Bhattacharya v Hamilton CaseBase | [2000] NSWSC 102 | BC200000950 BHATTACHARYA v HAMILTON BC200000950 Unreported Judgments NSW · 91 Paragraphs SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST DUNFORD J 30020/99 21-28 February 2000, 1 March 2000 Bhattacharya v Hamilton [2000] NSWSC 102 Headnotes Application for Summary Judgment and related matters Coroners Act 1980 Application for inquest by relative where inquest dispensed with by Coroner Claim for wrongful dismissal - right of appeal to GREAT exercised - no alternative remedy Wrongful arrest and detention - breach of Apprehended Violence Orders - threats in person and over telephone. Mental Health Act 1990 Industrial Relations Act 1991 Teaching Services Act 1980 Supreme Court Act 1970 Government and Related Employees Appeal Tribunal Act 1980 Coroners Act 1980 Crimes Act 1900 Crimes Act 1914 (Cth) Police Integrity Commission Act 1996 Dunford J [1] By Summons filed 9 March 1999, the plaintiff claimed relief against eight defendants as follows: 1. Ian Hamilton, Director, Open Training & Education Network, Department of Education; 2. Ron Button, Senior Officer, South Sydney Institute of TAFE; 3. Director-General, NSW Department of Education & Training; 4. NSW Minister for Education; Page 2 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 5. NSW Minister for Police; 6. Police Commissioner of NSW; 7. President, NSW Teachers Federation; 8. Crown Solicitors (sic). Except for the President of the New South Wales Teachers Federation, these defendants are all officers of the State Government, and it would appear that the proper defendant would have been the State of New South Wales: Crown Proceedings Act 1988 s5(1). The relief claimed was compensation including exemplary damages against the plaintiff'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. [2] On the same day the plaintiff 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 & Training and the President of the NSW Teachers Federation to "investigate and resolve the issues raised in the Summons". [3] On 6 April 1999, at a Directions Hearing, the plaintiff produced a document entitled Amended Summons. The document named a number of additional defendants as follows, 9. Coroner, Westmead Coroner's Court; 10. Commissioner, Police Integrity Commission; 11. Attorney General of NSW; 12. Human Rights & Equal Opportunity Commission. [4] In addition to the relief sought in the original Summons, the Amended Summons claimed a number of additional orders including (I use the paragraph numbers in the so-called Amended Summons): 2. An order that pursuant to s47(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 Commissioner of Police take the necessary action in order to resolve the Plaintiff's complaints as alleged in these proceedings, 4. An order that pursuant to Pt3 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 actions specified in that Act. 5. An order that, pursuant to s24 of the Racial Discrimination Act (Commonwealth) the Race Discrimination 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 s37 (sic) of the Teaching Services Act; 7. An order prohibiting the Department of Education & 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. Meanwhile, by Notice of Motion filed on 1 April 1999, the plaintiff sought orders that leave be granted to include as defendants the various additional defendants named in the so-called Amended Summons. [5] Although I directed that copies of the Amended Summons be made available to each of the defendants' representatives and gave leave for it to be filed in court, it was not filed in court but was filed in the Registry later Page 3 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 that day with the additional persons as defendants. No formal order was made granting leave to join the additional defendants and I did not consider whether the amendments sought in the Amended Summons should be allowed. Notwithstanding the endorsement made by the plaintiff on the original filed copy, the other parties did not consent to the Amended Summons. It therefore appears that the filing of the Amended Summons including additional defendants without leave to join them was an irregularity, and I should regard the plaintiff's application to join additional defendants as including a Motion to file the Amended Summons. See transcript of 6 April 1999 at p3, p5. [6] In the meantime, a number of Notices of Motion were filed on behalf of the defendants and potential defendants, and these are also presently before me for hearing. They include a Notice of Motion filed on 30 March 1999 on behalf of the original eight defendants except the seventh (President, NSW Teachers' Federation) seeking orders: 1. For summary dismissal pursuant to SCR Pt13 r5; 2. Alternatively, that the plaintiff's Summons be struck out pursuant to Pt15 r26 (no reasonable cause of action disclosed, tendency to cause prejudice, embarrassment or delay in the proceedings or otherwise an abuse of process); 3. Alternatively, that pursuant to Pt65 r5 the Summons be struck out (any matter which is scandalous, frivolous, vexatious or otherwise oppressive). [7] On behalf of three of the remaining potential defendants, that is the State Coroner, Westmead Coroner's Court, the Attorney General and the Commissioner of the Police Integrity Commission separate Notices of Motion were filed on 1 June 1999 seeking orders, 1. Pursuant to Pt8 r2; that leave not be granted to join the respective applicants as defendants in the proceedings. 2. Alternatively, pursuant to Pt20 r1, that leave not be granted to the plaintiff to amend the Summons to join the respective applicants in the proceedings. 3. Alternatively, pursuant to Pt13 r5 that the proceedings be dismissed as against each such respective potential defendant or pursuant to Pt15 r26 or Pt65 r5. [8] On 24 September 1999, Hulme J dismissed the plaintiff's proceedings against the seventh defendant, the New South Wales Teachers' Federation described in the Summons and Amended Summons as the President of the NSW Teachers' Federation, and refused leave to join the Human Rights and Equal Opportunity Commission as a defendant. [9] I therefore have before me the plaintiff's application to add the additional defendants and for leave to file the Amended Summons, and also the defendants' various applications, in effect, to strike out the Summons and Amended Summons and dismiss the proceedings. [10] A large amount of material, much of it strictly inadmissible or of doubtful relevance, has been admitted without objection. As the plaintiff was unrepresented and because of the difficulty at times of identifying what the issues were, it seemed desirable that he be permitted to place before me all the material which he wished to. [11] 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 and reputation, in some way constitutes evidence of the matters alleged; and furthermore, that the more often such baseless allegations are repeated the more credence and substance they acquire, so that, in time, they become established facts. [12] Another problem he has is that he tends to take passages out of medical reports or previous judgments totally out of context, and quote them as evidence of the facts, when they are no more than summaries of the plaintiff's claims. At other times, he uses words totally irrelevant to the context in which they appear. [13] 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 in 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. [14] He was formally married to his late wife, June Dorothy Bhattacharya, an Englishwoman, in 1972, but says he was previously married to her in a community way from about 1967 or 1968. From 1963 to 1965 he was employed as an electrical engineer by the Electricity Board of India; from 1965 to 1967 as an electrical engineer with General Electric Co and Thorne Electrical Industries in the United Kingdom; from 1969 to 1971 as a systems engineer with Atomic Power Constructions Ltd in the United Kingdom; from 1971 to 1973 as an electrical engineer with the Page 4 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 Gladstone Electric Co; from 1973 to 1974 in bridge engineering supervision with 3M Australia; and from 1974 to 1980 as an electrical engineer with the NSW Department of Public Works. He was dismissed from his employment with that Department in 1982 and an appeal by him to the Government & Related Employees Appeal Tribunal (GREAT) (No 576/81) was unsuccessful. A further appeal to the Court of Appeal was also unsuccessful (No 286/82). [15] He subsequently complained of racial discrimination and victimisation to the NSW Equal Opportunity Commission, but such application was likewise unsuccessful: (1984) EOC ¶92-117. [16] The plaintiff's main allegation is that he has been the victim of a conspiracy which commenced in the late 1970s or early 1980s, involving various people in the Australian Labor Party of which he was a member, including two former Ministers of the Crown, which resulted in the loss of his employment with the NSW Department of Public Works and that later, when he obtained employment with the NSW TAFE Commission as a lecturer in electrical engineering at the Sydney Institute of Technology, some TAFE colleagues were engaged in the conspiracy with others, including members of the NSW Police, politicians and members of the medical profession to destroy his family. Subsequently when his wife died, apparently as a result of leukaemia on 15 November 1992, he claimed that she was "murdered" as a result of this conspiracy which by then included the active participation of various medical professionals at Westmead Hospital. [17] One of the matters which has been the focus of much of the plaintiff's attention in recent years, and his evidence and submissions in these proceedings, has been to obtain an inquest under s47 of the Coroners Act 1980 into his wife's death, but this is the first time that an application has been made to a court for such an order, although it has previously been mentioned in passing. [18] 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". [19] 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. [20] Another reason given for the conspiracy at times has been that a number of persons, particularly, as I understand it, in 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. [21] 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. [22] 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". [23] 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, Merilyn 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. Page 5 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 [24] An elaborate description of the conspiracy in its then form appears in the letter from the plaintiff to Mr Tony Fordham of the Professional Review Branch of Medicare dated 24 July 1993, which is in Exhibit 3 at p34 to p36. During the course of the hearing, the plaintiff also said that he still stands by all complaints he made in a letter to the Police dated 25 November 1991 (one year before his wife's death), which is contained in Exhibit B at p64 to p67. [25] I have come to the conclusion that there is no credible evidence against any of the people to whom the plaintiff refers. There is not one scintilla of evidence which supports his allegations of conspiracy and/or the murder of his wife. He has provided no tangible or even circumstantial evidence which would enable me to draw any inferences in support of the many allegations he has made, and his accusations are not only baseless and scurrilous, but traduce the names of many reputable people, leaving them defamed and without effective remedy. [26] One of the doctors involved in the later stages of the plaintiff's wife's illness, and in particular, the bone marrow transplant, was Professor Bradstock at Westmead Hospital. In 1994, following alleged threats by the plaintiff on the life of Professor Bradstock and his family, the plaintiff was detained as an involuntary patient under the Mental Health Act 1990, and took proceedings against the Superintendent of the Nepean Hospital where he was detained (Protective Division No 52/94). [27] Brownie J held that the defendant had established that the plaintiff was then a mentally ill person, that the evidence that the plaintiff was suffering from a delusional state was overwhelming, the delusions being the various theories of conspiracies being referred to in this case as they had been expressed up to that time. His delusions have continued to be manifest since that time, subject to a number of variations such as I have referred to. On 8 August 1994, the NSW Court of Appeal dismissed an appeal by Mr Bhattacharya against Brownie J's decision (No CA 40277/94), and an application for special leave to appeal to the High Court was refused on 30 May 1995 (No S128/94). [28] The plaintiff was then examined by HealthQuest in relation to his employment and, in a report dated 8 June 1995, Dr Gapper found that he had "a persistent psychiatric condition". At a subsequent examination on 27 August 1998, contained in the report from HealthQuest dated 8 October 1998, the examining consultant psychiatrist's opinion was that he continued to suffer from this delusional disorder, evident when he was previously seen in 1995. [29] It is necessary, because of its relevance, to these proceedings, to refer to a history of further litigation involving the plaintiff. [30] As a result of the threats made to Professor Bradstock and his family at the Penrith Local Court on 31 October 1994 Apprehended Violence Orders were made against the plaintiff not to approach et cetera Dr Bradstock, his wife or daughter. The plaintiff appealed to the District Court, but his appeal was dismissed by Judge Christie QC on 13 April 1995 (No 94/22/1336). A purported appeal to the Court of Criminal Appeal was dismissed as incompetent on 19 September 1995 (No 60245/95). [31] Meanwhile, on 5 April 1995, the plaintiff commenced proceedings against the NSW Teachers Federation in the Industrial Court of New South Wales for "failing to prosecute the parties for civil or criminal offences" against him. The application was refused (No CT1184/94). An appeal to the Full Bench of that Court was dismissed on 27 October 1995 (No CT1194/94). [32] There were further proceedings in the Industrial Commission of New South Wales before Schmidt J (No 2441/95) where the plaintiff sought leave to argue that his employer had discriminated against him contrary to s491(1) of the Industrial Relations Act 1991. Leave was given to argue only one of these points relating to sick leave, and this matter was subsequently settled when the matter came before the Full Bench of the Industrial Commission on 10 April 1997 (No 2441/95). [33] On 27 October 1997, the plaintiff was convicted in the Local Court at Liverpool Street, Sydney on two charges of stalking, the allegation being that he had followed and threatened a person whom he believed, erroneously, to be a daughter of one of the Ministers allegedly engaged in the conspiracy against him. Having been convicted, he appealed to the District Court, but whilst the appeal was 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 whilst he was under suspension, and that it make an appropriate agreement to compensate him. These applications were dismissed. [34] The actual appeals came on in the District Court before Chief Judge Blanch QC on 4 May 1998, when the appeals were upheld and the convictions quashed, not because his Honour was not satisfied that he had not done what was alleged, but because he considered that in view of the plaintiff's irrational state, he was not satisfied beyond reasonable doubt that he was capable of forming the intention to carry out the threats (Nos 97/12/1065 and 97/22/1050). [35] At various times during this period, the plaintiff was suspended on full pay from his employment with the TAFE Commission. The original suspension was on 10 November 1997 after his convictions for stalking on 27 October 1997 and was in accordance with the Teaching Services Act 1980 s87(1)(b), and the Department's policy set out in Exhibit 1A at tab 28. In fact, he had failed to notify the Department of the pending charges, but his employer Page 6 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 ascertaining that he had, in fact, been convicted, and had an appeal pending, he was suspended. Subsequently, when he was charged on 1 May 1998 with other offences, he was again suspended without pay from 12 May. [36] In respect of these suspensions the plaintiff made application to GREAT but each appeal was dismissed because it was held there was no jurisdiction pursuant to s23(1) of the relevant Act, the relevant proceedings in GREAT being on 2 February 1998 (No 483/97) and 10 August 1998 (No 331/98). [37] Subsequently, he was charged with breaches of discipline and again suspended on full pay on 3 November 1998. He again applied to GREAT in relation to his suspension and, once again, the Tribunal held he had no jurisdiction on 5 November 1998 (No 576/98). [38] In respect of the disciplinary charges an internal inquiry was conducted from 4-17 December 1998 before Mr Ron Button, the second-named defendant, who on 27 January 1997 reported to the Managing Director of TAFE, Dr Boston, who is the third defendant. Acting on the recommendations contained in the report, Dr Boston, terminated the plaintiff's employment with TAFE on 28 April 1999. He thereupon appealed again to GREAT (No 314/99). Judgment was given 10 September 1999 when the appeal was dismissed and his dismissal confirmed. He has since appealed to the Court of Appeal, and this appeal (No CA40674/99) is listed for hearing next week on 7 and 8 March 2000. [39] It is now necessary to refer in some detail to previous proceedings in this Court. [40] In April 1997, the plaintiff commenced proceedings No 2151/97 in the Equity Division, and by an Amended Summons, filed on 3 June 1987 in those proceedings, he named 14 defendants. The Amended Summons was a rambling, vague document notable for its generality and, although it did not specify a conspiracy as such, it alleged a cacophony of wrongdoing by the various defendants against the plaintiff and his family. [41] The defendants applied to strike out the Amended Summons, and this application was heard by Master Macready on 5 June 1997. The Master, on evidence before him, could not see that there was likely to be a claim mountable in the way set out but, because he was concerned there may have been a limitation point, he was reluctant to immediately dismiss the proceedings; accordingly, he stayed the proceedings and granted leave to the plaintiff to apply to file a Statement of Claim on condition that such application was accompanied by the form of the Statement of Claim which the plaintiff wished to have leave to file. [42] Such application was ultimately made by Notice of Motion filed on 10 March 1998, which contained the form of the proposed Statement of Claim. It was heard by Master McLaughlin on 3 April 1998, who also, at the same time, heard a Motion by the defendants to dismiss the proceedings. [43] The proposed Statement of Claim consisted of paras numbered 1.01 to 1.63 and 2 to 5, both inclusive. It referred to the plaintiff's employment with the Department of Public Works, his dismissal therefrom, the proceedings in the Anti-Discrimination Board, his complaints to police including one of "a silent plan of doctors to carry out the medical malpractice against the plaintiff's family" (para1.16), and "the homicide of the plaintiff's wife" (para1.22). It also alleged wrongful arrests and detentions on 15 January 1993 (para1.27 and para1.37), 11 February 1994 (para1.29 and para1.37) and para3 to 9 October 1997 (para1.41). Finally, it alleged that between 1990 and 1992, the teachers at the Sydney Institute knowingly allowed his wife to be killed when they could have informed him about their knowledge of "the cruel plan" (para1.54 and para1.56). He claimed an order that the defendants compensate him sufficient to satisfy him in respect of his claims, or alternatively exemplary damages (para2), and that the Police and Director of Public Prosecutions (the latter not a party to the proceedings) take immediate action to apprehend and charge various people for the murder of his wife (para3). [44] The Master ordered that the proceedings be dismissed against all parties other than the Minister for Police, the Police Commissioner, the Department of Corrective Services, the Minister for Health and the Director-General of the Health Department and, in respect of those defendants, gave the plaintiff leave to apply to file a Statement of Claim which complied with the Rules relating to the allegations of false imprisonment and wrongful arrest as alleged in para1.27, para1.37 and para1.29. He did not allow him to re-plead the detention alleged from 3 to 9 December 1997 (para1.41). [45] In respect of the other claims and the other defendants, he ordered that the proceedings be dismissed. Both parties appealed. On 5 March 1999, Young J dismissed the plaintiff's appeal and allowed the cross-appeal by the remaining five defendants on the ground that, having regard to the fact the plaintiff was taken before a magistrate and bail refused, and, that in the mental health matters, orders had been made under s27 of the Mental Health Act 1990, the claims were bound to fail. The effect of his Honour's orders were that the proceedings were wholly dismissed. Since then, on 18 February 2000, the Court of Appeal has granted the plaintiff leave to appeal against the decision of Young J limited to that part of his Honour's judgment allowing the cross-appeal on the grounds I have indicated (CA 40213/99). [46] Shortly afterwards the plaintiff commenced further proceedings No 2020/99 in the Equity Division, which were transferred to the Common Law Division and became No 20241/99 in that Division. That Statement of Claim repeated allegations of detentions which had been the subject of the earlier Equity proceedings, and on an application by the defendants, Master Harrison ordered that these be struck out: [1999] NSWSC 956. Page 7 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 [47] In this Statement of Claim, the plaintiff also alleged two further detentions alleged to have occurred after the Statement of Claim considered by Young J was filed, namely on 18 October 1987 and from 27 July to 6 August 1988. The Master ordered that, on the facts pleaded, these claims must fail and, accordingly, she dismissed the Statement of Claim as being an abuse of process, disclosing no reasonable cause of action. She also dismissed a Motion by the plaintiff for an interim payment of damages pursuant to s76E of the Supreme Court Act 1970. An appeal was lodged by the plaintiff and has been heard by Hidden J, who has reserved judgment. [48] I turn now to deal with the specific orders sought by the plaintiff in the present proceedings. In para1 of both the Summons and proposed Amended Summons, he seeks compensation including exemplary damages for the loss of his employment with the Open Training & Education Network of TAFE. The cause of action is not specified, but appears to be a claim for wrongful dismissal, which being a claim for breach of contract does not carry a right to exemplary damages. [49] In any event, the procedure laid down in the Teaching Services Act 1980 s87 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. [50] There is, however, another obstacle in the plaintiff's way. S24(1) of the GREAT Act 1980, gives an employee who has been dismissed, a right of appeal to that Tribunal. S25(3) provides that where an employee appeals to the Tribunal under s24, in respect of a decision of a kind referred to in s23(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. [51] 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. [52] In so far as the relief sought in para1 relates to matters other than his dismissal, eg. "loss of enjoyment of employment", these matters were canvassed in para1.49 to para1.58 and para2 in the proposed Statement of Claim disallowed by Master McLaughlin in the Equity proceedings No 2151/97 whose decision on this point was affirmed by Young J, and leave to appeal was not granted on these points by the Court of Appeal. Having sought to litigate these issues in those proceedings and the proceedings having been dismissed, the same issues cannot be litigated in these proceedings. [53] It follows, as regards the claims in para1, that no reasonable cause of action is disclosed, and as the matters have already been litigated, the claims are frivolous, vexatious and an abuse of process. Accordingly, the claims in para1 of the Summons and Amended Summons should be dismissed pursuant to SCR Pt13 r5(1)(a), r5(1)(b) and r5(1)(c). [54] By para2 of the proposed Amended Summons, the plaintiff claims an order pursuant to s47(2) of the Coroners Act 1980 that the inquest into the death of his wife be quashed and a fresh inquest held. One of the Notices of Motion seeks orders that the Coroner of the Westmead Coroners Court (sic) and the Attorney General be joined as parties to the proceedings. [55] Generally speaking, proceedings cannot be amended to include matters unrelated to the issues raised in the originating process, particularly where they involve the joining of persons not otherwise parties to the proceedings, and do not involve any of the original parties. [56] Moreover, there has been considerable delay in bringing this claim. Although the plaintiff has been complaining for many years, this is the first time he has formally sought an order in relation to a Coroner's inquest, although the matter was touched on in the proposed Statement of Claim dealt with in the Equity Division by Master McLaughlin. In his judgment the Master said that one of the plaintiff's complaints was that there had never been an inquest by the Coroner, but pointed out that the Coroner was not a party and no claim for the relief now sought was included. The matter was also referred to in the judgment of Young J at para9 and para32; but this is the first time there has been a formal claim for an order. [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 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. [58] In so resolving the matter, the Coroner was purporting to exercise his powers under s14(1) of the Coroners Act 1980, as it then stood, to dispense with the holding of an inquest. As no inquest has been held, s47(2) is not applicable, but there is power under s47(1) for this Court to order an inquest where none has previously been held and "it is necessary or desirable in the interests of justice that an inquest be held". Page 8 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 [59] The phrase "interests of justice" was considered by the Court of Appeal in Herron v The Attorney General (1987) 8 NSWLR 601 where McHugh JA said at 617 that at the forefront of matters to be considered in assessing the interests of justice is "the existence of a reputable body of evidence which, if accepted, would indicate that the original finding and as to manner and cause of death ... was erroneous." Further to what his Honour said, I consider that the law is correctly stated in Coronial Law and Practice in New South Wales, 3rd ed, by Kevin Waller, a former State Coroner, at 190 where the author says: "If the complaining relative wishes to proceed to a hearing, the Coroner must then decide whether or not to hold an inquest. One must be mindful that it will be necessary to bring to court doctors and nursing staff, whose abilities may be better employed elsewhere. If there is no indication of negligence, it is patently unfair to force staff to court where they can be subjected to emotionally and misguided questioning and accusation. Where, however, it seems that there is genuine cause for complaint, where appropriate recommendations might be forthcoming, where there is a possibility that the matter might be referred to a professional tribunal or where the possibility of the finding of an indictable offence under s19 exists, a hearing should be undertaken." [60] It therefore becomes necessary to consider the course taken by the Coroner in the present case to determine whether there is a reputable body of evidence, which, if accepted, would indicate that the originating finding as to the manner and cause of death was erroneous. The Coroner's Report is in Exhibit 1A at tab 30. It records Mr Bhattacharya's complaint and that the Coroner directed an investigation, which was conducted by Detective Laney of the Homicide Unit. He also directed the Coroner's Investigation Unit to conduct a medical investigation, and documents contained in Exhibit C indicate that the hospital was required to produce all documentation relating to the patient. The functions of the Coroner's Investigation Unit are described in Mr Waller's text at p6 and p190. Detective Laney and other police, particularly Detectives Keen and Mulherin, interviewed Mr Bhattacharya and they obtained statements from the relevant doctors, particularly Drs See and Donald. Meanwhile, through the Investigation Unit, the Coroner obtained independent medical opinion. A Post Mortem Report was also obtained which is attached to his Report. [61] The history of Mrs Bhattacharya's illness is set out in summary form on p1 and p2 of the Coroner's Report, and it is consistent with the reports and records available at this hearing. I have also heard oral evidence from Miss Sally Gordon of the Bone Marrow Donor Registry, which satisfies me that the bone marrow transplanted to the deceased was carefully and properly matched. [62] The statements of Dr See and Dr Donald, together with the pathology report and the report of Dr Kerry Atkinson of St Vincent's Hospital, who was approached for a second opinion, established conclusively that the plaintiff was suffering from acute myeloid leukaemia, a condition which is very often fatal and where the only hope, as here, was through a bone marrow transplant. Miss Gordon's evidence was that in many cases of leukaemia treated by bone marrow transplant, death is often subsequently due to infection. The Coroner's conclusions, set out particularly at p7 and p8 of his Report, show that he found that Mrs Bhattacharya died of natural causes and dispensed with an inquest. [63] 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. [64] The plaintiff, no doubt, felt and continues to feel his wife's death deeply, and it seems he continuous 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. [65] If the Amended Summons were allowed to include para2 of the Amended Summons, it would be struck out under Pt13 r5 as being frivolous and vexatious, and without any prospect of success. Accordingly, it is not proper to allow the amendment. [66] The application to join the Attorney General is based on subs(2A) and subs(2B) of s47. As the amendment is not allowed, the application to join the Attorney General must be dismissed, as must the application to join the Coroner. [67] Para2 of the original Summons and para3 of the proposed Amended Summons may be taken together. There are a number of problems in relation to them. Firstly, it is completely unclear as to which complaints Mr Bhattacharya is referring to. He has made a large number of complaints to police over a period in excess of seven years, many of which are detailed in the documents filed in Court. [68] The evidence before the Court demonstrates that he has had lengthy correspondence with the New South Wales Police Service through various agencies and that he has continued to repeat essentially the same allegations as he made in 1991 and 1992 concerning the plan to damage the health of himself and his family, and later the death of his wife. These have all been answered and some refer to the original investigation. Page 9 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 [69] There is no evidence that the Police Service failed to investigate any complaints or other matters for which there was some evidentiary basis and which it was reasonable for them to investigate. All these complaints have been investigated, some of them a number of times, and found to have no substance. [70] Notwithstanding the vagueness of the claims as expressed, it may be assumed that what the plaintiff wants investigated is the alleged conspiracy to terminate his employment at the Department of Public Works and the death of his wife. But these specific matters have each been investigated a number of times and there is nothing in the evidence to suggest that the investigations were not bona fide, thorough and adequate. I refer, in particular, to the investigations by Detective Laney and Detective Zemacuk. There is no evidence that suggests that any further investigation would result in any further material coming to light. [71] Assuming that this is an application for mandamus pursuant to s65 of the Supreme Court Act 1970 and assuming without deciding, that the Court has power to make an order in such a case, there is here no evidence that there is anything to investigate. I therefore, order that para2 of the original Summons be struck out and refuse leave to add para3 of the proposed Amended Summons. [72] All further references to paragraph numbers relate to the proposed Amended Summons. Para4 seeks an investigation by the Police Integrity Commission and the Notice of Motion seeks the joinder of the Commissioner of that Commission as a party. The Police Integrity Commission determined that the complaints made to it by the plaintiff were not Category 1 complaints and were matters with which it would not deal, but it referred them to the Ombudsman, as it is entitled to do, under s83(1) of the Police Integrity Commission Act 1996, as appears from a letter of 24 October 1995 which is attached to one of Mr McKay's affidavits. This is not a matter left over from the Royal Commission into the Police Service, which decided that the plaintiff's complaint was not appropriate to be investigated. [73] However, in relation to this claim, the plaintiff once again has a more fundamental problem, namely that it has not been shown that there is anything to investigate. There is no evidence to support his allegations. I therefore, refuse leave to include para4 of the Amended Summons and, likewise, dismiss the Motion to join the Commissioner of the Police Integrity Commission as a defendant. [74] Para5 relates to the Racial Discrimination Commissioner of the Human Rights Commission, and that defendant has already been dismissed from the proceedings pursuant to the order of Hulme J previously referred to. [75] Para6 seeks a declaration that the plaintiff's suspensions from his employment since 10 November 1997, was unlawful and contrary to the relevant provisions of the Teaching Services Act 1980. [76] I have already referred to the circumstances in which he was suspended on full pay. On each occasion he applied to GREAT, but GREAT held that it had no jurisdiction, and there was no appeal to the Court of Appeal in these cases. It would seem that, apart from appealing to the Court of Appeal, it may have been open to the plaintiff to seek judicial review of the decisions of GREAT or the initial determinations by the Department at the relevant time, but it would be futile to do so now. [77] He has been paid full pay whilst on suspension up until the date of his dismissal. There has, therefore, been no loss to him; and as a result of his dismissal, there is no continuing loss arising from the suspensions, as opposed to arising from the dismissal. [78] In any event, with respect to the members of GREAT who made the rulings, it appears to me that their rulings were correct. S23(1), which sets out the various decisions of an employer which may be the subject of an appeal to the Tribunal include decisions to suspend as a punishment where the employee has been guilty of misconduct or contravention of any law or rule, or direction of the employer (para(e)), to reduce the rank, grade or pay of the employee (para(b)) or, to impose a fine or forfeit pay in respect of any offence of which the employee is held guilty (para(c)); but none of these cover suspension on full pay where there is no loss to the employee. I therefore refuse leave to include para6. [79] Para7 seeks an order prohibiting the Department of Education & Training from continuing their conduct discriminating against the plaintiff. Once again, there is no evidence of any discrimination now or in the past, and there is now no ongoing relationship between the plaintiff and the defendant. Apart from the various court proceedings, their relationship ended when his employment was terminated on 28 April 1999. Therefore, I disallow this amendment. [80] Para8 seeks a declaration that the "Plaintiff's arrest and detention on 1 May 1998, as coerced by the Department of Education and the New South Wales Police Minister, was unlawful". It is to be noted that what the plaintiff seeks is a declaration not simply that his arrest and detention on that date was unlawful, but that it was unlawful because it was based on coercion between the Department of Education and the Police Minister. It is not a claim for damages for wrongful arrest or false imprisonment, and the arresting officers are not the parties to the proceedings. [81] The relevant facts appear to be that the Apprehended Violence Orders having been made in favour of Professor Bradstock and his family by the Penrith Local Court on 31 October 1994, and confirmed by Judge Page 10 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 Christie QC on 13 April 1995, it was alleged that on 17 April 1998 in the foyer of the Downing Centre Local Court in the presence of a solicitor, Mr Harry Freedman, who at the time was acting on behalf of the plaintiff, he said: "I intend to get justice. My wife was killed. I am going to kill Kevin Bradstock. It is not ridiculous. I am going to kill Bradstock and if I cannot get him, I am going to get his wife and daughter ... I will kill her or his wife or Doctor Bradstock." [82] It was also alleged that on 22 April in that year, in a telephone conversation with Christine Powell, an employee of TAFE, the plaintiff said, amongst other things, that he would kill six children if his court case didn't go his way. [83] As a result of this information, the police arrested him on 1 May. At the Penrith Police Station he was asked questions which he declined to answer (as was his right), and he was charged with Knowingly Contravene an Apprehended Violence Order, contrary to s562I(1) of the Crimes Act 1900, and Knowingly Use a Telecommunications Service in such a way as would be regarded by a reasonable person as being in all the circumstances offensive, contrary to s85ZE of the Crimes Act 1914 (Cth). [84] At the time that he was arrested and charged, the police had in their possession a signed statement from Mr Freedman, the solicitor, together with a contemporaneous note he had made in his file, and a signed statement by Miss Powell together with a note she had made the day following the alleged telephone call, also signed by her, and other documents. It appears the proceedings in relation to the Apprehended Violence Order were discontinued, and the proceedings in relation to the telephone call were dismissed, although it is not clear why this was so. [85] In the light of the material that was available to them, the police had reasonable grounds to arrest the plaintiff; and indeed it would seem to have been desirable to arrest him to prevent him carrying out of either of his alleged threats. S562I(3) expressly authorises arrest without warrant of a person by a member of the Police Force who believes on reasonable grounds that an offence under that section has been committed. [86] Reference was made by the plaintiff to s3W of the Crimes Act 1914 (Cth), but that section authorises arrest where the police have a belief on reasonable grounds that a summons would not prevent a repetition or continuation of the offence, or the commission of any other offence. [87] In those circumstances, I can see no basis on which it could be submitted that the arrest was unlawful and there certainly is no evidence of coercion or collusion between the Department of Education and the Minister for Police in respect of it. It appears Miss Powell contacted the police after receiving legal advice, and Mr Freedman no doubt contacted them on his own responsibility. [88] It is worth noting these arrests were referred to in an affidavit before Young J (see affidavit of plaintiff sworn 23 July 1998, Exhibit 1A, tab II, para4) but it was not the subject of any claim in those proceedings. [89] In the Common Law proceedings (No 20241/99) which were the subject of the application before Master Harrison, there was no reference in the Statement of Claim to this detention, although there were claims in respect of later detentions. The claim has no prospect of success and, if allowed, would be struck out under Pt13 r5. I therefore refuse leave to make the amendment. [90] The only other claim in the Amended Summons is that contained in para8 seeking an order that the Defendants compensate the Plaintiff to his satisfaction as sought in the Summons; but the various claims having been struck out or disallowed, there is no basis for any claim for compensation or damages. Order [91] For these reasons I make the following orders: 1. On the plaintiff's Notices of Motion dated 1 April 1999 and 16 June 1999 seeking orders that the Coroner, Westmead Coroner's Court, the Commissioner of the Police Integrity Commission and the Attorney General be joined as additional defendants in the proceedings and for leave to file an Amended Summons, those applications are all dismissed. 2. I also dismiss the plaintiff's Notice of Motion filed on 9 March 1999. 3. In relation to the Notices of Motion filed on behalf of the State Coroner, Westmead Coroner's Court, the Commissioner of the Police Integrity Commission and the Attorney General seeking orders that leave not be granted to the plaintiff for them to be joined, as I have refused the plaintiff's application to have those parties joined, their applications would appear to be superfluous. 4. As to the claims in the Notices of Motion of those potential defendants seeking orders striking out the relevant parts of the Amended Summons, as leave was not properly given to file the Amended Summons, in respect of those three matters I make no orders. Page 11 of 11 Bhattacharya v Hamilton, [2000] NSWSC 102 5. In relation to the defendants' original Notice of Motion filed 30 March 1999 on behalf of the remaining defendants named in the original Summons, I order, pursuant to SCR Pt13 r5, that the proceedings be dismissed and I direct entry of judgment for those defendants. 6. I order the plaintiff to pay the costs of all the defendants and potential defendants of the proceedings and of each of the Notices of Motion with which I have dealt. Appendix Addendum: Since delivering this judgment in court on 1 March 2000, I have received a communication from counsel for the defendants to the effect that the plaintiff was not employed pursuant to the Teaching Services Act 1980, but pursuant to the Technical and Further Education Commission Act 1990, and his suspension was made as an exercise of the Managing Director's powers in s14(1) of that Act. This correction does not affect the reasoning of any part of the above judgment. The plaintiff in person Counsel for the first - sixth and eighth defendants and first - fourth respondents: C Ronalds Solicitors for the first - sixth and eighth defendants and first - fourth respondents: IV Knight, Crown Solicitor End of Document