Bhattacharya v Minister for Police, NSW & 4 Ors [1999] NSWSC 956 | Case summary

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 3 It is necessary to approach every application for summary judgment with care. Such a peremptory termination of an action denies a litigant the opportunity of having a trial of the claim on the merits. Nevertheless, if a close and even prolonged scrutiny of the facts, proved or undisputed, and of the applicable law, demonstrates that there is, for example, a complete legal answer to the action, summary judgment is a useful facility. It should then be readily applied, in order to save the needless delay, anxiety and expense of fruitless litigation. 4 The test to be applied on summary judgment has been variously expressed; as "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"; see the High Court decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. 5 Previously the plaintiff had filed a summons in equity proceedings No 2151/97. The plaintiff originally commenced these proceedings by way of summons in which he made numerous wide ranging allegations. On 5 June 1997 Master Macready granted the plaintiff leave to make an application to file a statement of claim upon condition that such an application be accompanied by the form of statement of claim which the plaintiff wished to have leave of the court to file. 6 On 3 April 1998 Master McLaughlin made an order that any application by the plaintiff for leave to file a statement of claim against the defendants who remained parties to the proceedings be filed on or before 29 May 1998. Master McLaughlin dismissed the proceedings against all the defendants other than the Minister for Police, the Commissioner of Police, the Department of Corrective Services, the Minister for Health, and the Director General of Health. 7 The learned Master also held that that he was satisfied that no reasonable cause of action had been disclosed against the other defendants or in relation to the other allegations made in the statement of claim. He permitted the allegations asserted against the police and against the Department of Corrective Services in respect to the incident in January 1993 referred to in paragraph 1.27 and in paragraph 1.37 of the proposed statement of claim and the incident referred to in paragraph 1.29 (which makes allegations against the police in relation to an incident in October 1993) the plaintiff the opportunity to litigate those alleged causes of action. 8 Master McLaughlin also said that the proposed statement of claim could not be allowed to stand. It contravened the provisions of Part 15 r 7(1) of the Supreme Court Rules, which requires that a pleading shall contain, and contain only, a statement in a summary form of the material facts, but not the evidence by which those facts are to be proved. He said that it also contravenes the provisions of Part 15 r 8, which requires that a pleading shall be as brief as the nature of the case admits. 9 Master McLaughlin stated that if the plaintiff wished to pursue his claim in respect to the above incidents where it alleged that he was the subject of wrongful arrest, malicious prosecution and false imprisonment, it would be necessary for the plaintiff to prepare a further pleading limited to those alleged causes of action and for such fresh pleading to comply with the Supreme Court Rules relating to the form of pleadings by a party. The plaintiff appealed this decision. On 5 March 1999 Young J dismissed the appeal. The plaintiff is currently seeking leave to appeal Young J's decision in the Court of Appeal. 10 I have reproduced paragraphs 1.27, 1.29 and 1.37 of the summons which were the ones that were allowed to stand. They are: "1.27 On 15 January 1993 Det. Geoffrey McNevin arrested the Plaintiff at his home on charges of using telephone to menace Lesley Newling of Westmead Coroner's Court. The plaintiff was wrongfully detained in the cell at the Penrith Police Station and then at Parramatta Prison. The Plaintiff was investigated during his detention. The Plaintiff was wrongfully charged, wrongfully detained, investigated and then the charges were withdrawn." 11 This is known as the first detention. "1.29 On the 11 February 1994 Det. Inspector Z Feszczuk wrongfully arrested the Plaintiff on criminal charges of threat to Ken Bradstock, who is one of the principal person responsible for killing Plaintiff's Wife. The Plaintiff was arrested at his home on criminal charges, then detained in the Mental Institution at the Nepean Hospital for a five months period without any clinical evidence of mental illness of the Plaintiff. The Police Service did not investigate the allegations made by the Plaintiff and therefore, allowed a carriage of justice before the Protective Division (matterr (sic) 52/94) and before the NSW Court of Appeal (matter 40277/94) on the basis of facts yet to be investigated by the Police. To this end the plaintiff was represented by his solicitor Mr. Harry Freedman of Milne Berry and Berger and contested on the same facts by the NSW Health Department." 12 This is known as the second detention. "1.37 In January 1993 the Plaintiff was wrongfully imprisoned at the Parramatta, he was investigated, and was subjected to threats of personal injury. Existence of a similar plan was communicated to the Plaintiff by a person named Mr. Michael Asisi when the Plaintiff met Mr Asisi at the Complaint Unit of the Health Department. While in the prison the Plaintiff was investigated by Mr Dan Bergin, the prison psychologist and his woman companuion (sic). The plaintiff was threatened and vilified." 13 The plaintiff in the summons pleaded a third detention namely that on 21 December 1996 Senior Constable Andrew McKellar initiated malicious prosecution of the plaintiff, wrongfully arrested him and detained him by false imprisonment. A fourth detention was also pleaded namely that on 5 October 1997 four officers employed by the New South Wales Police Service initiated malicious prosecution of the plaintiff and also the Health Department detained him between 5 October 1997 and 9 October 1997 by falsely imprisoning him in the mental institution at the Nepean Hospital at Penrith owned by the Health Department. Master McLaughlin had held that these were not reasonable causes of action. The third and fourth detentions are repleaded in the current proceedings. 14 In relation to these 3 paragraphs which were allowed to stand Young J stated that when one looked at them, and took into account the additional material which was before the court, namely (a) that the plaintiff was taken before a Magistrate and bail was refused; and (b) that in the mental health matter orders were made under s 27 of the Mental Health Act 1990, it seemed to him that those counts must fall with all the rest. 15 He also said that generally speaking, the plaintiff had set out what were the facts that concerned him, but he did not in his draft statement of claim show that those facts, if established, would lead to liability on behalf of the defendant. Young J said that two years had now passed since the proceedings were commenced and that had been adequate for the plaintiff to formulate his case, especially as even in December 1998, there was an invitation to the plaintiff to reformulate, if he wished to. It seemed Young J that the learned Master was right in striking out those claims. 16 Thus the first three detentions have already been dismissed the plaintiff lost the opportunity to replead the fourth detention and additional claims for false imprisonment, wrongful arrest and malicious prosecution by virtue of the judgment of Young J of 5 March 1999. On this basis paragraphs 1 to 48 of the current statement of claim should be dismissed. 17 That leaves two additional detentions which have been pleaded in the present statement of claim. These alleged detentions occurred after the statement of claim that Young J considered was filed. The fifth detention allegedly occurred on 18 October 1997 and is pleaded at paragraphs 49 to 54 and the sixth detention allegedly occurred on 27 July 1998 and is pleaded at paragraphs 55 to 62 of the statement of claim. The fifth detention allegedly occurred when two officers employed by the New South Wales Police put the plaintiff under unlawful arrest and unlawfully detained the plaintiff for about two hours at Penrith Police Station and interrogated him for the purpose of investigating him. The sixth detention occurred allegedly when two officers employed by the New South Wales Police Service accompanied by two officers employed by the New South Wales Health Department at Penrith initiated malicious prosecution of the plaintiff and detained him from 27 July 1998 until 6 August 1998 by false imprisonment in the mental institution at Nepean Hospital Penrith owned by the New South Wales Health Department. According to the plaintiff both detentions give claims for wrongful arrest, malicious prosecution and false imprisonment. The sixth detention like the first detention would appear to have been made under s 27 of the Mental Health Act 1990 and applying the same reasoning as Young J did in the first detention, the sixth detention count must fail. 18 The claim for malicious prosecution in relation to the fifth detention must also fail as the plaintiff was not prosecuted. On his own pleading the plaintiff was not charged and was allowed to leave. That leaves the claims for wrongful arrest and false imprisonment. On his own pleading, he voluntarily attended the Penrith Police Station. He alleges that a constable said to him "you are under arrest" but did not provide any details. He was not charged with any offence and allowed to leave two hours later. This sequence of events would seem to be most improbable and contradictory so as to consider it hopeless. Accordingly I dismiss the balance of the statement of claim. 19 Most of the pleading in the current statement of claim has been the subject of three prior decisions of this court and ultimately they were dismissed. Inadequacies of the plaintiff's pleadings have been highlighted to him on prior occasions such that I do not see any utility in allowing the plaintiff to replead the statement of claim. I dismiss the statement of claim as it is an abuse of the process of the court and discloses no reasonable cause of action. 20 In relation to the plaintiff's motion seeking an interim payment under s 76E, SCA he had helpfully provided a schedule of damages. He claims the sum of $155.4 million damages but regrettably this is out of date and needs to be updated. He is seeking a modest 33% of the total amount claimed to enable him to get on with the rest of his life. 21 Section 76E of the Supreme Court Act provides: "Court may order interim payments (1) In any proceedings for the recovery of damages, the Court may, in accordance with this section, order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings. (2) The Court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings. (3) The Court may make such an order if: (a) the defendant has admitted liability; or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed; or (c) the Court is satisfied that, if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the defendant. (4) The Court may not make such an order if the defendant satisfies the Court that: (a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages; and (b) the defendant is not a public authority; and (c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made. (5) The Court may order a defendant to make one or more payments of such amounts as it thinks just but not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff. (6) In estimating those damages, the Court is to take into account any relevant contributory negligence or any cross-claims on which the defendant may be entitled to rely." 22 Liability has not been admitted nor has the plaintiff obtained judgment against the defendants for damages to be assessed. It is my view that the plaintiff has a weak case and if it proceeded to trial, the plaintiff would not obtain judgment for substantial damages against the defendants. Therefore I decline to make an order under s 76E. The plaintiff's motion is dismissed. The plaintiff has been unsuccessful. Costs should follow the event. The plaintiff should pay the defendant's costs of both motions and of the proceedings. 23 The orders that I make are:

Bhattacharya v Minister for Police, NSW & 4 Ors

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