Bhattacharya v Minister For Police, NSW & Ors

Commissioner, NSW Department of Corrective Services (Third Respondent)

NSW Minister For Health (Fourth Respondent)

Director General, NSW Health Department (Fifth Respondent) JUDGMENT OF : Meagher JA at 1; Powell JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 2151/97 FILE NUMBER(S) : 20241/99 LOWER COURT Young J and Hidden J JUDICIAL OFFICER :

COUNSEL : A: Unrepresented Rs: Ms C Ronalds SOLICITORS : A: In person Rs: I V Knight, Crown Solicitors Office CATCHWORDS : Practice - Pleadings - striking out - no reasonable cause of action - abuse of process. Mental Health Act 1990, s285 LEGISLATION CITED : Crimes Act 1900, s545 Crown Proceedings Act 1998 Supreme Court Rules, Pt 15 r 26 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Bhattacharya v Hamilton [2000] NSWSC 102 CASES CITED: Bhattacharya v Director-General of Department of Education and Training [2000] NSWCA 74 B v Medical Superintendent, Nepean Hospital (unrep, 11/5/94) Bhattacharya v The Medical Superintendent, Nepean Hospital (NSWCA, unrep, 8/8/94) DECISION : Dismissed. See paragraph 26.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40213/99, 40346/00 EQ 2151/97 CL 20241/99 MEAGHER AP POWELL JA DAVIES AJA WEDNESDAY 18 APRIL 2001

PRANAY KUMAR BHATTACHARYA v MINISTER FOR POLICE, NSW & ORS

1. That the appeal from the orders of Young J be dismissed.

2. That leave to appeal against the orders made by Hidden J be refused.

3. That Mr Bhattacharya pay the costs of the proceedings.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40213/99, 40346/00 EQ 2151/97 CL 20241/99 MEAGHER AP POWELL JA DAVIES AJA WEDNESDAY 18 APRIL 2001 PRANAY KUMAR BHATTACHARYA v MINISTER FOR POLICE, NSW & ORS

JUDGMENT 1 MEAGHER JA: I agree with respect with his Honour's judgment. I would add only one thing, that in my view the Attorney General should initiate proceedings so that Mr Bhattacharya be declared a vexatious litigant. I would be grateful if those persons in Court representing the Crown would transmit my recommendation to the Attorney. 2 POWELL JA: I also agree with Davies AJA. 3 DAVIES AJA: These two proceedings are appeals brought by the appellant, Pranay Kumar Bhattacharya, against orders striking out claims made in statements of claim which Mr Bhattacharya has filed or been seeking leave to file. In the appeals, Mr Bhattacharya appeared in person. Ms Chris Ronalds of counsel appeared for the respondents, the NSW Minister for Police, the Police Commissioner of NSW, the Commissioner of the NSW Department of Corrective Services, the NSW Minister for Health and the Director General of the NSW Health Department. 4 In 1997, Mr Bhattacharya commenced proceedings by way of summons in the Equity Division against fifteen defendants, including the present respondents. On 5 June 1997, Master Macready stayed the proceedings but gave leave to Mr Bhattacharya to make application to file a statement of claim. Mr Bhattacharya subsequently filed a notice of motion attaching a copy of a draft statement of claim. 5 On 3 April 1998, Master McLaughlin dismissed the proceedings against all but five of the defendants (the present five respondents) and indicated that any proposed statement of claim was to be limited to three claims, two of which relate to Mr Bhattacharya's arrest on 15 January 1993, and the third of which relates to his arrest on 11 February 1994 and his detention thereafter under the provisions of the Mental Health Act, 1990. 6 On 5 March 1999, Young J confirmed Master McLaughlin's orders insofar as the dismissals were concerned. His Honour, however, also considered that the three remaining claims should be dismissed and so ordered. 7 Subsequently, further proceedings were commenced in the Equity Division, initiated by Mr Bhattacharya, and, in those proceedings, a fresh statement of claim against the present five respondents was filed on 16 April 1999. Those proceedings were later transferred to the Common Law Division. The claims made therein were, in substance:- · Malicious prosecution on 15 January 1993 and false imprisonment at Parramatta Gaol from 15 to 22 January 1993; · Malicious prosecution and detention in a mental institution at the Nepean Hospital, Penrith from 11 February 1994 to 8 July 1994; · Malicious prosecution, arrest and detainment on 21 December 1996; · Malicious prosecution and detention in a mental institution at the Nepean Hospital, Penrith from 5 October 1997 to 9 October 1997; · Arrest and detention at Penrith Police Station on 18 October 1997; and · Malicious prosecution and detention in a mental institution at the Nepean Hospital, Penrith from 27 July 1998 to 6 August 1998.

Allegations of this type and others had also been made in the statement of claim which came before Master McLaughlin and Young J. Indeed, the claims concerning the arrest on 15 January 1993, the detention in Parramatta Gaol thereafter and the arrest on 11 February 1994 and subsequent detention in the Nepean Hospital constituted the three claims which were struck out by Young J. 8 The statement of claim made the claims in the context of allegations that Mr Bhattacharya had been a member of the Australian Labor Party from about 1976 and had become a threat to the personal interests of many persons because of views he had expressed for the purpose of improving the effectiveness of public organisations. The statement of claim alleged, inter alia, that, subsequently, Mr Bhattacharya was seen as a person disclosing facts unfavourable to executives employed by the Government formed by the Australian Labor Party. It was also alleged that Mr Bhattacharya had been treated subsequently with disrespect in his employment and that allegations of a serious nature had been made against him, that he suffered discrimination in his employment and that there was a conspiracy between executives to harm him. It was alleged that, in retaliation to Mr Bhattacharya's allegations against the authorities, the executives of the New South Wales Government instigated malicious prosecutions against him and unlawfully imprisoned him on a number of occasions. 9 The general nature of Mr Bhattacharya's allegations has been elaborated in the many affidavits which have been filed by him. The thrust of the allegations was stated, for example, in a forty-one page affidavit sworn 12 February 1999, which concluded:- "55. The material evidence available in this matter indicate that since 14 October 1980 a number of officers employed by the NSW Government Authorities have interfered with my life materially and punitively. What has surfaced is this that (a) Natural and expected progression of my professional life has been stopped since 14 October 1980

(c) A number of doctors have wrongfully labelled me to have psychotic illness.

(d) A (sic) have been wrongfully arrested, charged and detained for long periods in Mental Institutions, Prison and Police custody.

(e) I have been vilified by propaganda and spread of discriminating suggestions. And, to say the least, (f) Additional detrimental effects on me which can not be evaluated by anybody other than me. Only supportable proposition, which emerge from the available material evidence in this respect is that a number of people including the Defendants and other officers under the control of the Defendants consulted and combined to cause my current circumstances as I have listed in this paragraph." 10 The claims made in the statement of claim of 16 April 1999 came before Master Harrison who ordered that they be dismissed. The Master's orders were affirmed by Hidden J on 20 April 2000. 11 These two appeals concern the orders made by Young J on 5 March 1999 and by Hidden J on 20 April 2000. In respect of the appeal from the orders made by Young J, leave to appeal has been granted with respect only to the three claims which Master McLaughlin would have permitted but which his Honour dismissed. Prior to the hearing of the appeals, no leave was sought with respect to the appeal from the orders of Hidden J. 12 In each case, the claims were dismissed as an abuse of process. Part 15 r 26 of the Supreme Court Rules provides as follows:- 26 (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 pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1). 13 In applying that rule, it is necessary to apply the general principle enunciated in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, where Barwick CJ said, at p 129:- "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 a 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'." 14 It is not necessary to discuss each of the claims in any great detail. They have already been either directly or indirectly the subject of consideration in proceedings which Mr Bhattacharya has brought and which have been dismissed. A general comment made by Dunford J in Bhattacharya v Hamilton [2000] NSWSC 102 at [11] is worth keeping in mind. His Honour said:- "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." 15 Mr Bhattacharya's claims as to discrimination in employment were dismissed by the Government and Related Employees Appeal Tribunal, and an appeal from that decision was dismissed by Mason P, Beazley JA and Bryson AJA in Bhattacharya v Director-General of Department of Education & Training [2000] NSWCA 74. Special leave to appeal was refused by the High Court of Australia on 24 November 2000. Other claims were dismissed by Dunford J in Bhattacharya v Hamilton. 16 Many of the incidents which are the subject of the present claims were the subject of an investigation by Brownie J in B v Medical Superintendent, Nepean Hospital (unreported, 11 May 1994). His Honour had the task of considering, under s 285 of the Mental Health Act, 1990, whether Mr Bhattacharya, who was at that time detained in the Nepean Hospital, was a mentally ill person and whether there was other care of a less restrictive kind which would be appropriate and reasonably available. His Honour concluded that Mr Bhattacharya was a mentally ill person and should be detained. His Honour agreed with expert medical opinion that Mr Bhattacharya was suffering from a mental delusion disorder centred around his feelings of persecution and conspiracy. An appeal from the judgment of Brownie J was dismissed in Bhattacharya v The Medical Superintendent, Nepean Hospital (NSW Court of Appeal, unreported, 8 August 1994). Special leave to appeal was refused by the High Court of Australia on 30 May 1995. 17 One of the incidents examined by Brownie J was that of 15 January 1993. His Honour found the following, inter alia, in respect of that incident:- "On 15 January 1993 the plaintiff appeared before the Local Court at Penrith, charged with using a telephone earlier that day to threaten someone, perhaps a clerk of the Westmead Coroner's Court, or perhaps potential witnesses at the then contemplated inquest, and he applied for bail. Apparently the alleged threat somehow involved the coroner, Mr Hiatt, perhaps on the supposed basis that he had decided to dispense with an inquest. The plaintiff was represented by Mr Leary. The prosecutor outlined the alleged facts, none of which had been (or have been) admitted by the plaintiff, and then Mr Leary said: '[M]y client has instructed me that there is some form of conspiracy which relates to the Inquest.' Then the plaintiff himself spoke. The transcript records him as saying: 'This matter has been in the police hand since 1979. I have approached the police constantly and they have constantly denied involvement of the people who have led litigation completely baselessly(?). They have collected all those litigation as I understand it and subsequently by some people, apparently very powerful people, some conspiracy was organised to kill my wife. I have no hesitation to say that Indian Consulate in Sydney was probably a part of it. This matter was heard by Public Service Board in 1982.' He answered a question asked by the magistrate, and continued by saying that the Public Service Board had inflicted some punishment 'on the reciprocal arrangement between the Indian Government and the Australian Government.' The matter had then been suspended for 10 years, and then revived. He continued: 'Whatever the manner my wife has died it is complete falsification, either she was given drug to make her sick enough to go to hospital where the doctors had terminated her life under executive(?) order, not judicial order.' " 18 That incident of 15 January 1993 was the subject of two of the claims which Master McLaughlin would have permitted to remain on foot but which Young J ordered to be dismissed. Young J had been addressed by Mr Bhattacharya, who said that, a charge having been laid against him, he was brought before a magistrate, that bail was refused, and that he was then detained in Parramatta Gaol until bail was subsequently granted by a Judge of the District Court. Young J considered that nothing said to him by Mr Bhattacharya suggested that there was any basis for the claims for damages which Mr Bhattacharya sought to bring. The same claims came before Hidden J. Again, the allegation was that Mr Bhattacharya had been wrongfully charged and wrongfully detained, but, again, no material other than allegations was brought forward to support the claim of a wrongful or unlawful act. As his Honour found, the detention had resulted from the refusal of bail. It was not shown that Mr Bhattacharya had been improperly charged. 19 Mr Bhattacharya's detention on 11 February 1994 and his subsequent detention in the Nepean Hospital were also matters fully investigated in Brownie J's judgment. His Honour concluded that the detention was justified and that, at the date of his judgment, 11 May 1994, Mr Bhattacharya would, by reason of his delusional thoughts, be a danger to other persons if released. 20 His Honour's judgment did not of course deal with the detentions in the Nepean Hospital which commenced on 5 October 1997 and on 27 July 1998. However, Young J took the view that those detentions were, on their face, lawful, occurring pursuant to the procedures laid down by the Mental Health Act. Nothing put forward by Mr Bhattacharya cast doubt upon the propriety of such detentions. Of course, Mr Bhattacharya's mental condition had been carefully examined by Brownie J and Mr Bhattacharya had lost that issue. 21 The incidents which commenced on 21 December 1996 were alleged to be a wrongful arrest and detention. Mr Bhattacharya had been arrested on four counts, two breaches under s 545(b)(i) of the Crimes Act, 1900 and two counts of stalking a woman. Mr Bhattacharya was detained until, during the afternoon, bail was granted by the Parramatta Local Court. Subsequently, a magistrate dismissed the two charges under s 545(b)(i) of the Crimes Act but convicted on the charges of stalking. Later, Blanch CJ of the District Court allowed an appeal against those charges. His Honour considered the evidence to be too circumstantial to support the conviction. Nevertheless, arguable charges had been laid and Mr Bhattacharya had been detained in custody, until bail was granted. No ground for an award of the damages claimed was disclosed in the proceedings before Master Harrison or in the proceedings before Hidden J. 22 The last incident is that of 18 October 1997. With respect to this claim, Master Harrison said:- "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." 23 Justice Hidden said with respect to this claim that it was, on its face, a valid claim that Mr Bhattacharya was unlawfully detained by a police officer for the purpose of questioning. He said, however, that the allegation could not be maintained against any of the respondents as no vicarious liability was appropriately pleaded against them. The only claim that could be brought, if there were a valid claim, would be against the State of New South Wales in accordance with the Crown Proceedings Act, 1988 (NSW). On this basis, his Honour dismissed the claim. He was correct in doing so. I would add that the incident of 18 October 1997 was a very minor one. Indeed, it was not mentioned in a four page chronology of activities of the NSW Police Service directed against Mr Bhattacharya which Mr Bhattacharya produced in 1998. The claim in respect of it was out of place in a statement of claim which sought damages, which Mr Bhattacharya has assessed at $186,620,000, for persecution and conspiracy by Government Ministers and officials. On this basis also, the claim should have been struck out. 24 I have had the opportunity of reading all the affidavits sworn by Mr Bhattacharya which are included in the appeal books and also the additional affidavits on which he relies in this appeal. I also heard his submissions during the course of this morning. However, his case is no more than a collocation of allegations which are unsupported by proof. Mr Bhattacharya's case rests wholly upon an acceptance of his delusional beliefs, beliefs which were examined with great care by Brownie J in B v Medical Superintendent, Nepean Hospital. The incidents of which Mr Bhattacharya complains were, on their face, proper and lawful acts of the appropriate authorities. More than once, challenges to the acts have been dismissed. No arguable claim for an award of damages appears. 25 As the substance of Mr Bhattacharya's claims must fail, so also must his application for interim damages, an application which I need not discuss. 26 I would dismiss the appeal from the orders of Young J. I would refuse leave to appeal against the orders made by Hidden J. I would order that Mr Bhattacharya pay the costs of the proceedings. **********

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