis for the making of the order. This in terms of some reasonable hypothesis or evidence or any justifications. Thus, the Court should allow leave to appeal in this matter.
4. This is per ground (d) of seeking leave to appeal (erred by comparing and contrasting the sworn affidavit by his motion and this was unfair and unreasonable to the appellant, as he had only been given access to the material just prior to the appeal hearing in Federal Administrative Appeals Tribunal, concerning the appellant’s Veteran’s disability pension claims under subpoena of Australian Government Solicitors).
This ground is argued upon the basis that the appellant had only produced the sworn affidavit of Nina Gregurev that he obtained from the subpoena of the Australian Government Solicitors at AAT after 2/7/2008. The appellant had argued before the learned judge that this affidavit is being tendered to show how disadvantaged he would had been at confirmation hearing without knowing the existence of the sworn affidavit in terms of greater details consisting of further hearsay evidence and contrary to s. 75 of the Evidence Act 1995 (Cth). The basis of the tendering the sworn affidavit was not for the learned judges own introduction of comparing and contrasting test to arrive at a conclusion whether it was prejudicial and probative to the forecasting of alleged danger to the alleged victim by the appellant based on his self confessed lunacy of paranoia etc.
The learned judge was unfair by his motion to apply the comparing and contrasting of the sworn and unsworn affidavits of Nina Gregurev for predicting the danger or harm or known or otherwise intimidation, harassment or stalking misconduct or any such items that may or likely occur in the future were contained in the materials for reasonable use of making of the confirmation order by the learned magistrate or the learned judge. This aspect of new parameter being introduced in the appeal was impermissible in law at the de novo hearing. Why?
Because, it was unfair and unreasonable to the appellant. See Minister of Immigration and Ethnic affairs v Eshetu (1999) 197 CLR 611.
Conclusion
The appellant argues that there is reasonable prospect of success for the appeal to succeed. This is based per the test related criterion have been met. The decision is manifestly unreasonable and is very doubtful. If it is allowed to stand then the appellant will suffer significant miscarriage of justice, and in future grave police related brutality.
Date:
-----------------------------------
Appellant Ranjit Rana
Wednesday, October 22, 2008
Libraries Board of South Australia and Ranjit Rana (This action was just taked to set the public records and falsehood generated by the State Library of South Australia a racist organisation)
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Rana v Libraries Board of South Australia [2008] FCA 1552 (20 October 2008)
Last Updated: 21 October 2008
FEDERAL COURT OF AUSTRALIA
Rana v Libraries Board of South Australia [2008] FCA 1552
RANJIT SHAMSHER JUNG BAHADUR RANA v LIBRARIES BOARD OF SOUTH AUSTRALIA, HOUSING TRUST OF SOUTH AUSTRALIA and INTERCONTINENTAL CATERERS PTY LTD
SAD 91 OF 2008
MANSFIELD J
20 OCTOBER 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY SAD 91 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA
Appellant
AND: LIBRARIES BOARD OF SOUTH AUSTRALIA
First Respondent
HOUSING TRUST OF SOUTH AUSTRALIA
Second Respondent
INTERCONTINENTAL CATERERS PTY LTD
Third Respondent
JUDGE: MANSFIELD J
DATE OF ORDER: 20 OCTOBER 2008
WHERE MADE: ADELAIDE
THE COURT ORDERS THAT:
1. The appeal is 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 SAD 91 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA
Appellant
AND: LIBRARIES BOARD OF SOUTH AUSTRALIA
First Respondent
HOUSING TRUST OF SOUTH AUSTRALIA
Second Respondent
INTERCONTINENTAL CATERERS PTY LTD
Third Respondent
JUDGE: MANSFIELD J
DATE: 20 OCTOBER 2008
PLACE: ADELAIDE
REASONS FOR JUDGMENT
1 On 12 April 2007, the appellant applied in the Federal Magistrates Court, supported by a statement of claim, for damages under ss 80 (sic), 82 and 87 of the Trade Practices Act 1974 (Cth) (the TP Act) for contraventions of s 52 of the Act, and for negligence and for breach of contract for "loss of shelter and reputation and aggravation of paranoid schizophrenia and diabetes type two", claiming $250,000.
2 That proceeding was summarily dismissed on 4 July 2008 pursuant to s 17A(2) of the Federal Magistrates Court Act 1999 (Cth) (the FM Act) and r 13.10(1) of the Federal Magistrates Court Rules (the Rules) with costs. Section 17A of the FM Act empowered a Federal Magistrate to summarily dismiss a proceeding if the claimant had no reasonable prospect of successfully prosecuting the proceeding, and r 13.10(1) relevantly was in the same terms.
3 This is an appeal from that decision.
4 The appellant was declared bankrupt on 13 August 2008. He appealed from the decision of that date, and judgment on that appeal is to be delivered at the same time as this appeal. For reasons which appear in that judgment: Rana v Chief of Army [2008] FCA 1554, that appeal is to be dismissed. However, it is common ground that, notwithstanding his bankruptcy, s 60(2) of the Bankruptcy Act 1966 (Cth) does not apply as s 60(4) of that Act preserves the appellant’s right to maintain the proceeding.
THE CLAIMS AGAINST THE RESPONDENTS
5 There were three separate claims made against each of the three respondents in the proceeding at first instance.
6 On 17 October 2005, the first respondent passed a resolution banning the appellant from being present in the State Library of South Australia precinct for a period of 12 months. The appellant challenged that decision in the Supreme Court of South Australia, and on 10 August 2006 that proceeding was discontinued when the Director of the first respondent set aside the ban. It is not necessary to inquire into the circumstances in which that came about.
7 The appellant was notified of the decision to concede the judicial review proceeding by letter from the Crown Solicitor for South Australia of 3 August 2006 addressed to the appellant at 1/25 Hackney Road, Hackney. On 10 August 2006, the Director of the first respondent wrote to the appellant at his former address at 62/40 Park Terrace, Gilberton informing him of that decision. The decision was formally recorded in the minutes of the Board of the first respondent on 21 August 2006. On 30 August 2006 the director of the first respondent wrote to the appellant concerning the amendments that had been made to the minutes, reflecting that the ban imposed upon the appellant had been lifted and enclosing a cheque for the $30 costs awarded to him. That letter was sent to the appellant at 63/40 Park Terrace, Gilberton. That was a wrong address.
8 As the Federal Magistrate recorded, it appears that the neighbour at 63/40 Park Terrace, Gilberton opened the envelope addressed to the appellant, wrote comments on the letter that were derogatory of the appellant, and then forwarded the letter to the appellant, or alternatively that the neighbour receiving the letter to the appellant then on-sent it to the appellant but again unfortunately to the wrong address at 2/25 Hackney Road, Hackney where that neighbour opened it and wrote comments derogatory of the appellant and then forwarded the letter to him. Consequently, the appellant came to learn of that letter and that it had been sent to the wrong address. A letter in the same terms was sent to the appellant at his correct address, namely 1/25 Hackney Road, Hackney, on 1 September 2006.
9 Subsequently, these proceedings were commenced on 12 April 2007. In the meantime, the Director of the first respondent had written to the appellant on 11 September 2006 apologising that the earlier letter of 30 August 2006 had been sent to the incorrect address, and that that was an inadvertent error, and that the first respondent had updated its records.
10 The second claim concerned the second respondent, the owner of the property at 1/25 Hackney Road, Hackney. The appellant was a tenant of the second respondent at material times. On 27 March 2007, the second respondent filed an application in the Residential Tenancies Tribunal of South Australia seeking to terminate the appellant’s residential tenancy agreement pursuant to s 90 of the Residential Tenancies Act 1995 (SA). Promptly, on 12 April 2007, the appellant commenced proceedings in the Federal Magistrates Court alleging that the second respondent was in breach of the tenancy agreement for having taken steps to have him evicted. In fact on the following day, 13 April 2007, the Residential Tenancies Tribunal dismissed the second respondent’s application and the appellant was not evicted.
11 The third claim against the third respondent concerned a nearby property at 23 Hackney Road, Hackney leased to the third respondent to conduct a catering business. The appellant lived next door to that property. The appellant claimed that certain members of the family who were apparently associated with the third respondent (not specifically identified) had allegedly made false complaints to the police and to the second respondent as his landlord, regarding the conduct of the appellant and suggesting that he was a troublemaker.
12 The appellant alleges that the first respondent, as a corporation engaged in trade or commerce, engaged in misleading and deceptive conduct contrary to s 52 of the TP Act as a result of inadvertently sending the letter of 30 August 2006 to the appellant to an incorrect address. The statement of claim alleges that the appellant had requested the first respondent not to send correspondence to that address of his former neighbour. It alleges that either the former neighbour added the comments to the bottom of the letter, or placed the letter at 2/25 Hackney Road, Hackney (rather than 1/25 Hackney Road, Hackney) and that the resident at 2/25 Hackney Road, Hackney then commented in the bottom of the letter with inflammatory and defamatory comments, and that the relationship between that resident, the second respondent and the third respondent "soured via rumours spread by" each of the occupants’ units at 2/25 Hackney Road and 63/40 Park Terrace. It is further alleged that the conduct of the first respondent caused the second respondent to apply to the Residential Tenancies Tribunal to terminate the contract of tenancy. Hence, he alleged that he was going to become homeless, would have disruption in his education, and that those events had aggravated his paranoid schizophrenia and diabetes type two. It also alleged that he had, as a result, been thought of as a troublemaker by tenants of nine other units at Park Terrace, Gilberton, as well as Unit 2/25 Hackney Road, Hackney and by the third respondent and "the whole world". The alternative basis of that claim was based upon the same conduct, namely inadvertently sending the letter of 30 August 2006 to the wrong address. It is alleged that the first respondent sent that letter "knowingly" when there was a police ban that the appellant was not to cause others to contact that tenant and knowing that his relationship would "collapse through this scandalous contact" and would trigger the second respondent to terminate the tenancy. The relationship which would collapse is not spelled out. Incorrectly, it also asserts that the first respondent had not apologised to the appellant for the "simple stupid mistake". It therefore alleges that the first respondent was in breach of a duty of care owed to the appellant by sending the letter to his "known enemies" and had thereby damaged his relationship with the second respondent and its other tenants and with the third respondent. It also alleged that as a result, he had aggravated his psychiatric and medical condition, reputation and privacy, comfort, peace and safety. It sought damages.
13 The second claim is purely a contractual one. The statement of claim alleges that the tenancy agreement was entered into on 27 May 2006, and that the tenancy relationship was going well until "the letter scandal broke out" and that the second respondent then applied for the appellant to be evicted. He disputed any conduct warranting his eviction. He complained that that action itself was in breach of his entitlement to enjoy the tenanted premise. He asserted that the particulars upon which the second respondent sought to have the Residential Tenancies Tribunal terminate his occupancy were false, namely calling police falsely to harass other tenants and members of the public, claiming that the letter from the State Library had been fabricated to harass its tenants, and taking photographs of tenants and the public and so invading their privacy. He claimed damages for aggravation of his medical and psychiatric conditions as previously expressed, together with damages for loss of shelter and reputation.
14 The claim against the third respondent is also discrete. It is brought under s 52 of the TP Act. It is alleged that the third respondent, his neighbour, between 27 May 2006 and the time of the proceedings being instituted, had made false complaints about him to the second respondent and its tenants, by calling police to harass "all stake holders of the commercial premises", by throwing rubbish at 23 Hackney Road surroundings, and asserting that he is a troublemaker. He contended that that conduct was likely to mislead or deceive the second respondent into believing that he is a troublemaker, as well as other members of the public and the police. He complained that that conduct had caused a loss of relationship between the appellant and the second respondent, and had thereby aggravated his medical and psychiatric conditions. He also complained that it made him vulnerable to losing his home, his education and his enjoyment of life. He claimed damages.
THE PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE
15 The first respondent contended that there were three reasons why the claim against it should be summarily dismissed:
(1) that the first respondent was immune from the application of the TP Act (see s 2B) because it was part of the State of South Australia;
(2) that alternatively the first respondent enjoys the immunity of the Crown in relation to s 52 of the TP Act having regard to the relevant provisions of the Libraries Act 1982 (SA);
(3) in any event, the conduct of the first respondent complained of was not conduct in trade or commerce, so as to enliven the application of s 52 of the TP Act, and
(4) that the conduct engaged in was not misleading or deceptive within the meaning of s 52 of the TP Act.
16 The Federal Magistrate determined that Pt 5 of the TP Act, including s 52, did not apply to the Crown in right of the State of South Australia, and secondly that in any event the conduct of the first respondent complained of was not conduct in trade or commerce. His Honour also concluded that because the letter of 30 August 2006 contained no factual inaccuracy, that the letter had no capacity to mislead or to deceive or to induce error, and that the appellant’s complaint that the conduct had:
... 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"
was simply not made out. Perhaps erroneously, the Federal Magistrate commented:
I cannot see in the pleadings relating to the First Claim that the applicant alleges that he was mislead 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 for him to do so. On this basis also, i.e. conduct not misleading or deceptive, I conclude that the applicant has no reasonable prospect of successfully prosecuting the proceedings against the first respondent.
17 As to the alternative claim in negligence, there was a dispute as to whether a duty of care existed in relation to the sending of the letter, but that was not relied upon as a foundation for summarily dismissing the claim. However, it was argued that assuming the existence of a duty of care, the sending of the letter and the putting of the information on the website did not amount to the breach of any such duty of care. It was also argued that the conduct could not have caused the alleged loss, and that the neighbour’s act of opening the incorrectly addressed letter, writing on it and sending it onto the appellant, were new events and not caused by the first respondent’s conduct.
18 The Federal Magistrate concluded that it was "unlikely in the extreme" that there was a breach of any duty of care between the appellant and the first respondent, and that the appellant’s real complaint could only be with the conduct of the unintended recipient of the letter. His Honour noted the pleading that, by sending the letter to the appellant’s known enemies, the first respondent had damaged the appellant’s, relationship with the second respondent and its tenants and his neighbour, the third respondent, so that he is now known as a troublemaker. The Federal Magistrate concluded that the appellant was in reality complaining about the neighbour’s action after receiving the letter. Consequently, his Honour concluded that there was no reasonable prospect of the claim against the first respondent being successfully prosecuted, either because the relevant actions were not those of the first respondent or because the recipient’s actions broke the chain of causation after the suggested negligent act of the first respondent.
19 The claim against the second respondent was for failing to provide peace, comfort and privacy, that is failing to provide quiet enjoyment of the tenanted premise, contrary to s 65 of the Residential Tenancies Act 1995 (SA). The second respondent contended on the summary dismissal application that the statement of claim did not identify any breach of contract by the second respondent, and in any event the Court had no jurisdiction to entertain that claim.
20 So far as the claim against the third respondent is concerned, his complaints in the statement of claim were particularly poorly expressed and did not identify particular conduct of any particular person within the third respondent. The Magistrate concluded:
Although the applicant pleads that the statements were made "in trader 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.
THE GROUNDS OF APPEAL
21 There are 10 grounds of appeal. Some of them multi-faceted.
22 Like the statement of claim, the notice of appeal is hard to follow, and is repetitive to a significant degree. Moreover, it is assertive in a way which makes it hard to understand precisely the error which the appellant seeks to make out.
23 Some of the grounds of appeal relate to the Federal Magistrate’s general approach (grounds 4, 5, 1(iii) and 10); some relate to the specific findings and conclusions relating to the first respondent (grounds 1, 5, 6, 7); some relate to the second respondent only (grounds 2 and 8); and some relate to the third respondent only (grounds 3 and 9). I shall consider them in blocks.
CONSIDERATION
24 The first ground of appeal contends that the Federal Magistrate, in criticising the quality of the statement of claim did not recognise that its "content and context" was based upon judicial comments in another matter. Then it complains that the matter was dismissed without the respondents having adduced evidence or raised a defence on reasonable grounds. And then it complains that the respondents relied on hearsay materials and did not adduce the source of their own affidavits. Then it asserts a significant miscarriage of justice.
25 The criticisms of the pleading made by the learned magistrate were, in my view, entirely warranted. As his Honour said, there were 57 paragraphs, but they were not consecutively numbered but numbered in blocks commencing each block with the number one. The content is confusing and does not state in an unambiguous fashion the necessary facts to establish the causes of action. In my view, the Federal Magistrate reliably extracted from that document the nature of the allegations and the details of the allegations made by the appellant.
26 The general attack upon the judgment complains that the Magistrate did not apply the proper test. In my view, the relevant principle governing summary dismissal applications have been properly described by his Honour. No particular basis of error was identified or shown to exist.
27 In the general grounds, it is also asserted that the Federal Magistrate took into account respondent’s material which was both "hearsay" and which should not have been taken into account in determining a summary dismissal application. The short answer to that submission is that his Honour did not do so in either respect. He took the view of the facts, as pleaded, most favourable to the appellant. It is said by the appellant that the Federal Magistrate relied upon other material, referring to material in the Federal Magistrate’s reasons at [8] and [10]. Those paragraphs simply recite the material provided to the Federal Magistrate by the respondents and follow a recital of the material provided to the Federal Magistrate by the appellant. The only material provided by the respondents, other than submissions (to which his Honour was entitled to have regard) are two affidavits relating to the liability of the third respondent. There is nothing in the Federal Magistrate’s reasons which indicate that he had regard to that material, or that he used that affidavit material for any purpose leading to the summary dismissal of the claim against the third respondent.
28 Another assertion is that the Magistrate overlooked all of the appellant’s submissions, in particular in considering whether the first respondent could be liable to the appellant for a contravention of s 52 of the TP Act. The short answer is that his Honour did not overlook that material, but addressed it. In any event, for reasons to which I refer below, in my view the Federal Magistrate erred in determining on a summary judgment application that s 52 of the TP Act (or more specifically the analogue of s 52 of the TP Act) contained in the Fair Trading Act 1987 (SA)), could not apply to the conduct of the first respondent. It is a separate question whether, although that legislation may have applied to the first respondent, its conduct was in trade and commerce and its conduct, as alleged, could have amounted to misleading and deceptive conduct for the purposes of the relevant provision. I refer to those matters below when dealing with the grounds of appeal concerning the first respondent.
29 Finally, it is said in the general claims that the appellant was not given an opportunity to amend his statement of claim or to put on additional evidence. In my judgment, for the reasons given below, there was no point in additional evidence. The appellant has since identified such additional evidence as he would have wished to have put on, and it could not have altered the conclusion which the Magistrate reached. There was no point in considering the further amendment of the statement of claim, because, as against the first and second respondents, the conduct alleged to have amounted to the causes of action was assumed to have occurred and further amendment would not have altered that conduct. If an amendment were allowed, it would have been by alleging different conduct, and so a different cause of action, whether based on a contravention of s 52 of the TP Act or otherwise. Moreover, the additional material now relied upon by the appellant, which is in fact replicated in perhaps a less obvious form in the material before the Magistrate in any event, goes to whether that conduct of the first respondent complained of was in trade and commerce, and was misleading or deceptive. The pleading was made, and the conduct said to amount to trade and commerce by the first respondent was pleaded. If the applicant had a different set of facts upon which he wished to allege misleading or deceptive conduct, he is not precluded from making a separate claim in respect of that conduct.
30 I turn to consider the claims against the first respondent.
31 As I mentioned above, in my view it was inappropriate for the Magistrate to determine on a summary judgment application that the TP Act could not apply to the first respondent and that, therefore, the claim must be summarily dismissed. The short answer to that submission is that s 56 of the Fair Trading Act 1987 (SA) is in relevantly the same terms. Section 56 of the Fair Trading Act refers to "a person" rather than a corporation but is otherwise in the same terms as s 52(1) of the TP Act, namely that:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
32 The appellant also referred in his pleading to s 51A of the TP Act. That relates to representations with respect to future matters, and in a practical sense imposes on the representor the obligation of showing that the representor did have reasonable grounds for making the representation, otherwise the representation will be taken to be misleading. That section too has its analogue in s 54(1) of the Fair Trading Act. In any event, it does not apply on the applicant’s own allegations in the statement of claim, because the conduct alleged is said to constitute representations as to an existing state of fact, and not to a future matter. In those circumstances, it was not a matter for the respondents to have any onus of proving anything, or to adduce evidence relevant to the summary dismissal application.
33 Section 4 of the Fair Trading Act provides that the Act binds the Crown in right of the State.
34 In my judgment, however, the Federal Magistrate did not fall into error in concluding that the sending of the letter of 30 August 2005 was not in trade or commerce by the first respondent. The Federal Magistrate correctly identified the scope of s 52 (and s 56 of the Fair Trading Act) by reference to the passage in the majority judgment in the High Court of Mason CJ, Deane, Dawson and Gaudron JJ in Concrete Constructions Pty Ltd v Nelson (1990) 169 CLR 594 at 604. In particular, their Honours said that:
[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.
Even if it be assumed that the first respondent, by some of its activities, engages in trade or conduct (for example, as the appellant asserts, by providing assistance with self-service copying by customers, and meeting orders for copying of photographic and other materials and charging for those services, and offering the opportunity to use computer programs to inspect overseas data bases and on line data bases, all of which was proved before the Federal Magistrate by the appellant exhibiting through affidavit materials issued by the first respondent as to the services it provided), its conduct in reversing a decision to suspend the appellant from the use of the library, and to notify him of that decision, was not itself an activity in trade or commerce. Its conduct was in fulfilment of its functions for the public benefit to provide library services under the Libraries Act 1982 (SA) and to regulate and control the access of members of the public to those services and it did so as the instrument of the State. Its activities in that regard did not have a trading or commercial character. I do not need to determine whether its other activities might arguably constitute trade or commerce on the part of the first respondent.
35 In addition, in my view, the decision of the Federal Magistrate that neither the contents of the letter nor the sending of the letter was misleading or deceptive in any relevant way to the appellant’s claims was also clearly correct. The content of the letter is not criticised by the appellant as being misleading or deceptive. His only complaint is that it was sent to the wrong address. Consequently, his only complaint is that the address on the letter was not his address.
36 The evidence points clearly to the fact that the recipient of that letter (and the pleaded allegations make the point that the recipient of that letter) recognised that the letter was sent to the appellant and not to the occupant of the premises. The fact of the letter being misaddressed did not mislead or deceive the recipient of the letter about the addressee of the letter. It is simply a case of the letter having gone to the wrong address, and the person living at that address (or perhaps at the subsequent address), without being mislead, choosing to open it and to make some communication on it before it eventually was received by the appellant.
37 The appellant himself was not mislead or deceived by the misaddressed letter.
38 In my judgment, neither s 52 of the TP Act nor s 56 of the Fair Trading Act applied to that conduct.
39 As I have noted, the second respondent did not dispute that it was arguable that it owed a duty of care to the appellant in sending out the letter of 30 August 2008. Its contentions were that there was no reasonable prospect of the appellant showing that sending the letter to the wrong address was in breach of the (assumed) duty of care, or that any breach of that duty could have caused loss and damage to the appellant as he alleges.
40 In my judgment, the Federal Magistrate’s analysis for concluding that the inadvertent sending of the letter to the wrong address could not have been in breach of the (assumed) duty of care requires further consideration. It should be assumed that the placing of the wrong address on the letter was careless. A duty of care does not exist in the abstract, it exists because of a particular factual situation – generally a relationship – between two persons and entities by reason of which conduct (or sometimes a failure to act) on the part of one of them may cause detriment to the other. Of course, that is a gross oversimplification. But the point is that the (assumed) duty of care existed because conduct of the second respondent in breach of it may have caused detriment to the appellant. On the other hand, the (assumed) duty of care only imposes on the second respondent an obligation to take reasonable care to protect the appellant from the type of harm which is reasonably foreseeable; if no harm is foreseeable by certain conduct, then there is no reason why the law should ignore liability in tort for engaging in it. Those comments are very general in nature.
41 But I think they identify why the Federal Magistrate regarded the negligence claim as having no reasonable prospect of success. And why I agree with that conclusion.
42 In sending a letter to the appellant that the record of his suspension had been corrected in its records, what foreseeable harm could result to the appellant if erroneously that letter was misaddressed? The additional context was that the appellant sought the correction of those records, and that the corrected records be publicly available on the second respondent’s website. The letter, though misaddressed, was directed to the appellant (and, as the appellant recognised, was so understood at the address or addresses where it was received). And it was accurate and conveyed information which the appellant wanted to have conveyed. It did not convey any information adverse to the appellant.
43 Consequently, if the letter was carelessly addressed (as I assume), what foreseeable harm or potential harm was there to the appellant? It was foreseeable that the misaddressed letter might be opened by the recipient, notwithstanding its addressee (the appellant) was clear or that the misaddressed letter might never find its way to the appellant. The latter did not occur. If it was opened by the recipient, it would not convey information about the appellant which was adverse to him or which was not publicly available. It is not suggested by the appellant that he did not receive the $30 to which he was entitled. The handwritten comments on the letter, in vehement and offensive terms, complain of the appellant using the wrong address and threaten that further correspondence to the appellant at that address will not be passed on. They do not use the information in the letter as indicating something adverse about the appellant. Nor could the contents of the letter do so. So the detriment to the appellant, on the evidence, was to provide the recipient with the opportunity to convey that to the appellant. There is no basis for any finding that its consequences, or potential consequences, extended beyond that.
44 In my view, the Federal Magistrate was correct in those circumstances to conclude that, whilst the (assumed) duty of care may have been breached to have caused loss to the appellant (eg if he did not receive the $30 costs payment), it was not breached merely by being misaddressed and by providing the recipient to make the comments on it which were made before it was returned to the appellant. The recipient’s actions were not those in respect of which the (assumed) duty of care existed, because it was not reasonably foreseeable that the recipient would thereby convey to the appellant the unpleasant views apparently held by the appellant which could not otherwise have been conveyed to him so as to cause him the loss he alleges. In particular, to address the allegations in the Statement of Claim, it was not reasonably foreseeable that the misaddressed letter may have damaged his relationship with the second respondent, or its other tenants or the third respondent, so as to have caused him loss and damage. The only relationship it may have affected is that with the recipient who wrote the comments on that letter, and it is clear that that relationship was not one which was relevantly worsened by the misaddressed letter.
45 Accordingly, the Federal Magistrate did not err in deciding to summarily dismiss the negligence claim against the first respondent.
46 Curiously, the second ground of appeal complains of paras 19-20 of the reasons, saying that they were not supported by evidence. Paragraph 19 simply records the fact of the commencement of the proceedings against the second respondent on 12 April 2007 for alleged breach of the tenancy agreement and for taking steps to have him evicted. That is exactly what the appellant did allege. Paragraph 20 records that on 13 April 2007, the Residential Tenancies Tribunal dismissed the application, and the appellant was not evicted. That is incorrect only on the basis that the Tribunal decision was made on 19 April 2007. The exhibits to the appellant’s affidavits at first instance include the order of the Tribunal made on 19 April 2007 to that effect, as well as noting that the hearing took place on 13 April 2007. They also show that the date of the application of the second respondent to the Residential Tenancies Tribunal was 23 March 2007. The minor date error is insignificant.
47 The attack upon the decision of the Magistrate concerning the second respondent is otherwise partly based upon a misapprehension. That is because, contrary to the claim in the notice of appeal, the Magistrate did not decline to exercise jurisdiction in respect of the breach of contract claim against the second respondent. His Honour simply found that, on the allegations against the second respondent, it had not contravened any provision of the residential tenancy agreement by making the application to the Residential Tenancies Tribunal. It appears that the grounds of the application were not made out to the satisfaction or the Tribunal or having regard to the facts, in the exercise of its Tribunal’s discretion, the application was unsuccessful. But that is not to the point. It is a simple question of deciding whether an application under the Residential Tenancies Tribunal Act 1995 to terminate a residential tenancy could amount to a contravention of the residential tenancy itself. In my view, his Honour was correct in deciding that it could not, for the reasons he gave. I shall not repeat them.
48 It is not necessary to consider the second respondent’s further contentions that the claim should have been dismissed in any event against the second respondent because the Magistrate lacked the jurisdiction to entertain it.
49 I turn to consider the grounds of appeal concerning the third respondent.
50 It is first necessary to note that it is factually incorrect to assert, as the appellant did, that the Federal Magistrate summarily dismissed the proceedings against the third respondent without any request on the part of the third respondent to do so.
51 The ground of appeal particularly concerning the third respondent is simply that the Federal Magistrate did not properly consider the evidence, when addressing the claimed contravention of s 52 of the TP Act, or of s 56 of the Fair Trading Act to the extent to which it was necessary to invoke that alternative act. As jurisdiction was not in issue, it is not necessary to turn to that question. In either event, the conduct pleaded had to be conduct in trade or commerce. The Federal Magistrate correctly decided that the facts pleaded, as his Honour said taken at their most favourable, did not demonstrate any reasonable prospect of successfully establishing that they were engaged in by someone on behalf of the third respondent, or that they were made in trade or commerce. It was simply, as his Honour said, a dispute between neighbours who were individuals.
52 In my view, that conclusion was amply available on the material before the Magistrate.
53 For those reasons, I conclude that the appeal should be dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated: 20 October 2008
Counsel for the Appellant: The appellant appeared in person
Counsel for the First and Second Respondents: M Wait
Solicitor for the First and Second Respondents: Crown Solicitor for South Australia
Counsel for the Third Respondent: A Dal Cin
Solicitor for the Third Respondent: Minicozzi Lawyers
Date of Hearing: 8 October 2008
Date of Judgment: 20 October 2008
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Rana v Libraries Board of South Australia [2008] FCA 1552 (20 October 2008)
Last Updated: 21 October 2008
FEDERAL COURT OF AUSTRALIA
Rana v Libraries Board of South Australia [2008] FCA 1552
RANJIT SHAMSHER JUNG BAHADUR RANA v LIBRARIES BOARD OF SOUTH AUSTRALIA, HOUSING TRUST OF SOUTH AUSTRALIA and INTERCONTINENTAL CATERERS PTY LTD
SAD 91 OF 2008
MANSFIELD J
20 OCTOBER 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY SAD 91 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA
Appellant
AND: LIBRARIES BOARD OF SOUTH AUSTRALIA
First Respondent
HOUSING TRUST OF SOUTH AUSTRALIA
Second Respondent
INTERCONTINENTAL CATERERS PTY LTD
Third Respondent
JUDGE: MANSFIELD J
DATE OF ORDER: 20 OCTOBER 2008
WHERE MADE: ADELAIDE
THE COURT ORDERS THAT:
1. The appeal is 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 SAD 91 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA
Appellant
AND: LIBRARIES BOARD OF SOUTH AUSTRALIA
First Respondent
HOUSING TRUST OF SOUTH AUSTRALIA
Second Respondent
INTERCONTINENTAL CATERERS PTY LTD
Third Respondent
JUDGE: MANSFIELD J
DATE: 20 OCTOBER 2008
PLACE: ADELAIDE
REASONS FOR JUDGMENT
1 On 12 April 2007, the appellant applied in the Federal Magistrates Court, supported by a statement of claim, for damages under ss 80 (sic), 82 and 87 of the Trade Practices Act 1974 (Cth) (the TP Act) for contraventions of s 52 of the Act, and for negligence and for breach of contract for "loss of shelter and reputation and aggravation of paranoid schizophrenia and diabetes type two", claiming $250,000.
2 That proceeding was summarily dismissed on 4 July 2008 pursuant to s 17A(2) of the Federal Magistrates Court Act 1999 (Cth) (the FM Act) and r 13.10(1) of the Federal Magistrates Court Rules (the Rules) with costs. Section 17A of the FM Act empowered a Federal Magistrate to summarily dismiss a proceeding if the claimant had no reasonable prospect of successfully prosecuting the proceeding, and r 13.10(1) relevantly was in the same terms.
3 This is an appeal from that decision.
4 The appellant was declared bankrupt on 13 August 2008. He appealed from the decision of that date, and judgment on that appeal is to be delivered at the same time as this appeal. For reasons which appear in that judgment: Rana v Chief of Army [2008] FCA 1554, that appeal is to be dismissed. However, it is common ground that, notwithstanding his bankruptcy, s 60(2) of the Bankruptcy Act 1966 (Cth) does not apply as s 60(4) of that Act preserves the appellant’s right to maintain the proceeding.
THE CLAIMS AGAINST THE RESPONDENTS
5 There were three separate claims made against each of the three respondents in the proceeding at first instance.
6 On 17 October 2005, the first respondent passed a resolution banning the appellant from being present in the State Library of South Australia precinct for a period of 12 months. The appellant challenged that decision in the Supreme Court of South Australia, and on 10 August 2006 that proceeding was discontinued when the Director of the first respondent set aside the ban. It is not necessary to inquire into the circumstances in which that came about.
7 The appellant was notified of the decision to concede the judicial review proceeding by letter from the Crown Solicitor for South Australia of 3 August 2006 addressed to the appellant at 1/25 Hackney Road, Hackney. On 10 August 2006, the Director of the first respondent wrote to the appellant at his former address at 62/40 Park Terrace, Gilberton informing him of that decision. The decision was formally recorded in the minutes of the Board of the first respondent on 21 August 2006. On 30 August 2006 the director of the first respondent wrote to the appellant concerning the amendments that had been made to the minutes, reflecting that the ban imposed upon the appellant had been lifted and enclosing a cheque for the $30 costs awarded to him. That letter was sent to the appellant at 63/40 Park Terrace, Gilberton. That was a wrong address.
8 As the Federal Magistrate recorded, it appears that the neighbour at 63/40 Park Terrace, Gilberton opened the envelope addressed to the appellant, wrote comments on the letter that were derogatory of the appellant, and then forwarded the letter to the appellant, or alternatively that the neighbour receiving the letter to the appellant then on-sent it to the appellant but again unfortunately to the wrong address at 2/25 Hackney Road, Hackney where that neighbour opened it and wrote comments derogatory of the appellant and then forwarded the letter to him. Consequently, the appellant came to learn of that letter and that it had been sent to the wrong address. A letter in the same terms was sent to the appellant at his correct address, namely 1/25 Hackney Road, Hackney, on 1 September 2006.
9 Subsequently, these proceedings were commenced on 12 April 2007. In the meantime, the Director of the first respondent had written to the appellant on 11 September 2006 apologising that the earlier letter of 30 August 2006 had been sent to the incorrect address, and that that was an inadvertent error, and that the first respondent had updated its records.
10 The second claim concerned the second respondent, the owner of the property at 1/25 Hackney Road, Hackney. The appellant was a tenant of the second respondent at material times. On 27 March 2007, the second respondent filed an application in the Residential Tenancies Tribunal of South Australia seeking to terminate the appellant’s residential tenancy agreement pursuant to s 90 of the Residential Tenancies Act 1995 (SA). Promptly, on 12 April 2007, the appellant commenced proceedings in the Federal Magistrates Court alleging that the second respondent was in breach of the tenancy agreement for having taken steps to have him evicted. In fact on the following day, 13 April 2007, the Residential Tenancies Tribunal dismissed the second respondent’s application and the appellant was not evicted.
11 The third claim against the third respondent concerned a nearby property at 23 Hackney Road, Hackney leased to the third respondent to conduct a catering business. The appellant lived next door to that property. The appellant claimed that certain members of the family who were apparently associated with the third respondent (not specifically identified) had allegedly made false complaints to the police and to the second respondent as his landlord, regarding the conduct of the appellant and suggesting that he was a troublemaker.
12 The appellant alleges that the first respondent, as a corporation engaged in trade or commerce, engaged in misleading and deceptive conduct contrary to s 52 of the TP Act as a result of inadvertently sending the letter of 30 August 2006 to the appellant to an incorrect address. The statement of claim alleges that the appellant had requested the first respondent not to send correspondence to that address of his former neighbour. It alleges that either the former neighbour added the comments to the bottom of the letter, or placed the letter at 2/25 Hackney Road, Hackney (rather than 1/25 Hackney Road, Hackney) and that the resident at 2/25 Hackney Road, Hackney then commented in the bottom of the letter with inflammatory and defamatory comments, and that the relationship between that resident, the second respondent and the third respondent "soured via rumours spread by" each of the occupants’ units at 2/25 Hackney Road and 63/40 Park Terrace. It is further alleged that the conduct of the first respondent caused the second respondent to apply to the Residential Tenancies Tribunal to terminate the contract of tenancy. Hence, he alleged that he was going to become homeless, would have disruption in his education, and that those events had aggravated his paranoid schizophrenia and diabetes type two. It also alleged that he had, as a result, been thought of as a troublemaker by tenants of nine other units at Park Terrace, Gilberton, as well as Unit 2/25 Hackney Road, Hackney and by the third respondent and "the whole world". The alternative basis of that claim was based upon the same conduct, namely inadvertently sending the letter of 30 August 2006 to the wrong address. It is alleged that the first respondent sent that letter "knowingly" when there was a police ban that the appellant was not to cause others to contact that tenant and knowing that his relationship would "collapse through this scandalous contact" and would trigger the second respondent to terminate the tenancy. The relationship which would collapse is not spelled out. Incorrectly, it also asserts that the first respondent had not apologised to the appellant for the "simple stupid mistake". It therefore alleges that the first respondent was in breach of a duty of care owed to the appellant by sending the letter to his "known enemies" and had thereby damaged his relationship with the second respondent and its other tenants and with the third respondent. It also alleged that as a result, he had aggravated his psychiatric and medical condition, reputation and privacy, comfort, peace and safety. It sought damages.
13 The second claim is purely a contractual one. The statement of claim alleges that the tenancy agreement was entered into on 27 May 2006, and that the tenancy relationship was going well until "the letter scandal broke out" and that the second respondent then applied for the appellant to be evicted. He disputed any conduct warranting his eviction. He complained that that action itself was in breach of his entitlement to enjoy the tenanted premise. He asserted that the particulars upon which the second respondent sought to have the Residential Tenancies Tribunal terminate his occupancy were false, namely calling police falsely to harass other tenants and members of the public, claiming that the letter from the State Library had been fabricated to harass its tenants, and taking photographs of tenants and the public and so invading their privacy. He claimed damages for aggravation of his medical and psychiatric conditions as previously expressed, together with damages for loss of shelter and reputation.
14 The claim against the third respondent is also discrete. It is brought under s 52 of the TP Act. It is alleged that the third respondent, his neighbour, between 27 May 2006 and the time of the proceedings being instituted, had made false complaints about him to the second respondent and its tenants, by calling police to harass "all stake holders of the commercial premises", by throwing rubbish at 23 Hackney Road surroundings, and asserting that he is a troublemaker. He contended that that conduct was likely to mislead or deceive the second respondent into believing that he is a troublemaker, as well as other members of the public and the police. He complained that that conduct had caused a loss of relationship between the appellant and the second respondent, and had thereby aggravated his medical and psychiatric conditions. He also complained that it made him vulnerable to losing his home, his education and his enjoyment of life. He claimed damages.
THE PROCEEDINGS BEFORE THE FEDERAL MAGISTRATE
15 The first respondent contended that there were three reasons why the claim against it should be summarily dismissed:
(1) that the first respondent was immune from the application of the TP Act (see s 2B) because it was part of the State of South Australia;
(2) that alternatively the first respondent enjoys the immunity of the Crown in relation to s 52 of the TP Act having regard to the relevant provisions of the Libraries Act 1982 (SA);
(3) in any event, the conduct of the first respondent complained of was not conduct in trade or commerce, so as to enliven the application of s 52 of the TP Act, and
(4) that the conduct engaged in was not misleading or deceptive within the meaning of s 52 of the TP Act.
16 The Federal Magistrate determined that Pt 5 of the TP Act, including s 52, did not apply to the Crown in right of the State of South Australia, and secondly that in any event the conduct of the first respondent complained of was not conduct in trade or commerce. His Honour also concluded that because the letter of 30 August 2006 contained no factual inaccuracy, that the letter had no capacity to mislead or to deceive or to induce error, and that the appellant’s complaint that the conduct had:
... 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"
was simply not made out. Perhaps erroneously, the Federal Magistrate commented:
I cannot see in the pleadings relating to the First Claim that the applicant alleges that he was mislead 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 for him to do so. On this basis also, i.e. conduct not misleading or deceptive, I conclude that the applicant has no reasonable prospect of successfully prosecuting the proceedings against the first respondent.
17 As to the alternative claim in negligence, there was a dispute as to whether a duty of care existed in relation to the sending of the letter, but that was not relied upon as a foundation for summarily dismissing the claim. However, it was argued that assuming the existence of a duty of care, the sending of the letter and the putting of the information on the website did not amount to the breach of any such duty of care. It was also argued that the conduct could not have caused the alleged loss, and that the neighbour’s act of opening the incorrectly addressed letter, writing on it and sending it onto the appellant, were new events and not caused by the first respondent’s conduct.
18 The Federal Magistrate concluded that it was "unlikely in the extreme" that there was a breach of any duty of care between the appellant and the first respondent, and that the appellant’s real complaint could only be with the conduct of the unintended recipient of the letter. His Honour noted the pleading that, by sending the letter to the appellant’s known enemies, the first respondent had damaged the appellant’s, relationship with the second respondent and its tenants and his neighbour, the third respondent, so that he is now known as a troublemaker. The Federal Magistrate concluded that the appellant was in reality complaining about the neighbour’s action after receiving the letter. Consequently, his Honour concluded that there was no reasonable prospect of the claim against the first respondent being successfully prosecuted, either because the relevant actions were not those of the first respondent or because the recipient’s actions broke the chain of causation after the suggested negligent act of the first respondent.
19 The claim against the second respondent was for failing to provide peace, comfort and privacy, that is failing to provide quiet enjoyment of the tenanted premise, contrary to s 65 of the Residential Tenancies Act 1995 (SA). The second respondent contended on the summary dismissal application that the statement of claim did not identify any breach of contract by the second respondent, and in any event the Court had no jurisdiction to entertain that claim.
20 So far as the claim against the third respondent is concerned, his complaints in the statement of claim were particularly poorly expressed and did not identify particular conduct of any particular person within the third respondent. The Magistrate concluded:
Although the applicant pleads that the statements were made "in trader 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.
THE GROUNDS OF APPEAL
21 There are 10 grounds of appeal. Some of them multi-faceted.
22 Like the statement of claim, the notice of appeal is hard to follow, and is repetitive to a significant degree. Moreover, it is assertive in a way which makes it hard to understand precisely the error which the appellant seeks to make out.
23 Some of the grounds of appeal relate to the Federal Magistrate’s general approach (grounds 4, 5, 1(iii) and 10); some relate to the specific findings and conclusions relating to the first respondent (grounds 1, 5, 6, 7); some relate to the second respondent only (grounds 2 and 8); and some relate to the third respondent only (grounds 3 and 9). I shall consider them in blocks.
CONSIDERATION
24 The first ground of appeal contends that the Federal Magistrate, in criticising the quality of the statement of claim did not recognise that its "content and context" was based upon judicial comments in another matter. Then it complains that the matter was dismissed without the respondents having adduced evidence or raised a defence on reasonable grounds. And then it complains that the respondents relied on hearsay materials and did not adduce the source of their own affidavits. Then it asserts a significant miscarriage of justice.
25 The criticisms of the pleading made by the learned magistrate were, in my view, entirely warranted. As his Honour said, there were 57 paragraphs, but they were not consecutively numbered but numbered in blocks commencing each block with the number one. The content is confusing and does not state in an unambiguous fashion the necessary facts to establish the causes of action. In my view, the Federal Magistrate reliably extracted from that document the nature of the allegations and the details of the allegations made by the appellant.
26 The general attack upon the judgment complains that the Magistrate did not apply the proper test. In my view, the relevant principle governing summary dismissal applications have been properly described by his Honour. No particular basis of error was identified or shown to exist.
27 In the general grounds, it is also asserted that the Federal Magistrate took into account respondent’s material which was both "hearsay" and which should not have been taken into account in determining a summary dismissal application. The short answer to that submission is that his Honour did not do so in either respect. He took the view of the facts, as pleaded, most favourable to the appellant. It is said by the appellant that the Federal Magistrate relied upon other material, referring to material in the Federal Magistrate’s reasons at [8] and [10]. Those paragraphs simply recite the material provided to the Federal Magistrate by the respondents and follow a recital of the material provided to the Federal Magistrate by the appellant. The only material provided by the respondents, other than submissions (to which his Honour was entitled to have regard) are two affidavits relating to the liability of the third respondent. There is nothing in the Federal Magistrate’s reasons which indicate that he had regard to that material, or that he used that affidavit material for any purpose leading to the summary dismissal of the claim against the third respondent.
28 Another assertion is that the Magistrate overlooked all of the appellant’s submissions, in particular in considering whether the first respondent could be liable to the appellant for a contravention of s 52 of the TP Act. The short answer is that his Honour did not overlook that material, but addressed it. In any event, for reasons to which I refer below, in my view the Federal Magistrate erred in determining on a summary judgment application that s 52 of the TP Act (or more specifically the analogue of s 52 of the TP Act) contained in the Fair Trading Act 1987 (SA)), could not apply to the conduct of the first respondent. It is a separate question whether, although that legislation may have applied to the first respondent, its conduct was in trade and commerce and its conduct, as alleged, could have amounted to misleading and deceptive conduct for the purposes of the relevant provision. I refer to those matters below when dealing with the grounds of appeal concerning the first respondent.
29 Finally, it is said in the general claims that the appellant was not given an opportunity to amend his statement of claim or to put on additional evidence. In my judgment, for the reasons given below, there was no point in additional evidence. The appellant has since identified such additional evidence as he would have wished to have put on, and it could not have altered the conclusion which the Magistrate reached. There was no point in considering the further amendment of the statement of claim, because, as against the first and second respondents, the conduct alleged to have amounted to the causes of action was assumed to have occurred and further amendment would not have altered that conduct. If an amendment were allowed, it would have been by alleging different conduct, and so a different cause of action, whether based on a contravention of s 52 of the TP Act or otherwise. Moreover, the additional material now relied upon by the appellant, which is in fact replicated in perhaps a less obvious form in the material before the Magistrate in any event, goes to whether that conduct of the first respondent complained of was in trade and commerce, and was misleading or deceptive. The pleading was made, and the conduct said to amount to trade and commerce by the first respondent was pleaded. If the applicant had a different set of facts upon which he wished to allege misleading or deceptive conduct, he is not precluded from making a separate claim in respect of that conduct.
30 I turn to consider the claims against the first respondent.
31 As I mentioned above, in my view it was inappropriate for the Magistrate to determine on a summary judgment application that the TP Act could not apply to the first respondent and that, therefore, the claim must be summarily dismissed. The short answer to that submission is that s 56 of the Fair Trading Act 1987 (SA) is in relevantly the same terms. Section 56 of the Fair Trading Act refers to "a person" rather than a corporation but is otherwise in the same terms as s 52(1) of the TP Act, namely that:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
32 The appellant also referred in his pleading to s 51A of the TP Act. That relates to representations with respect to future matters, and in a practical sense imposes on the representor the obligation of showing that the representor did have reasonable grounds for making the representation, otherwise the representation will be taken to be misleading. That section too has its analogue in s 54(1) of the Fair Trading Act. In any event, it does not apply on the applicant’s own allegations in the statement of claim, because the conduct alleged is said to constitute representations as to an existing state of fact, and not to a future matter. In those circumstances, it was not a matter for the respondents to have any onus of proving anything, or to adduce evidence relevant to the summary dismissal application.
33 Section 4 of the Fair Trading Act provides that the Act binds the Crown in right of the State.
34 In my judgment, however, the Federal Magistrate did not fall into error in concluding that the sending of the letter of 30 August 2005 was not in trade or commerce by the first respondent. The Federal Magistrate correctly identified the scope of s 52 (and s 56 of the Fair Trading Act) by reference to the passage in the majority judgment in the High Court of Mason CJ, Deane, Dawson and Gaudron JJ in Concrete Constructions Pty Ltd v Nelson (1990) 169 CLR 594 at 604. In particular, their Honours said that:
[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.
Even if it be assumed that the first respondent, by some of its activities, engages in trade or conduct (for example, as the appellant asserts, by providing assistance with self-service copying by customers, and meeting orders for copying of photographic and other materials and charging for those services, and offering the opportunity to use computer programs to inspect overseas data bases and on line data bases, all of which was proved before the Federal Magistrate by the appellant exhibiting through affidavit materials issued by the first respondent as to the services it provided), its conduct in reversing a decision to suspend the appellant from the use of the library, and to notify him of that decision, was not itself an activity in trade or commerce. Its conduct was in fulfilment of its functions for the public benefit to provide library services under the Libraries Act 1982 (SA) and to regulate and control the access of members of the public to those services and it did so as the instrument of the State. Its activities in that regard did not have a trading or commercial character. I do not need to determine whether its other activities might arguably constitute trade or commerce on the part of the first respondent.
35 In addition, in my view, the decision of the Federal Magistrate that neither the contents of the letter nor the sending of the letter was misleading or deceptive in any relevant way to the appellant’s claims was also clearly correct. The content of the letter is not criticised by the appellant as being misleading or deceptive. His only complaint is that it was sent to the wrong address. Consequently, his only complaint is that the address on the letter was not his address.
36 The evidence points clearly to the fact that the recipient of that letter (and the pleaded allegations make the point that the recipient of that letter) recognised that the letter was sent to the appellant and not to the occupant of the premises. The fact of the letter being misaddressed did not mislead or deceive the recipient of the letter about the addressee of the letter. It is simply a case of the letter having gone to the wrong address, and the person living at that address (or perhaps at the subsequent address), without being mislead, choosing to open it and to make some communication on it before it eventually was received by the appellant.
37 The appellant himself was not mislead or deceived by the misaddressed letter.
38 In my judgment, neither s 52 of the TP Act nor s 56 of the Fair Trading Act applied to that conduct.
39 As I have noted, the second respondent did not dispute that it was arguable that it owed a duty of care to the appellant in sending out the letter of 30 August 2008. Its contentions were that there was no reasonable prospect of the appellant showing that sending the letter to the wrong address was in breach of the (assumed) duty of care, or that any breach of that duty could have caused loss and damage to the appellant as he alleges.
40 In my judgment, the Federal Magistrate’s analysis for concluding that the inadvertent sending of the letter to the wrong address could not have been in breach of the (assumed) duty of care requires further consideration. It should be assumed that the placing of the wrong address on the letter was careless. A duty of care does not exist in the abstract, it exists because of a particular factual situation – generally a relationship – between two persons and entities by reason of which conduct (or sometimes a failure to act) on the part of one of them may cause detriment to the other. Of course, that is a gross oversimplification. But the point is that the (assumed) duty of care existed because conduct of the second respondent in breach of it may have caused detriment to the appellant. On the other hand, the (assumed) duty of care only imposes on the second respondent an obligation to take reasonable care to protect the appellant from the type of harm which is reasonably foreseeable; if no harm is foreseeable by certain conduct, then there is no reason why the law should ignore liability in tort for engaging in it. Those comments are very general in nature.
41 But I think they identify why the Federal Magistrate regarded the negligence claim as having no reasonable prospect of success. And why I agree with that conclusion.
42 In sending a letter to the appellant that the record of his suspension had been corrected in its records, what foreseeable harm could result to the appellant if erroneously that letter was misaddressed? The additional context was that the appellant sought the correction of those records, and that the corrected records be publicly available on the second respondent’s website. The letter, though misaddressed, was directed to the appellant (and, as the appellant recognised, was so understood at the address or addresses where it was received). And it was accurate and conveyed information which the appellant wanted to have conveyed. It did not convey any information adverse to the appellant.
43 Consequently, if the letter was carelessly addressed (as I assume), what foreseeable harm or potential harm was there to the appellant? It was foreseeable that the misaddressed letter might be opened by the recipient, notwithstanding its addressee (the appellant) was clear or that the misaddressed letter might never find its way to the appellant. The latter did not occur. If it was opened by the recipient, it would not convey information about the appellant which was adverse to him or which was not publicly available. It is not suggested by the appellant that he did not receive the $30 to which he was entitled. The handwritten comments on the letter, in vehement and offensive terms, complain of the appellant using the wrong address and threaten that further correspondence to the appellant at that address will not be passed on. They do not use the information in the letter as indicating something adverse about the appellant. Nor could the contents of the letter do so. So the detriment to the appellant, on the evidence, was to provide the recipient with the opportunity to convey that to the appellant. There is no basis for any finding that its consequences, or potential consequences, extended beyond that.
44 In my view, the Federal Magistrate was correct in those circumstances to conclude that, whilst the (assumed) duty of care may have been breached to have caused loss to the appellant (eg if he did not receive the $30 costs payment), it was not breached merely by being misaddressed and by providing the recipient to make the comments on it which were made before it was returned to the appellant. The recipient’s actions were not those in respect of which the (assumed) duty of care existed, because it was not reasonably foreseeable that the recipient would thereby convey to the appellant the unpleasant views apparently held by the appellant which could not otherwise have been conveyed to him so as to cause him the loss he alleges. In particular, to address the allegations in the Statement of Claim, it was not reasonably foreseeable that the misaddressed letter may have damaged his relationship with the second respondent, or its other tenants or the third respondent, so as to have caused him loss and damage. The only relationship it may have affected is that with the recipient who wrote the comments on that letter, and it is clear that that relationship was not one which was relevantly worsened by the misaddressed letter.
45 Accordingly, the Federal Magistrate did not err in deciding to summarily dismiss the negligence claim against the first respondent.
46 Curiously, the second ground of appeal complains of paras 19-20 of the reasons, saying that they were not supported by evidence. Paragraph 19 simply records the fact of the commencement of the proceedings against the second respondent on 12 April 2007 for alleged breach of the tenancy agreement and for taking steps to have him evicted. That is exactly what the appellant did allege. Paragraph 20 records that on 13 April 2007, the Residential Tenancies Tribunal dismissed the application, and the appellant was not evicted. That is incorrect only on the basis that the Tribunal decision was made on 19 April 2007. The exhibits to the appellant’s affidavits at first instance include the order of the Tribunal made on 19 April 2007 to that effect, as well as noting that the hearing took place on 13 April 2007. They also show that the date of the application of the second respondent to the Residential Tenancies Tribunal was 23 March 2007. The minor date error is insignificant.
47 The attack upon the decision of the Magistrate concerning the second respondent is otherwise partly based upon a misapprehension. That is because, contrary to the claim in the notice of appeal, the Magistrate did not decline to exercise jurisdiction in respect of the breach of contract claim against the second respondent. His Honour simply found that, on the allegations against the second respondent, it had not contravened any provision of the residential tenancy agreement by making the application to the Residential Tenancies Tribunal. It appears that the grounds of the application were not made out to the satisfaction or the Tribunal or having regard to the facts, in the exercise of its Tribunal’s discretion, the application was unsuccessful. But that is not to the point. It is a simple question of deciding whether an application under the Residential Tenancies Tribunal Act 1995 to terminate a residential tenancy could amount to a contravention of the residential tenancy itself. In my view, his Honour was correct in deciding that it could not, for the reasons he gave. I shall not repeat them.
48 It is not necessary to consider the second respondent’s further contentions that the claim should have been dismissed in any event against the second respondent because the Magistrate lacked the jurisdiction to entertain it.
49 I turn to consider the grounds of appeal concerning the third respondent.
50 It is first necessary to note that it is factually incorrect to assert, as the appellant did, that the Federal Magistrate summarily dismissed the proceedings against the third respondent without any request on the part of the third respondent to do so.
51 The ground of appeal particularly concerning the third respondent is simply that the Federal Magistrate did not properly consider the evidence, when addressing the claimed contravention of s 52 of the TP Act, or of s 56 of the Fair Trading Act to the extent to which it was necessary to invoke that alternative act. As jurisdiction was not in issue, it is not necessary to turn to that question. In either event, the conduct pleaded had to be conduct in trade or commerce. The Federal Magistrate correctly decided that the facts pleaded, as his Honour said taken at their most favourable, did not demonstrate any reasonable prospect of successfully establishing that they were engaged in by someone on behalf of the third respondent, or that they were made in trade or commerce. It was simply, as his Honour said, a dispute between neighbours who were individuals.
52 In my view, that conclusion was amply available on the material before the Magistrate.
53 For those reasons, I conclude that the appeal should be dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated: 20 October 2008
Counsel for the Appellant: The appellant appeared in person
Counsel for the First and Second Respondents: M Wait
Solicitor for the First and Second Respondents: Crown Solicitor for South Australia
Counsel for the Third Respondent: A Dal Cin
Solicitor for the Third Respondent: Minicozzi Lawyers
Date of Hearing: 8 October 2008
Date of Judgment: 20 October 2008
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Restraining Order containing errors of law and contrary to s. 75 of the Evidence Act 1995 (Cth). See at paragraph 40 in Rana v University of South Australia (2004) FCA 559 the decision of Lander J (It is being appealed to the full court).
RANA v POLICE [2008] SASC 280 (21 October 2008)
Last Updated: 21 October 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
RANA v POLICE
[2008] SASC 280
Judgment of The Honourable Justice David
21 October 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
Appeal against confirmation of restraining order made by magistrate in absence of appellant - whether appellant prejudiced by unsworn and outdated affidavit - whether appellant provided with sufficient particulars - whether particulars provided in affidavit show reasonable apprehension - whether confirmation of restraining order unreasonable or contrary to evidence.
Held: Appeal dismissed - appellant not prejudiced by unsworn and outdated affidavit - appellant provided with sufficient particulars - particulars provided in affidavit show reasonable apprehension - confirmation of restraining order not unsreasonable and was supported by evidence.
Summary Procedure Act 1921 (SA) s 99, s 99C, referred to.
Police v Gray (2001) 213 LSJS 540, applied.
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611, considered.
RANA v POLICE
[2008] SASC 280
Magistrates Appeal
DAVID J.
Introduction
This is an appeal against the confirmation of a restraining order made by a magistrate, pursuant to ss 99 and 99C of the Summary Procedure Act 1921 (SA) (“the Act”). The order confirmed was as follows:
The defendant is restrained from entering or attending any place that [the alleged victim] may be residing from time to time.
The defendant is restrained from entering any place of employment at any time or any place where [the alleged victim] may be present.
The defendant is restrained from contacting, communicating or approaching directly or through another person with [the alleged victim].
That defendant is restrained from following or watching [the alleged victim].
That a member of the police force is authorised to enter any premises in which any firearm in your possession is suspected to be and to search for and take possession of any such firearm.
That you be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.
The defendant is prohibited from possessing a firearm in the course of his/her employment.
That any firearm in your possession be confiscated and held by the Registrar of Firearms, to be returned to you if this Restraining Order/Domestic Violence Restraining Order is not confirmed.
That any licence or permit to be in possession of a firearm that you currently hold be suspended until the court determines whether to confirm this Restraining Order/Domestic Violence Restraining Order.
The appellant, who was unrepresented on the appeal, argues for various reasons, that the order should be set aside.
History Leading to the Making of the Order
According to the file and the affidavit of Gregory John Hill sworn on 30 July 2008, the police prosecutor who appeared before the magistrate on 2 July 2008, it appears the following events led to the confirmation of the order:
...
On 17 January 2008, an application for a Restraining Order, signed by the victim ... was filed at the Magistrate Court.
The application was heard on 17 January 2008 at 2.15 pm. The victim appeared unrepresented. Police prosecutor McGrath appeared for the prosecution. The prosecutor tendered an affidavit by the victim ... The Court issued a Restraining Order and Summons for the appellant to attend at Court for a hearing on 24 January 2008, to show cause why the order should not be confirmed.
On 24 January 2008, the appellant appeared unrepresented. Police prosecutor E Smith appeared for the prosecution. The appellant intimated that he would be disputing the order. The matter was listed for a status conference on 29 February 2008.
On 29 February 2008, the appellant appeared unrepresented. Police prosecutor Hoang appeared for the prosecution. The appellant was provided with a copy of the victim’s affidavit.
On 14 March 2008, the appellant appeared unrepresented. Police prosecutor Hoang appeared for the prosecution. The appellant had filed a bundle of documentation on this date, shortly prior to the hearing. The matter was listed for trial in the Elizabeth Magistrates Court on 2 July 2008 at 10 am.
The appellant did not appear at Court at 10 am on 2 July 2008. The appellant was called for at 10.15 am, 10.35 am and 10.41 am. There was no appearance at any of these times.
On the final occasion, at the direction of His Honour, enquiries were made of the Sheriff’s Officer and the Court Registry as to whether the appellant had made any contact, and both parties said that he had not. The prosecutor submitted that the restraining order should be confirmed, in the absence of the appellant.
His Honour observed that the victim had made special arrangements to be present at court, ordered that the restraining order be confirmed and certified witness fees.
On 20 January 2008 the appellant was personally served with a copy of the Restraining Order and Summons. The document listed the hearing date for 24 January 2008 at the Elizabeth Magistrates Court. Attached to the Restraining Order and Summons were two pages of instructions headed “Magistrates Court of South Australia - Information for Persons Served with a Restraining Order”, which set out the following information:
Why Was the Order Made?
If someone claims that you have threatened or injured them, or that you have damaged their property or done other things to frighten them, and that they fear this will happen again, they can ask the court to prevent you from doing various things – such as not communicating with another person or going near their home or workplace.
An application for a restraining order was made in court. A sworn affidavit or other evidence about your behaviour/actions satisfied a Magistrate that it was appropriate to make the order.
If you would like a copy of the application, affidavit and any sworn evidence speak to the Sheriff’s Officer at the Court or go to the Registry office and copies will be given to you. If the evidence is not available you may request that a copy be forwarded to you at a later date.
Do I need to attend court?
The Order served on you also requests you to appear in court. The purpose of this court appearance is to give you an opportunity to indicate to the Magistrate whether you think the order should remain in place.
If you do not attend court the Magistrate will confirm the order in your absence. The order may be set for a specific period of time, eg 12 months, or for an indefinite period of time.
What can I do in court?
You can:
Agree to the order continuing (the order will then be confirmed)
Agree to the order continuing, but not that the allegations against you are true. You may have noted on the court file that you do not agree to allegations made in the application.
Contest the order and request the Magistrate adjourn the matter to a pre-trial conference
Request an adjournment for legal advice
Agree to some parts of the order, but not others. You or your solicitor may discuss the matter with police prosecutions. You may not need to go to trial if you are able to reach agreement on the terms of the final order.
...
What If I Disagree with the Order?
The purpose of the order is to protect the applicant. If it is necessary to restrict your activities to achieve this, then the Magistrate will do so. However, if you think the order will unreasonably restrict activities that are not necessary for the other person’s safety, you should let the Magistrate know. If you disagree with the order, you may consider seeking legal advice about your options.
If you tell the Magistrate that you wish to dispute the order, the matter will be set down for a pre-trial conference. The conference is your opportunity to talk to police prosecutions to explain why you disagree with the order continuing and attempt to resolve the matter. If a solution is not possible the matter will be set for trial and a Magistrate will decide whether the order is needed after hearing evidence from all witnesses. You must remember that the conditions of the order are still binding until the matter has been resolved in Court. (Emphasis in original)
The appellant gave numerous reasons as to why he did not attend the hearing on 2 July 2008. The file shows that on 26 March 2008 the appellant wrote to the Registrar of the Elizabeth Magistrates Court stating:
I honestly submit that I will not attend final hearing, as I have no chance of gaining impartial justice before [the magistrate]. Instead, after his any decision I will proceed to the Supreme Court to appeal the fatal decision as that he not having no jurisdiction to rule and I having no case to answer.
In an affidavit dated 7 July 2008 and filed on appeal, the appellant exhibits an email he addressed to the Registrar of the Elizabeth Magistrates Court, in which he stated:
I did not attend the hearing on 2/7/2008 as I feared for my life going to Elizabeth so far away, ... I have never done anything to [the alleged victim] and her family in Elizabeth.
...
I have diabetes and other disabilities and Elizabeth was so far and stressful for me.
Further in his affidavit, he states:
I have a hearing at 10 AM in a restraining order matter brought by SA Police on behalf of [the alleged victim] ... today (2/7/2008).
I cannot attend as I have argued that the Magistrate has denied me basic rights and he has overlooked my request to call witnesses and seek discovery from police.
Further, I have argued that he has no jurisdiction in the matter as the police has given me only unsworn statement of [the alleged victim’s] false allegations, when she made the first complaint in 2006.
Based on what was given to me then the threshold test for restraining order is not met according to law. Thus, the Magistrate has no jurisdiction as he cannot be so satisfied according to law and fact.
On appeal, the appellant gave various other reasons why he did not attend court on 2 July 2008. In the appellant’s rebuttal outline of argument he stated:
...
(iv) ... the appellant has been forced to attend Elizabeth so far, when all matters occurred between the appellant and [the victim] in city and the need for the police to take the appellant to Elizabeth a place he did not knows. Was that reasonable? What business the Elizabeth magistrate has on the life of the appellant as all matters allegedly occurred to [the victim] from stalking to harassment in Adelaide and how Elizabeth became to place of convenience to the police? The appellant has diabetes and felt intimidated to go to such far place and was bothersome for his disability.
(v) The appellant did challenged the Magistrates jurisdiction based on the first unsigned affidavit of [the victim] and so the alleged facts therein did not meet the threshold test for the Magistrate to invoke his jurisdiction to granting of the restraining order in temporary or permanent basis. Had the police given the latter 16 January 2008 affidavit then beyond reasonable doubt that threshold test per the law would had been met for the magistrate to be so satisfied. In this case, the appellant did not attend and the granting of the restraining order would be deemed proper. However, not based on an old unsigned affidavit based on the coaching of the police in fabrication of a Wednesbury unreasonable hearsay affidavit.
...
The material, which was the basis of the restraining and confirmation orders, was set out in an affidavit of the alleged victim, sworn on 16 January 2008 and tendered before the magistrate on 17 January 2008. The court file and the affidavit of Gregory John Hill, sworn on 30 July 2008, indicate the appellant was provided with a copy of this affidavit on 29 February 2008. The appellant now argues that on 29 February, he was provided with an unsworn copy of the alleged victim’s affidavit dated 25 October 2006, which is different from her affidavit sworn on 16 January 2008, upon which the magistrate relied to make the restraining and confirmation orders. He therefore argues that the orders were invalid. It is necessary for me to set out the contents of the two affidavits.
The two affidavits of the alleged victim were tendered by the appellant on appeal. Both are in the form of statements made to police at the Elizabeth Police Station in support of restraining orders against the appellant. The first was made to Constable Pepper at 1.45 pm on Wednesday, 25 October 2006. The second was made to Constable Hawgood at 2.00 pm on Wednesday, 16 January 2008. The appellant argues that he was provided with an unsworn copy of the first affidavit.
Both affidavits contain allegations that the appellant:
met the alleged victim in 1989 when both were students at the Kensington Adult Matriculation College;
followed her to the gym, became a member and showed up in the pool when she was there in 1989;[1]
sent the alleged victim letters with critical religious content in 1991[2] and 1992 when she resided in Melbourne;
presented at the alleged victim’s door on a number of occasions after she moved back to Adelaide in 1993;[3]
continued to harass the alleged victim in 1996 and 1997, despite her reporting his behaviour to police on:
− 20 April 1996 (Police Incident Report 96/K6906 – when he was formally interviewed and cautioned regarding two counts of stalking);
− 22 November 1996 (Police Incident Report 97/L32200 – regarding five counts of stalking); and
− 26 January 1997 after he was arrested and bailed (Apprehension Report 97/C63277 – regarding a charge of stalking – which was dismissed for want of prosecution on 30 May 1997);
would often approach the alleged victim in an offensive manner and harass her when she was studying at the State Library in Adelaide in 1997;[4]
approached the alleged victim’s friends at the Saint Xavier Catholic Cathedral in 1997[5] to obtain information about her;
sent the alleged victim letters between 1997 and 2001 when the alleged victim was a student at the Adelaide University;
sent emails in the name of the alleged victim to contacts in her email account when she was a student at the University of South Australia in 2001;
caused the alleged victim to install additional security, including security doors and alarms at her home in 2003;
sent the alleged victim offensive emails when she was a student at the University of Adelaide in 2005;
sent the alleged victim a copy of a confidential “deed of settlement” in relation to court proceedings he had instituted in 2006; and
sent the alleged victim a letter containing a copy of an internet clipping in which she featured, together with a photograph of the appellant and his original diary in October 2006.
The alleged victim’s second affidavit sworn on 16 January 2008 contains further allegations that, in the intervening period, the appellant:
hand-delivered a letter to the alleged victim’s mailbox in 2007;
sent another letter to the alleged victim in 2007 regarding her allegations of stalking, as well as other allegations against the appellant;
sent letters to the alleged victim’s mother in November and December 2007 regarding her daughter’s allegations against the appellant in 2006;
sent an email on 21 December 2007 threatening to rape the alleged victim; and
sent a letter to the alleged victim on 11 January 2008 regarding her attendance at the Elizabeth Police Station in October 2006 and allegations the alleged victim had made against him;
In the first affidavit, the alleged victim stated:
I would like a restraining order against Rana as I do not feel safe and have not felt safe for a number of years.
In the second affidavit she stated:
I do not feel safe on a daily basis and feel that Rana is capable of inflicting harm on me in the immediate future as I do not feel that he is mentally stable.
Exhibit P2, which was tendered by the appellant on the hearing of the appeal, and exhibits to the appellant’s affidavit affirmed on 7 July 2008, support the allegations contained in the alleged victim’s affidavits.
Exhibit P2 is a report dated 10 July 2008 from Dr D Miller, Consultant Physician, which indicates that the appellant “suffers from type-II diabetes mellitus and paranoid schizophrenia”, for which he is receiving treatment.
Exhibit “B” to the appellant’s affidavit affirmed on 7 July 2008, a letter dated 26 November 2007 from the South Australia Police to the Administrative Appeals Tribunal refers to documents subpoenaed in relation to a tribunal proceeding in which the appellant was a party. Among the documents subpoenaed were the police reports in relation to the appellant and the alleged victim. Reports were dated 20 April 1996 (Police Incident Report 96/K6906), 22 November 1996 (Police Incident Report 97/L32200) and 26 January 1997 (Apprehension Report 97/C63277). A caution was issued in relation to the first report. A charge of stalking was laid in relation to the second and third reports. The South Australia Police claimed public interest immunity to documents which already existed relating to the restraining order sought by the alleged victim, now the subject of this appeal.
Exhibit “D” to the appellant’s affidavit affirmed on 7 July 2008 is an affidavit affirmed on 18 February 2008, in which the appellant states:
I have been given the first complaint of [the victim] to police, whose name appears to be Senior Constable Melissa Pepper on 25/10/2007 in Elizabeth. I read this now marked as exhibit “A” on 15/2/2008 after the Commissioner of Police did not wanted [sic] my challenge of his claim for “public interest immunity” to continue.
In the affidavit affirmed on 18 February 2008, the appellant denied and, in fact, reversed the allegations made against him. Part of exhibit “C” to the affidavit is an email dated 21 December 2007, said to have been sent by the appellant to the University of South Australia. The appellant says this email is false. This appears to be the same email which is referred to by the alleged victim in her second affidavit. This indicates that the appellant had already obtained the alleged victim’s first affidavit, and might have known at least some of the contents of her second affidavit by 18 February 2008, the date the affidavit was affirmed.
Relevant Legislation
I set out the particular provisions of the Act that are relevant to this appeal. Section 99 of the Act provides the following:
99—Restraining orders
(1) On a complaint under this Division, the Court may make a restraining order against the defendant if—
(a) there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b) the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) For the purposes of this section, a defendant behaves in an intimidating or offensive manner if on two or more separate occasions—
(a) the defendant follows a person; or
(b) the defendant loiters outside the place of residence of a person or some other place frequented by the person; or
(c) the defendant enters or interferes with property occupied by, or in the possession of, a person; or
(d) the defendant—
(i) gives or sends offensive material to a person or leaves offensive material where it will be found by, given to, or brought to the attention of a person; or
(ii) publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, a person; or
(da) the defendant communicates with a person, or to others about a person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication; or
(e) the defendant keeps a person under surveillance; or
(f) the defendant takes any other action in relation to a person or a person's property,
so as to reasonably arouse in the person apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
Section 99C of the Act provides:
99C—Issue of restraining order in absence of defendant
(1) A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the complaint and failed to appear in obedience to the summons.
(2) A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.
(3) The Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case—
(a) the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and
(b) if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.
Grounds of Appeal
From the papers filed by the appellant, both at first instance and on appeal, it appears that the appellant challenges the orders on the following grounds:
the alleged victim’s first affidavit which was provided to him was unsworn and dated 25 October 2006, a date well before the date of the Complaint on 17 January 2008;
the Complaint was invalid in that it lacked reasonable particulars of the conduct said to satisfy the threshold test;
the alleged victim’s affidavit which was provided to him does not satisfy the threshold test in s 99 of the Act; and
the decision of the magistrate was manifestly unreasonable and against the weight of the evidence before the court.
I will address each of these grounds of appeal in turn.
Affidavit
The appellant says he received an unsworn copy of the alleged victim’s first affidavit dated 25 October 2006, rather than her second affidavit sworn on 16 January 2008. In large part, the substance of the first affidavit is the same as the substance of the second affidavit. The appellant does not argue that he was unaware of the allegations against him, or that the two affidavits differ in any material respect. He merely argues that the copy which was provided to him on 29 February 2008 was out of date and unsworn. Receiving the first affidavit could not have prejudiced the appellant.
I dismiss this ground of appeal.
Particulars
The unsworn copy of the alleged victim’s first affidavit, dated 25 October 2006, provided the appellant with sufficient particulars of the allegations against him. The Complaint was not invalid on account of it lacking further particulars.
In Police v Gray, Doyle CJ had the opportunity to consider the particulars that must be provided to a defendant when the jurisdiction and power conferred on the Magistrates Court by ss 99 and 99C of the Act is invoked. Doyle CJ said:[6]
As neither the Act nor the Magistrates Court Rules (apart from prescribing a form) make any provision for the manner in which the complaint is to be expressed, it is appropriate to return to fundamental principles of justice. They are principles intended to ensure a fair and efficient hearing. Those principles are to be treated as applicable unless clearly excluded by statute. In my opinion those principles require only that, to be valid, a complaint must identify for the Court, and ultimately for the defendant, the relief that is claimed, and the jurisdiction and power of the Court that is invoked for the grant of that relief. In the present case the complaint invokes the jurisdiction conferred by s 99(1), and seeks a restraining order of the kind envisaged by s 99(1) and provided for by s 99(3), which enables the Court to “impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner”. There is no provision in the Act that requires any greater detail for the complaint to be valid. Nor is there any reason to read the provisions of the Act as contemplating anything more ...
In the present case, the allegations in the alleged victim’s second affidavit, sworn on 16 January 2008, did not depart from the allegations in her first affidavit, dated 25 October 2006. She also attended court to give evidence on 2 July 2008. Again, receiving the alleged victim’s first affidavit, which informally particularised the allegations, could not have prejudiced the appellant.
I dismiss this ground of appeal.
Threshold test
Sections 99 and 99C of the Act confer jurisdiction upon a magistrate to make or confirm a restraining order in circumstances such as those in the present case. The appellant had been issued with a summons to appear for the confirmation hearing. The alleged victim’s first affidavit, dated 25 October 2006, and second affidavit, sworn on 16 January 2008, were also before the magistrate (the first through an affidavit filed by the appellant, and the second through the Complaint). The appellant’s affidavits and submissions were also before the magistrate. The appellant chose not to appear before the magistrate to argue against confirmation of the order on any grounds, or to cross-examine the alleged victim.
As to the particulars necessary to satisfy the threshold test, Doyle CJ in Police v Gray stated:
one would expect those particulars to identify past behaviour by a defendant which was intimidating or offensive, or past occasions when the defendant had caused or threatened to cause personal injury or damage, together with circumstances supporting the suggestion that such conduct might occur again in the future. Section 99(2) might be said to suggest that an order should be made if it is proved that a defendant has behaved in the manner described in that provision on two or more separate occasions. But the issue for the Court under s 99(1) is whether there is a reasonable apprehension that such behaviour will occur in the future. Proof of some or all of the matters identified in s 99(2) is no more than a step along the way. Proof of past behaviour described in s 99(2) is not essential to obtain a restraining order, although such proof will usually be the basis of an application. Nor is proof of such past behaviour sufficient to obtain a restraining order. The order will be made only if there is also a reasonable apprehension of such behaviour in the future.
There was sufficient evidence before the magistrate for him to be satisfied that the requisite “reasonable apprehension” existed on the part of the alleged victim, upon which he could confirm the restraining order in the appellant’s absence.
I dismiss this ground of appeal.
Unreasonableness
Decisions are ordinarily considered manifestly unreasonable only if no reasonable decision-maker, acting within jurisdiction and according to law, would have made the decision.[7] On the material before him, there was nothing unreasonable about the magistrate’s decision to confirm the restraining order.
The decision of the magistrate to confirm the restraining order was supported by the evidence. The alleged victim’s affidavits supported the orders and she was present to be cross-examined. Much of the appellant’s affidavit material before the magistrate was irrelevant. The appellant chose not to appear to either challenge the alleged victim’s evidence or to produce evidence showing cause as to why the order should not have been confirmed.
I dismiss this ground of appeal.
Conclusion
For the above reasons, I dismiss the appeal.
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[1] Year particularised in affidavit sworn on 16 January 2008 but not in affidavit sworn on 25 October 2006.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Police v Gray (2001) 213 LSJS 540, 545.
[7] See Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611.
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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
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RANA v POLICE
[2008] SASC 280
Judgment of The Honourable Justice David
21 October 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
Appeal against confirmation of restraining order made by magistrate in absence of appellant - whether appellant prejudiced by unsworn and outdated affidavit - whether appellant provided with sufficient particulars - whether particulars provided in affidavit show reasonable apprehension - whether confirmation of restraining order unreasonable or contrary to evidence.
Held: Appeal dismissed - appellant not prejudiced by unsworn and outdated affidavit - appellant provided with sufficient particulars - particulars provided in affidavit show reasonable apprehension - confirmation of restraining order not unsreasonable and was supported by evidence.
Summary Procedure Act 1921 (SA) s 99, s 99C, referred to.
Police v Gray (2001) 213 LSJS 540, applied.
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611, considered.
RANA v POLICE
[2008] SASC 280
Magistrates Appeal
DAVID J.
Introduction
This is an appeal against the confirmation of a restraining order made by a magistrate, pursuant to ss 99 and 99C of the Summary Procedure Act 1921 (SA) (“the Act”). The order confirmed was as follows:
The defendant is restrained from entering or attending any place that [the alleged victim] may be residing from time to time.
The defendant is restrained from entering any place of employment at any time or any place where [the alleged victim] may be present.
The defendant is restrained from contacting, communicating or approaching directly or through another person with [the alleged victim].
That defendant is restrained from following or watching [the alleged victim].
That a member of the police force is authorised to enter any premises in which any firearm in your possession is suspected to be and to search for and take possession of any such firearm.
That you be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.
The defendant is prohibited from possessing a firearm in the course of his/her employment.
That any firearm in your possession be confiscated and held by the Registrar of Firearms, to be returned to you if this Restraining Order/Domestic Violence Restraining Order is not confirmed.
That any licence or permit to be in possession of a firearm that you currently hold be suspended until the court determines whether to confirm this Restraining Order/Domestic Violence Restraining Order.
The appellant, who was unrepresented on the appeal, argues for various reasons, that the order should be set aside.
History Leading to the Making of the Order
According to the file and the affidavit of Gregory John Hill sworn on 30 July 2008, the police prosecutor who appeared before the magistrate on 2 July 2008, it appears the following events led to the confirmation of the order:
...
On 17 January 2008, an application for a Restraining Order, signed by the victim ... was filed at the Magistrate Court.
The application was heard on 17 January 2008 at 2.15 pm. The victim appeared unrepresented. Police prosecutor McGrath appeared for the prosecution. The prosecutor tendered an affidavit by the victim ... The Court issued a Restraining Order and Summons for the appellant to attend at Court for a hearing on 24 January 2008, to show cause why the order should not be confirmed.
On 24 January 2008, the appellant appeared unrepresented. Police prosecutor E Smith appeared for the prosecution. The appellant intimated that he would be disputing the order. The matter was listed for a status conference on 29 February 2008.
On 29 February 2008, the appellant appeared unrepresented. Police prosecutor Hoang appeared for the prosecution. The appellant was provided with a copy of the victim’s affidavit.
On 14 March 2008, the appellant appeared unrepresented. Police prosecutor Hoang appeared for the prosecution. The appellant had filed a bundle of documentation on this date, shortly prior to the hearing. The matter was listed for trial in the Elizabeth Magistrates Court on 2 July 2008 at 10 am.
The appellant did not appear at Court at 10 am on 2 July 2008. The appellant was called for at 10.15 am, 10.35 am and 10.41 am. There was no appearance at any of these times.
On the final occasion, at the direction of His Honour, enquiries were made of the Sheriff’s Officer and the Court Registry as to whether the appellant had made any contact, and both parties said that he had not. The prosecutor submitted that the restraining order should be confirmed, in the absence of the appellant.
His Honour observed that the victim had made special arrangements to be present at court, ordered that the restraining order be confirmed and certified witness fees.
On 20 January 2008 the appellant was personally served with a copy of the Restraining Order and Summons. The document listed the hearing date for 24 January 2008 at the Elizabeth Magistrates Court. Attached to the Restraining Order and Summons were two pages of instructions headed “Magistrates Court of South Australia - Information for Persons Served with a Restraining Order”, which set out the following information:
Why Was the Order Made?
If someone claims that you have threatened or injured them, or that you have damaged their property or done other things to frighten them, and that they fear this will happen again, they can ask the court to prevent you from doing various things – such as not communicating with another person or going near their home or workplace.
An application for a restraining order was made in court. A sworn affidavit or other evidence about your behaviour/actions satisfied a Magistrate that it was appropriate to make the order.
If you would like a copy of the application, affidavit and any sworn evidence speak to the Sheriff’s Officer at the Court or go to the Registry office and copies will be given to you. If the evidence is not available you may request that a copy be forwarded to you at a later date.
Do I need to attend court?
The Order served on you also requests you to appear in court. The purpose of this court appearance is to give you an opportunity to indicate to the Magistrate whether you think the order should remain in place.
If you do not attend court the Magistrate will confirm the order in your absence. The order may be set for a specific period of time, eg 12 months, or for an indefinite period of time.
What can I do in court?
You can:
Agree to the order continuing (the order will then be confirmed)
Agree to the order continuing, but not that the allegations against you are true. You may have noted on the court file that you do not agree to allegations made in the application.
Contest the order and request the Magistrate adjourn the matter to a pre-trial conference
Request an adjournment for legal advice
Agree to some parts of the order, but not others. You or your solicitor may discuss the matter with police prosecutions. You may not need to go to trial if you are able to reach agreement on the terms of the final order.
...
What If I Disagree with the Order?
The purpose of the order is to protect the applicant. If it is necessary to restrict your activities to achieve this, then the Magistrate will do so. However, if you think the order will unreasonably restrict activities that are not necessary for the other person’s safety, you should let the Magistrate know. If you disagree with the order, you may consider seeking legal advice about your options.
If you tell the Magistrate that you wish to dispute the order, the matter will be set down for a pre-trial conference. The conference is your opportunity to talk to police prosecutions to explain why you disagree with the order continuing and attempt to resolve the matter. If a solution is not possible the matter will be set for trial and a Magistrate will decide whether the order is needed after hearing evidence from all witnesses. You must remember that the conditions of the order are still binding until the matter has been resolved in Court. (Emphasis in original)
The appellant gave numerous reasons as to why he did not attend the hearing on 2 July 2008. The file shows that on 26 March 2008 the appellant wrote to the Registrar of the Elizabeth Magistrates Court stating:
I honestly submit that I will not attend final hearing, as I have no chance of gaining impartial justice before [the magistrate]. Instead, after his any decision I will proceed to the Supreme Court to appeal the fatal decision as that he not having no jurisdiction to rule and I having no case to answer.
In an affidavit dated 7 July 2008 and filed on appeal, the appellant exhibits an email he addressed to the Registrar of the Elizabeth Magistrates Court, in which he stated:
I did not attend the hearing on 2/7/2008 as I feared for my life going to Elizabeth so far away, ... I have never done anything to [the alleged victim] and her family in Elizabeth.
...
I have diabetes and other disabilities and Elizabeth was so far and stressful for me.
Further in his affidavit, he states:
I have a hearing at 10 AM in a restraining order matter brought by SA Police on behalf of [the alleged victim] ... today (2/7/2008).
I cannot attend as I have argued that the Magistrate has denied me basic rights and he has overlooked my request to call witnesses and seek discovery from police.
Further, I have argued that he has no jurisdiction in the matter as the police has given me only unsworn statement of [the alleged victim’s] false allegations, when she made the first complaint in 2006.
Based on what was given to me then the threshold test for restraining order is not met according to law. Thus, the Magistrate has no jurisdiction as he cannot be so satisfied according to law and fact.
On appeal, the appellant gave various other reasons why he did not attend court on 2 July 2008. In the appellant’s rebuttal outline of argument he stated:
...
(iv) ... the appellant has been forced to attend Elizabeth so far, when all matters occurred between the appellant and [the victim] in city and the need for the police to take the appellant to Elizabeth a place he did not knows. Was that reasonable? What business the Elizabeth magistrate has on the life of the appellant as all matters allegedly occurred to [the victim] from stalking to harassment in Adelaide and how Elizabeth became to place of convenience to the police? The appellant has diabetes and felt intimidated to go to such far place and was bothersome for his disability.
(v) The appellant did challenged the Magistrates jurisdiction based on the first unsigned affidavit of [the victim] and so the alleged facts therein did not meet the threshold test for the Magistrate to invoke his jurisdiction to granting of the restraining order in temporary or permanent basis. Had the police given the latter 16 January 2008 affidavit then beyond reasonable doubt that threshold test per the law would had been met for the magistrate to be so satisfied. In this case, the appellant did not attend and the granting of the restraining order would be deemed proper. However, not based on an old unsigned affidavit based on the coaching of the police in fabrication of a Wednesbury unreasonable hearsay affidavit.
...
The material, which was the basis of the restraining and confirmation orders, was set out in an affidavit of the alleged victim, sworn on 16 January 2008 and tendered before the magistrate on 17 January 2008. The court file and the affidavit of Gregory John Hill, sworn on 30 July 2008, indicate the appellant was provided with a copy of this affidavit on 29 February 2008. The appellant now argues that on 29 February, he was provided with an unsworn copy of the alleged victim’s affidavit dated 25 October 2006, which is different from her affidavit sworn on 16 January 2008, upon which the magistrate relied to make the restraining and confirmation orders. He therefore argues that the orders were invalid. It is necessary for me to set out the contents of the two affidavits.
The two affidavits of the alleged victim were tendered by the appellant on appeal. Both are in the form of statements made to police at the Elizabeth Police Station in support of restraining orders against the appellant. The first was made to Constable Pepper at 1.45 pm on Wednesday, 25 October 2006. The second was made to Constable Hawgood at 2.00 pm on Wednesday, 16 January 2008. The appellant argues that he was provided with an unsworn copy of the first affidavit.
Both affidavits contain allegations that the appellant:
met the alleged victim in 1989 when both were students at the Kensington Adult Matriculation College;
followed her to the gym, became a member and showed up in the pool when she was there in 1989;[1]
sent the alleged victim letters with critical religious content in 1991[2] and 1992 when she resided in Melbourne;
presented at the alleged victim’s door on a number of occasions after she moved back to Adelaide in 1993;[3]
continued to harass the alleged victim in 1996 and 1997, despite her reporting his behaviour to police on:
− 20 April 1996 (Police Incident Report 96/K6906 – when he was formally interviewed and cautioned regarding two counts of stalking);
− 22 November 1996 (Police Incident Report 97/L32200 – regarding five counts of stalking); and
− 26 January 1997 after he was arrested and bailed (Apprehension Report 97/C63277 – regarding a charge of stalking – which was dismissed for want of prosecution on 30 May 1997);
would often approach the alleged victim in an offensive manner and harass her when she was studying at the State Library in Adelaide in 1997;[4]
approached the alleged victim’s friends at the Saint Xavier Catholic Cathedral in 1997[5] to obtain information about her;
sent the alleged victim letters between 1997 and 2001 when the alleged victim was a student at the Adelaide University;
sent emails in the name of the alleged victim to contacts in her email account when she was a student at the University of South Australia in 2001;
caused the alleged victim to install additional security, including security doors and alarms at her home in 2003;
sent the alleged victim offensive emails when she was a student at the University of Adelaide in 2005;
sent the alleged victim a copy of a confidential “deed of settlement” in relation to court proceedings he had instituted in 2006; and
sent the alleged victim a letter containing a copy of an internet clipping in which she featured, together with a photograph of the appellant and his original diary in October 2006.
The alleged victim’s second affidavit sworn on 16 January 2008 contains further allegations that, in the intervening period, the appellant:
hand-delivered a letter to the alleged victim’s mailbox in 2007;
sent another letter to the alleged victim in 2007 regarding her allegations of stalking, as well as other allegations against the appellant;
sent letters to the alleged victim’s mother in November and December 2007 regarding her daughter’s allegations against the appellant in 2006;
sent an email on 21 December 2007 threatening to rape the alleged victim; and
sent a letter to the alleged victim on 11 January 2008 regarding her attendance at the Elizabeth Police Station in October 2006 and allegations the alleged victim had made against him;
In the first affidavit, the alleged victim stated:
I would like a restraining order against Rana as I do not feel safe and have not felt safe for a number of years.
In the second affidavit she stated:
I do not feel safe on a daily basis and feel that Rana is capable of inflicting harm on me in the immediate future as I do not feel that he is mentally stable.
Exhibit P2, which was tendered by the appellant on the hearing of the appeal, and exhibits to the appellant’s affidavit affirmed on 7 July 2008, support the allegations contained in the alleged victim’s affidavits.
Exhibit P2 is a report dated 10 July 2008 from Dr D Miller, Consultant Physician, which indicates that the appellant “suffers from type-II diabetes mellitus and paranoid schizophrenia”, for which he is receiving treatment.
Exhibit “B” to the appellant’s affidavit affirmed on 7 July 2008, a letter dated 26 November 2007 from the South Australia Police to the Administrative Appeals Tribunal refers to documents subpoenaed in relation to a tribunal proceeding in which the appellant was a party. Among the documents subpoenaed were the police reports in relation to the appellant and the alleged victim. Reports were dated 20 April 1996 (Police Incident Report 96/K6906), 22 November 1996 (Police Incident Report 97/L32200) and 26 January 1997 (Apprehension Report 97/C63277). A caution was issued in relation to the first report. A charge of stalking was laid in relation to the second and third reports. The South Australia Police claimed public interest immunity to documents which already existed relating to the restraining order sought by the alleged victim, now the subject of this appeal.
Exhibit “D” to the appellant’s affidavit affirmed on 7 July 2008 is an affidavit affirmed on 18 February 2008, in which the appellant states:
I have been given the first complaint of [the victim] to police, whose name appears to be Senior Constable Melissa Pepper on 25/10/2007 in Elizabeth. I read this now marked as exhibit “A” on 15/2/2008 after the Commissioner of Police did not wanted [sic] my challenge of his claim for “public interest immunity” to continue.
In the affidavit affirmed on 18 February 2008, the appellant denied and, in fact, reversed the allegations made against him. Part of exhibit “C” to the affidavit is an email dated 21 December 2007, said to have been sent by the appellant to the University of South Australia. The appellant says this email is false. This appears to be the same email which is referred to by the alleged victim in her second affidavit. This indicates that the appellant had already obtained the alleged victim’s first affidavit, and might have known at least some of the contents of her second affidavit by 18 February 2008, the date the affidavit was affirmed.
Relevant Legislation
I set out the particular provisions of the Act that are relevant to this appeal. Section 99 of the Act provides the following:
99—Restraining orders
(1) On a complaint under this Division, the Court may make a restraining order against the defendant if—
(a) there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b) the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) For the purposes of this section, a defendant behaves in an intimidating or offensive manner if on two or more separate occasions—
(a) the defendant follows a person; or
(b) the defendant loiters outside the place of residence of a person or some other place frequented by the person; or
(c) the defendant enters or interferes with property occupied by, or in the possession of, a person; or
(d) the defendant—
(i) gives or sends offensive material to a person or leaves offensive material where it will be found by, given to, or brought to the attention of a person; or
(ii) publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, a person; or
(da) the defendant communicates with a person, or to others about a person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication; or
(e) the defendant keeps a person under surveillance; or
(f) the defendant takes any other action in relation to a person or a person's property,
so as to reasonably arouse in the person apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
Section 99C of the Act provides:
99C—Issue of restraining order in absence of defendant
(1) A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the complaint and failed to appear in obedience to the summons.
(2) A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.
(3) The Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case—
(a) the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and
(b) if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.
Grounds of Appeal
From the papers filed by the appellant, both at first instance and on appeal, it appears that the appellant challenges the orders on the following grounds:
the alleged victim’s first affidavit which was provided to him was unsworn and dated 25 October 2006, a date well before the date of the Complaint on 17 January 2008;
the Complaint was invalid in that it lacked reasonable particulars of the conduct said to satisfy the threshold test;
the alleged victim’s affidavit which was provided to him does not satisfy the threshold test in s 99 of the Act; and
the decision of the magistrate was manifestly unreasonable and against the weight of the evidence before the court.
I will address each of these grounds of appeal in turn.
Affidavit
The appellant says he received an unsworn copy of the alleged victim’s first affidavit dated 25 October 2006, rather than her second affidavit sworn on 16 January 2008. In large part, the substance of the first affidavit is the same as the substance of the second affidavit. The appellant does not argue that he was unaware of the allegations against him, or that the two affidavits differ in any material respect. He merely argues that the copy which was provided to him on 29 February 2008 was out of date and unsworn. Receiving the first affidavit could not have prejudiced the appellant.
I dismiss this ground of appeal.
Particulars
The unsworn copy of the alleged victim’s first affidavit, dated 25 October 2006, provided the appellant with sufficient particulars of the allegations against him. The Complaint was not invalid on account of it lacking further particulars.
In Police v Gray, Doyle CJ had the opportunity to consider the particulars that must be provided to a defendant when the jurisdiction and power conferred on the Magistrates Court by ss 99 and 99C of the Act is invoked. Doyle CJ said:[6]
As neither the Act nor the Magistrates Court Rules (apart from prescribing a form) make any provision for the manner in which the complaint is to be expressed, it is appropriate to return to fundamental principles of justice. They are principles intended to ensure a fair and efficient hearing. Those principles are to be treated as applicable unless clearly excluded by statute. In my opinion those principles require only that, to be valid, a complaint must identify for the Court, and ultimately for the defendant, the relief that is claimed, and the jurisdiction and power of the Court that is invoked for the grant of that relief. In the present case the complaint invokes the jurisdiction conferred by s 99(1), and seeks a restraining order of the kind envisaged by s 99(1) and provided for by s 99(3), which enables the Court to “impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner”. There is no provision in the Act that requires any greater detail for the complaint to be valid. Nor is there any reason to read the provisions of the Act as contemplating anything more ...
In the present case, the allegations in the alleged victim’s second affidavit, sworn on 16 January 2008, did not depart from the allegations in her first affidavit, dated 25 October 2006. She also attended court to give evidence on 2 July 2008. Again, receiving the alleged victim’s first affidavit, which informally particularised the allegations, could not have prejudiced the appellant.
I dismiss this ground of appeal.
Threshold test
Sections 99 and 99C of the Act confer jurisdiction upon a magistrate to make or confirm a restraining order in circumstances such as those in the present case. The appellant had been issued with a summons to appear for the confirmation hearing. The alleged victim’s first affidavit, dated 25 October 2006, and second affidavit, sworn on 16 January 2008, were also before the magistrate (the first through an affidavit filed by the appellant, and the second through the Complaint). The appellant’s affidavits and submissions were also before the magistrate. The appellant chose not to appear before the magistrate to argue against confirmation of the order on any grounds, or to cross-examine the alleged victim.
As to the particulars necessary to satisfy the threshold test, Doyle CJ in Police v Gray stated:
one would expect those particulars to identify past behaviour by a defendant which was intimidating or offensive, or past occasions when the defendant had caused or threatened to cause personal injury or damage, together with circumstances supporting the suggestion that such conduct might occur again in the future. Section 99(2) might be said to suggest that an order should be made if it is proved that a defendant has behaved in the manner described in that provision on two or more separate occasions. But the issue for the Court under s 99(1) is whether there is a reasonable apprehension that such behaviour will occur in the future. Proof of some or all of the matters identified in s 99(2) is no more than a step along the way. Proof of past behaviour described in s 99(2) is not essential to obtain a restraining order, although such proof will usually be the basis of an application. Nor is proof of such past behaviour sufficient to obtain a restraining order. The order will be made only if there is also a reasonable apprehension of such behaviour in the future.
There was sufficient evidence before the magistrate for him to be satisfied that the requisite “reasonable apprehension” existed on the part of the alleged victim, upon which he could confirm the restraining order in the appellant’s absence.
I dismiss this ground of appeal.
Unreasonableness
Decisions are ordinarily considered manifestly unreasonable only if no reasonable decision-maker, acting within jurisdiction and according to law, would have made the decision.[7] On the material before him, there was nothing unreasonable about the magistrate’s decision to confirm the restraining order.
The decision of the magistrate to confirm the restraining order was supported by the evidence. The alleged victim’s affidavits supported the orders and she was present to be cross-examined. Much of the appellant’s affidavit material before the magistrate was irrelevant. The appellant chose not to appear to either challenge the alleged victim’s evidence or to produce evidence showing cause as to why the order should not have been confirmed.
I dismiss this ground of appeal.
Conclusion
For the above reasons, I dismiss the appeal.
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[1] Year particularised in affidavit sworn on 16 January 2008 but not in affidavit sworn on 25 October 2006.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Police v Gray (2001) 213 LSJS 540, 545.
[7] See Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611.
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