Bhattacharya v Minister for Police NSW & Ors S5/2002

[2002] HCATrans 633

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S4 and S5 of 2002

B e t w e e n -

PRANAY KUMAR BHATTACHARYA

Applicant

and

MINISTER FOR POLICE NSW

First Respondent

POLICE COMMISSIONER OF NSW

Second Respondent

DEPARTMENT OF CORRECTIVE SERVICES NSW

Third Respondent

MINISTER FOR HEALTH NSW

Fourth Respondent

DIRECTOR GENERAL, NSW HEALTH DEPARTMENT

Fifth Respondent

Applications for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 12.25 PM

Copyright in the High Court of Australia

_____________________

MR P.K. BHATTACHARYA appeared in person. 

MS C.A. RONALDS:   May it please the Court, I appear for the respondents.  (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales) 

GAUDRON J:   Mr Bhattacharya, you appear for yourself? 

MR BHATTACHARYA:   Yes, your Honour. 

GAUDRON J:   Yes, well, we have read your application book and you may make your submissions now. 

MR BHATTACHARYA:   Thank you, your Honour.  May I proceed?  As you all will ask me, the real question is the question related to the Court of Appeal judgment.  I put to you that on page 42 of the application book, between lines 5 and 15, the judge himself raised a very, very important question, which is arguable, and the judge says that: 

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. 

Now, that is a question the judge puts to himself, although he did not put in the same fashion ‑ and I put to you that if you look at No 12 of authorities, Hope v Bathurst City Council (1980) 144 ‑ ‑ ‑

GAUDRON J:   Yes, but let us go back a little bit, Mr Bhattacharya.  This present application is brought out of time. 

MR BHATTACHARYA:   There are two judgments, your Honour.  One of them is the judgment of the Court of Appeal, which is Court of Appeal No 40213 of 1999, and their Honours Meagher, Powell and Davies also heard 40346 of 2000 at the same time.  Now, one of the judgments was from the primary judge, Justice Young, in Equity, which was matter No 2151 of 1997, and copies in the application book on S4, Justice Young’s judgment - what there is in the supplementary document ‑ ‑ ‑

GAUDRON J:   But you seem to me to have this problem.  Your application to this Court is out of time, is it not? 

MR BHATTACHARYA:   Your Honour, I have filed an affidavit as to giving reason why I had to file the application ‑ ‑ ‑

GAUDRON J:   Because you had brought earlier applications, and you did not take the necessary steps in them, and they were deemed to be abandoned.  Is that not right? 

MR BHATTACHARYA:   That is not right, your Honour.  I was given notice that deemed to be abandoned if I do not initiate the action, which I did, and there is an explainable reason that I was given understanding by the Crown, the Crown will settle the matter with me ‑ ‑ ‑

GAUDRON J:   Well, we cannot hear anything about that, I am sorry. 

MR BHATTACHARYA:   I understand that. 

GAUDRON J:   You brought earlier applications.

MR BHATTACHARYA:   Yes.

GAUDRON J:   Underlying all this was an application by you for leave to appeal and an appeal from judgments which effectively said that you had disclosed nothing which could, in the circumstances, result in relief in your favour. 

MR BHATTACHARYA:   That might be so, but I reinitiated and I put to you that there are reasons – that there was a complete understanding given to me by the Crown that they will settle the matter, and there are serious questions in this matter.  First, the question of law I have mentioned.  There is a serious question to be answered and the judge raises this question.  Second ‑ ‑ ‑

GAUDRON J:   The serious question being whether you have disclosed matters that, in the circumstances, would entitle you to relief. 

MR BHATTACHARYA:   Your Honour, with due respect, what the judge says, that if ‑ the matter entirely depends: 

Mr Bhattacharya’s case rests wholly upon an acceptance of his delusional beliefs –

the question raises whether or not that matter was lawfully looked into by any court.  Under the principle of Hope v Bathurst City Council – and if you allow me to use the word, “factum probandum” cannot be proven, unless facta probantia establishes that, and particularly when that is viewed in terms of statutory provisions because what his Honour was required to do, to examine in the Mental Health Act 1990, in applying section 9, in finding out whether I was delusional or not, had to analyse Schedule 1, which I have given in the authorities, what is “delusion”?

Now, neither Justice Brownie nor Justice Young nor the Court of Appeal never examined whether the whole fact came within the statutory provision of the word “delusion” stated in the statute.  I put to you, the judge took undue advantage, when it is quite palpable, by me, that I am not a delusional person, because delusions do not go that way.  Delusion goes along with some psychotic illness.  When you ask numerous – there was evidence there before the court – there are numerous psychiatrists.  What they said, “Either he is delusional or there is a serious conspiracy”.  That is another question that needs to be answered. 

Now, I know I have a limited time, and therefore under the principles of Hope v Bathurst City Council, it is completely outside the law for either Justice Young or anybody to come along and say, “Oh, he is delusional”.  Now, you will see in this supplementary document, page 29, lines 25 to 30 ‑ that is Justice Brownie’s judgment.  I have included that in numerous places.  Then page 30, between lines 10 and 20; 46, line 35; page 62.  Now, on that point, there are other principles of law which are serious in error, your Honour, with due respect.  If you look at line 30, he says: 

I therefore find that the defendant has established that the plaintiff is a mentally ill person. 

He could not have done that, for a number of reasons.  One:  his Honour was required to analyse what was meant by the word “delusion”, which is a part of the statute, the Mental Health Act 1990. Two, the onus was on the defendant to discharge the onus and Briginshaw v Briginshaw, if you remember, is the principle, the stand that he adopted, his Honour, that Mr Lamprill knew the facts, and he was not called as a witness, so the judge held against him because it always, again, on the principle of Jones v Dunkel (1959) 101 CLR 298, that if you do not call a witness who is likely to prove the case, then the finding must be against that party.

Justice Brownie, I put to you with due respect, he took very, very undue advantage in vilifying me.  What is there in the judgment is simply vilification.  What I look like, what I say, nothing.  And if you put precisely in Australian lingo, he threw a bucket of mud on me to see if it sticks on this man.  Nothing more.  He abused the legal proposition of Jones v Dunkel.  He abused the legal proposition of Briginshaw v Briginshaw.  And then his Honour went completely against Hope v Bathurst City Council.  Now, his Honour also says that, summarily, it must be dismissed, because General Steel Industries Inc v Commissioner for Railways (NSW) (1964), appeal book page 36, he says it must be dismissed summarily.  Have you got that, your Honour? 

GAUDRON J:   Yes. 

MR BHATTACHARYA:   Page 36.  Now, why is it, I put to you, with due respect, why is it?  Is that what General Steel says?  It does not.  If you look at General Steel 112 CLR 125 at 130, your Honour, it says:

But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious –

It quite clearly says that.  So, therefore, on proposition, what the Court of Appeal put forward that it must be dismissed, only partly stating the principles of General Steel, I put to you he is not quite right.  If you see Justice Kirby on authority No 17, Ngo Ngo Ha v State of New South Wales (1996) 137 ALR 40 at 42, he says it must be a very, very clear case. And what is the clarity? I think it is stated in the case, Dey v Victorian Railways Commissioners that it has to be such – it would be very, very clear that even if the plaintiff got the witnesses, he could not prove it.  That is not the case.

A serious question has been put.  There are serious questions to be answered, and I put to you that if the judge says that the whole thing depends on his delusion or not, I put to you, I am before you, I am palpably verified by those words.  I have no delusion, in that not in the Mental Health Act says.  Otherwise, 70 or 80 per cent of the people end up in a mental institution. 

I also refer to other cases, authority 18, which is Dorfler and Another v Australia and New Zealand Banking Corporation, and Davis v Commonwealth (1986).  Then his Honour came to say that, “All right, we will apply the Supreme Court Rule, and we will say it is frivolous”.  The Supreme Court Rule, “frivolous”, on the ground his Honour says that “Look, your statement of claim is not good enough”.  The Supreme Court Rule clearly says that if it is not good enough, you cannot just dismiss it.  You give directions.  I have never been given proper directions by the court, after several applications.  The judge was not able to point out what was the error in the statement of claim. 

Also, I have included in the authorities the statement of claim ‑ what is required by the Supreme Court Rule.  What is required is the facts, and, secondly, the purpose of the statement of claim is to make the other party aware.  Once the other party is aware what it is all about, I cannot see any purpose of making accurately a statement of claim.  This matter has gone on for a long time, and the Crown is fully aware what the contents of the statement of claim is, why I am claiming damages, and what the Crown has to do.  On Supreme Court Rules, Part 1, rule 12, his Honour is entitled to just grant relief.  On applying the rule on Part 7, his Honour was entitled to look into exemplary damages.  Supreme Court Rules, Part 15, rule 7, the purpose – I read out: 

The primary purpose of pleadings is to define the issues, thereby informing the opposing parties of the case they have to meet –

That has been done, and they are fully aware of it.  Your Honour, on witness credibility.  One of the issues, if you look into Justice Brownie’s judgment, he has referred to witness credibility.  If you look at the totality of the judgment, he has vilified me on one side.  He says, he cannot accept the demeanour.  He challenged my demeanour.  On the other hand, as you may understand, your Honour, with due respect, that this matter has gone on since 14 October 1980, and not one reasonable charge or allegation this defendant was able to come forward and show me.  What they had to say, “Frivolous charges”, small charges, and say, “This man is very bad.  I want to dismount a charge against him”. 

Now, on that, on page 65 of the supplementary document, if there is any truth at all, that is the little grain of truth, with an enormous amount of weight on it.  What Justice Handley on one occasion said, and I read out, on page 65: 

In the circumstances it seems appropriate, bearing in mind the care which the Court traditionally exercises to protect members of the public against interference with their liberty and physical integrity by public authorities –

Your Honour, I have very limited time, as I understand.  Now, other matters that you will look into, that the real issue is that if I am not delusional, that is the fact – it does not fit into the whole scenario.  The

whole scenario has got to change.  Allegations are serious criminal allegations, my vilification, for 20 years, harassment, miscarriage of justice – all shall not fit in.  That is the question the judge has put and needs to be answered.  On the circumstances, there are two alternatives.  My application is that – three alternatives, as a matter of fact.  You would allow the appeal ‑ ‑ ‑

GAUDRON J:   Well, we cannot do that without granting special leave. 

MR BHATTACHARYA:   No, your Honour.  Well, grant the leave and then allow the appeal ‑ ‑ ‑

GAUDRON J:   Well, that would be for ‑ ‑ ‑

MR BHATTACHARYA:    ‑ ‑ ‑ grant me the damages, and put this matter to rest.  Or you may remit it back to the Court of Appeal or the primary judge for the full determination of these questions.  Or you have the power under the High Court Rules ‑ I think, Order 20, rule 18(2), you have the power what is just to be done, to dispense with.  My application is, Justice Young has assessed the damages, and the quantum has been specified by various judges, and be awarded.  One little point I would like to mention, your Honour, that if you look at Master Harrison’s judgment ‑ ‑ ‑

GAUDRON J:   Well, now, Mr Bhattacharya, your time has expired.  If you would finish up with what you were going to say, and do it very quickly. 

MR BHATTACHARYA:   Well, that is my application, that you will apply the High Court power in whatever way.  You have enormous power.  Dispense with this matter, and let me get on with my life, please. 

GAUDRON J:   Yes, thank you, Mr Bhattacharya.  Ms Ronalds, we need not trouble you.

The applicant, by two separate applications, seeks special leave to appeal against the dismissal by the Court of Appeal of New South Wales of an application for leave to appeal and an appeal against judgments of Justice Young and Justice Hidden of the Supreme Court of that State.

The effect of the decision of the Court of Appeal was to confirm the striking out of vexatious pleadings in the proceedings instituted in that court seeking to raise issues previously raised in the Federal Court, the Supreme Court and, indeed, in this Court.  The pleadings in question are, in many respects, incomprehensible and do not disclose any arguable basis for relief.

The decision of the Court of Appeal is correct.  The applications must be refused.  However, given that the applications were brought out of time, after earlier applications with respect to the same decision were deemed abandoned, the proper order is that the applications for extension of time be dismissed with costs.

AT 12.47 PM THE MATTERS WERE CONCLUDED