Bhatia v State of New South Wales

[2024] NSWCA 190

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bhatia v State of New South Wales [2024] NSWCA 190

Hearing dates:

29 July 2024

Date of orders:

29 July 2024

Decision date:

31 July 2024

Before:

Adamson JA

Decision:

(1)   Grant leave to the appellant to amend the name of the respondent in the notices of motion filed 4 July 2024 and 9 July 2024 and the amended appeal from “Office of Sport in the Right of the State of New South Wales” to “State of New South Wales”.

(2)   Dismiss the amended notice of appeal filed on 26 June 2024 on the following bases:

(a) that the appeal is incompetent as leave has not been sought and it is required pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW); and

(b) pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) on the ground that the proceedings are frivolous and vexatious and no reasonable ground for appeal is disclosed.

(3)   Order the appellant to pay the respondent’s costs of the appeal, including the costs of the respondent’s notices of motion filed 4 July 2024 and 9 July 2024.

(4) Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), quantify the costs in order (3) in the gross sum of $10,000 exclusive of GST.

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — frivolous or vexatious proceedings — no reasonable cause of action disclosed — abuse of process — whether primary judge erred in dismissing proceedings — where applicant sought government grant for sporting achievements

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — incompetence — where leave to appeal was required — where a summons seeking leave was not filed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 42.1

Cases Cited:

Hamodv State of NewSouthWales [2011] NSWCA 375

Harrison vSchipp (2002) 54 NSWLR 738; [2002] NSWCA 213

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272

Category:

Principal judgment

Parties:

Devesh Bhatia (Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:
Applicant (self-represented)
T Buterin (Respondent)

Solicitors:
Not applicable (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2023/440129

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law – Civil

Citation:

Bhatia v State of New South Wales [2023] NSWSC 1494

Date of Decision:

28 November 2023

Before:

Fagan J

File Number(s):

2023/235271

JUDGMENT

Introduction

1. Devesh Bhatia commenced proceedings in the Common Law Division of the Supreme Court by filing a statement of claim on 24 July 2023 in which he claimed damages against the State of New South Wales (which he referred to as the Department of Sports) and the Australian Sports Commission (the Commission). Both defendants sought summary dismissal of the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the grounds that the plaintiff’s statement of claim disclosed no reasonable cause of action and the proceedings were an abuse of process and/or frivolous or vexatious.

2. The defendants’ applications were heard and determined by Fagan J (the primary judge) on 28 November 2023. His Honour dismissed the proceedings and ordered Mr Bhatia to pay the defendants’ costs in stipulated gross sums: Bhatia v State of New South Wales [2023] NSWSC 1494.

3. On 5 December 2023, Mr Bhatia filed a notice of intention to appeal against the order for dismissal. He filed a notice of appeal on 9 May 2024 against a single respondent, the “Office of Sport”. The notice of appeal was returnable before the Registrar of the Court of Appeal (the Registrar) on 5 June 2024. On that day, the Registrar ordered Mr Bhatia to file and serve an amended notice of appeal in which the “Office of Sport” was named “the State of New South Wales”. As the notice of appeal had not yet been served, the matter was stood over to 26 June 2024.

4. When the matter came back before the Court on 26 June 2024, the Registrar made orders by consent that the name of the respondent be amended to “Office of Sport in right of the State of New South Wales” and also made directions as to the filing of a notice of motion by the respondent (seeking orders that the appeal be dismissed as incompetent). The respondent filed a notice of motion seeking such an order on 4 July 2024 (the incompetency motion). On 9 July 2024, the respondent filed a further notice of motion, seeking that the appeal be dismissed pursuant to UCPR, r 13.4 on the basis that no reasonable ground for appeal is disclosed, the proceeding is an abuse of process and the proceeding is frivolous and vexatious (the summary dismissal motion).

5. I heard the incompetency motion and the summary dismissal motion on 29 July 2024. At the conclusion of the hearing, I made the orders set out at the conclusion of these reasons, including, an order dismissing the amended notice of appeal on the bases of incompetency and that the proceedings are frivolous and vexatious and no reasonable ground for appeal is disclosed. What follows are my reasons for those orders.

The primary judge’s reasons

6. The reasons given by Fagan J for dismissing the proceedings are as follows:

“4 The statement of claim contains the following, under heading that are part of the form prescribed under the UCPR:

TYPE OF CLAIM

I applied for grants with Department of Sports for which I did not get any response for my powerlifting milestone of squats 200kgs 25 reps, which is published on which was under the supervision of Mr Arshad Beryalaya, who is a certified personal trainer from Australian Institute of Sports at Fitness First, Parramatta. I have been doing powerlifting since past eight years and have reached this milestone for which I am claiming 75 million dollars.

RELIEF CLAIMED

Payment of 75 million dollars against my 200kgs squats 25 reps.

PLEADING AND PARTICULARS

contains all my achievements in powerlifting.

…

6   What I have quoted from the statement of claim is the entire substantive content of it. There is no cause of action disclosed either in the statement of claim or by reference to the plaintiff's website of training videos. In answer to the defendants’ summary dismissal application the plaintiff has not tendered, or submitted to the Court, anything that discloses a legal basis upon which he could claim that he has an enforceable right against either of the defendants to $75 million or any other sum, either as a liquidated amount or as damages for breach of any obligation owed to him, in contract, in tort, under public law or otherwise.

7   The defendants have tendered email correspondence from the plaintiff addressed to their administrative personnel and legal representatives. I have reviewed the correspondence to see whether the plaintiff may have some justiciable grievance that has failed to come through in the manner in which he has drafted the Court process. Bearing in mind the plaintiff’s self‑represented status, it is incumbent on the Court to try to ascertain from his extra curial communications whether he has a legitimate or at least arguable claim that that he is unable adequately to express in legal terminology for want of professional training.

8   However, no arguable claim appears from the email correspondence. The plaintiff seems to have formed a belief that State and Commonwealth funds are liberally dispersed to people who pursue private sporting endeavours and that as a person with a sporting interest he has an enforceable entitlement to some part of this largesse. On 19 September 2023, he wrote to the Court’s registry mailbox an email in the following terms:

As far as competition is concerned, I am ready to do my workout in front of the world.

9   On 20 September 2023 at 3.41pm, the plaintiff wrote to the solicitor for the second defendant as follows:

Please tell me why I am not eligible to get grants from Australian Sports Commission for the work out that I did? I do believe Australian Sports Commission does provide grants to individuals as listed on their website [URL inserted] and directed to me by SR grants unit.

10   The solicitor for the second defendant replied at 5.18pm the same day in an email that included the following:

I am instructed that the Australian Sports Commission does not currently run any grants programs for which you would be eligible by reason of your powerlifting activities. Should you see a grants program advertised on ASC's website for which you consider you are eligible, you may apply for it and your application will be considered. The Supreme Court of New South Wales is not an appropriate forum for you to seek grant funding for your powerlifting activities. The Court cannot decide to award you a grant for your powerlifting activities. Your claim to the Court is, respectfully, bound to fail. I invite you to discontinue it immediately.

11   The plaintiff wrote further in response to this at 5.44pm on 20 September 2023 as follows:

I want to take this to hearing and will go further to Court of Appeal. I want to know, if not now, when will the grants be available for me for my powerlifting activities. I do believe powerlifting is well funded by Australian Sports Commission.

12   That appears to be the full extent of the correspondence from which the Court could try to ascertain the existence of any cause of action. None is revealed. The solicitor for the second respondent was quite correct to state that this Court is not an appropriate forum for the plaintiff to seek a grant for funding. The correspondence makes clear to the plaintiff that any funding from the second defendant is subject to a grant, which would be in the discretion of the relevant government agencies and that he would need to make an application for a grant in order to be considered.

13   There is no legal o[r] factual basis for these proceedings having been brought. In my view, the claims of both defendants that the process as filed does not disclose any reasonable cause of action is correct. It is also correct to say that in their insubstantial form the proceedings are an abuse of process and frivolous and vexatious.”

The respondent’s applications for dismissal in this Court

The competency motion

7. In support of the competency motion, Mr Buterin, who appeared on behalf of the respondent, submitted that Mr Bhatia required leave to appeal and that, as no summons seeking leave to appeal had been filed and no leave granted, the appeal was incompetent and the appeal proceedings ought therefore be dismissed.

8. Mr Bhatia resisted the competency motion on the basis that the Registrar of this Court had not informed him that leave to appeal was required and that, had she done so, he would have filed a summons for leave. He submitted that the Court of Appeal had “authenticated” the notice of appeal and the amended notice of appeal by affixing the Court stamp to these documents.

9. The order made by Fagan J summarily dismissing the proceedings was an interlocutory order within the meaning of s 101(2)(e) of the Supreme Court Act 1970 (NSW): Wickstead v Browne (1992) 30 NSWLR 1 at 11; [1992] NSWCA 272. Accordingly, leave to appeal was required. The notice of appeal and amended notice of appeal were therefore incompetent and the latter ought be dismissed as such.

10. The affixing of the Court stamp on a document indicates and records that the document has been filed. The Court stamp does not signify that the document to which it is affixed is the correct document or that it is not susceptible to summary dismissal.

The summary dismissal motion

11. I understood Mr Bhatia to resist the summary dismissal motion on the basis that he had a legitimate grievance against the respondent as it had not provided funding for his power-lifting activities, notwithstanding his asserted proficiency in that sport.

12. Mr Buterin submitted that it was necessary for the Court to determine the summary dismissal motion as well as the competency motion since there was no utility in permitting a summons for leave to appeal being filed in the present case because the claims sought to be advanced were hopeless and amounted to an abuse of process.

13. Mr Bhatia’s disappointment in not being awarded a grant to advance his skill at power-lifting may be accepted. But life is full of disappointments for which the law provides no remedy. The statement of claim which was summarily dismissed by the primary judge disclosed no cause of action known to the law. As such, it was an abuse of process, since Mr Bhatia invoked the jurisdiction of the Supreme Court, seeking a remedy which was not available because there was no cause of action which entitled him to an order germane to his claim. His proceeding was, in this context, also frivolous and vexatious, as the primary judge found. Even had Mr Bhatia filed a summons for leave to appeal instead of a notice of appeal, this would not have advanced matters. His prospects of obtaining leave to appeal would have been parlous because the proposed appeal raises no matter of public importance (in the relevant sense), no issue of principle and there is no reasonably clear injustice: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (Bell P and Simpson AJA).

Costs

Whether costs ought follow the event

14. The respondent sought its costs of the proceedings, including the costs of its notices of motion filed on 4 July 2024 and 9 July 2024. Mr Bhatia submitted that no such costs order ought be made as the Registrar had not told him that he needed leave to appeal and he did not have the funds to pay the respondent’s costs.

15. It is not the Registrar’s function to give legal advice to litigants. The respondent raised the alleged incompetency of the appeal at the first directions hearing before the Court on 26 June 2024. It would have been open to the applicant to accept that the appeal was incompetent at that stage and save the costs which were subsequently incurred by the respondent. Mr Bhatia’s financial circumstances are not relevant to the question whether an order for costs ought be made although they may provide a reason why the respondent might choose not to enforce such an order.

16. My reasons for summarily dismissing the proceedings pursuant to UCPR, r 13.4 are, in effect, the same as those given by the primary judge. In these circumstances, I am not persuaded that there is any reason to displace the general rule that costs follow the event: UCPR, r 42.1.

Whether costs ought be quantified in a gross sum

17. Section 98(4) of the Civil Procedure Act 2005 (NSW) provides for costs to be quantified in a gross sum. The respondent sought that the costs of the proceedings be quantified in the gross sum of $12,410, exclusive of GST. This figure was calculated by discounting the total costs incurred of $16,546.80 by 25%.

18. The principles which apply to the fixing of costs in a gross sum are well established: see Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [21] (Giles JA) and Hamod v State of New South Wales [2011] NSWCA 375 at [813]-[820] (Beazley JA, Giles and Whealy JJA agreeing). It is appropriate to fix an amount of costs in a gross sum in order to save the costs of assessment in cases where a broad-brush approach is appropriate, as I am satisfied it is in the present case. It is appropriate that there be discount of the costs which are claimed to take account of the lack of rigour in the process.

19. The hourly rates set out in the affidavit of Lisa Springer sworn 25 July 2024 are, in my view, reasonable, as are the fees set out, including the time estimates. While there has been a discount of 25% applied to arrive at the figure claimed by the respondent, I consider that there ought to be a further discount to take full account of the broad-brush approach which is associated with fixing the costs in a gross sum. For that reason, I have discounted the total costs further and fixed the costs in the gross sum of $10,000 exclusive of GST.

Orders

20. The orders I made at the conclusion of the hearing of the respondent’s notices of motion (for which my reasons are set out above) were as follows:

1. Grant leave to the appellant to amend the name of the respondent in the notices of motion filed 4 July 2024 and 9 July 2024 and the amended appeal from “Office of Sport in the Right of the State of New South Wales” to “State of New South Wales”.

2. Dismiss the amended notice of appeal filed on 26 June 2024 on the following bases:

1. that the appeal is incompetent as leave has not been sought and it is required pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW); and

2. pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) on the ground that the proceedings are frivolous and vexatious and no reasonable ground for appeal is disclosed.

3. Order the appellant to pay the respondent’s costs of the appeal, including the costs of the respondent’s notices of motion filed 4 July 2024 and 9 July 2024.

4. Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), quantify the costs in order (3) in the gross sum of $10,000 exclusive of GST.

**********

Decision last updated: 31 July 2024