Rana v University of South Australia [2007] FCAFC 188

FEDERAL COURT OF AUSTRALIA

Rana v University of South Australia [2007] FCAFC 188

RANJIT SHAMSHER JUNG BAHADUR RANA v UNIVERSITY OF SOUTH AUSTRALIA SAD 91 OF 2007

BRANSON, SUNDBERG AND DOWSETT JJ

4 DECEMBER 2007

ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 91 OF 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA

Appellant

AND: UNIVERSITY OF SOUTH AUSTRALIA

Respondent

JUDGES: BRANSON, SUNDBERG AND DOWSETT JJ

DATE OF ORDER: 4 DECEMBER 2007

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 2007

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: RANJIT SHAMSHER JUNG BAHADUR RANA

Appellant

AND: UNIVERSITY OF SOUTH AUSTRALIA

Respondent

JUDGES: BRANSON, SUNDBERG AND DOWSETT JJ

DATE: 4 DECEMBER 2007

PLACE: ADELAIDE

REASONS FOR JUDGMENT

Background 1 The appellant sought damages from the respondent (the University) for alleged contravention of s 52 of the Trade Practices Act 1974 (Cth) and for breach of a contract he claimed existed between them in relation to his proposed attendance at a 'hypothetical' staged by the University. He also sought an injunction to restrain the University from banning him from any public functions held by it in the future. The claims were dismissed by a judge of the Court, and the appellant appeals from that dismissal. 2 The statement of claim pleaded the s 52 case as follows: (a) on 27 March 2006 the University engaged in the following conduct in contravention of s 52: · it did not provide the appellant with ten tickets to the hypothetical as promised over the telephone by the University's Melissa Ellmers "when he would pay" $35 for each ticket; · the University's Helen McIver took the $350 for the tickets at the Adelaide Convention Centre (the Centre) at 5:20 pm but did not give the appellant the tickets as promised; and · Ms McIver called the security guards and the police and told them the appellant had been banned from all University functions for being a troublemaker. (b) the University's conduct was misleading and deceptive or likely to mislead and deceive in that the appellant was not allowed to attend the function for the public as advertised in The Australian newspaper; (c) the University's conduct misled the Centre's security officers and the police by causing them to believe that the appellant was banned and a troublemaker; (d) the appellant and his family and friends were also deceived and misled or likely to be deceived or misled by the ban; (e) the University's conduct induced the appellant to buy tickets because he was invited to the function as an alumnus and the tickets for alumni were at a $10 discount; (f) the appellant suffered loss or damage by the University's conduct, namely humiliation, embarrassment, loss of reputation and face and aggravation of paranoid schizophrenia, quantified at $1 million. 3 The contract cause of action was pleaded as follows: (a) the parties entered into the contract over the telephone on 27 March 2006 when Ms Ellmers "accepted to provide" ten tickets to the appellant for $35 each which the appellant was to pay to Ms McIver when he collected the tickets at the Centre by 5:20 pm on that day; (b) the terms of the contract were that in return for paying for the tickets the appellant would be provided with drinks and nibbles and be part of the hypothetical; (c) the appellant went to the Centre to pay for and collect the tickets, but "this was denied" by the University which put a ban on him and his party; (d) the University banned the appellant even though he had paid for the tickets, and did not refund the purchase price or provide the tickets; (e) the University disparaged the appellant before his guests contrary to the deed of settlement; (f) the loss caused by the breach of contract is the same as the loss consequential on the breach of s 52. 4 The primary judge found the appellant, who was the sole witness in his case, a "most unsatisfactory witness", and did not accept his evidence except where it accorded with other evidence that he accepted. His Honour noted that the appellant's evidence in relation to important events changed in the course of the trial, some of his evidence was highly improbable, and a good deal of it was inconsistent with other evidence that his Honour accepted. On the other hand the primary judge found that each of the witnesses called by the University was honest and straightforward, and he accepted them as witnesses of truth.