Bhattacharya v Director General of Department of Education and Training and Anor S77/2000

[2000] HCATrans 702

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S77 of 2000

B e t w e e n -

PRANAY KUMAR BHATTACHARYA

Applicant

and

DIRECTOR GENERAL OF DEPARTMENT OF EDUCATION & TRAINING

First Respondent

THE CROWN SOLICITOR, NSW

Second Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 2000, AT  2.39 PM

Copyright in the High Court of Australia

MR P.K. BHATTACHARYA appeared in person.Your Honour, I am the applicant.

MS C.A. RONALDS:  If the Court pleases, I appear for the respondent.  (instructed by I.V. Knight, Crown Solicitor for New South Wales)

GLEESON CJ:   Yes, Mr Bhattacharya.

MR BHATTACHARYA:   Now, the judgment of the Court of Appeal which resulted in my dismissal from employment and other matters is fundamentally based on the two charges proven on the basis of a threat.  Now, your Honour, in the GREAT – in the Government and Related Employees Appeals Tribunal - who is the primary hearing, the evidence was that there was a telephone conversation between myself and the Crown Solicitor, Mr Les McKay, and it was alleged by Mr McKay that I used the word “kill”.  To the best of my honesty, I say to you that the word “kill” was not used.  Something he had used and because of the way and the manner I perceive and speak, he thought that I am saying affirmatively what he repeats many times.

So I never used the word “kill”, and I say that to you, that conversation had taken place in relation to a previous judgment of a District Court Judge, Judge O’Reilly, and the statement was what was said.  Secondly ‑ ‑ ‑

GLEESON CJ:   Just let me get one thing straight, Mr Bhattacharya.  You are seeking special leave to appeal against the judgment of the Court of Appeal of 4 April 2000, and you also have an application for a stay in relation to the same ‑ ‑ ‑

MR BHATTACHARYA:   That is correct, your Honour.

GLEESON CJ:   So they stand or fall together.

MR BHATTACHARYA:   Yes.

CALLINAN J:   And you are addressing us on both matters?

MR BHATTACHARYA:   I am addressing in a combined way because, if one succeeds, if there is merit in one, the other, of course, succeeds.

GLEESON CJ:   We understand.

MR BHATTACHARYA:   Now, the legal issue is that on the standard which the GREAT, which is the Government and Related Employees Appeal Tribunal, adopted, and discorrectly under the circumstances - that is Briginshaw v Briginshaw said it, whether any court can find any balance of probability proven by word against word when these matters were investigated by New South Wales police, and any communication of that nature comes within the Commonwealth Crimes Act section 85ZE(a) or (b).  They were investigated.  So, even for the GREAT and the Court of Appeal to find a good degree of probability, it was necessary to produce some other evidence than word against word.

Now, the difficulty is, your Honour, from a court’s point of view is this, that I am before you, I have an immaculate moral character and there is no evidence of any violence in my whole life.  So, here, why do you have inconsistency, that you have a man who has no record at all, and thereby word against word, he says that he has given the threat.  Now, whether the court can accept that on the standard of Briginshaw standard, I cannot conceive.  My submission is that you could not.  There is a serious errors of law, and goes with it, is serious error of fact, because the word “kill” was never used, because I am before you, I can tell honestly, that was never used.

Now, even if you consider that all right, there is a possibility, and they will accept possibility rather than probability of threat, then the second question comes, serious legal issue before you, whether, within the authorities listed out by the Court of Appeal on implied breach of duty employment, whether a conversation between the third party – Mr McKay is a third party – whether that constitutes repugnancy in terms of contract of employment.  My view and my submission is not, because the authority, which I have included, and referred by the Court of Appeal, in particular, the Blyth Chemicals v Bushnell, is quite clear, that the…..repugnancy, it got to be something related to actual work inconsistent with the performance of the person’s duty.

It is not sufficient that every allegation of fact is repugnant.  It goes with the other question, that if you look at them, for a professional dismissal of a person, it is not that anybody will make an allegation of fact of any nature, and then that can be a ground for professional dismissal.  It got to be related to the profession and that is the general concept.  Now, there is evidence before you, that other point I want to say, that you can - and in my view it is.  It is quite within the law stated in Associated Provincial Picture v Wednesbury Corp. [1948] 1 KB 223, because of these reasons.

Now, all right, as you can see, there is a very vague possibility that this man is a threatening man and a professional man – I am reasonably qualified – dismissed.  OK, there is a procedural point of view.  After all, I was charged under the Teaching Services Act.  There is evidence before the Court, and the material, that the director general of the Department of Education charged me with the perceived idea that I was employed within the Teaching Services Act, and then later on, after hearing all those matters, they found out, and which is correct, that I am employed under the New South Wales Technical and Further Education Act.

My submission is, even on the technical point of view, that charge was not valid because I was charged under a different Act and, therefore, it has become what you call this ultra vires.  They proceeded to hear the charge which were laid, common law charges, considered that I was employed within the Teaching Services Act, and then, when given the judgment, the charges were proven within the Technical and Further Education Act.  They exceeded what was authorised by law and because it is outside the law, it is unreasonable and comes within the words “very unreasonableness”.

This other point, your Honour, that I have given you authorities copied, but I was unable to locate at that time – even if you consider that the charges were, in fact, heard within the New South Wales Technical and Further Education Act, and I mention that – there is a copy I have from the Hansard – there is a number of copies if your Honour would like to see it, and this is very important.

GLEESON CJ:   Yes, thank you.

MR BHATTACHARYA:   On the right-hand side page, about second paragraph, third line, it says:

Any regulations relating to the employment of staff by the commission, including employment conditions and discipline of staff will be subject to relevant awards and industrial agreements.

Now, there was an agreement.  The disciplinary process, which is included in the exhibit copy A, beginning on page 39 of the page, exhibit copy, your Honour, you will see that it is the instrument which was used for proving the charges and finding guilty.  At the top of this document it says, “This determination applies to all educational staff excluding part-time, casual staff, contract teachers, in classification, including in the New South Wales State Commission teachers and other educational staff salaries and condition Award 1996”.  That is an award which was gazetted.  I have a spare copy I would like you to ‑ ‑ ‑

GLEESON CJ:   Just tell us what you rely on.

MR BHATTACHARYA:   That is award under which – only award and should have been used while considering the charges and, plus the Hansard, because of the fact the New South Wales Technical and Further Education Act, pursuant to section 17 of that Act, no regulations are made.

GLEESON CJ:   I do not suppose the award has anything in it about threatening to kill people?

MR BHATTACHARYA:   No, and that is ‑ ‑ ‑

GLEESON CJ:   Well, then, what is the relevance of the award?

MR BHATTACHARYA:   The relevance is that it is a legitimate expectation that this procedure as set out, it is a step-by-step procedure, if as a work oriented procedure, if you are not liking a behaviour of a particular person, if you are concerned, this document makes an opportunity that you tell the person why it is happening, what is the problem, have a meeting, try to resolve it and if, your Honour, you have a look on that document, it says on page 42, “the disciplinary process is conducted when the negotiation in relation to what improvement is not achieved”.  It is a precondition.

GLEESON CJ:   If somebody threatens to kill somebody else, what area for negotiation is there?

MR BHATTACHARYA:   No, it is a perceived threat, your Honour.  Your Honour, I go back to you, it is a denial, there was no threat.  There is a perception the person has a threat.  That perception, it must have continued for a while when I was employed.  It was required by the processes, and within the legitimate expectations, within the principles, Annetts v McCann (1990) 170 CLR 596, that people are not discriminated against. Even if the feeling of xenophobia within the government officers because of superiority and their field, that this man is not from this country, he is not naturalised or different, the xenophobia ought not to be applied to exclude the person from the processes which is clearly set out in black and white.

I put it to you this way, your Honour, there must have been perception that this man, “We are going to get him somehow or other”, because they have been charging for criminal charges umpteen times, and then medical assessment by numerous psychiatrists, “Oh, we cannot get him because he is too strong.  We will get him by making a criminal allegation inside the department”, which is a bogus and cannot be proven.  Mr McKay was asked to produce a tape or witness when he had the telephone.  He failed to do so.  Balance of probability of any degree is not established.  It is a serious error of law.  In this case, there has been no threat.

Now, other question comes.  You might say, “Righto, the judge has determined.  Judge thinks that this man is threatening, has given the threat.  Is the demeanour in question?”  I put it to you this way.  If that is the case, every person you falsely charge and he gets uptight in the witness box, he will be guilty of that offence because between the demeanour of the person and judge thinks that the balance is proven, there is another element, and that element is perception.  I put it to you this way, the President of the Court of Appeal and Court of Appeal got - they got the wrong perception, or they have perception, I mean, interference with the other material which is before them.  I think that they got it wrong because they have perception wrong.  They got it mixed up with other material which were before them.

This is inconsistent, it is of public interest.  In a society like this, I am not taking advantage - my demeanour is such.  I am an absolutely kind person.  I am a natural Christian.  I have no record of violence.  I am sure you are frightened of it because of circumstances, but I am not.  Whether or not, because of the perception, you get a professional man dismissed, and then you put him in prison, put him into an institution, it has no legal basis for it.  It is a public interest.  There are a lot of people like that.  Nevertheless, in a pure legal point of view, the threat is not proven.

There was no threat, no word “kill” was used.  If you accept that, that I use the word “kill”, you are absolutely wrong and you are going to do serious injustice.  That is the point.  Not only that, you have done so because all of that now since 1997, it has got numerous effect.  Now, Court of Appeal say that is only a step towards the final decision.  Before the time is up, I mention that.  Court of Appeal were to put to you, by the judgment, look, it is not a final decision, it is only a step towards it, but it is substantive when you dismiss a person.  It is not interlocutory in that sense.  It is substantive, it is to be judged by its effect, and I have said to the department…..government, many occasions, “All right, if you do not want me there, you are destroying my competence, prospect of employment, all that, and within the principles of law of contract, it is not unilateral contract provided please give me my damages, there is no way I can go near you”.

They have not taken that matter up and I am entitled to those damages, to say the least.  That need to be assessed.  I will put it to you this way.  The Court of Appeal got it wrong in dismissing me.  Neither the fact to dismiss me because he is a professional, he got a professional discipline.  It is not every fact that somebody dropped a glass of water in the premises and I have asked him not to drop it, it has proven he has dropped it, is a matter for dismissal.  It is not.  It got to be within Hope v Bathurst City Council (1980) 144 CLR 1, the principles, the fact preferred do not prove the fact to be proven. That is, my conduct is such that I ought to be dismissed.

If you look at other precedents preferred by the Court of Appeal, all of them has one element, and they are repugnant to their employment.  So, in pure sense of law, dismissal is wrong.  Now, having done that, I have given you a long affidavit with the application book.  My submission is that you will accept that, that affidavit, which is filed on 19 June 2000 in this Court, as true and correct.  There is not one element untrue statement in it.  They are exact facts, what I say is going on.  If you look at that, then it is a serious matter, it is of public interest.  You could not proceed to get a reasonable person, reasonable in my sense, because – not reasonable in other sense because I have no record of any bad conduct.  As simple as that.

My total life, it is more than unreasonable to carry out discrimination of this nature because…..Act provides everybody got to be treated equally in law.  People may be xenophobic, but you could not possibly go there and kill their wife and children, destroy their family.  You could not do that.  We have, all of us…..prejudiced in certain things.  That is no difficulty.  Law do not bias prejudice.  But if you cause detriment of serious nature, influenced by those prejudice, I do not think that is acceptable.

GLEESON CJ:   Yes, thank you.

MR BHATTACHARYA:   Much obliged, your Honour.  My submission is that you will restore me to employment and provide me the order for the settlement of damages so I can get on with my life.

GLEESON CJ:   Thank you. 

The Court is of the view that no error has been shown in the reasoning of the Court of Appeal of New South Wales in this matter and for that reason the application for special leave to appeal should be refused.  It follows that the application for a stay should also be refused.  The applicant must pay the respondent’s costs of the application.

We will adjourn.

AT 3.00 PM THE MATTER WAS CONCLUDED