Bhattacharya v Minister for Police

[2000] NSWSC 335

CITATION:	Bhattacharya v Minister for Police & Ors [2000] NSWSC 335
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20241/99
HEARING DATE(S):	05/10/1999; 08/10/1999;13/12/1999
JUDGMENT DATE:	20 April 2000
PARTIES :	Pranay Kumar Bhattacharya (plaintiff) Minister for Police, NSW (1st defendant) Police Commissioner of NSW (2nd defendant) Department of Corrective Services, NSW (3rd defendant) Minister for Health, NSW (4th defendant) Director General, NSW Health Department (5th defendant)
JUDGMENT OF:	Hidden J at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL :	Plaintiff in Person P Saidi (defendants)
SOLICITORS:	Crown Solicitor (defendants)
CATCHWORDS:	PRACTICE & PROCEDURE - Statement of Claim - summary dismissal - allegations of unlawful detention - validity of claims on their face - whether defendants the appropriate parties
LEGISLATION CITED:	Crown Proceedings Act 1988 Law Reform (Vicarious Liability) Act 1983 Mental Health Act 1990 Crimes Act 1914 (Cth) Supreme Court Act 1970 Crimes Act 1900 (NSW)
CASES CITED:	Bales v Parmeter (1935) SR(NSW) 182
DECISION:	Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J
Thursday, 20 April 2000

Pranay Kumar Bhattacharya v Minister for Police & 4 Ors
20241/99

Reasons for judgment

1 HIS HONOUR: This is an appeal by the plaintiff, Pranay Kumar Bhattacharya, against a decision by Master Harrison dismissing his statement of claim against five defendants, together with his motion seeking an interim payment under s76E of the Supreme Court Act 1970. The defendants are the New South Wales Minister for Police, the Commissioner of Police, the Department of Corrective Services, the Minister for Health and the Director General of the Department of Heath. The plaintiff was unrepresented before me, as he has been throughout the somewhat protracted proceedings which he has pursued in this Court. It is necessary briefly to sketch the history of those proceedings.

2     In 1997 the plaintiff commenced proceedings by summons in the Equity Division against fifteen defendants, being individuals or entities having responsibility in the executive government of this State. On 5 June 1997 Master Macready stayed proceedings upon that summons in an amended form on the basis that they should not have been instituted by summons. However, the Master gave the plaintiff leave, upon terms, to make an application to file a statement of claim.

3     The plaintiff filed a notice of motion accordingly, attaching a copy of the draft statement of claim. The defendants filed a notice of motion seeking that the proceedings be summarily dismissed or that the proposed statement of claim be struck out. Those motions were dealt with by Master McLaughlin on 3 April 1998. The Master dismissed the proceedings against all but five of the defendants and, even against them, he declined to grant leave to file the statement of claim in its existing form. Those five defendants are the defendants in the proceedings before me.

4     The plaintiff appealed against the decision of Master McLaughlin and the five defendants cross appealed, claiming that the proceedings against them should also have been dismissed. The matter was determined by Young J on 5 March 1999. His Honour dismissed the plaintiff’s appeal and allowed the cross-appeal.

5 In so far as Master McLaughlin declined to dismiss the proceedings against the present five defendants, it was his intention that the plaintiff should have the opportunity to maintain three of his claims (subject to their being properly pleaded). Two of those claims arose from his arrest on 15 January 1993 upon a charge of making a menacing phone call: s85ZE(1)(a) of the Crimes Act 1914 (Cth). The third related to his arrest on 11 February 1994 upon unspecified charges, followed by his detention at a hospital pursuant to s27 of the Mental Health Act, 1990.

6 On the material before him, it appeared to Young J that the plaintiff’s detention on both occasions was the result either of the refusal of bail by a magistrate or an order under s27 of the Mental Health Act, and his Honour concluded that those claims also should be dismissed. The plaintiff has appealed to the Court of Appeal against the decision of Young J, but that appeal is yet to be heard.

7     The statement of claim with which I am concerned was filed on 16 April 1999. It seeks damages for malicious prosecution and false imprisonment arising from the plaintiff’s detention on six separate occasions. The first and second detentions are those of the 15 January 1993 and 11 February 1994 and, as Master Harrison observed, the claims arising from them are effectively the same as those which were dismissed by Young J. For that reason, Master Harrison dismissed those claims also.

8     The third detention resulted from the plaintiff’s arrest on 21 December 1996 for a number of charges, which it is unnecessary to set out. The fourth detention arose from his arrest on 5 October 1997, followed by another period of confinement at a hospital under the Mental Health Act. These detentions had founded claims which were dismissed by Master McLaughlin, that decision being affirmed on appeal by Young J. Again, in the light of that history, Master Harrison dismissed those claims.

9     The fifth and sixth detentions gave rise to claims which the plaintiff had not previously made. I shall turn to the fifth detention in a moment. The sixth detention arises from yet another period of confinement in a hospital, apparently as the result of an order under the Mental Health Act. Applying the reasoning of Young J, the Master concluded that that claim also must fail.

10     Thus far, I am unable to detect any error in Master Harrison’s approach to the matter. My only concern relates to the fifth detention. The basis of this claim appears in paragraphs 51 and 52 of the statement of claim as follows:

51. On 18 October 1997 Constable O. Lambousis telephoned the Plaintiff at his home and requested if she could talk to the Plaintiff. When asked she did not disclose any detail. Plaintiff has made complaints against other people which has not been responded by the Penrith Police Station. Later Plaintiff attended the Penrith Police Station to talk to Constable Lambousis.
52. Constable Lambousis invited the Plaintiff in a room without any notice and brought in another police officer. Constable Lambousis started questioning the Plaintiff. When Plaintiff wanted to leave, Constable Lambousis said to Plaintiff “you are under arrest”. She did not provide any further detail. The Plaintiff was then detained and interrogated for about two hours and then allowed to leave the Police Station. The Plaintiff was not charged.

11     Master Harrison observed, correctly, that no claim for malicious prosecution could arise from the facts pleaded as no prosecution was launched. As to the allegations of wrongful arrest and false imprisonment, the Master found that the sequence of events pleaded “would seem to be most improbable and contradictory so as to consider it hopeless”.

12 One might see the allegations as somewhat bizarre and wonder whether the plaintiff has the evidence to support them. Nevertheless, they amount to a claim which is valid on its face: that he was unlawfully detained by a police officer for the purpose of questioning. At the relevant time Part 10A of the Crimes Act 1900 (NSW) was not in force, and the position was governed by the principles enunciated by Jordan CJ in Bales v Parmeter (1935) 35 SR (NSW) 182. I put to one side questions of the precision and adequacy of the pleading.

13     That said, the claim makes no allegation against three of the defendants, the Department of Corrective Services, the Minister for Health and the Director General of the Department of Heath, and it must be dismissed as against them. It could be maintained against the Minister for Police and Commissioner of Police only if they were vicariously liable for any wrongdoing by the police officer concerned. No such vicarious liability is pleaded against either of them. In truth, the question is whether the Crown bears such liability and that would require examination of the Law Reform (Vicarious Liability) Act 1983. Any such claim would need to be brought against the State of New South Wales in accordance with the Crown Proceedings Act 1988 (NSW).

14     Accordingly, this claim cannot be sustained against any of the present defendants. While I consider that Master Harrison fell into error in the manner in which she disposed of the claim, I would uphold her decision to dismiss it.

15 Finally, I would also uphold the Master’s decision to dismiss the plaintiff’s motion for an interim payment under s76E of the Supreme Court Act. She found that none of the conditions set out in s76E(3) were met, and that finding was clearly open to her.

16     The appeal is dismissed. If necessary, I shall hear the parties on costs.

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Last Modified: 09/25/2000