Bhattacharya v Minister for Police, NSW & 3 Ors

Supreme Court of NSW|2001-06-19

CITATION : Bhattacharya v Minister for Police, NSW & 3 Ors [2001] NSWSC 520 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20676/2000 HEARING DATE(S) : 19 June 2001 JUDGMENT DATE : 25 June 2001

Pranay Kumar Bhattacharya (Plaintiff)

PARTIES : Police Commissioner of NSW (Second Defendant)

Minister for Health, NSW (Third Defendant)

Director General, NSW Health Department (Fourth Defendant) JUDGMENT OF : Master Harrison

Mr Bhattacharya (Plaintiff in Person) COUNSEL : Ms Ronalds (Defendants) Ms Allison SOLICITORS : Crown Solicitors Office (Defendants) CATCHWORDS : Motions to strike out statement of claim - strike out defences - summary judgment - security for costs Supreme Court Rules - Part 13 r 5; Part 15 r 26 LEGISLATION CITED : Mental Health Act 1990 - s 24 Crown Proceedings Act 1998 Air Services Australia v Zarb (NSWSC unreported, 26 August 1998 Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 CASES CITED : Webster & Anor v Lampard (1993) 177 CLR 598 Bhattacharya v Minister For Police, NSW & Ors [2001] NSWCA 108 (18 April 2001) Bhattacharya v Director-General of Department of Education & Training [2000] NSWCA 74 (4 April 2000) Bhattacharya v Hamilton [2000] NSWSC 102 (1 March 2000) DECISION : (1) The statement of claim and the proceedings are dismissed; (2) The plaintiff is to pay the defendants' costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20676/2000 - PRANAY KUMAR BHATTACHARYA v MINISTER FOR POLICE, NSW & 3 ORS

JUDGMENT (Motions to strike out statement of claim; strike out defences; summary judgment; security for costs)

1 MASTER: By notice of motion filed 9 February 2001 the plaintiff seeks an order setting aside the defences of the first, second, third and fourth defendants. By notices of motion filed 1 March 2001 the defendants seek that the proceedings be dismissed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR), or alternatively, that the plaintiff's summons be dismissed pursuant to Part 15 r 26 SCR, or alternatively that pursuant to the inherent jurisdiction of the court, the plaintiff pay each of the defendants the sum of $24,900. The plaintiff relied on his affidavits sworn 30 January 2001 and 30 March 2001. The first and second defendants relied on two affidavits of Helen Allison sworn 8 March 2001. The third and fourth defendants relied on an affidavit of Deborah Jean Frew sworn 7 March 2001. All defendants relied on a further affidavit of Helen Allison sworn 8 March 2001. 2 On 13 December 2000 the plaintiff filed a statement of claim and an affidavit in support. On 29 January 2001 each of the defendants filed a notice of grounds of defence. The first defendant is the Minister for Police, New South Wales. The second defendant is Police Commissioner of New South Wales. The third defendant is Minister for Health, New South Wales and the fourth defendant is Director General, New South Wales Health Department. The plaintiff was asked by the court what were the recognised legal causes of action which he wished to raise, he referred to wrongful arrest.

The law in relation to summary judgment 3 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed;

(c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings."

4 In a Court of Appeal decision Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 5 In General Steel Barwick CJ, who heard the application alone stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 6 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 7 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at p 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 8 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 9 Part 15 r 26 provides: "(1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleadings be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 10 In the statement of claim the plaintiff alleges: "3. At about 5.20pm on 20 November two police officers employed by the authority of the First and Second defendant apprehended the plaintiff and arrested him with force and arm (sic), with malice and without reasonable cause, detained the plaintiff in their custody and in the Mental Health Unit (Caritas Unit) of St. Vincent's Hospital owned by the Third and Fourth defendants. The particulars are: 4. At about 5 pm on 20 November 2000 Constable N. Hall and Constable J. Dodd both employed by the First and Second defendant as Police Officers apprehended the Plaintiff in Phillip St. Sydney in front of the Law Courts Building where the Supreme Court of New South Wales is located. 5. The plaintiff is a self-represented litigant in other matters before the Supreme Court of New South Wales against parties including the First and the Second Defendant and as such the Plaintiff is known to the Police officers employed by the First and Second Defendants in this Statement of Claim." 11 The plaintiff alleges he was engaged in doing his legal research in the Law School Library located opposite to the Law Courts Building and was taking a break to buy a cup of coffee in the Phillip Street. 12 The statement of claim then pleads: "8. The Police Officers bullied the Plaintiff, threatened him of arrest and then took the Plaintiff and his property in their custody without ant (sic) warrant or search order. 9. The Police Officers searched the Plaintiff and his property in public display in the middle of Phillip St. Sydney. 10. After threats of arrest and search the police officers released the Plaintiff and his property from custody. 11. After about five minutes later the Police Officers again apprehended the Plaintiff and arrested him saying "we will charge you for trespass", "Come here, we are taking you to police station" 12. After giving Plaintiff some threats and Plaintiff's arrest on charges of trespass the Police Officers left the Plaintiff locked in the vehicle in heat and discomfort." 13 It is common ground that the plaintiff was transported to the Mental Health Unit (Caritas Unit) at St Vincent's hospital. At the Caritas Unit the plaintiff was examined by Drs Quires and McDonald. Also present were Ms Louise Costanzo of the Community Health Centre and Mr Kevin Neilsen, a nurse. The plaintiff pleads that the medical team were all employed by the third and fourth defendants. The plaintiff alleges that after a psychiatric evaluation was conducted it was decided not to detain him and he was released. The plaintiff alleges that he was arrested however the defendants' documents do not support this. Nor does the plaintiff's statutory declaration giving his actual version of events that led him to find himself visiting Caritas. 14 However the defendant submitted that the police were acting in accordance with s 24 of the Mental Health Act 1990 which states: "Detention after apprehension by police

(1) If a member of the Police Force finds a person in any place who appears to be mentally disturbed and the member of the Police Force has reasonable grounds for believing: (a) that the person is committing or has recently committed an offence and that it would be beneficial to the welfare of the person that the person be dealt with in accordance with this Act rather than otherwise in accordance with law, or

(b) that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or attempt to cause serious bodily harm to himself or herself, the member of the Police Force may apprehend the person and take the person to a hospital (other than an authorised hospital).

(2) A member of the Police Force may apprehend any such person without the warrant of a justice." 15 There is a report by Constable Narelle Hall which states that she had reason to believe that when the plaintiff was apprehended he was committing and had recently committed an offence and would benefit from being dealt with under the Mental Health Act rather than in accordance with law. The incidents of which Mr Bhattacharya complains were on their face proper and lawful acts of the appropriate authorities. 16 I have read the decision in Bhattacharya v Minister For Police, NSW & Ors [2001] NSWCA 108 (18 April 2001); Bhattacharya v Director-General of Department of Education & Training [2000] NSWCA 74 (4 April 2000); and Bhattacharya v Hamilton [2000] NSWSC 102 (1 March 2000) and need not repeat them here. For my part, I would respectfully endorse Meagher JA's comments. The plaintiff submitted that proceedings referred to above should be treated as being separate. The plaintiff conceded that I was entitled to have regard to these decisions but if I took that approach then he should be entitled to receive an award to the cumulative amount of damages, not just the $20 million claimed in these proceedings. However the remedy he really sought was to fix his life and it was up to the defendants and the court to work out how this could be achieved. 17 At paragraph 21 the plaintiff claims exemplary and punitive damages and specifies that he suffered the following injuries: "(i) Aggravated damages to Plaintiff's standing as a reasonable person the Society. (ii) Distortion and defamation of Plaintiff's character and reputation. (iii) Deprivation of Plaintiff's independence and liberty. (v) Ridicule and vilification. (vi) Loss of society. (vii) Damage to Plaintiff's integrity." 18 The plaintiff in his schedule has quantified his damages at $20 million. Some of these claims do not fall within the recognised heads of damage. 19 It was explained to the plaintiff that if the court decided that the defects in his pleadings were able to be cured he would be given an opportunity to replead the statement of claim. However there is a fundamental problem. It was explained to the plaintiff that he had sued the incorrect entities as defendants. A detailed analysis of why this is so is outlined in the defendants' comprehensive submissions. The first and second defendants should be correctly described as the State of New South Wales - see s 5(1) of the Crown Proceedings Act 1988. This was drawn to the plaintiff's attention by Dunford J in his decision of 1 March 2000. At the hearing before me the plaintiff declined the opportunity to replead the statement of claim to name the correct defendants because it was his trenchant view that the onus was upon the defendants to properly name themselves and he need do nothing more. It is my view that naming the incorrect defendants is fatal to his case and for that reason alone the statement of claim and the proceedings should be dismissed. 20 Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendants' costs. 21 I make the following orders:

(1) The statement of claim and the proceedings are dismissed.

(2) The plaintiff is to pay the defendants' costs. **********

Last Modified: 06/26/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated.

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