Bhattacharya v State of New South Wales

[2002] NSWSC 361

CITATION:	Bhattacharya v State of New South Wales & Anor [2002] NSWSC 361
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20652/01
HEARING DATE(S):	23/04/02
JUDGMENT DATE:	1 May 2002
PARTIES :	Pranay Kumar Bhattacharya (Pl) State of New South Wales (1st Def) St Vincent's Hospital Sydney Limited (2nd Def)
JUDGMENT OF:	Kirby J

COUNSEL :	In Person (Pl) Ms C Ronalds (1st Def) R O'Keefe (2nd Def)
SOLICITORS:	In Person (Pl) Crown Solicitor (1st Def) Frances Allpress (2nd Def)
CATCHWORDS:	Practice & Procedure - Application for summary dismisal and security for costs - Claim of false imprisonment - Onus - Justification of imprisonment - Adequacy of pleading
LEGISLATION CITED:	Crown Proceedings Act 1988 Police Service Act 1990 Law Reform (Vicarious Liability) Act 1983 Mental Health Act 1990 Crimes Act 1900 Supreme Court Act 1973
CASES CITED:	Rajski v Powell (1987) 11 NSWLR 522 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Bhattacharya v Minister for Police, NSW & 3 Ors [2001] NSWSC 520 Bhattacharya v Minister for Police, New South Wales & 3 Ors (McClellan J, unreported, 16 July 2001) Williams v Minister, Aboriginal Landrights Act 1983 & Anor (1994) 35 NSWLR 497 Carnegie v The State of Victoria & Ors (unreported, 14.9.89) Wickstead v Browne (1992) 30 NSWLR 1 Bhattacharya v Freedman [2001] NSWSC 498 Morris v Hanley [2000] NSWSC 957 Powell v Taylor (1885) 31 ChD 34
DECISION:	Ref para 69

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Wednesday 1 May 2002

20652/01 - PRANAY KUMAR BHATTACHARYA v STATE OF NEW SOUTH WALES & ANOR

JUDGMENT

1 KIRBY J: I have before me three Notices of Motion. They relate to an Amended Statement of Claim issued on 27 September 2001 by Pranay Kumar Bhattacharya (the plaintiff) against the State of New South Wales (first defendant) and the St Vincent's Hospital Limited (second defendant). The Notices of Motion by the defendants are in the same terms. In substance they seek the following relief:

· An order for Summary Judgment under Pt13 r5 of the Supreme Court Rules.

· Alternatively, an order striking out the Amended Statement of Claim under Pt15 r26 on the basis that it discloses no cause of action, or is otherwise embarrassing.

· Alternatively, an order that the plaintiff pay $20,000 security for costs in respect of each defendant, and the action be stayed until such payment has been made.

2 The Notice of Motion by Mr Bhattacharya seeks the following orders:

"1. The Defendants pay the Plaintiff all the damages as claimed.
Alternatively,
2. The Defendants restore the Plaintiff to the position as he was prior to 15 November 1992 (ie in 1990)."

The Incident

3 The incident giving rise to Mr Bhattacharya's claim occurred on 20 November 2000 in Phillip Street, Sydney, in front of the Law Courts Building. At approximately 5.20 pm, Mr Bhattacharya was taken into police custody. He was placed in the back of a police "paddy wagon". He was then taken to the Mental Health Unit of St Vincent's Hospital (the Caritas Unit). He was admitted shortly after 6.00 pm. He was examined. The police then withdrew. Mr Bhattacharya was released by the hospital at 7.20 pm and immediately left.

The test to be applied

4 Mr Bhattacharya is an unrepresented litigant. He is not a lawyer, although he is the veteran of many legal actions in which he has represented himself. The skill of a trained pleader is not to be expected from a litigant in person. So long as the Statement of Claim adequately serves the purpose for which it is intended, the Court should extend a degree of latitude (cf Kirby P, Rajski v Powell (1987) 11 NSWLR 522 at 524).

5 In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, Kirby P said this: (at 536)

"... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. Courts should approach the peremptory termination of the litigation with special care to ensure that, within the possibly ill expressed and unstructured statement of the legal claim sought to be ventilated, there is no viable cause of action which, with appropriate amendment of the pleading and a little assistance from the court, could be put into proper form. If this can be done, the court should avoid the summary termination of the proceedings for this will prevent the Court from examining any merits of the case, once the statement of claim is struck out ..."

6 I will make observations on the Amended Statement of Claim later in this judgment. The document includes much irrelevant material. However, the claim made by Mr Bhattacharya appears to be one for false imprisonment. The following is alleged:

"5. At about 5.20 pm on 20 November 2000 two police officers employed by the New South Wales Police Service apprehended the Plaintiff and with force and arm, and with malice and without reasonable cause and without warrant, and with malice arrested the Plaintiff making false allegations, detained the Plaintiff in their custody, searched the Plaintiff and his possessions without any reason and transported the Plaintiff by force and arm to a Mental Institution and initiated Plaintiff's detention and prosecution."

7 Particulars are provided, which include the following:

"13. After about five minutes later the Police Officers again apprehended the Plaintiff and arrested him saying 'we will charge you for trespass', 'Come here, we are taking you to police station.'"

8 The Particulars quote documents created by the arresting police officer, or by others, at or about the time of the incident. The plaintiff then says this:

"26. The material (in) possession of the authorities disclose no lawful reason for Plaintiff's arrest and detention on 20.11.00."

9 The Amended Statement of Claim ends with the following words, which suggest that Mr Bhattacharya may also intend to rely upon the tort of malicious prosecution:

"PLAINTIFF CLAIMS:
29. (A) Exemplary and Punitive damages in respect of Plaintiff's arrest detention and malicious prosecution on 20.11.00.
(B) Aggravated damages in respect of Plaintiff's mistreatment on 20.11.00.
(C) General damages as per the Schedule of Damages filed in this matter.
(D) Damages in restitution."

10 A claim for malicious prosecution is not available. No charges were laid against Mr Bhattacharya. Before a claim can be made for malicious prosecution, the plaintiff must allege (and ultimately prove) the following elements (Bullen and Leake and Jacob's, 'Precedents of Pleadings' (14th Ed 2001) Vol 1, p35):

"(a) he was prosecuted by the defendant, i.e. that proceedings on a criminal charge were instituted or continued by the defendant against him;
(b) the proceedings were terminated in the claimant's favour;
(c) the proceedings were instituted without reasonable and probable cause;
(d) the defendant instituted the proceedings maliciously; and
(e) the claimant suffered loss and damage as a result."

11 I will, therefore, approach the application upon the basis that Mr Bhattacharya is seeking to prosecute a claim for false imprisonment.

12 Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, formulated the test to be applied in an application for summary judgment. His Honour said this: (at 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'."

13 The Chief Justice later said: (at 130)

"... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

14 Kirby P in Rajski v Powell (supra) explained why the power of summary dismissal must be used with circumspection: (at 524)

"... the circumstances in which summary intervention is justified, effectively to prevent a party from submitting a case for determination on the merits, are limited indeed: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91. This is because, normally, a party is entitled to have the case proceed to trial when a full opportunity will be given to present evidence and argument in support of the claim. Necessarily, applications such as the present typically involve little or no consideration of evidence. The proceedings are telescoped. These and other reasons explain why the exercise of the jurisdiction now invoked is reserved to exceptional cases."
The submissions of the first defendant

15 The first defendant provided detailed written submissions. A number of decisions of this Court were annexed. They related to litigation involving Mr Bhattacharya. They appear, with two exceptions, to have no relevance. The exceptions relate to the same incident, the subject of the Amended Statement of Claim, now under consideration.

16 On 13 December 2000, Mr Bhattacharya filed the first version of the Statement of Claim. He named four defendants, the Minister for Police (first defendant), the Commissioner for Police (second defendant), the Minister for Health (third defendant) and the Director General of the Health Department (fourth defendant). The defendants moved to strike out the Statement of Claim under Pt13 r5 and Pt15 r26. The Motion came before Master Harrison. The Master gave judgment on 25 June 2001 (Bhattacharya v Minister for Police, NSW & 3 Ors [2001] NSWSC 520), making an order dismissing the plaintiff's action. The Master said this: (para 2)

"2. ... The plaintiff was asked by the court what were the recognised legal causes of action which he wished to raise, he referred to wrongful arrest."

17 However, Mr Bhattacharya had sued the wrong parties. Under s5(1) of the Crown Proceedings Act 1988, the first and second defendants were correctly described as the State of New South Wales. The Master said this: (para 19)

"19. ... This was drawn to the plaintiff's attention by Dunford J in his decision of 1 March 2000. At the hearing before me the plaintiff declined the opportunity to replead the statement of claim to name the correct defendants because it was his trenchant view that the onus was upon the defendants to properly name themselves and he need do nothing more. It is my view that naming the incorrect defendants is fatal to his case and for that reason alone the statement of claim and the proceedings should be dismissed."

18 Mr Bhattacharya appealed. The appeal came before McClellan J and was dismissed (Bhattacharya v Minister for Police, New South Wales & 3 Ors (unreported, 16 July 2001)). McClellan J said this: (para 9)

"9. In my opinion, Master Harrison's decision in relation to this aspect of the matter is correct. Having regard to Mr Bhattacharya's apparent refusal to acknowledge the difficulty, she had no alternative but to dismiss the proceedings."

19 Mr Bhattacharya then issued an Amended Statement of Claim, the subject of the application before me. The State of New South Wales was named as a party (first defendant). However, again the State moved to strike out the claim. The basis upon which it did so was set out in lengthy written submissions.

20 The first basis fastened upon the suggestion by Mr Bhattacharya in paragraph 5 (above) that the "two police officers" were "employed by the New South Wales Police Service". The following submission was put:

"20. The State of New South Wales seeks the proceedings be dismissed as there is no sustainable claim brought against it. It is not sustainable as there is no employment relationship between the constables and the State of New South Wales and at all times they were acting consistent with their statutory duties."

21 The submission was then developed at some length. The authorities were set out, included the following:

"28. In Enever v The King (1906) 3 CLR 969, the High Court held that an action for damages for wrongful arrest did not lie against the Crown when a constable acted in the intended performance of his duties; see Griffith CJ at 979. This decision was followed by the High Court in Baume v The Commonwealth [1906] 4 CLR 97."

22 Reference was made to the Police Service Act 1990, which reaffirmed the independent nature of the Constables role. The submissions then offered the following conclusion:

"32. Therefore, it is submitted that the police officers were not acting within an employment relationship with the NSW Police Service and hence the State of NSW as their employer in relation to the execution of their duties according to law."

23 Thereafter the submissions dealt with a possible alternative basis of liability, that of the individual police officers. In that context, the following was said:

"37. Further, the individual police officers could not be liable for their actions pursuant to the operation of section 213 of the Police Service Act which provides:
'213 Protection from personal liability
(1) A member of the Police Service is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law with respect to the protection of persons from injury or death or property from damages.
(2) This section applies to acts or omissions before as well as after the commencement of this section."

24 However, the submissions, unhelpfully, failed to draw attention to the Law Reform (Vicarious Liability) Act 1983 which specifically addressed the issue of vicarious liability in the context of those with an independent office. For the purposes of the Act, a police officer is "deemed to be a person in the service of the Crown", although not a servant of the Crown (s6). The Crown is vicariously liable for the torts of a person in the service of the Crown, subject to certain qualifications which are not material (s8). That was an Act known to counsel for the first defendant. It emphatically should have been included in the written submissions, not only for the guidance of the Court, but also for the guidance of Mr Bhattacharya, an unrepresented litigant.

25 I will come back to s213 of the Police Service Act, and the suggestion (in paragraph 20 of the written submissions) that the police officers were acting in accordance with their statutory duty. I reject the first basis for summary dismissal of Mr Bhattacharya's claim.

26 The second basis was that the police officers did not "arrest" Mr Bhattacharya. Rather, he was "apprehended" under the powers provided by s24 of the Mental Health Act 1990. That section, relevantly, makes the following provision:

"s24 Detention after apprehension by police
(1) If a member of the Police Force finds a person in any place who appears to be mentally disturbed and the member of the Police Force has reasonable grounds for believing:
(a) that the person is committing or has recently committed an offence and that it would be beneficial to the welfare of the person that the person be dealt with in accordance with this Act rather than otherwise in accordance with law, or
(b) ...
the member of the Police Force may apprehend the person and take the person to a hospital (other than an authorised hospital).
(2) A member of the Police Force may apprehend any such person without the warrant of a justice."

27 My attention was drawn to the remarks of Master Harrison when giving judgment on the Motion to strike out the first Statement of Claim. She said this: (para 13)

"13. ... The plaintiff alleges that he was arrested however the defendants' documents do not support this. Nor does the plaintiff's statutory declaration giving his actual version of events that led him to find himself visiting Caritas."

28 Master Harrison then set out s24(1) of the Mental Health Act 1990, and added:

"15. There is a report by Constable Narelle Hall which states that she had reason to believe that when the plaintiff was apprehended he was committing and had recently committed an offence and would benefit from being dealt with under the Mental Health Act rather than in accordance with law. The incidents of which Mr Bhattacharya complains were on their face proper and lawful acts of the appropriate authorities."

29 McClellan J, in dealing with the appeal from Master Harrison, was somewhat more circumspect. He said this: (paras 13/14)

"13. Before Master Harrison there was evidence of the circumstances in which Mr Bhattacharya was detained. It would appear that the relevant police officers were informed that he had made a threat to a member of the staff of the registry and was acting in a manner which was of concern to the Sheriff's Officers of the court. Because the police were informed that a threat had been made and because of Mr Bhattacharya's conduct, the officers decided to take the steps which they did. The Master found in relation to those matters that they 'were on their face proper and lawful acts of the appropriate authorities'.
14. Nothing has been indicated to me that would suggest that this is otherwise than an appropriate and correct finding. However, it is not necessary for me to explore that matter further."

30 In dealing with the second basis for dismissal, I should say something about the tort of false imprisonment and the facts, as they emerge from the various annexures to the affidavits.

The documentary material

31 The tort of false imprisonment involves the direct and intentional restraint of one person's liberty by another for however short a time, without lawful justification. Here, it is common ground that Mr Bhattacharya was restrained by the direct and intentional act of the police officers. The only issue is whether that detention was without lawful justification. In respect of that issue, the onus is upon the first defendant to establish lawful justification (Williams v Minister, Aboriginal Landrights Act 1983 & Anor (1994) 35 NSWLR 497, per Kirby P at 512/3). In Carnegie v The State of Victoria & Ors (unreported, 14.9.89) the Full Court (Crockett, O'Bryan and Gray JJ) made the following comment upon a Judge's charge to the jury in a trial involving an allegation of false imprisonment. The Court said this:

"But the real vice in the charge is the repeated suggestion that the appellant was required to prove that he was falsely imprisoned. That is just what he did not have to prove. He had to establish only that he was imprisoned. If he did so it was for the respondents to satisfy the jury that they did not falsely imprison ie that their act of imprisonment was legally justified."

32 The defence filed by the first defendant does not plead justification, nor the basis upon which it asserts that the detention was lawfully justified. It should do so. There are two possible bases that may be advanced. It is important to know which the first defendant seeks to rely upon. The first basis (and the one I assume that is put forward) is that identified by the written submissions, namely s24 of the Mental Health Act 1990. The alternative basis is that the plaintiff was arrested without warrant under the authority given to a police officer (and, indeed, a citizen) by the Crimes Act 1900, s352. It is to be noted that Mr Bhattacharya asserts that the justification given to him at the time was that he was being arrested for trespass.

33 The fact that the onus is upon the first defendant in respect of what appears to be the only real issue on liability is obviously relevant to whether the first defendant can satisfy the test for summary dismissal. However, since Master Harrison, and, more tentatively, McClellan J, appear to have suggested that the police officers were justified in detaining Mr Bhattacharya under s24(1) of the Mental Health Act 1990, I should perhaps, investigate what happened more fully than I would otherwise be inclined to do.

34 Mr Bhattacharya, in the particulars which accompanied the Amended Statement of Claim, purports to quote verbatim his conversation with the police officers, and specifically Constable Narelle Hall. The Amended Statement of Claim contains the following paragraph:

"13. After about five minutes later the Police Officers again apprehended the Plaintiff and arrested him saying 'We will charge you for trespass', 'Come here, we are taking you to police station.'"

35 Mr Bhattacharya asserts that he was then directed to get into the back of the wagon, which he did.

36 Mr Bhattacharya was not taken to the police station. He was not charged with trespass. Rather, he was taken to St Vincent's Hospital. Mr Bhattacharya, in the Amended Statement of Claim, explains that this occurred after some delay. He makes the following allegations:

"15. The Police Officers left the Plaintiff locked up in the vehicle in heat and discomfort.
16. After some duration of time the Police Officers said to the Plaintiff 'We are taking you to St Vincent's Hospital' and the officers transported the Plaintiff to the mental health Unit at the St Vincent's hospital ..."

37 A number of issues arise. First, what was said to Mr Bhattacharya at the time of his arrest? Was there a reference to trespass? Secondly, having placed Mr Bhattacharya in the vehicle, is it to be inferred that the police officers then reconsidered what they should do, and thereafter determined to take Mr Bhattacharya to the psychiatric unit of the St Vincent's Hospital, rather than the police station?

38 The security officers from the Supreme Court, who had summoned the police, provided statements which are dated 20 November 2000, that is, the day of the incident. They suggest that a charge of trespass against Mr Bhattacharya was discussed. One security officer said this:

"We were told by Const Hall that Mr Bhattacharya would be 'moved on' and that if he returned he would be arrested and charged with trespass. Const Hall gave me a card with 'Police Details' for future reference and they then drove off. A few minutes later the police car reappeared in Phillip St and at approx 1800 hrs Const Hall came into the building to obtain phone nos. from ... and myself. And Const Hall informed us that Mr Bhattacharya was in the police vehicle and that he was to be taken away for 'Psychiatric Evaluation'."

39 The suggestion that the police van left Phillip Street appears to be mistaken. Rather, having spoken to the security officers, the police then resumed their discussions with Mr Bhattacharya, culminating in his arrest. They (or at least one of them) then re-entered the Supreme Court.

40 Mr Bhattacharya made a Statutory Declaration on 22 November 2000, that is, two days after the incident. He provided an elaborate account. Mr Bhattacharya said that he attended the Law School library in Phillip Street for the purposes of preparing a special leave application to the High Court on 24 November 2000. He left the library from time to time to obtain coffee in Macquarie Street. To do so he passed in front of the Supreme Court building. There is no suggestion that he entered that building.

41 Shortly after 5.00 pm, he was stopped by police. They demanded to search his bag. He protested. However, he permitted them to do so. The bag contained his notes and other incidentals. One of the police officers then entered the Supreme Court building and spoke to security staff. Mr Bhattacharya remained outside. He described what occurred thereafter in these words:

"15. Constable Hall went inside the Law Courts Building. Constable Dodd said 'we need to investigate all when we are called'. I said 'that's good, please investigate'.
16. After few minutes Const Hall returned. She said 'I have got their side of the storey (sic), where are you going'. I said 'to Library'. After some threats of arrest the officers gave the drivers licence back to me and I walked towards the Law School Library. After walking few steps I realised that I never had that cup of coffee that I intended to have in the first place. So once again I tried to make attempt to go to the Cafe in the Bar Association Building and I was not mindful about anything but the cup of coffee and going back to the Library.
17. Next thing that I heard was a female voice 'Come here, we are taking you to police station'. The police officers were next to me. I said 'what for'. She said, 'getting you checked'. She showed me the standing paddy wagon to me and said 'Get in there or we will throw you in'. The Law School was at my back, the Law Courts was at my right, I was facing the Wentworth Chambers building and the Constable Hall was forcefully exercising the law on me, she said 'we will charge you for trespass'. I said 'I have not entered any property, when I enter the owner or occupier has right to ask me to leave the property and if I don't leave then the owner or occupier has right to call police, but that has not happened'.
18. Then the police officers took me into custody and I had no alternative but to get into the Paddy Wagon. The Police Officers locked me up in the back of the van. Constable Dodd said, 'are you all right'. I said 'Excellent'. Then they moved the vehicle and parked again in front of the Supreme Court entrance next to the Wentworth Chambers. Constable Dodd stayed in the van and Constable Hall again went to the Supreme Court Building. After few minutes she came back, she said 'we are taking you to St Vincent's Hospital'."

42 Constable Narelle Hall was asked by the hospital to provide an account of the events leading to Mr Bhattacharya's detention. Her account was as follows:

"On the 16/11/00 attended Supreme Courts, Sydney, threatened to shoot a staff member of the registry. Sheriffs were informed. Has been seen loitering around on other occasions. Today was around the courts and the Wentworth Chambers. Claims to have plenty court matters to be dealt with and he is never dealt with 'fairly'. Has no purpose to be there. When I tried to speak to him he made no sense and kept talking about the justice system. He raised his voice considerably and became agitated."

43 Constable Hall provided a more elaborate account some time later on the police running sheet (the "COPS" computer record). The account included the following:

"On the day in question the POI was observed by security staff to carry a large black bag and circle the perimeter of the Supreme courts. The POI loitered around the Queens Court area continuously glaring at security staff. The POI did this for about 20 minutes before walking into the Wentworth Chambers and doing similar. The POI had no purpose to be there."

44 The entry continued:

"Upon police arrival the POI was standing across the road. Inquiries with security staff revealed he has been involved in an unfavourable court decision and has since been a nuisance to staff and judges alike. The events on the 16th of November though, have alerted staff that he may be a serious threat.
Upon talking to the POI he instantly raised his voice and became verbally aggressive towards police. He claimed on several occasions he would sue police for 10 million dollars for not 'fixing' his court decisions. He also displayed a dislike towards female police.
Police inquiries revealed a history of mental illness and aggressive behaviour towards police. With this information police transported the POI to Caratas Psychiatric Hospital for assessment. The POI was treated by Doctor McDonald. Police left the POI with the doctor and upon instruction by Doctor McDonald police left, and the POI stayed in the care of medical staff.
No further police action is necessary at this stage. Police did attempt to inform the POI he is not allowed to enter the Supreme Courts unless he had reasonable cause to be there."

45 The description of Mr Bhattacharya's conduct on 20 November 2000 provided by security staff and Const Hall does not suggest a criminal offence. Indeed, it does not suggest much more than glaring, although they interpreted his movements as "loitering". There is a hearsay reference to Mr Bhattacharya having made a threat to shoot a staff member of the Court registry four days earlier (16 November 2000). The Court staff did not call the police at that time. It is not self evident to me that the first defendant must succeed in any claim of justification under s24 of the Mental Health Act 1990. It is significant that the hospital did not see fit to detain Mr Bhattacharya. I am therefore far from persuaded that the first defendant has met the test for summary dismissal. There is, in my view, a real issue to be tried.

The Motion of the second defendant

46 It is rather more difficult to identify a triable issue between the plaintiff and St Vincent's Hospital (the second defendant). Once the police chose to deliver Mr Bhattacharya to the hospital for psychiatric assessment, the hospital was plainly obliged to examine him. It did so immediately and determined (after a little over an hour) that Mr Bhattacharya need not be detained.

47 However, consideration of the second defendant's Notice of Motion for summary dismissal is complicated by the finding just made against the first defendant. In Wickstead v Browne (1992) 30 NSWLR 1, Handley and Cripps JJA said this: (at 11/12)

"However for another reason, which was first raised by the Court, the respondent as one of a number of defendants cannot be entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case. If at the close of the plaintiff's case at the trial there was no evidence against this respondent he would not be entitled at that stage to judgment if any of the other defendants intended to go into evidence; see Menzies v Australian Iron & Steel Ltd (1952) 52 SR (NSW) 62; 69 WN (NSW) 68. The effect of this rule is now embodied in Supreme Court Rules Pt 34, r 7(6) and r 8(5). The reason for the rules is clear and was explained in the decision referred to. At the close of the plaintiff's case there may be evidence against some defendants but not against others. The court will not entertain a motion for judgment by some only of the defendants because any gaps in the plaintiff's case against those defendants may be filled when the other defendants go into evidence. In particular one or more of the defendants going into evidence may seek to exculpate themselves by inculpating defendants against whom the plaintiff had no admissible evidence at the close of his case."

48 Summary dismissal against either defendant at this point appears to be inappropriate.

The plaintiff's Notice of Motion

49 The plaintiff's Notice of Motion sought, first, an order that the defendants pay the plaintiff "all the damages as claimed". Such an order can only be made after a hearing on the merits, in which a finding is made that the defendants (or at least one of them) are liable. It cannot be made on a Notice of Motion. The alternative order (to restore the plaintiff to the position he occupied in 1990) is obviously outside the Court's power.

50 The second defendant, trying to make sense of Mr Bhattacharya's application, interpreted the Notice of Motion as a request for an interim payment of damages under s76E of the Supreme Court Act 1973. I am not convinced that Mr Bhattacharya had that in mind. However, if he did, it is not appropriate to make such an order. There is a real contest as to the liability of the defendants to pay Mr Bhattacharya damages.

51 The plaintiff's Notice of Motion should therefore be dismissed.

Security for costs

52 The defendant's, as mentioned , sought, in the alternative, an order that Mr Bhattacharya pay security for costs of $20,000 in respect of each, and that the action be stayed pending such payment. They made that application upon a number of bases. Mr Bhattacharya is unemployed. He is without assets, having transferred his house to his daughter in 1992. He has been ordered in the past to pay costs (which have been assessed at $62,184.39). He has not done so. It is likely, so it is said, that were he unsuccessful in the present action, he would be unable to meet any costs order made against him.

53 Mr Bhattacharya resists such an order. He acknowledges that he is unemployed, and without assets. He would be quite unable to meet such an order, so that he would not be able to prosecute his claim if security were ordered. He is confident that he will succeed. The defendants may deduct the costs outstanding from the amount awarded.

54 My attention was drawn by the defendants to an order for security made by Master Malpass in proceedings involving another defendant. Master Malpass ordered security in an action by Mr Bhattacharya against his former solicitor, and ordered that the action be stayed until that security was provided. An appeal against that order was dismissed by Badgery-Parker AJ (Bhattacharya v Freedman [2001] NSWSC 498).

55 Making an order for security for costs is an inherent power of the Court, exercised to procure the proper and effective administration of justice and prevent an abuse of process. Badgery-Parker AJ, in Bhattacharya v Freedman (supra), made the following observation: (para 28)

"A number of cases, to some of which the Master referred, have identified some particular aspects of the exercise of the relevant discretion. It is clear that the discretion should not be exercised so as to stultify litigation where the plaintiff is impecunious but has a case which he ought be permitted to pursue. The discretion is more readily exercised against a plaintiff whose impecuniosity is the result of his own deliberate conduct, and particularly where it appears that the plaintiff has deliberately divested himself of his assets in order to protect them from adverse costs orders."

56 Master Malpass did not find that Mr Bhattacharya had divested himself of his house in order to avoid liability for costs. No such finding is urged upon me, nor justified upon the material which has been placed before me.

57 In Morris v Hanley [2000] NSWSC 957, Young J reviewed the authorities in respect of the order of security for costs in the context of a submission that the "general rule ... that poverty is no bar to a litigant" (Powell v Taylor (1885) 31 ChD 34 at 38) should be replaced. It was submitted that security against an impecunious litigant should be ordered unless the plaintiff can demonstrate either actual loss or damage, or a reasonably strong case.

58 Young J declined to embrace such a test as an unreasonable restraint upon the Court's broad discretion. His Honour, having reviewed the cases, said this:

"The leading cases show that the factors a court must take into account when considering the general question as to whether the inherent power should be exercised to order security for costs include:

a. whether the plaintiff's claim is bona fide and not a sham
b. whether the plaintiff has a reasonably good prospect of obtaining the orders he or she seeks
c. whether an order for security would bring the proceedings to an end
d. whether the plaintiff has a want of assets and how this was brought about
e. whether there is anyone standing behind the plaintiff who might benefit from the action but who is unwilling to contribute to the risk involved in the action
f. the question of delay."

59 Master Malpass, in the matter in which he ordered security, made a finding that Mr Bhattacharya had "at best ... a very slender prospect of success". In this case, I would not so describe Mr Bhattacharya's prosects, although plainly there are difficulties from the viewpoint of Mr Bhattacharya.

60 To order security would effectively bring the action to an end. I do not believe, in the circumstances, that it is appropriate to order security.

The Amended Statement of Claim

61 I should comment upon aspects of the Amended Statement of Claim. No particular complaint is made by either defendant, in this application, about the terms of the Amended Statement of Claim, except for the concluding words of paragraph 17 ("all as authorised by the State of New South Wales"). Those words, however, should be understood as an allegation that the first defendant set in train a process which prolonged the "imprisonment" of the plaintiff until his release by the hospital.

62 With some charity, paragraphs 5 to 26 set out the essential elements (and a good deal of the evidence) of the tort of false imprisonment by the first defendant, through the actions of those for whom the Crown is vicariously responsible under statute. The position of the second defendant is not so clearly defined. Again, with greater charity, paragraph 17 should be understood as asserting a direct and intentional deprivation of Mr Bhattacharya's liberty by the hospital.

63 Mr Bhattacharya sets out particulars of injuries as follows:

"PARTICULARS OF INJURIES
30. The Plaintiff suffered the following injuries:
(i) Aggravated damages to Plaintiff's standing as a reasonable person in the Society.
(ii) Distortion and defamation of Plaintiff's character and reputation.
(iii) Deprivation of Plaintiff's independence and liberty.
(iv) Labelling as a person to be arrested and to be taken to Mental Health Unit.
(v) Ridicule and vilification.
(vi) Loss of society.
(vii) Damage to Plaintiff's integrity."

64 The principal heads of damage in a claim for false imprisonment are described by "McGregor on Damages" (1998) in these terms: (p 1026)

"The principal heads of damage would appear to be the injury to liberty, i.e. the loss of time considered primarily from a non-pecuniary viewpoint, and the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation, with any attendant loss of social status."

65 Damages may also be given for any injury to reputation.

66 Mr Bhattacharya claims aggravated and exemplary damages. Although not asserted as such, one assumes that Mr Bhattacharya is alleging that the actions of the police officers were oppressive and were actuated by malice. The Amended Statement of Claim repeatedly refers to malice. Malice is irrelevant to the tort of false imprisonment. It should not have been referred to in paragraph 5. It may, however, be relevant to the issue of exemplary damages. Paragraphs 1 to 4, and paragraphs 27 to 28 should be taken (so far as they are relevant) as being referable to the claim for exemplary damages.

67 As mentioned previously, the reference to malicious prosecution in paragraph 29(a) is struck out.

68 In ordinary circumstances it would be desirable to order that Mr Bhattacharya file a Further Amended Statement of Claim. However, I think the document in its present form, subject to the rulings I have made, as set out above, can stand.

Order

69 I therefore make the following orders:

1. I dismiss the Notices of Motion by the first and second defendants.

2. The defendants should pay the plaintiff's costs on the Motions.

3. I dismiss the plaintiff's Notice of Motion.

4. There should be no order for costs on the plaintiff's Motion.

5. The defendants have leave to amend the Statements of Defence to plead justification (if they wish to do so) within 21 days.

6. I direct that the matter be placed in the Call Up on 31 May 2002 before the List Judge to obtain a hearing date.

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Last Modified: 05/01/2002