Attorney-General (NSW) v Bhattacharya CaseBase | [2003] NSWSC 1150 | BC200307635 ATTORNEY-GENERAL (NSW) v BHATTACHARYA BC200307635 Unreported Judgments NSW · 154 Paragraphs Supreme Court of New South Wales — Common Law Division Whealy J 10904/03 24, 26, 27 November, 10 December 2003 Attorney General in and for the State of New South Wales v Bhattacharya [2003] NSWSC 1150 Headnotes VEXATIOUS LITIGATION — DISCRETION (NSW) NSW Supreme Court Act 1970 (NSW) Vexatious Actions Act 1896 (NSW) High Court Rules O 63 1979 (NSW) Public Service Act 1979 1991 (NSW) Mental Health Act 1991 (NSW) Industrial Relations Act 1900 (NSW) Supreme Court Rules 1900 (NSW) Crimes Act 1980 (NSW) Coroner's Act 1980 1970 Whealy J. [1] This is an application brought on behalf of the Attorney General for New South Wales seeking an order against Pranay Kumar Bhattacharya (“the defendant”) under s 84(1) of the Supreme Court Act . This is a section dealing essentially with vexatious litigants. It enables the Court to order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court, and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by him without the leave of the court. Vexatious litigants – general principles [2] Section 84 of the Supreme Court Act 1970 provides: — (1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in Page 2 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court. (2) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved), whether in the Court or in any inferior court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court. (3) The Court may from time to time rescind or vary any order made by it under subsection (1) or subsection (2). (4) Where the Court has made an order under subsection (1) or subsection (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. [3] This legislation has its historical origin in the Vexatious Actions Act 1896 which was enacted in England (56) and (60) (Vict) C 51. The history of the development of similar legislation in Australia is traced in the judgment of the High Court in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 316. The statutory power conferred by legislation of the kind contained in s 84 of the Supreme Court Act 1970 has been held to extend beyond the limits of the inherent power of the Court to restrain vexatious applications in a pending action. [4] The terms of the section limit the consideration as to whether the vexatious litigant has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings to proceedings “whether in the Court or in any inferior Court”. I take the reference to “the Court” to mean the Supreme Court of New South Wales (s 19(1) Supreme Court Act 1970). I take the reference to “any inferior court” to mean any New South Wales inferior court. [5] Provided the necessary conditions precedent to the exercise of the Court’s jurisdiction are established to the satisfaction of the Court, s 84(1) gives the Court power to make orders of two kinds. The first, which, as I have said extends beyond the inherent jurisdiction of the Court, is the order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings “in any court”. This limitation means that the prohibiting order is confined to the institution of proceedings in the Supreme Court of New South Wales or any inferior State Court. ( Hunter’s Hill Municipal Council v Pedler (1976) 1 NSWLR 478 at 479). The second limb of the section is the power to order that any legal proceedings instituted by the vexatious litigant in the Supreme Court of New South Wales or any inferior State Court, before the making of the order, shall not be continued by the vexatious litigant without leave of the Court. [6] Although the Court is confined to an examination of litigation in the Supreme Court and New South Wales inferior courts to determine whether the statutory pre-conditions have been satisfied, in my view, it is permissible to have regard to proceedings in other courts where, for example, those proceedings have authoritatively resolved the particular issue against the person instituting the proceedings. ( Re Cameron (1996) 2 QDR 218 at 224; Ramsey v Skyring (1999) 164 ALR 378 at 389–390). Those proceedings themselves, even though they be manifestly hopeless and plainly vexatious, cannot however be taken into account as litigation which itself satisfies the pre- conditions. It may nonetheless be permissible to consider the nature and extent of that other litigation as relevant to the issue of discretion. [7] The section is concerned with an examination of activities which may appropriately be described as the institution of vexatious legal proceedings. In my view, the expression “institutes vexatious legal proceedings” should be given a wide construction. I respectfully agree with the observations of Yeldham J in Hunter’s Hill Municipal Council v Pedler at 488 lines E — F: — Section 84 of the Supreme Court Act 1970 is clearly directed to the removal of abuses of the processes of the Court and of hardship to persons against whom vexatious proceedings are taken. While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form. [8] See also Re Vernazza (1960) 1 QB 197 at pp 208, 209, 210; Ramsey v Skyring (above) at 391. Page 3 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 [9] The relevant question for the Court to consider is not whether the proceedings have been instituted vexatiously, but whether they are in fact vexatious: Re Vernazza (above) at 208; Attorney General v Wentworth (1988) 14 NSWLR 481 at 492. The inquiry is directed to the subject matter of the proceedings, not to the manner in which the proceedings are conducted; Hunter’s Hill Council v Pedler at 485. [10] In Attorney General v Wentworth (above), Roden J at 492 said of the expression “habitually and persistently”: — ‘Habitually’ suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘Persistently’ suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness. [11] As I read the remarks of Roden J, his Honour did not attempt to formulate a definition of absolute or universal application, as indeed, he could not. The concepts of “habitually” and “persistently” are ordinary English expressions and do not require further elaboration. [12] It is convenient, however, to adopt the language of Roden J in Attorney General v Wentworth at 491 in relation to the meaning of “vexatious”. 1. Proceedings are vexatious if they are instituted with the intention of a annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the Court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 4. In order to fall within the terms of s 84: (a) Proceedings and categories 1 and 2 must also be instituted without reasonable ground (Proceedings in category 3 necessarily satisfy that requirement); (b) The proceedings must have been “habitually and persistently“ instituted by the litigant.” [13] In Jones v Skyring (1992) 109 ALR 303 at 306, Toohey J, in considering the scope and interpretation of High Court Rules O 63, r 6(1) observed that the question must be decided on the facts, not by reference to whether the person against whom the order is sought has acted in good faith. It is immaterial that the respondent may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected. [14] In my opinion, the Court should approach the questions involved in s 84(1) with care and caution. The making of an order under the section effects a significant curtailment of a citizen’s rights. Once satisfied that the pre- requisites have been met, however, a court should act firmly and authoritatively to restrain and control new and existing vexatious litigation, to the extent the statutory power enables it to act. There is, of course, undoubtedly a discretion whether to act or not, even where the statutory pre-conditions have been established. The Defendant – a brief early history [15] The plaintiff was born in India on 15 June 1942. He graduated as a Bachelor of Science in Engineering at Patna University in India in 1963 and as a Master of Science and Engineering at the University of London, England in 1968. He also holds a Diploma from the Imperial College of Science and Technology London, 1968 and a Diploma of Education from the Sydney College of Education, 1982. He has been an Associate member of the Institution of Electrical Engineers London, since 1972. [16] The defendant was formally married to his late wife, June Dorothy Bhattacharya, an English woman, in 1972. In the early 60’s he worked as an electrical engineer with the Electricity Board of India. He worked as an electrical engineer and a systems engineer in the United Kingdom between 1969 and 1974. [17] It appears the defendant came to Australia in the early 1970’s He then worked between 1974 and 1980 as an electrical engineer with the New South Wales Department of Public Works. He was ultimately dismissed from his employment with that department in 1982. Litigation involving the defendant – an overview of his life since 1980 [18] It will be necessary to consider the litigation in which the defendant has been involved between 1980 and the present time in some little detail. I will however, at the same time, endeavour to give a general overview of the Page 4 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 substance of the litigation and the manner in which it evolved from landmark events occurring in the defendant’s life. The defendant’s suspension from the Department of Public Works [19] On 23 March 1980 the defendant lodged a complaint with the Counsellor for Equal Opportunity, alleging that he had been deliberately deprived of promotional opportunities because of his race and national origin. The defendant was then 38 years of age and he had been with the Department of Public Works since November 11, 1974. He had commenced as an electrical engineer grade 1 level 5 on that day. His complaints regarding his lack of promotion had commenced almost immediately. Counsellor Carmel Niland, on 26 September 1980, referred the complaint to the Anti-Discrimination Board. Her report examined, in some detail, the history of the defendant’s employment with the Department and his complaints regarding lack of promotion. It seems that, at least until 1980, he was commended for his technical ability; but his lack of management skills and his tendency to “rub people up the wrong way” were described as “significant inhibiters” to his promotion beyond a grade 3 position. In 1980, the defendant’s employment situation in Public Works deteriorated rapidly and culminated in his suspension from the department on October 2, 1980. Ms Niland noted at p 9 of her report (Ex 1): — This year is characterised by a series of incidents, charges and counter-charges backed up by a mass of departmental Memoranda. Perhaps, the dispute in April over the electrical specification of Redfern Court House is central to the issue. Mr Bhattacharya disagreed with the specifications drawn up by the consultants for the project and therefore refused to carry out certain instructions given him by Mr Crouch … only the full personal file of the complainant can capture the chronology of events but an exchange between Mr Bhattacharya and Mr Crouch on 19 and 20 June typifies the level of bitterness and unreasonableness that had been reached. [20] The defendant’s suspension from duty on 2 October 1980 was accompanied by a list of particulars of a number of charges preferred against him, alleging breaches of discipline. They in turn related to alleged “insufficiency and incompetence in the discharge of duty and a wilful disregard of lawful orders”. The defendant denied the truth of the charges and an enquiry pursuant to s 93 of the Public Service Act 1979 was then conducted. This was a lengthy hearing – approximately 14 days between December 1980 and March 1981. The hearing was presided over by Mr F. Barnes as Chairman. Mr Paul Menzies of Counsel represented the department and a Mr Jim O’Brien represented the defendant. Subsequently, the Public Service Board found the charges proved and decided that the defendant should be dismissed from the public service effective from 24 March 1981. The defendant then appealed to the Government and Related Employees Appeal Tribunal (GREAT). The Tribunal had placed before it the full transcript of the Inquiry before Mr Barnes. In addition, the Tribunal heard extensive evidence over a four day period. It had the advantage of full written submissions from both parties. [21] On 29 June 1982 the Tribunal disallowed the appeal. The crux of the Tribunal’s decision was its satisfaction that the difficulties experienced by the defendant in his employment, which ultimately led to his dismissal, all came about “because of his own actions”. The Tribunal was satisfied that he had not been unfairly treated by the department or any officer of it; rather the evidence demonstrated that “a remarkable degree of tolerance” had been shown toward him. He was found to be “quite unsuited for employment in a large organisation where ability to function as a member of a professional team was essential”. Finally, the Tribunal found that he had “a manifest inability” to perceive that his conduct had been quite “inappropriate and unsatisfactory”. [22] On 28 September 1983 the New South Wales Court of Appeal dismissed an appeal brought by the defendant against the decision of the Tribunal on 29 June 1982. The decision of the Court was given by Glass JA, with whom Mahoney JA and Priestley JA agreed. [23] A fair indication of the defendant’s attitude to unfavourable decisions against him generally is to be found in a comment he has made regarding this decision by the Court of Appeal. The comment is contained in a 38 page affidavit he filed in later Equity proceedings before Young J (as he then was) in 1999. The comment at para 32 is in these terms: — I see this judgment as concoction devised to set aside the very fundamental issue that I was before that Court for protection against the attacks which were then aimed against me by the police, politicians and prostitutes. On my application to the Court, judges either knew or ought to have known that such was the case. This denial of justice, as it appears to me, could not have occurred without some undue interference of politics with the administration of justice at the time. [24] On 13 September 1984, the Equal Opportunity Tribunal gave its judgment in relation to the complaint of racial discrimination the defendant had earlier made to the Counsellor for Equal Opportunity. The Tribunal rejected the complaints made by the defendant. Essentially, the Tribunal found that there was no evidence warranting a finding Page 5 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 that the defendant had been unfairly denied prospects of promotion; or that any preference for other candidates had been based on racial considerations. Secondly, the Tribunal agreed with the general findings made in the GREAT decision, especially that the defendant had been “the author of his own misfortune”. Thirdly, the Tribunal did not accept that there had been any victimisation of the defendant. In particular it said: — Before parting with the matter we wish to comment upon the complainant’s assertions that several persons inside and outside the department were at various stages conspiring against him. In our opinion there was no substance whatever in these allegations and we consider that in raising and pressing them the complainant was completely unjustified. [25] As will be seen from the extensive volume of subsequent litigation launched by the defendant, he has, notwithstanding this powerful finding, never ceased from making these same allegations [26] Indeed, it seems that by the time of his dismissal from the Public Works Department, which took effect, as I have said, from 24 March 1981, the defendant had become convinced that he was the victim of a series of organised conspiracies. Although there was no evidence to support such beliefs, it appears that, from this time onwards, the defendant generally perceived and believed that these conspiracies actually existed. Correspondence was sent by the defendant to numerous public officials, ranging from local politicians to the Premier and the then Chief Justice seeking redress. He complained to the Bar Council, as late as 20 April 1993, against the conduct of counsel arising out of the events before the Public Service Board and GREAT. The defendant also made complaints to ICAC where he was told that the Commission could not assist him. He also approached the Commissioner of Police who had been his neighbour for a good number of years. The death of the defendant’s wife [27] During 1980, the applicant sought and obtained employment with the Department of Technical and Further Education (TAFE) as a teacher in the Division of Electrical Engineering at the Sydney Institute of Technology. He became a member of the Teacher’s Federation. During the period between 1982 and the beginning of 1992, the defendant became increasingly dissatisfied with aspects of his employment with TAFE. In particular, he believed that he was being overlooked for promotional preferment due to concerted organised activity by unspecified persons but amongst whom there would have been co-workers. [28] There then occurred an event in the defendant’s life that significantly influenced the extensive bout of litigation that was about to occur. This was the diagnosis of his wife with leukaemia in 1991. She was treated at Westmead Hospital. She went into remission but died, apparently as a result of the leukaemia, on 15 November 1992. There then burgeoned forth the defendant’s central fixation which has coloured so much of the litigation in which he has been involved since 1992. This fixation was that he had been the victim of a major conspiracy which had commenced in the late 1970’s or early 1980’s From his perception, this conspiracy involved and included various people in the Australian Labour Party, including two former ministers of the Crown. It was this conspiracy which lay behind, according to his perception, the loss of his employment with the New South Department of Works. He also thought that a number of TAFE colleagues were engaged in the conspiracy with others, including members of the New South Wales Police, politicians and members of the medical profession to destroy his family. Subsequently, after his wife died, he claimed that she had been “murdered” as a result of this conspiracy which, by then, included the active participation of various medical professionals at Westmead Hospital. [29] The nature of the conspiracy surrounding the death of his wife has at times taken various forms. These were summarised by Dunford J in a decision he gave in the Common Law Administrative Law list on 1 March 2000 (Proceedings No 30020/99). It may be convenient if I repeat a section of his Honour’s judgment commencing at p 8 and concluding on p 10 — As I have said, it is central to the plaintiff's case that, for many years dating back to the time of his dismissal from the Department of Public Works, he and his family have been the target of a wide-ranging conspiracy to injure him and, as it has been put on more than one occasion, "to destroy his life". The shape and detail of the conspiracy, and the persons involved in it, have varied over the years and continue to vary, even during the course of the present hearing. It appears to have had its genesis while the plaintiff was a member of the Emu Plains Branch of the Australia Labor Party in the late 1970s and early 1980s when certain members set out to harm him because of issues he raised at party meetings, these persons including two Ministers of the Crown, who held local seats. Another reason given for the conspiracy at times has been that a number of persons, particularly, as I understand it, in Page 6 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 India, took objection to him marrying an English wife. An early version of the alleged conspiracy was to the effect that following the plaintiff's dismissal from the Department of Public Works, his wife was administered a cytocidic drug over a period of time, which caused her to develop leukaemia and be admitted to Westmead Hospital. The drugs were alleged to have been supplied by Dr See, a general practitioner of Penrith, at the instigation of the relevant Ministers of the Crown, and secretly given to Mrs Bhattacharya by being placed in her cups of tea by neighbours, a Mr and Mrs Shepherd. An obvious problem with this theory is that she was not diagnosed with leukaemia until 1991 and the Shepherds left Australia to live in England in about 1985. Subsequent claims have been that when she was diagnosed as having leukaemia in 1991, she did not, in fact, have the disease; but was falsely diagnosed so that she would be admitted to hospital and could be killed "by medical malpractice". After she had been admitted to hospital, it was claimed that the plaintiff's wife did not have leukaemia but the doctors at Westmead, by continuing to treat her for that supposed condition, were covering up for the local Penrith doctors who had caused her admission. Later again, the allegations changed and the Westmead Hospital doctors, including eminent specialists, were alleged to be actively involved in "murdering" his wife. These allegations included that she was given a transfusion of mud instead of a bone marrow transplant; that she was deliberately given bone marrow from a racially different group; and when, during the course of the hearing, a clerical error appeared on one of the forms as to the name of the recipient of the bone marrow, which had been corrected and was adequately explained in the evidence, the suggestion was made that his wife may not have received the right bone marrow, although there was absolutely no evidence that she had received any other one. The claims have been partly based on misreading or misunderstanding medical documents, eg the plaintiff has claimed at various stages that his wife did not have leukaemia but only an "early blast cell" condition, although the document to which he refers, namely the pathology report of 28 May 1991, part of Exhibit D, states the features to be those of "early blast cell leukaemia". Over the years, a large number of persons are alleged to have been involved in the conspiracy including not only the two Ministers, Mr and Mrs Shepherd, a large number of doctors, Merrilyn Walton formerly of the Health Care Complaints Commission, the Indian High Commissioner, the Indian Consul, Mr Lauer (a former Police Commissioner), and Ms Carmel Niland, who at one stage was counsellor for Equal Opportunity, later President of the Anti-Discrimination Board, and subsequently a Board Member of the NSW TAFE Commission and a member of a committee attached to the Independent Commission Against Corruption. Other persons involved are alleged to have been officers of the Department of Public Works, and when the plaintiff became dissatisfied with the result of police inquiries into his allegations, he alleged that those police were also part of the conspiracy. [30] In the event, Dunford J found in those proceedings, which I shall detail later, that there was no credible evidence against any of the people to whom the plaintiff had referred as being involved in the conspiracy. His Honour found that there was “not one scintilla of evidence” which supported the defendant’s allegations of conspiracy and/or the murder of his wife. His Honour went on to state that the accusations made by the defendant were not only “baseless and scurrilous” but “traduced the names of many reputable people, leaving them defamed and without effective remedy”. The orders made by his Honour, in effect, dismissed all proceedings which had been brought by the defendant and refused him the amendments which he had sought. Proceedings against the Teacher’s Federation [31] I shall now return to the period following the death of the defendant’s wife. In 1994, the defendant had started proceedings in the Industrial Court of New South Wales against certain stipulated officers of the New South Wales Teacher’s Federation. Later, the Federation itself was joined as a party. These proceedings were heard by Bauer J. As I understand it, these proceedings continued throughout 1994 and into 1995. The application had been brought pursuant to s 497 of the Industrial Relations Act 1991. The section which sets out the jurisdiction of the Industrial Court in relation to an application, based on the matters set out in s 497, is s 498. This latter section enables the Industrial Court to make appropriate orders where it is of the opinion that the affairs of an organisation are being conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member of the organisation. The orders sought by the defendant in the proceedings included an order that “action be taken against the officers and members of the organisation … to prosecute the parties responsible for criminal or civil offences alleged and constituted by” the facts asserted in the proceedings by the defendant. [32] The thrust of the defendant’s litigation in the Industrial Court appeared to envisage that the Federation could and should be ordered to take proceedings against a number of public authorities with the purpose of rectifying the wrongs which the present defendant perceived had occurred during the 1980’s and 1990’s and which involved both Page 7 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 him and his family. Central to the defendant’s concern was his continued view that the death of his wife was the result of criminal activity by persons involved in a conspiracy against him; and that the same conspiracy had led to his dismissal from the Department of Public Works. [33] Evidence in the proceedings before Bauer J revealed that the defendant had been “involuntarily detained” under the Mental Health Act in February 1994. This detention had led ultimately to proceedings in the Protective Division of the Supreme Court before Brownie J (Protective Division 52/94) and an appeal therefrom to the Court of Appeal (CA 40277/94). There were also two related applications for injunctions to prevent the administration of certain medications to the defendant while he was being detained. There had also been an Inquiry under the Mental Health Act conducted by Magistrate Johnson at the Local Court at Penrith, as a result of which, the defendant had been detained. The learned magistrate ordered that the defendant be detained “as a temporary patient until no later than 17 March 1994 for further observation, treatment or both”. The subsequent proceedings before Brownie J resulted in his Honour making a number of findings adverse to the defendant. His Honour’s ultimate finding was that the defendant was a mentally ill person as defined that is, there were “reasonable grounds for believing that care treatment or control of the (defendant) was necessary for the protection for others from serious physical harm”. Brownie J had, as an anterior finding, also concluded that the evidence advanced to show that the defendant had been and was suffering from “a delusional state” was “overwhelming”. In those circumstances, Brownie J accepted that the defendant had been properly detained and, as a consequence, he dismissed the proceedings brought on behalf of the defendant. The appeal taken by the defendant to the Court of Appeal, disputing Brownie J’s findings, was also unsuccessful. The defendant then sought special leave to appeal to the High Court but this was also unsuccessful. [34] The defendant was released from involuntary detention on 8 July 1994 and sought to return to his work with TAFE. I should add, prior to this time and up to 1993, there had apparently been some difficulties with the defendant’s employment. There were a number of complaints made by students during 1992; but the department appears to have taken the view that the defendant’s behaviour may have been due to stress at the time. When he returned to work after the cessation of the involuntary detention, he was however sent home, after he had been interviewed by the senior head teacher. It was against this background that he had commenced the proceedings which were determined by Bauer J on 5 April 1995. [35] The nature of the case sought to be made by the defendant in the proceedings before Bauer J was both elaborate and lengthy. The defendant represented himself. It may not be an unfair statement to quote from the written submissions relied upon by the defendant before the Industrial Court, especially a passage at p 31: — The applicant indicates that these respondents and the Federation had knowledge of a certain criminal plan which destroyed the applicant’s family and attacked his rights granted by the law and liberty of this State and the Commonwealth of Australia. [36] And later: — The respondents as part of the internal management of the Federation considered these matters but acted adversely to the applicant. [37] It appears the applicant had made a number of submissions which invited the Court to make orders which would direct the Federation to take action to restore his position and provide support for litigation against several bodies which he identified as being the Public Works Department, the Attorney General’s Department, the Police Department, the Department of Health and possibly, the Corrective Services Department. [38] The defendant at p 230 of the transcript put the course that he wanted the Court to take in the following terms: — My respectful submission is that this Court make a bold attempt to use all the provisions granted by the Parliament, stretch its powers to the fullest, as the Court considers fit and attempt to compensate the applicant who’s very aggrieved. [39] At p 30 of the decision, his Honour, quite properly, put to one side the allegations made by the defendant concerning the criminal conduct of others. The allegations were based on various types of conspiracy in which the defendant considered that unnamed and unspecified members of the union, and indeed the union itself, must have been involved. His Honour did so because, apart from the irrelevance of the matters to the proceedings, he said there was “no demonstrated foundation on the evidence” for the criminal activity or conspiracy. His Honour then considered whether any acts of the respondents in the case had caused oppression or unfair prejudice to the defendant in the sense that they had resulted in any unjust detriment to him or imposed upon him any disadvantage, disability or burden which might reasonably be thought to be unfair. His Honour resoundingly Page 8 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 concluded that there were no grounds for finding that the union had treated the defendant differently from the manner in which it assisted other members; or that the level of assistance was other than appropriate for the union in the circumstances presented to it by the defendant. His Honour refused the application against the union, and said that there had been no justification for joining in individual officers in the proceedings. Relief against those persons was also refused. [40] At p 33 his Honour said: — The applicant seems to view this application as a panacea for all his ills submitting not only should the union be ordered to pay him damages but also provide him with the funds to litigate the many avenues of redress which he sees as potentially available to him. While there was no doubt that the applicant has suffered more than common buffeting from the slings and arrows of fortune it was not the duty or obligation of the union to commit funds to the search for some recompense through litigation. [41] It needs to be understood that his Honour’s reference to unfortunate happenings in the defendant’s life plainly was not intended as any endorsement of his conspiracy theories and claims of victimisation, harassment, prejudicial treatment and the like. Indeed, a fair reading of his Honour’s judgment shows that he found no evidence to support those matters whatsoever. [42] On 27 October 1995 the Full Court of the Industrial Court of New South Wales (Cahill Dep CJ, Maidment and Marks JJ) held that the decision of Bauer J was “correct in all respects” and dismissed the appeal. The defendant goes to Equity [43] The defendant does not appear to have been deterred by this extensive series of litigious rebuffs. [44] The next major step in the continuance of proceedings instituted by the defendant was the filing of a summons in the Equity Division of the Supreme Court of New South Wales. These were proceedings No 2151/1997. The summons was filed on 22 April 1997 and had its return date on 8 May 1997. There were now fifteen defendants named, including the Director General of the Premier’s Department; the Anti-Discrimination Board; the New South Wales Minister for Police and the Police Commissioner; Irene Moss, Ombudsman; the Commissioner of New South Wales for the Department of Corrective Services; the Minister for Health; the Attorney General and others. The claim for relief was in the following terms: — The plaintiff claims : — 1. An order that the named defendants jointly compensate the plaintiff by making a payment of monetary sum to the plaintiff which will subjectively satisfy the plaintiff as proper compensation against all of his civil claims against the named defendants accrued between the dates of 14 October 1980 and 1 January 1997. 2. An order that the named defendants in the Crown are jointly liable for all the detriments suffered by the plaintiff. 3. The Crown immediately comply with these orders. [45] On 5 June 1997 Master Macready, in the Equity Division, had before him a notice of motion seeking to strike out the amended summons filed on behalf of the defendant. The nature of the amendments sufficiently appear from Master Macready’s remarks at p 1 of his decision: — There has been filed this morning an amended summons dated 5 June 1997 and that summons contains a preamble running for some pages and then seeks relief. In para (1) compensation is sought in a sum which will sufficiently satisfy the plaintiff in respect of his claims. Alternatively there is a claim for exemplary damages. The second order is that the defendants and the Crown are jointly liable for the detriment caused. The third order seeks an order that the parties who are responsible for the crimes against the plaintiff’s family be apprehended and charged. The fourth order is that the Crown immediately comply with the orders. [46] The flavour of the matters to be relied upon by the plaintiff may be seen by extracting briefly material from the amended summons itself. For example: — In substance the plaintiff in this document allege that the named defendants, jointly, by their own device and through their Page 9 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 agents are responsible for wrong doing against the plaintiff and his family in a numerous way denying him of his natural rights life, of natural justice and normal expectations of his life. In addition it is alleged that the defendants are jointly responsible for destroying the plaintiff’s family and subjecting him to pain, suffering and atrocities which can neither be justified in law nor can they be shown to have any legal standing. [47] On p 2 of the document:: — The facts as established by Brownie J in 52/94 of Protective Division and in 40277/94 before the New South Court of Appeal indicate relevance of all the previous matters which were proceeded against the plaintiff and their connection with the illegality of the defendant’s conduct. … It is alleged that the Courts to date has knowingly and deliberately withheld from giving proper reasons justifying the defendants’ conduct. The facts indicate that a number may be shown to be someway participating in enhancing the proceeding against the plaintiff and assisting the named Crown officers in the matters of the alleged conduct. … [48] And later: — The facts indicate a combination of the defendants, their agents and a number of members of New South Wales Parliament, which in proper construction of the issues raise a reasonable suspicion that the root of this problem can be found in the dirt of the NSW Parliament which the Court to date has refused to test but needs to be tested. [49] Master Macready acknowledged from all the material before him that the defendant’s case was that he had, at least in the defendant’s view, serious complaints against a variety of Crown employees or appointees and a variety of government departments. He noted that the defendant appeared to wish to make charges “concerning a homicide which is a serious matter”. The Master stayed the proceedings but did not at that stage dismiss them. He gave the defendant leave to make an application to file a statement of claim in the proceedings provided the application was accompanied by the statement of claim the defendant proposed to rely on. [50] On 10 March 1998 the defendant filed a notice of motion seeking an order that a document attached to the motion be “recorded as the statement of claim referred to in the judgment of Master Macready on 5 June 1997”. [51] The form of the “statement of claim” is instructive in relation to the insight it gives into the extent of the defendant’s fixation. For example, the section dealing with the Public Works Department claims that he was dismissed by the Public Service Board “without any reason for the decision” and on proving charges which were “unclear” and were “not litigated”. The defendant then repeated a number of the allegations that he had apparently made during the Industrial Tribunal hearing. This section of the statement of claim includes the following: — The Department of Public Works in effect combined with some unknown person of Plaintiff’s characteristics in making unlitigated allegations which led to Plaintiff’s conviction and dismissal in 1982 and led to an organised crime against Plaintiff’s family. [52] The detail of the following pages, in a particularly prolix statement of claim, reiterated many of the matters which had been determined adversely to the defendant in the 1980/ 1981 Inquiry under s 93 of the Public Service Act. [53] The “statement of claim”, in relation to the Department of Public Works allegations, also included the following: — On 2 October 1980 the Department of Public Works suspended the plaintiff on one set of charges but convicted the plaintiff on charges which were not disclosed to the plaintiff. The doctors communicated those charges to the plaintiff after they killed the plaintiff’s wife on 15 November 1992 … On 14 October 1980 Mr E. J Schmatt representing the Department of Public Works did not disclose all the allegations particularly those made from outside the Department of Public Works. This resulted in an organised crime against the plaintiff’s family. [54] And again: — Between December 1980 and March 1981 the Department of Public Works wrongfully prosecuted the plaintiff colluding with the New South Wales Public Service Board and the Public Service Association organising detriments to the plaintiff including killing the plaintiff’s wife. The plaintiff’s professional, personal and family life is destroyed as a result of the wrongful proceedings instituted by the Department of Public Works. Page 10 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 [55] In a section of the statement of claim dealing with allegations against the Anti-Discrimination Board, the defendant said this: — The Anti-Discrimination Board did not officially disclose the allegations made against the plaintiff which resulted in killing the plaintiff’s wife, principally carried out by a doctor Kenneth Francis Bradstock as a revenge with respect to the doctor’s allegations against the plaintiff. The President of the Anti-Discrimination Board had knowingly allowed these circumstances to proceed against the plaintiff … the Anti-Discrimination Board did not resolve the issue of discrimination allowing the planned detriments to proceed against the plaintiff. [56] There next followed a series of allegations against the Minister for Police, the Police Commissioner and the Ombudsman. The gist of these was that the police did not take action to stop the homicide of the plaintiff’s wife and did not properly investigate the circumstances after she had died. The defendant also complained about the fact that he had been arrested by police and, according to this allegation, detained at Penrith Police Station in relation to complaints that he had been threatening staff at the Coroner’s Court and also medical practitioners who had been treating his wife. Along the way, the defendant alleged: — On 15 November 1992 the plaintiff’s wife was killed within the complete knowledge of the New South Wales Police Service. [57] The criticism against Ms Irene Moss was that she, as a member of the Anti-Discrimination Board in 1992, “deliberately refused to save the plaintiff’s wife from death when the plaintiff informed her about the circumstances at the Human Rights Commission”. It was also said that in November 1992 Ms Moss “refused to save the plaintiff’s wife from death knowing that Dr Ken Bradstock was set to carry out the killing”. [58] The defendant also complained about his treatment by the Department of Corrective Services. He said that he had been wrongfully imprisoned at Parramatta and subjected to threats of personal injury. So far as the Health Department was concerned, the statement of claim asserted that the defendant had complained to the Director of the Complaints Unit at the Department of Health regarding the medical treatment which had been given to his wife. The defendant alleged that, on 3 September 1992, Merrilyn Walton, the Director of the Complaints Unit, “knowingly refused to stop the medical malpractice against the plaintiff’s wife and subsequently against the plaintiff”. The defendant also complained that he had been “wrongfully detained” at the mental institution of the Nepean Hospital during the period 11 February to 8 July 1994 and again between 5 and 9 October 1997. (It will be recalled that the first of these two periods involved the detention which had been investigated by Brownie J in the Equity proceedings which I have earlier described in some detail). Despite the careful findings of Brownie J in relation to those matters, the defendant, in the statement of claim, simply asserted that the Health Department in 1994 had prepared “wrongful psychiatric reports detaining the plaintiff in mental institution at the Nepean Hospital”. [59] In relation to the TAFE department, the document repeated the allegations the defendant had made in the proceedings before Bauer J, complaining about the way he had been treated by other teachers, the Federation and the department itself. This included an allegation that teachers at the Sydney Institute had knowingly allowed his wife be killed. The relief sought in the statement of claim remained substantially that which I have referred to earlier as appearing in the summons and amended summons. [60] On 3 April 1998, two motions came before Master McLaughlin in the Equity division. The first was a motion by the defendant for leave to file the “statement of claim”. The second was a motion that the proceedings be dismissed upon the ground that they did not disclose a reasonable cause of action; and on a further basis that the statement of claim was scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. [61] Master McLaughlin dealt with the plaintiff somewhat generously. He refused to grant the plaintiff leave to file the document in its then present form and dismissed the proceedings against all the defendants other than the Minister for Police, the Commission for Police, the Department of Corrective Services, the Minister for Health and the Director General of Health. The Master said: — If he wishes to pursue his claim in respect of the incidents to which I have referred where it is alleged that he was the subject of wrongful arrest, malicious prosecution and false imprisonment, it will be necessary for him to prepare a further pleading limited to those alleged causes of action and for such fresh pleadings to comply with the Supreme Court Rules relating to the form of pleadings by a party. [62] It was the Master’s view that no reasonable cause of action had been disclosed against those defendants for whose benefit he made the dismissal orders. He allowed the other matters to stand but did not determine that the plaintiff should summarily be denied the opportunity of litigating the remaining causes of action. [63] The defendant then brought an appeal from Master McLaughlin’s decision. This was heard by Young J (as he then was) and determined on 5 March 1999. There was also a cross-appeal before the Court that the Master should Page 11 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 have dismissed the remaining five defendants from the proceedings. Young J had before him a lengthy affidavit sworn by the defendant which set out, in even more discursive form, much the same type of material as had been previously set out in the statement of claim. [64] Young J dismissed the defendant’s appeal and allowed the cross-appeal. In the course of his reasons Young J said: — So far as the appeal itself is concerned, I cannot see any reason for disturbing the Master’s order. The statement of claim does not contain the legally relevant facts which would entitle the plaintiff to any of the orders he sought. Assuming for the moment that the basic allegations are that the defendant orchestrated the murder of the plaintiff’s wife or conspired to murder the plaintiff’s wife, it would be difficult to see how those matters could amount to any cause of action in law, especially after actions for damages for loss of consortium were abolished in this State by the Law Reform (Marital Consortium) Act 1984. As the plaintiff is not the executor it is hard to see how there could be any compensation to relatives claim. Whatever be the situation, it is incumbent on the plaintiff, even though he is not a lawyer, to formulate the real facts which lead to the Court finding in his favour. Conspiracy to withhold information from the plaintiff would not, on the facts pleaded, seem to have given the right to any damages or compensation. Generally speaking, the plaintiff has set out what the facts are that concern him, but he does not in his draft statement of claim show that those facts, if established, would lead to liability on behalf of the defendants. Two years have now passed since the proceedings were commenced. This has been adequate for the plaintiff to formulate his case, especially as even in December last year, there was an invitation to the plaintiff to reformulate, if he wished to. It seems to me that the learned Master was right in striking out those claims. So far as the cross-appeal is concerned, Ms Ronalds says that the matter is academic because the learned Master’s order was for there to be a proper statement of claim dealing with these matters by 29 May 1998 and this did not occur. Were it not for the fact that the appeals may have given the plaintiff the false impression that even though there was no official stay he had time, I would have extended the time in the Master’s order to say 30 April 1999. However, when one looks at the balanced allegation in the three paragraphs I have mentioned, and takes into account the additional material which is before the Court, namely (a) that the plaintiff was taken before a magistrate and bail was refused; and (b) that in the mental health matter orders were made under s 27 of the Mental Health Act 1990, it seems to me that those counts must fall with all the rest. Accordingly, the cross-appeal succeeds. [65] Subsequently, there were further proceedings commenced in the Equity division, initiated by Mr Bhattacharya. A fresh statement of claim was filed against five of the defendants involved in the proceedings dismissed by Young J. This statement of claim was filed on 16 April 1999. The proceedings however, were later transferred to the Common Law division. This statement of claim (20421/99) came before Master Harrison in September 1999. The Master had a series of motions before her. The defendant himself sought “interim damages pursuant to s 76E of the Supreme Court Act 1970”. The other parties sought orders that the proceedings be dismissed on the basis that they disclosed no reasonable cause of action and were an abuse of the process of the Court. [66] The statement of claim considered by Master Harrison included claims for wrongful detention – there were six of them – and a claim for malicious prosecution in relation to the fifth detention. The Master considered that, in relation to the first three detentions, they were merely repetitive of the matters which had been before Young J and in respect of which Young J had made orders dismissing the prior Equity proceedings. The Master examined the remaining detentions and concluded that no cause of action was shown. So far as the claim for malicious prosecution was concerned, again, she said it was “hopeless”. The Master was also critical of the pleadings and said that she saw no utility in allowing the plaintiff to re-plead the statement of claim. She dismissed the statement of claim on the basis that it was an abuse of process of the Court and that it disclosed no reasonable cause of action. She also dismissed the motion seeking an interim award of damages. [67] The defendant brought an appeal from Master Harrison’s decision. It was heard by Hidden J and he gave judgment on 20 April 2000. Hidden J recounted the history of the matter and, in particular, the details of the Equity proceedings which I have earlier outlined. His Honour said (in dealing especially with the fifth detention): — Page 12 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 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 Bailes v Parmeter (1935) 35 SR (NSW) 182 . I put to one side questions of the precision and adequacy of the pleading. That said, the claims makes no allegation against three of the defendants, the Department of Corrective Services, the Minister for Health and Director-General of the Department of Health, and it must be dismissed as against them. It could be maintained against the Minister for Police and Commissioner for Police only if they were vicariously liable for any wrong doing by the police officer concerned. No such vicarious liability is pleaded against either of them … any such claim would need to be brought against the State of New South Wales in accordance with the Crown Proceedings Act 1988 (NSW). 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 this claim, I would uphold her decision to dismiss it. [68] It will be seen from a reading of the decision in its entirety that Hidden J agreed with all of Master Harrison’s conclusions in relation to the detentions other than the fifth detention. For the reasons given by his Honour, he also dismissed the claim in relation to this matter. [69] The defendant lodged appeals against the orders which had been made by both Young J and Hidden J. These came before the Court of Appeal (Meagher AP, Powell JA and Davies AJA) and were dealt with on 18 April 2001. The Court dismissed the appeal from the orders of Young J and refused leave to appeal against the decision of Hidden J. [70] Davies AJA (with whom Meagher AP and Powell JA agreed) recited the history of the litigation before Young J, Master Harrison and Hidden J. His Honour said at para 24: — I have had the opportunity of reading all the affidavits sworn by Mr Bhattacharya which are included in the appeal books and also the additional affidavits on which he relies in this appeal. I also heard his submissions during the course of this morning. However, his case is no more than a collocation of allegations which are unsupported by proof. Mr Bhattacharya’s case rests wholly upon an acceptance of his delusional beliefs, these which were examined with great care by Brownie J in B v Medical Superintendent of Nepean Hospital . The incidents of which Mr Bhattacharya complains were, on their face, proper and lawful acts of the appropriate authorities. More than once, challenges to the acts have been dismissed. No arguable claim for an award of damages appears. Proceedings before Dunford J [71] Within days of the orders made by Young J dismissing the Equity proceedings, the defendant had commenced fresh proceedings in the Administrative Law list of the Common Law division. By summons filed 9 March 1999, the plaintiff claimed relief against the following: — 1. Ian Hamilton, Director, Open Training and Education Network, Department of Education; 2. Ron Button, Senior Officer, South Sydney Institute of TAFE; 3. Director-General, NSW Department of Education and Training; 4. NSW Minister for Education; 5. NSW Minister for Police; 6. Police Commissioner of New South Wales; 7. President, NSW Teacher’s Federation; 8. Crown Solicitors. [72] The relief claimed was compensation, including exemplary damages, against the defendant’s loss of employment and an order that the Police Commissioner and the Minister for Police undertake to carry out any investigations which may be considered necessary. Page 13 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 [73] On the same day the defendant filed a notice of motion seeking an expedited hearing and a further order requiring the Commissioner for Police, the Director-General of the Department of Education and Training and the President of the NSW Teacher’s Federation to “investigate and resolve the issues raised in the summons”. [74] On 6 April 1999, at a Directions Hearing, the defendant produced a document entitled an Amended Summons. The document named a number of additional persons as follows: — 9. Coroner, Westmead Coroner’s Court; 10. Commissioner, Police Integrity Commission; 11. Attorney General of New South Wales; 12. Human Rights and Equal Opportunity Commission. [75] In addition to the relief sought in the original summons, the amended summons claimed a number of additional orders including: — 2. An order that pursuant to s 47(2) of the Coroner’s Act 1980 Westmead Coroner’s Inquest No 1331/92 be quashed and a fresh Inquest held; 3. An order that pursuant to division 2, division 5 and other relevant divisions of the Police Service Act 1990, and in accordance with the published Code of Conduct of the NSW Police Service, the Commission of Police take the necessary action in order to resolve the defendant’s complaints as alleged in these proceedings, 4. An order that pursuant to Part 3 of the Police Integrity Commission Act, the Commission exercise its functions and carry out a proper investigation into the plaintiff’s complaint and take proper action specified in that Act; 5. An order that, pursuant to s 24 of the Racial Discrimination Act (Commonwealth) the Race Discriminations Commissioner of the Human Rights Commission hold a proper inquiry into the plaintiff’s complaint; 6. A declaration that the plaintiff’s suspension from employment with pay since 10 November 1997 and orders made by the Department of Education is unlawful and against the intention of the relevant legislation applicable to the Plaintiff’s employment, in particular s 37 of the Teaching Services Act; 7. An order prohibiting the Department of Education and Training from continuing their conduct discriminating against the plaintiff; 8. A declaration that the plaintiff’s arrest and detention on 1 May 1988 as coerced by the Department of Education and the NSW Police Minister was unlawful; 9. An order that the defendants compensate the plaintiff to his satisfaction as sort (sic) in this summons. [76] Those named in the statement of claim and amended statement of claim as defendants or potential defendants brought motions in the proceedings for summary dismissal of the claims. Those that were not yet formally in the proceedings sought to avoid being joined. [77] On 24 September 1999, Hulme J had dismissed the proceedings so far as they related to the seventh defendant, the New South Wales Teacher’s Federation and refused leave to join the Human Rights and Equal Opportunity Commission as a defendant to the proceedings. [78] Dunford J gave his decision on 1 March 2000. It needs to be noted that extensive evidence and submissions were taken over five days during February 2000. The defendant called a number of witnesses and gave evidence himself. As a general comment it may be said that virtually none of the witnesses called by the defendant supported his claims. [79] Dunford J refused the application for leave to file an amended summons and declined orders joining the proposed additional defendants in the proceedings. So far the proceedings against the original defendants were concerned, his Honour ordered that those proceedings be dismissed pursuant to the Supreme Court Rules Pt 13 r 5. He ordered Mr Bhattacharya to pay the costs of all defendants and potential defendants of the proceedings. [80] There are a number of points that need to be emphasised regarding Dunford J’s decision. First, the defendant had sought an order that the original Coroner’s Inquest in relation to his wife’s death be quashed and that a fresh inquest be held. As to this part of the claim, Dunford J said at para 57: — Notwithstanding these matters, I consider it desirable to examine the merits of the plaintiff’s claim in relation to the Coroner’s inquest. The first matter to observe is that there never has been an inquest in relation to the death of Mrs Bhattacharya; the Coroner conducted a preliminary investigation into her death, after the receipt of allegations from the Page 14 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 plaintiff, and ultimately, on 28 January 1993 determined that an inquest should be dispensed with as no evidence was provided in support of the serious allegations made, and he further determined that she had died from natural causes. In so resolving the matter, the Coroner was purporting to exercise his powers under s 14(1) of the Coroner’s Act 1980, as it then stood, to dispense with the holding of an inquest. As no inquest has been held, s 47(2) is not applicable, but there is power under s 47(1) for this Court to order an inquest when none has previously been held and, it is necessary or desirable in the interests of justice that an inquest be held. [81] His Honour then went on to consider the evidence relating to the course taken by the Coroner so as to determine whether there was a body of evidence which, if accepted, would indicate that the original finding as to the manner and cause of death was erroneous. Having considered all the evidence in detail, his Honour said: — There has not been one single piece of evidence produced at the hearing to suggest that the Coroner made any error in his finding. In particular, there is not a single piece of expert medical opinion suggesting that the diagnosis was incorrect, the treatment inappropriate or negligent, or that the deceased’s death could have been induced or contributed to by some form of poison as alleged by the plaintiff. The plaintiff, no doubt, felt and continues to feel his wife’s death deeply, and it seems he continues to clutch at straws in the hope that somewhere, somehow, something may turn up which might raise the possibility that his wife’s death could have been avoided. But suspicion, suggestion, hope, fear and imagination are no substitute for evidence. There is simply no evidence to suggest that the Coroner’s findings were wrong or to indicate that it is in the interests of justice that an inquest be held. [82] Consequently, his Honour did not allow those amendments that were sought to raise the joinder of parties and the issues suggesting that an order for an inquest be made. [83] The second matter I need to address relates to the range of claims made by the defendant in the proceedings before Dunford J relating to his alleged adverse treatment by TAFE. I have earlier referred to the proceedings in the Industrial Court of New South Wales which related to and concentrated upon a number of these issues. On 27 October 1997, the defendant had been convicted in the Local Court at Liverpool St, Sydney on two charges of “stalking”. The allegation was that he had followed and threatened a person whom he believed, erroneously, to be a daughter of Ron Mulock, one of the Ministers allegedly engaged in the conspiracy against him. He appealed to the District Court from those convictions. While the appeals were pending, he made an interlocutory application which was heard by Judge Flannery QC on 28 November 1997. That application sought orders that his employer, the TAFE Commission, withdraw a letter directing him not to enter its premises or contact staff or members of the Commission while he was under suspension, and that it make an appropriate agreement to compensate him. These applications were dismissed on the basis that the District Court had no jurisdiction whatsoever to deal with such applications. [84] I should add for completeness that the appeals in relation to the convictions came on in the District Court before Chief Judge Blanch on 4 May 1998 when the appeals were upheld and the convictions quashed, not because his Honour was not satisfied that the defendant had not acted in the manner alleged; but rather because his Honour considered that in view of the defendant’s irrational state, he could not be satisfied beyond reasonable doubt that the defendant had been capable of forming the intention to carry out the threats. [85] To return to the narrative of the matters considered by Dunford J on this issue: after the defendant’s convictions for stalking on 27 October 1997 he was suspended on full pay from his employment with the TAFE Commission. Later, when he was charged on 1 May 1998 with other offences, he was again suspended this time without pay from 12 May 1998. In relation to these various suspensions, the defendant had made applications to GREAT but each appeal was dismissed on the basis that there was no jurisdiction. [86] Subsequently he had been charged with breaches of discipline and suspended again this time on full pay in November 1998. Once again, he applied to GREAT in relation to this suspension and, again, the Tribunal held that it had no jurisdiction. This was on 5 November 1998. [87] There was then an internal inquiry conducted in December 1998 before Mr Ron Button. He reported to the Managing Director of TAFE, Dr Boston, on 27 January 1999. Acting on the recommendations in the report, Dr Boston terminated the plaintiff’s employment with TAFE on 28 April 1999. The defendant then appealed to GREAT in proceedings No 314 of 1999. On 10 September 1999, the appeal was dismissed and his dismissal from the department was confirmed. At the time of the hearing before Dunford J, there was an outstanding appeal to the New South Wales Court of Appeal in relation to the decision by GREAT. [88] It may be convenient, as a matter of completeness, if I trace the fate of the proceedings in the Court of Appeal relating to the defendant’s dismissal from TAFE, even though these matters were not before Dunford J. On 10 Page 15 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 September 1999 the defendant filed a notice of motion in the Court of Appeal seeking orders for “immediate reinstatement and compensation”. On 20 September 1999, the Court of Appeal dismissed Mr Bhattacharya’s motion seeking reinstatement pending determination of appeal. On 24 September 1999, the Director-General of the department of Education sought an order that the appeal be struck out on the basis that it was incompetent. An order was also sought that the Crown Solicitor’s Office be struck from the proceedings as a respondent. The defendant filed an amended notice of appeal on 30 September 1999 and a further motion on 11 October 1999. These were, in effect, applications for expedition. In March 2000 there were a number of further motions filed on behalf of the defendant in the Court of Appeal proceedings. However, on 4 April 2000, the Court of Appeal (Mason P, Beazley and Bryson JJA) unanimously dismissed the appeal with costs. On 15 May 2000 Powell JA heard a notice of motion filed by the defendant seeking to stay the decision of the Court of Appeal on 4 April 2000. His Honour dismissed the motion with costs. On 24 November 2000 the High Court of Australia refused Mr Bhattacharya’s application for special leave to appeal from the decision of the New South Wales Court of Appeal. He was ordered to pay costs. [89] As I have said, Dunford J was not concerned with the proceedings in the Court of Appeal other than to note that they were to be heard shortly after the date of his decision. As to this aspect of the defendant’s claim which his Honour classified as, in effect, a claim for “wrongful dismissal”, Dunford J said: — In any event the procedure laid down in the Teaching Services Act 1980, s 87 and the Regulations under that Act, appears to have been carefully followed in the giving of notice of the charges, the conducting of an open inquiry by Mr Button and the appeal to GREAT. The plaintiff has exercised his right of appeal to GREAT and has now appealed to the Court of Appeal on questions of law. It is difficult to see how any issues could arise in relation to this claim other than those which arose in GREAT, and the plaintiff has had a complete remedy in that forum, subject to his pending appeal to the Court of Appeal. There is, however, another obstacle in the plaintiff’s way. Section 24(1) of the GREAT Act 1980 gives an employee who has been dismissed a right of appeal to that Tribunal. Section 25(3) provides that where an employee appeals to the Tribunal under s 24, in respect of a decision of a kind referred to in s 23(1) (which includes a decision to dismiss the employee) he may not thereafter, in respect of that decision, appeal or institute other proceedings or proceedings may not be instituted on his behalf under any Act or law or industrial award or agreement. It follows that having instituted an appeal against his dismissal , he may not bring any other proceedings, including proceedings for wrongful dismissal, in respect thereof. [90] Dunford J also considered some further matters in relation to the defendant’s alleged “loss of enjoyment of employment”. He concluded however, that no reasonable case of action had been disclosed and as the matters had been already litigated, the claims were frivolous, vexatious and an abuse of process. [91] The third matter to note in Dunford J’s decision is his treatment of the allegations regarding the failure of the police to investigate certain matters. Dunford J dealt with this aspect of the claim at some length. He concluded however, that it was appropriate to assume that what the plaintiff wanted investigated was the alleged conspiracy to terminate his employment at the Department of Public Works and the death of his wife. His Honour concluded however, that these specific matters had each been investigated a number of times; and there was nothing in the evidence before him to suggest that the investigations were not bona fide, thorough and adequate. He therefore ordered that aspect of the original summons be struck out and refused leave to add the relevant portion of the proposed amended summons. [92] There is no need for me to detail further aspects of his Honour’s findings at this stage. It is sufficient to say that his Honour investigated each and every aspect of the defendant’s various claims and found that there was not the slightest piece of reliable evidence to support any one of them. [93] The defendant filed a notice of appeal from Dunford J’s decision. This was filed on 22 March 2000. The notice alleged that his Honour had made errors in approximately 47 of the paragraphs of the judgment. A reading of the grounds of appeal emphatically demonstrates the defendant’s complete inability to accept any findings made against him; and demonstrates as well, even at prima facie level, the hopelessness of the grounds of appeal. In the event, the appeal was struck out by Registrar Irwin on 7 September 2000 because it had been made without leave. [94] The defendant lodged an application for leave to appeal against Hulme J’s judgment given on 24 September 1999. The summons for leave to appeal was not however filed until 24 August 2000. It sought an order extending the time for filing the summons for leave to appeal and an order granting leave to appeal from the whole of the judgment of Hulme J. Fitzgerald JA (with whom Hodgson CJ in Eq agreed) said: — Page 16 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 I am satisfied that there is no arguable basis upon which the complainant could hope to establish if leave were granted and an extension of time were granted that he has any prospects of success if an appeal were brought from Hulme J’s decision. [95] The summons was on that day, 19 March 2001, dismissed and the relief sought refused. Proceedings in relation to the Phillip St incident [96] On 20 November 2000 the defendant was arrested in Phillip St in front of the Law Courts building. He was then taken to St Vincent’s Hospital to the Caritas Unit. There he was psychiatrically assessed but found not to be “mentally ill” within the meaning of the Mental Health Act 1990. He was then allowed to leave. [97] The background to these incidents was an allegation made known to police that on 16 November 2000 the defendant had allegedly threatened to kill a member of the Court of Appeal registry. The information about this alleged incident had been conveyed to police officers by security staff on 20 November 2000, when those staff had observed the defendant acting in a manner they regarded as suspicious in the precincts of the Law Courts building. Two police officers arrived from The Rocks Police Station with a caged vehicle. Thereafter, a confrontation took place between the police officers and the defendant. This led to his arrest. [98] On 13 December 2000, the defendant instituted proceedings by way of statement of claim. The defendants were the Minister for Police, the Police Commissioner of New South Wales, the Minister for Health and the Director- General of the New South Wales Health Department. Two days later the defendant sought expedition of these proceedings but it was declined. On 30 March 2001 the defendant approached O’Keefe J who was the Duty Judge at that time. His Honour, obviously puzzled by the informal approach, treated this, as best he could, as an application for an interim award of damages under s 76E of the Supreme Court Act 1970. O’Keefe J declined to grant the defendant any relief. [99] In due course notices of motion came before Master Harrison for hearing on 19 June 2001. On 27 June 2001 Master Harrison dismissed the statement of claim and the proceedings and ordered Mr Bhattacharya to pay the costs. [100] In the course of her reasons, Master Harrison said this — The plaintiff conceded that I was entitled to have regard to these decisions but if I took that approach then he should be entitled to receive an award to the cumulative amount of damages, not just the 20 million dollars claimed in these proceedings. However, the remedy he really sought was to fix his life and it was up to the defendants in the court to work out how this could be achieved … It was explained to the plaintiff that if the court decided that the defects in his pleadings were able to be cured he would be given an opportunity to re-plead the statement of claim. However, there is a fundamental problem. It was explained to the plaintiff that he had sued the incorrect entities as defendants … At the hearing before me the plaintiff declined the opportunity to re-plead 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. [101] On 6 July 2001 the defendant filed a notice of appeal from Master Harrison’s decision. In the grounds of appeal, the defendant stated that the Master took “undue advantage of her position”, erred in law and misdirected herself. McClellan J heard the appeal on 16 July 2001. His Honour concluded that the proceedings had been appropriately dismissed by Master Harrison because of the fundamental flaw with respect to the parties who had been sued. McClellan J dismissed the appeal with costs. [102] Thereupon, the defendant commenced fresh proceedings in relation to the events occurring on 20 November 2000 in Phillip St. These were proceedings commenced by statement of claim (No 20652/01). The defendant named was the State of New South Wales. In para 1 the defendant alleged that since 1994 the State “through a number of its processes, instrumentalities and authorities engaged in various wrongful acts and conducts affecting him”. This conduct included: — A practice of arresting the plaintiff, detaining him in police station, mental institutions and prison and instituting proceedings against (him) without any valid reason in law. [103] The defendant claimed exemplary, punitive, aggravated and general damages and “damages in restitution”. [104] On 1 May 2002, Kirby J heard three notices of motion relating to the amended statement of claim which had been filed on 27 September 2001. The State interests sought to strike out the amended statement of claim on the Page 17 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 basis that it disclosed no cause of action or was otherwise embarrassing. Kirby J, in the ultimate, declined to summarily dismiss the proceedings. Although the statement of claim was “poorly pleaded”, his Honour treated the claim as one for “false imprisonment”. So far as it also appeared to assert a claim for “malicious prosecution”, his Honour noted that this claim could not succeed. In the end, his Honour decided that there was a triable issue between the plaintiff and the State relating to the Phillip St arrest. His Honour however dismissed Mr Bhattacharya’s notice of motion which had sought the following orders: — 1. The defendant to pay the plaintiff all the damages as claimed. Alternatively, 2. The defendant to restore the plaintiff to the position as he was prior to 15 November 1992 (ie, in 1990). [105] Kirby J also declined to order Mr Bhattacharya to furnish security for costs. The trial of the proceedings [106] The trial of the proceedings was heard by Acting Justice Mathews on 25, 26, and 27 March 2003. On 4 April 2003 her Honour gave judgment. The action against St Vincent’s Hospital was dismissed. However, her Honour found a verdict for the plaintiff against the State of New South Wales in the amount of $15,000.00. She ordered each party to pay its own costs. [107] It will be seen therefore that the present defendant had a victory on this occasion. Her Honour had recognised that the onus fell on the State interests to justify Mr Bhattacharya’s arrest on 20 November 2000. Her Honour found — It is abundantly clear that Mr Bhattacharya’s actions on 20 November 2000 fell far short of anything that could possibly amount to a breach of the peace. There being no suggestion that he was committing or had recently committed any other offence, the defendant has failed to satisfy the first limb of s 24 of the Mental Health Act. It follows that Mr Bhattacharya‘s apprehension and detention by Constables Hall and Dodds was unjustified and unlawful. [108] Her Honour found however, that this was not a case for the award of aggravated damages. That being so, there could be no question of exemplary or punitive damages. Her Honour said: — Mr Bhattacharya has an unrealistic view as to the extent of the damages which can be awarded in cases of this nature. Even if I had acceded to his submission that this is a case for the award or aggravated or exemplary damages, the amount which he continued to press, namely 20 million dollars, is a fanciful one which bears no relation to the harm suffered or the wrong done. [109] Her Honour, as I have said, found damages in the sum of $15,000.00. [110] The present defendant was not satisfied with this decision. He filed a notice of appeal on 28 April 2003 and an amended notice of appeal on 22 May 2003. The crux of his complaint appears to be his dissatisfaction with the fact that he did not recover exemplary, punitive and aggravated damages against the State of New South Wales “to the subjective satisfaction of the appellant”. [111] On 22 May 2003 the defendant also filed an ordinary summons for leave to appeal and an extension of time. [112] The leave application was heard in the Court of Appeal on Tuesday 14 October 2003. Judgment was given by Meagher JA with whom Davies AJA agreed. The application for leave was dismissed with costs. Meagher JA said this: — The central issue that concerned her Honour, and very properly so, was whether the mistakes which the police officers undoubtedly made were made bona fide or malafide. Her Honour found that there was no evidence adduced by Mr Bhattacharya to demonstrate that there was malafides in the police officers. Accordingly, she refused to award any sum by way of aggravated or exemplary damages. That order is challenged. I cannot see on what basis it is challenged, despite the fact that we have heard a very powerful address from Mr Bhattacharya on the point. It is clear beyond all doubt that he had the onus of demonstrating malafides in the police officers. There is no doubt that her Honour, having everyone concerned give evidence, came to the conclusion that although the police officers’ behaviour was unjustifiable, it was not malafide. How that finding of fact, based in large part on credibility, can be challenged I am unable to see. Page 18 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 [113] On 6 November 2003 the defendant lodged an application for special leave to appeal to the High Court from the decision of the Court of Appeal given on 14 October 2003 dismissing his summons for leave to appeal. This application remains undetermined at this stage. [114] In relation to the appeal as of right from Mathews AJ’s decisions on the issue of the quantum of damages, this appeal remains also undetermined. The appeal is listed for further directions on 16 February 2004. [115] Although the hearing before Mathews AJ resulted in a victory for the present defendant, it needs to be said that the proceedings related to one particular isolated incident. The damages awarded were modest. It cannot be said that this decision in favour of Mr Bhattacharya represents in any real sense a reversal of the continuing and significant losses he has sustained in maintaining his overall complaints in relation to his perception of the misfortunes occurring to him in the period between 1980 and 1999. Miscellaneous Litigation [116] There has been since the mid-1990’s a voluminous body of other litigation involving the defendant. I do not propose to detail this as I am generally satisfied with one exception that it does not fall within the statutory description contained in s 84(1) of the Supreme Court Act 1970. This is not to say that the litigation reflects any credit on Mr Bhattacharya or that he achieved any great success in relation to it. Far from it. [117] The first batch of litigation has been touched on earlier in these reasons for decision. It relates to a number of apprehended violence orders taken out against the defendant by people who were concerned about his behaviour following the death of his wife. The proceedings generally began in Local Courts and were on occasions the subject of appeals to the District Court. For example, on 13 April 1995, Judge Christie QC dismissed an appeal from the order of a magistrate which in turn had been made on 31 October 1994. His Honour ordered that Mr Bhattacharya not approach a certain Ms Pickard for a period of three years. The defendant filed a notice of appeal to the Court of Criminal Appeal but this was dismissed by the Court of Criminal Appeal on 24 May 1995 on the basis that the Court had no jurisdiction. (The proceedings represented by this appeal are the exception to which I referred in the previous paragraph). There were subsequent orders in relation to other persons by Magistrates and District Court Judges on a number of occasions. [118] The defendant was charged with criminal offences relating to intimidation and annoyance of persons and he was also charged with “stalking”, an offence under the Crimes Act 1900. I have referred to this earlier. There was at least one appeal to the District Court in relation to such matters. [119] The third area of litigation involved a solicitor who had formerly acted for the defendant. This was Mr Harry Freedman who obtained a Local Court judgment relating to unpaid professional fees. Thereafter, Mr Freedman issues a Creditor’s Petition against the defendant. Mr Bhattacharya instituted proceedings in the Federal Court to set aside the petition. Einfield J dismissed the defendant’s application. An application by the defendant to the Full Court was dismissed with costs. An application for special leave to appeal to the High Court was also dismissed with costs. The defendant also sued Mr Freedman for negligence but without success. This litigation spanned the period between 1995 and June 2000. Resolution of the issues – the defendant is a vexatious litigant [120] In my view there is an overwhelming case established that the defendant has, without reasonable excuse, habitually and persistently instituted vexatious proceedings in this Court and a number of inferior courts. [121] It is desirable that I should identify those proceedings and I have done so in a schedule which is attached to this judgment. Details of the individual proceedings have been described in the earlier part of these reasons. [122] In almost all of the cases I have listed, the defendant has lost or had the proceedings dismissed. In each case, it is my view that the proceedings were so manifestly groundless as to be hopeless or untenable. I have included in the list contained in the schedule a number of instances where appeals or applications for leave to appeal have been lodged in the Court. It will be seen that in almost every situation, despite a complete absence of merit, the institution of those appeals or alternatively, the attempt to appeal, was a futile exercise in unreasonable persistence. The defendant’s actions in attempting to appeal from decisions made adversely to him betoken a complete inability to accept the adjudicator’s decision, despite the fact that defeat was in each case inevitable from the outset. [123] I have determined, adversely to the plaintiff’s submissions, that the proceedings in the Industrial Court, whether at first instance or on appeal, should be regarded as incapable of satisfying the statutory pre-conditions in s 84. There can be no doubt, however, that the proceedings before Bauer J and the Full Court of the Industrial Court were baseless and bound to fail. There can be no doubt, additionally, that those proceedings otherwise answered the description in s 84, save and except that they were not proceedings in the Supreme Court of New South Wales or in an inferior New South Wales Court. They were in fact proceedings in a superior court of record having equal status to the Supreme Court. For that reason they must be disregarded as capable as satisfying the statutory pre- conditions. Those proceedings remain relevant however, in the two limited ways I have earlier discussed. That is, they illuminate the hopeless nature of subsequent litigation launched in the Supreme Court whether at first instance Page 19 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 or appeal; and they have a relevance to the ultimate discretion in that they demonstrate that, despite litigious failure, the defendant remains determined to press on with a repetition of litigation involving groundless allegations. [124] It will be seen that the basis on which I have found against the defendant is that stated as the third limb of the matters mentioned by Roden J in Attorney General v Wentworth . I am not satisfied however, that the first two limbs, or either of them, has been established by the plaintiff. On the other hand, I am perfectly satisfied the defendant’s course of conduct in instituting these proceedings has been both habitual and persistent; and it has plainly been without reasonable excuse. I shall briefly explain why this is so. [125] In view of the considerable detail I have already provided, it is not necessary to analyse why it is the defendant has continued his unrelenting path in pursuing untenable litigation. His determination in this regard, and his litigious approach generally, have been branded “delusional” and “obsessional”. There is no doubt, in my view, that he is absolutely fixated on his perception of unfairness in the manner of his treatment as an engineer with the Department of Public Works; and with his suspension and ultimate dismissal from TAFE as a teacher. This fixation has brought about a raft of conspiracy accusations aimed at a variety of people and institutions, quite unfairly in my view. Although the defendant appears to have a real belief and perception that these people and institutions have destroyed his life and been responsible for the death of his wife, there is in truth absolutely no substance in the beliefs whatsoever. Moreover, there has never been any legitimate evidence to support those beliefs or perceptions. Notwithstanding this, the defendant has time and time again reiterated, in the course of his litigation, a stream of allegations which Courts and Tribunals have adjudicated simply cannot be sustained. There is not, and never has been, any conspiracy to deprive the plaintiff of his job or to harm his family and murder of his wife. [126] It is however important to emphasise that three characteristics dominate the defendant’s attitude to litigation. They are at the heart of his persistent and habitual institution, and pursuit, of hopelessly untenable litigation. [127] The first is that matter adverted to by Dunford J in his decision on 1 March 2000. The whole of the relevant passage bears repetition: — The plaintiff’s main difficulty in these proceedings is that he cannot or will not understand the difference between allegations and evidence. He seems, or purports, to believe that merely making allegations or claims, no matter how extreme or outrageous and involving persons of otherwise impeccable character or reputation, in some way constitutes evidence of the matters alleged; and further more, the more often such baseless allegations are repeated the more credence and substance they acquire, so that, in time they become established facts. [128] I agree entirely with Dunford J’s observations. [129] The second matter is that the defendant habitually refuses to accept the decision of courts at first instance and, for that matter, intermediate Courts of Appeal. Every adverse decision is, almost without exception, followed by an appeal or an application for leave to appeal. These appeals have been, almost inevitably, completely unsuccessful; and the basis of appeal in each case has been entirely lacking in merit or substance. [130] The third matter is that the defendant has a complete inability, or perhaps a wilful unwillingness, to understand and comprehend the reasons for decisions. This has led the defendant to distort, on a regular basis, findings made against him; and to seek to elevate, either in argument or in later proceedings, those adverse findings into findings in his favour. [131] A good example of this reluctance or inability to understand or comprehend the basis of decisions can be seen in the present proceedings. One example among many will suffice: the defendant argued before me that Dunford J had erred in his decision of 1 March 2000 when he held that there had never been an Inquest in relation to the death of Mrs Bhattacharya. The consequence of this finding it will be recalled, was that his Honour then went to consider whether, pursuant to s 47(1) of the Coroner’s Act 1980, it was desirable or necessary in the interests of justice that an Inquest be held. [132] Mr Bhattacharya maintained before me that an Inquest had been held and that Dunford J was simply in error on this matter. To support this untenable claim, he referred to a statement in the judgment of Bauer J in the Industrial Court of New South Wales, a decision to which I have earlier made reference. This decision was given on 5 April 1995. At p 9, there is a passage where Bauer J had said: — The applicant has not abandoned the view that the death of his wife was a result of criminal activity by persons unknown. The applicant has taken a view that there should be an Inquest and, as far as this Court can now determine on the evidence, such an Inquest is to be held. [133] The defendant seized upon this random remark in a decision given some five years before Dunford J’s decision, to found his submission that Dunford J was in error. There was however, a copy of the Coroner’s report in evidence before Dunford J. It is also in evidence before me (part of Ex “D”). Paragraph 6 of the report makes it clear Page 20 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 that the Coroner was satisfied that the defendant’s wife had died of natural causes. For that reason, as the Coroner explicitly states, he dispensed with the holding of an Inquest. [134] This is but one example of the defendant’s common practice, to be found in the statement of grounds of appeal, his pleadings and his submissions, of taking passages out of medical reports or judgments completely out of context and then quoting them as evidence of the facts. Often they are no more than summaries of his own delusional claims. But they are recited by him as if they were the legitimate findings of Courts or Tribunal. [135] As I have said, these three predominant characteristics loom large in every aspect of the defendant’s litigious processes. They are nowhere better to be seen than in his activities in the present proceedings; and in the submissions which he had made during the proceedings. [136] As to the first, there is a notice of motion filed in the proceedings. There is also, remarkably, a cross-claim. The notice of motion was filed on 28 April 2003 and seeks the following orders: — 1. The plaintiff pays the defendant all the damages as claimed to date and costs. Alternatively, 2. The plaintiff restores the defendant to the precise position as he was prior to 15 November 1992 (ie, in 1990). [137] This is virtually the same notice of motion and seeks the same relief as that which Kirby J dismissed on 1 May 2002. [138] The defendant filed in these proceedings a document called “defence and cross-claim”. This document was filed on 30 April 2003. I shall not pause to recite all of its contents. In relation to the defence however, perhaps the following paragraphs demonstrate that he has remained entirely undeterred by the plethora of decisions which have been given against him in the untenable litigation he has maintained to date: — 2. I admit that the material filed by the Attorney General of New South Wales or the material filed on his behalf disclose my claims of damages against the State of New South Wales which remain unresolved and remain to be resolved. 3. I admit that the material filed by the Attorney General of New South Wales or the material field on his behalf disclose serious allegations against a number of persons in employment with the State of New South Wales or are or were under control of the authorities of the State of New South Wales. They remain unresolved. 4. I claim that the matter referred to in the paragraphs 1 to 3 above remain unresolved due to the reasons only known to the plaintiff or its agents. 5. I claim that Judicial and Court processes are available to me in making attempts to resolve the matters referred to in paragraph 1–4 above. [139] The “cross-claim” can only be described as an extraordinary document. In some 11 pages, the defendant traverses his employment by the Department of Public Works in 1980, his allegations of discrimination, unfair treatment by the Counsellor for Equal Opportunity and the conflicts he had with members of Emu Plains branch of the Australian Labor Party. He challenges the basis of his dismissal from the Department of Public Works and the validity of the various court decisions which upheld that dismissal. He then traverses his employment with TAFE and repeats the allegations he had made in previous litigation. [140] He then accuses Dr Kenneth Bradstock for being responsible for the death of his wife and alleges deliberate medical malpractice on the part of that doctor. All this, despite the very clear findings of Dunford J that there was not the slightest piece of evidence that would warrant such allegations being made. [141] Thereafter, in the next section of the so called cross-claim, the defendant traverses his detention pursuant to the provisions of the Mental Health Act, including the period which had been examined so carefully by Brownie J in his 1994 decision. It is clear the defendant intends to re-litigate all of the matters underlying this detention and, for that matter, subsequent detentions he experienced, notwithstanding that proceedings relating to those detentions were themselves effectively dismissed or stayed by various decisions of the Court. Quite apart from the fact that the substance of the cross-claim must inevitably fail, it could not possibly succeed in any event, as against the Attorney General. Once again, the wrong party has been sued. [142] In short, it appears quite clear that the defendant does not for one moment accept the decisions of the New South Wales Supreme Court and other Courts given during the last decade. The pleading filed in this very application, although the cross-claim is not before me for hearing, makes it clear, on its face, that, if left unrestrained, it is the defendant’s avowed intention to seek relief relentlessly and determinedly through the New South Wales Court system in respect of grievances that time and time again have been found not to exist. The defendant’s submissions Page 21 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 [143] It is desirable I say something about the defendant’s submissions. These fall into two categories. The first category raises some matters which have to be answered. Mr Bhattacharya raised three points in this regard. First, he suggested that there may be a prohibition against a court making an order under 84(1) of the Supreme Court Act 1970 as at the behest of the Attorney General in relation to a situation where the Attorney General himself has been, at least in part, a defendant to proceedings that forms part of the asserted vexatious litigation. Secondly, Mr Bhattacharya argued that there were in reality only two substantive matters which had been held against him; and he argued that these were in fact not groundless proceedings. He described the two substantive matters as his attempt to get a Coronial Inquiry held; and, secondly, his action to recover damages for wrongdoing to him. The final point argued in this category was Mr Bhattacharya’s assertion that the issues in all this litigation were in fact “undetermined”. (See transcript p 70 at lines 25–45). [144] As to the first point, I am not satisfied that the Attorney General is disqualified from bringing the application because he has been named as defendant in earlier proceedings. First, those proceedings have already been held to be baseless as far as the Attorney General is concerned. Secondly, such a construction would rob the section of much its utility, since it is often the case that baseless actions are brought against State interests. In any event, it is the task of the Court to scrutinize applications such as the present with considerable care and caution to ensure that legitimate litigation is not chocked off by a fetter unfairly placed upon a genuine litigant. [145] Mr Bhattacharya’s second point may be answered simply by pointing to the schedule attached to these reasons. It may be that the two pivotal events in his life have been his dismissal from employment first, the Department of Public Works and then the TAFE Commission; and the death of his wife from leukaemia. The amount of litigation spawned as a consequence of these matters is, as the schedule plainly demonstrates, quite significant numerically but more importantly, significant in its persistency and obduracy. [146] The third point is plainly wrong. It simply reflects Mr Bhattacharya’s continued refusal to accept the fact that these matters have been determined and determined adversely to him. [147] The second category of submissions made by the defendant might best be described as an exhortation to the Court to scrutinise afresh the evidence in early proceedings and the judgments in later ones. For example, the defendant spent considerable time before me analysing portions of the evidence and the submissions before the Inquiry conducted pursuant to s 93 of the Public Service Act 1979 during 1980 and 1981. The purpose of this lengthy review was obscure but I took the defendant to be arguing that the material was capable of demonstrating error or raising doubt in relation to the subsequent decision of the Government and Related Employees Appeal Tribunal, and perhaps the 1983 decision of the New South Wales Court of Appeal. It appears to have always been the defendant’s submission that he was treated unfairly in this Inquiry and, for that matter, in the subsequent appeal proceedings. I have carefully re-read the defendant’s submissions on this aspect of the matter since I reserved my decision. I am satisfied there is nothing in those submissions that indicates to me that there was any error either of fact or of law in the conduct or outcome of that Inquiry. [148] The defendant then reviewed the proceedings before Dunford J. Again, his review focussed to a large extent on the evidence before Dunford J. Again, these submissions were difficult to follow because the defendant followed the pattern of interspersing his review of the evidence and his submissions with statements from the bar table which presumably were his re-assertions of the unfair treatment he has allegedly received generally throughout the last 20 years. Again, I have re-read the defendant’s submissions and looked carefully at Dunford J’s judgment. I can find no basis for concluding other than that his Honour’s determinations were amply warranted and justified. There was absolutely no evidence to justify the claims made in those proceedings and they were, in my opinion, quite hopeless. [149] Finally, Mr Bhattacharya reviewed other decisions including the proceedings before Mathews J. There is no need for me to detail those submissions as I do not think they were capable of taking the matter further. The defendant however maintained that he was not a person who went to court without a reason; and that he should not be fettered by an order under s 84. Discretion [150] For the reasons set out above I have held that the proceedings identified in the schedule were vexatious and that they were instituted habitually and persistently; and without any reasonable grounds. Accordingly, the requirements of s 84(1) have been established. [151] The submissions made before me did not identify any special matters going to the exercise of the court’s discretion. I think it is appropriate however, that I should bear in mind that the making of orders against the defendant will constitute a significant fetter upon his rights as a citizen to institute and continue legal proceedings. Orders of this kind must necessarily impact on the ordinary rights of a citizen to approach a court for relief in respect of what he or she, rightly or wrongly, believes to be a grievance against another person or institution. For that reason, the powers conferred by the section must be exercised with caution and only in clear cases. On the other Page 22 of 22 Attorney-General (NSW) v Bhattacharya, [2003] NSWSC 1150 hand, in a proper case, the court is empowered to make further orders giving leave to the vexatious litigant to proceed. [152] Additionally, it needs to be borne in mind that in recent times the Supreme Court of New South Wales, both at first instance and on appeal, has had to face problems of no small moment because of the activities of self represented litigants. There is little doubt that the court needs to be astute to recognize that self represented litigants are often in a special position and require special treatment. There may often be a good cause of action lurking beneath a haphazard and formless surface. On the other hand, there are from time to time, perhaps not often, litigants in person who bring cases before the court which are hopeless and have no merit at all. Vexatious litigation of this kind creates special problems for the court. It means that the court must often divert skilled attention, that ought to be paid to cases of real merit, to cases which have no merit at all. Moreover, the parties on the opposite side of the vexatious litigation are often subjected to considerable delay, worry and expense in circumstances where there is no justification for the proceedings at all. ( Bhamjee v David Forsdick & Ors [No 2] [2003] EWCA Civ 1113 (25 July 2003)). Considerations of this kind are by no means irrelevant to an appropriate discretionary response. [153] I have come to the conclusion in the present matter that there is no reason why the orders sought on the plaintiff’s behalf should not be made. Order [154] I make the following orders: — 1. Until further order — (a) An order pursuant to s 84(1) of the Supreme Court Act 1970 that the defendant shall not without leave of the Court institute any legal proceedings, whether civil or criminal, in any Court in this State. (b) An order pursuant to s 84(1) of the Supreme Court Act 1970 that any legal proceedings, whether civil or criminal, instituted by the defendant before the making of this order shall not be continued by the defendant without the leave of the Court in this State. (c) An order pursuant to s 84(1) of the Supreme Court Act 1970 that the defendant be restrained by himself or by his servants or agents from instituting any application in any legal proceedings, whether civil or criminal, already instituted in any court in this State without the leave of this Court. (d) An order pursuant to s 84(1) of the Supreme Court Act 1970 that the defendant be restrained by himself or by his servants or agents from instituting any appeal in respect of any legal proceedings, whether civil or criminal, in any court in this State without the leave of this Court. 2. The defendant is to pay the plaintiff’s costs. 3. The Exhibits are to remain with the file. Counsel for the plaintiff: Mr P Blackett S, Mr R Titterton The defendant appeared in person. Solicitor for the plaintiff: NSW Crown Solicitor's Office End of Document