8 On 24 September 1999, Hulme J dismissed the plaintiff's proceedings against the seventh defendant, the New South Wales Teachers' Federation described in the Summons and Amended Summons as the President of the NSW Teachers' Federation, and refused leave to join the Human Rights and Equal Opportunity Commission as a defendant.
9 I therefore have before me the plaintiff's application to add the additional defendants and for leave to file the Amended Summons, and also the defendants' various applications, in effect, to strike out the Summons and Amended Summons and dismiss the proceedings.
10 A large amount of material, much of it strictly inadmissible or of doubtful relevance, has been admitted without objection. As the plaintiff was unrepresented and because of the difficulty at times of identifying what the issues were, it seemed desirable that he be permitted to place before me all the material which he wished to.
11 The plaintiff's main difficulty in these proceedings is that he cannot or will not understand the difference between allegations and evidence. He seems, or purports, to believe that merely making allegations or claims, no matter how extreme or outrageous and involving persons of otherwise impeccable character and reputation, in some way constitutes evidence of the matters alleged; and furthermore, that the more often such baseless allegations are repeated the more credence and substance they acquire, so that, in time, they become established facts.
12 Another problem he has is that he tends to take passages out of medical reports or previous judgments totally out of context, and quote them as evidence of the facts, when they are no more than summaries of the plaintiff's claims. At other times, he uses words totally irrelevant to the context in which they appear.
13 The plaintiff was born in India on 15 June 1942. He graduated as a Bachelor of Science in Engineering at Patna University in India in 1963 and as a Master of Science in Engineering at the University of London, England, in 1968. He also holds a Diploma from the Imperial College of Science and Technology, London, 1968 and a Diploma of Education from the Sydney College of Education, 1982. He has been an Associate Member of the Institution of Electrical Engineers, London, since 1972.
14 He was formally married to his late wife, June Dorothy Bhattacharya, an Englishwoman, in 1972, but says he was previously married to her in a community way from about 1967 or 1968. From 1963 to 1965 he was employed as an electrical engineer by the Electricity Board of India; from 1965 to 1967 as an electrical engineer with General Electric Company and Thorne Electrical Industries in the United Kingdom; from 1969 to 1971 as a systems engineer with Atomic Power Constructions Limited in the United Kingdom; from 1971 to 1973 as an electrical engineer with the Gladstone Electric Company; from 1973 to 1974 in bridge engineering supervision with 3M Australia; and from 1974 to 1980 as an electrical engineer with the NSW Department of Public Works. He was dismissed from his employment with that Department in 1982 and an appeal by him to the Government & Related Employees Appeal Tribunal (GREAT) (No 576/81) was unsuccessful. A further appeal to the Court of Appeal was also unsuccessful (No 286/82).
15 He subsequently complained of racial discrimination and victimisation to the NSW Equal Opportunity Commission, but such application was likewise unsuccessful: (1984) EOC ¶92-117.
16 The plaintiff's main allegation is that he has been the victim of a conspiracy which commenced in the late 1970s or early 1980s, involving various people in the Australian Labor Party of which he was a member, including two former Ministers of the Crown, which resulted in the loss of his employment with the NSW Department of Public Works and that later, when he obtained employment with the NSW TAFE Commission as a lecturer in electrical engineering at the Sydney Institute of Technology, some TAFE colleagues were engaged in the conspiracy with others, including members of the NSW Police, politicians and members of the medical profession to destroy his family. Subsequently when his wife died, apparently as a result of leukaemia on 15 November 1992, he claimed that she was "murdered" as a result of this conspiracy which by then included the active participation of various medical professionals at Westmead Hospital.
17 One of the matters which has been the focus of much of the plaintiff's attention in recent years, and his evidence and submissions in these proceedings, has been to obtain an inquest under s 47 of the Coroners Act 1980 into his wife's death, but this is the first time that an application has been made to a court for such an order, although it has previously been mentioned in passing.
18 As I have said, it is central to the plaintiff's case that, for many years dating back to the time of his dismissal from the Department of Public Works, he and his family have been the target of a wide-ranging conspiracy to injure him and, as it has been put on more than one occasion, "to destroy his life".
19 The shape and detail of the conspiracy, and the persons involved in it, have varied over the years and continue to vary, even during the course of the present hearing. It appears to have had its genesis while the plaintiff was a member of the Emu Plains Branch of the Australia Labor Party in the late 1970s and early 1980s when certain members set out to harm him because of issues he raised at party meetings, these persons including two Ministers of the Crown, who held local seats.
20 Another reason given for the conspiracy at times has been that a number of persons, particularly, as I understand it, in India, took objection to him marrying an English wife. An early version of the alleged conspiracy was to the effect that following the plaintiff's dismissal from the Department of Public Works, his wife was administered a cytocidic drug over a period of time, which caused her to develop leukaemia and be admitted to Westmead Hospital. The drugs were alleged to have been supplied by Dr See, a general practitioner of Penrith, at the instigation of the relevant Ministers of the Crown, and secretly given to Mrs Bhattacharya by being placed in her cups of tea by neighbours, a Mr and Mrs Shepherd. An obvious problem with this theory is that she was not diagnosed with leukaemia until 1991 and the Shepherds left Australia to live in England in about 1985.
21 Subsequent claims have been that when she was diagnosed as having leukaemia in 1991, she did not, in fact, have the disease; but was falsely diagnosed so that she would be admitted to hospital and could be killed "by medical malpractice". After she had been admitted to hospital, it was claimed that the plaintiff's wife did not have leukaemia but the doctors at Westmead, by continuing to treat her for that supposed condition, were covering up for the local Penrith doctors who had caused her admission.
22 Later again, the allegations changed and the Westmead Hospital doctors, including eminent specialists, were alleged to be actively involved in "murdering" his wife. These allegations included that she was given a transfusion of mud instead of a bone marrow transplant, that she was deliberately given bone marrow from a racially different group, and when, during the course of the hearing, a clerical error appeared on one of the forms as to the name of the recipient of the bone marrow, which had been corrected and was adequately explained in the evidence, the suggestion was made that his wife may not have received the right bone marrow, although there was absolutely no evidence that she had received any other one. The claims have been partly based on misreading or misunderstanding medical documents, e.g. the plaintiff has claimed at various stages that his wife did not have leukaemia but only an "early blast cell" condition, although the document to which he refers, namely the pathology report of 28 May 1991, part of Exhibit D, states the features to be those of "early blast cell leukaemia".
23 Over the years, a large number of persons are alleged to have been involved in the conspiracy including not only the two Ministers, Mr and Mrs Shepherd, a large number of doctors, Merilyn Walton formerly of the Health Care Complaints Commission, the Indian High Commissioner, the Indian Consul, Mr Lauer (a former Police Commissioner), and Ms Carmel Niland, who at one stage was counsellor for Equal Opportunity, later President of the Anti-Discrimination Board, and subsequently a Board Member of the NSW TAFE Commission and a member of a committee attached to the Independent Commission Against Corruption. Other persons involved are alleged to have been officers of the Department of Public Works, and when the plaintiff became dissatisfied with the result of police inquiries into his allegations, he alleged that those police were also part of the conspiracy.
24 An elaborate description of the conspiracy in its then form appears in the letter from the plaintiff to Mr Tony Fordham of the Professional Review Branch of Medicare dated 24 July 1993, which is in Exhibit 3 at pp 34 to 36. During the course of the hearing, the plaintiff also said that he still stands by all complaints he made in a letter to the Police dated 25 November 1991 (one year before his wife's death), which is contained in Exhibit B at pp 64 to 67.
25 I have come to the conclusion that there is no credible evidence against any of the people to whom the plaintiff refers. There is not one scintilla of evidence which supports his allegations of conspiracy and/or the murder of his wife. He has provided no tangible or even circumstantial evidence which would enable me to draw any inferences in support of the many allegations he has made, and his accusations are not only baseless and scurrilous, but traduce the names of many reputable people, leaving them defamed and without effective remedy.
26 One of the doctors involved in the later stages of the plaintiff's wife's illness, and in particular, the bone marrow transplant, was Professor Bradstock at Westmead Hospital. In 1994, following alleged threats by the plaintiff on the life of Professor Bradstock and his family, the plaintiff was detained as an involuntary patient under the Mental Health Act 1990, and took proceedings against the Superintendent of the Nepean Hospital where he was detained (Protective Division No 52/94).
27 Brownie J held that the defendant had established that the plaintiff was then a mentally ill person, that the evidence that the plaintiff was suffering from a delusional state was overwhelming, the delusions being the various theories of conspiracies being referred to in this case as they had been expressed up to that time. His delusions have continued to be manifest since that time, subject to a number of variations such as I have referred to. On 8 August 1994, the NSW Court of Appeal dismissed an appeal by Mr Bhattacharya against Brownie J's decision (No CA 40277/94), and an application for special leave to appeal to the High Court was refused on 30 May 1995 (No S128/94).
28 The plaintiff was then examined by HealthQuest in relation to his employment and, in a report dated 8 June 1995, Dr Gapper found that he had "a persistent psychiatric condition". At a subsequent examination on 27 August 1998, contained in the report from HealthQuest dated 8 October 1998, the examining consultant psychiatrist's opinion was that he continued to suffer from this delusional disorder, evident when he was previously seen in 1995.
29 It is necessary, because of its relevance, to these proceedings, to refer to a history of further litigation involving the plaintiff.
30 As a result of the threats made to Professor Bradstock and his family at the Penrith Local Court on 31 October 1994 Apprehended Violence Orders were made against the plaintiff not to approach et cetera Dr Bradstock, his wife or daughter. The plaintiff appealed to the District Court, but his appeal was dismissed by Judge Christie QC on 13 April 1995 (No 94/22/1336). A purported appeal to the Court of Criminal Appeal was dismissed as incompetent on 19 September 1995 (No 60245/95).
31 Meanwhile, on 5 April 1995, the plaintiff commenced proceedings against the NSW Teachers Federation in the Industrial Court of New South Wales for "failing to prosecute the parties for civil or criminal offences" against him. The application was refused (No CT1184/94). An appeal to the Full Bench of that Court was dismissed on 27 October 1995 (No CT1194/94).
32 There were further proceedings in the Industrial Commission of New South Wales before Schmidt J (No 2441/95) where the plaintiff sought leave to argue that his employer had discriminated against him contrary to s 491(1) of the Industrial Relations Act 1991. Leave was given to argue only one of these points relating to sick leave, and this matter was subsequently settled when the matter came before the Full Bench of the Industrial Commission on 10 April 1997 (No 2441/95).
33 On 27 October 1997, the plaintiff was convicted in the Local Court at Liverpool Street, Sydney on two charges of stalking, the allegation being that he had followed and threatened a person whom he believed, erroneously, to be a daughter of one of the Ministers allegedly engaged in the conspiracy against him. Having been convicted, he appealed to the District Court, but whilst the appeal was pending, he made an interlocutory application, which was heard by Judge Flannery QC on 28 November 1997. That application sought orders that his employer, the TAFE Commission, withdraw a letter directing him not to enter its premises or contact staff or members of the Commission whilst he was under suspension, and that it make an appropriate agreement to compensate him. These applications were dismissed.
34 The actual appeals came on in the District Court before Chief Judge Blanch QC on 4 May 1998, when the appeals were upheld and the convictions quashed, not because his Honour was not satisfied that he had not done what was alleged, but because he considered that in view of the plaintiff's irrational state, he was not satisfied beyond reasonable doubt that he was capable of forming the intention to carry out the threats (Nos 97/12/1065 and 97/22/1050).
35 At various times during this period, the plaintiff was suspended on full pay from his employment with the TAFE Commission. The original suspension was on 10 November 1997 after his convictions for stalking on 27 October 1997 and was in accordance with the Teaching Services Act 1980 s 87(1)(b), and the Department's policy set out in Exhibit 1A at tab 28. In fact, he had failed to notify the Department of the pending charges, but his employer ascertaining that he had, in fact, been convicted, and had an appeal pending, he was suspended. Subsequently, when he was charged on 1 May 1998 with other offences, he was again suspended without pay from 12 May.
36 In respect of these suspensions the plaintiff made application to GREAT but each appeal was dismissed because it was held there was no jurisdiction pursuant to s 23(1) of the relevant Act, the relevant proceedings in GREAT being on 2 February 1998 (No 483/97) and 10 August 1998 (No 331/98).
37 Subsequently, he was charged with breaches of discipline and again suspended on full pay on 3 November 1998. He again applied to GREAT in relation to his suspension and, once again, the Tribunal held he had no jurisdiction on 5 November 1998 (No 576/98).
38 In respect of the disciplinary charges an internal inquiry was conducted from 4-17 December 1998 before Mr Ron Button, the second-named defendant, who on 27 January 1997 reported to the Managing Director of TAFE, Dr Boston, who is the third defendant. Acting on the recommendations contained in the report, Dr Boston, terminated the plaintiff's employment with TAFE on 28 April 1999. He thereupon appealed again to GREAT (No 314/99). Judgment was given 10 September 1999 when the appeal was dismissed and his dismissal confirmed. He has since appealed to the Court of Appeal, and this appeal (No CA40674/99) is listed for hearing next week on 7 and 8 March 2000.
39 It is now necessary to refer in some detail to previous proceedings in this Court.
40 In April 1997, the plaintiff commenced proceedings No 2151/97 in the Equity Division, and by an Amended Summons, filed on 3 June 1987 in those proceedings, he named 14 defendants. The Amended Summons was a rambling, vague document notable for its generality and, although it did not specify a conspiracy as such, it alleged a cacophony of wrongdoing by the various defendants against the plaintiff and his family.
41 The defendants applied to strike out the Amended Summons, and this application was heard by Master Macready on 5 June 1997. The Master, on evidence before him, could not see that there was likely to be a claim mountable in the way set out but, because he was concerned there may have been a limitation point, he was reluctant to immediately dismiss the proceedings; accordingly, he stayed the proceedings and granted leave to the plaintiff to apply to file a Statement of Claim on condition that such application was accompanied by the form of the Statement of Claim which the plaintiff wished to have leave to file.
42 Such application was ultimately made by Notice of Motion filed on 10 March 1998, which contained the form of the proposed Statement of Claim. It was heard by Master McLaughlin on 3 April 1998, who also, at the same time, heard a Motion by the defendants to dismiss the proceedings.
43 The proposed Statement of Claim consisted of paras numbered 1.01 to 1.63 and 2 to 5, both inclusive. It referred to the plaintiff's employment with the Department of Public Works, his dismissal therefrom, the proceedings in the Anti-Discrimination Board, his complaints to police including one of "a silent plan of doctors to carry out the medical malpractice against the plaintiff's family" (para 1.16), and "the homicide of the plaintiff's wife" (para 1.22). It also alleged wrongful arrests and detentions on 15 January 1993 (paras 1.27 and 1.37), 11 February 1994 (paras 1.29 and 1.37) and 3 to 9 October 1997 (para 1.41). Finally, it alleged that between 1990 and 1992, the teachers at the Sydney Institute knowingly allowed his wife to be killed when they could have informed him about their knowledge of "the cruel plan" (paras 1.54 and 1.56). He claimed an order that the defendants compensate him sufficient to satisfy him in respect of his claims, or alternatively exemplary damages (para 2), and that the Police and Director of Public Prosecutions (the latter not a party to the proceedings) take immediate action to apprehend and charge various people for the murder of his wife (para 3).
44 The Master ordered that the proceedings be dismissed against all parties other than the Minister for Police, the Police Commissioner, the Department of Corrective Services, the Minister for Health and the Director-General of the Health Department and, in respect of those defendants, gave the plaintiff leave to apply to file a Statement of Claim which complied with the Rules relating to the allegations of false imprisonment and wrongful arrest as alleged in paras 1.27, 1.37 and 1.29. He did not allow him to re-plead the detention alleged from 3 to 9 December 1997 (para 1.41).
45 In respect of the other claims and the other defendants, he ordered that the proceedings be dismissed. Both parties appealed. On 5 March 1999, Young J dismissed the plaintiff's appeal and allowed the cross-appeal by the remaining five defendants on the ground that, having regard to the fact the plaintiff was taken before a magistrate and bail refused, and, that in the mental health matters, orders had been made under s 27 of the Mental Health Act 1990, the claims were bound to fail. The effect of his Honour's orders were that the proceedings were wholly dismissed. Since then, on 18 February 2000, the Court of Appeal has granted the plaintiff leave to appeal against the decision of Young J limited to that part of his Honour's judgment allowing the cross-appeal on the grounds I have indicated (CA 40213/99).
46 Shortly afterwards the plaintiff commenced further proceedings No 2020/99 in the Equity Division, which were transferred to the Common Law Division and became No 20241/99 in that Division. That Statement of Claim repeated allegations of detentions which had been the subject of the earlier Equity proceedings, and on an application by the defendants, Master Harrison ordered that these be struck out: [1999] NSWSC 956.
47 In this Statement of Claim, the plaintiff also alleged two further detentions alleged to have occurred after the Statement of Claim considered by Young J was filed, namely on 18 October 1987 and from 27 July to 6 August 1988. The Master ordered that, on the facts pleaded, these claims must fail and, accordingly, she dismissed the Statement of Claim as being an abuse of process, disclosing no reasonable cause of action. She also dismissed a Motion by the plaintiff for an interim payment of damages pursuant to s 76E of the Supreme Court Act 1970. An appeal was lodged by the plaintiff and has been heard by Hidden J, who has reserved judgment.
48 I turn now to deal with the specific orders sought by the plaintiff in the present proceedings. In para 1 of both the Summons and proposed Amended Summons, he seeks compensation including exemplary damages for the loss of his employment with the Open Training & Education Network of TAFE. The cause of action is not specified, but appears to be a claim for wrongful dismissal, which being a claim for breach of contract does not carry a right to exemplary damages.
49 In any event, the procedure laid down in the Teaching Services Act 1980 s 87 and the Regulations under that Act, appears to have been carefully followed in the giving of notice of the charges, the conducting of an open inquiry by Mr Button and the appeal to GREAT. The plaintiff has exercised his right of appeal to GREAT, and has now appealed to the Court of Appeal on questions of law. It is difficult to see how any issues could arise in relation to this claim other than those which arose in GREAT, and the plaintiff has had a complete remedy in that forum, subject to his pending appeal to the Court of Appeal.
50 There is, however, another obstacle in the plaintiff's way. Section 24(1) of the GREAT Act 1980, gives an employee who has been dismissed, a right of appeal to that Tribunal. Section 25(3) provides that where an employee appeals to the Tribunal under s 24, in respect of a decision of a kind referred to in s 23(1) (which includes a decision to dismiss the employee), he may not thereafter, in respect of that decision, appeal or institute other proceedings or proceedings may not be instituted on his behalf under any Act or law or industrial award or agreement.
51 It follows that having instituted an appeal against his dismissal, he may not bring any other proceedings, including proceedings for wrongful dismissal, in respect thereof.
52 In so far as the relief sought in para 1 relates to matters other than his dismissal, eg. "loss of enjoyment of employment", these matters were canvassed in paras 1.49 to 1.58 and 2 in the proposed Statement of Claim disallowed by Master McLaughlin in the Equity proceedings No 2151/97 whose decision on this point was affirmed by Young J, and leave to appeal was not granted on these points by the Court of Appeal. Having sought to litigate these issues in those proceedings and the proceedings having been dismissed, the same issues cannot be litigated in these proceedings.
53 It follows, as regards the claims in para 1, that no reasonable cause of action is disclosed, and as the matters have already been litigated, the claims are frivolous, vexatious and an abuse of process. Accordingly, the claims in para 1 of the Summons and Amended Summons should be dismissed pursuant to SCR Pt 13 r 5(1)(a), (b) and (c).
54 By para 2 of the proposed Amended Summons, the plaintiff claims an order pursuant to s 47(2) of the Coroners Act 1980 that the inquest into the death of his wife be quashed and a fresh inquest held. One of the Notices of Motion seeks orders that the Coroner of the Westmead Coroners Court (sic) and the Attorney General be joined as parties to the proceedings.
55 Generally speaking, proceedings cannot be amended to include matters unrelated to the issues raised in the originating process, particularly where they involve the joining of persons not otherwise parties to the proceedings, and do not involve any of the original parties.
56 Moreover, there has been considerable delay in bringing this claim. Although the plaintiff has been complaining for many years, this is the first time he has formally sought an order in relation to a Coroner's inquest, although the matter was touched on in the proposed Statement of Claim dealt with in the Equity Division by Master McLaughlin. In his judgment the Master said that one of the plaintiff's complaints was that there had never been an inquest by the Coroner, but pointed out that the Coroner was not a party and no claim for the relief now sought was included. The matter was also referred to in the judgment of Young J at paras 9 and 32; but this is the first time there has been a formal claim for an order.
57 Notwithstanding these matters, I consider it desirable to examine the merits of the plaintiff's claim in relation to the Coroner's inquest. The first matter to observe is that there never has been an inquest in relation to the death of Mrs Bhattacharya; the Coroner conducted a preliminary investigation into her death, after the receipt of allegations from the plaintiff and, ultimately, on 28 January 1993 determined that an inquest should be dispensed with as no evidence was provided in support of the serious allegations made, and he further determined that she had died from natural causes.
58 In so resolving the matter, the Coroner was purporting to exercise his powers under s 14(1) of the Coroners Act 1980, as it then stood, to dispense with the holding of an inquest. As no inquest has been held, s 47(2) is not applicable, but there is power under s 47(1) for this Court to order an inquest where none has previously been held and "it is necessary or desirable in the interests of justice that an inquest be held".
59 The phrase "interests of justice" was considered by the Court of Appeal in Herron v The Attorney General (1987) 8 NSWLR 601 where McHugh JA said at 617 that at the forefront of matters to be considered in assessing the interests of justice is "the existence of a reputable body of evidence which, if accepted, would indicate that the original finding and as to manner and cause of death ... was erroneous." Further to what his Honour said, I consider that the law is correctly stated in Coronial Law and Practice in New South Wales, 3rd ed, by Kevin Waller, a former State Coroner, at 190 where the author says:
"If the complaining relative wishes to proceed to a hearing, the Coroner must then decide whether or not to hold an inquest. One must be mindful that it will be necessary to bring to court doctors and nursing staff, whose abilities may be better employed elsewhere. If there is no indication of negligence, it is patently unfair to force staff to court where they can be subjected to emotionally and misguided questioning and accusation. Where, however, it seems that there is genuine cause for complaint, where appropriate recommendations might be forthcoming, where there is a possibility that the matter might be referred to a professional tribunal or where the possibility of the finding of an indictable offence under s 19 exists, a hearing should be undertaken."