Bhattacharya v Berger & Anor S143/1999 [2000] HCATrans 401 (27 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S143 of 1999

B e t w e e n -

PRANAY KUMAR BHATTACHARYA

Applicant

and

VICTOR BERGER & HARRY NORMAN FREEDMAN trading as MILNE BERRY & BERGER

Respondents

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 JUNE 2000, AT 2.41 PM

Copyright in the High Court of Australia

MR P.K. BHATTACHARYA: I am the applicant, your Honour.

GLEESON CJ: Yes, Mr Bhattacharya.

MR BHATTACHARYA: Your Honour, this application should be - leave should be allowed. It does not matter which way you look at it - either simplistic view or the constitutional view or pure legalistic view. Some tribunal got to make a decision and it is my prayer today, it is the High Court of Australia must take initiative and determine this matter. Now, I mention that there are other applications before this Court which has proceeded from the other decisions of the Court of Appeal, namely No 77 of 2000, and section 32 of the Judiciary Act provides that the High Court determine all the matters together.

Now, that is our leave for the moment, but in simplistic view of this that on the material which is before you on Sydney 143/1999, there are a number of points of law which I need to be determined. Firstly, if you look at the Bankruptcy Act, that the court ought to have been satisfied that either set-off cross claim or cross demand or counter claim, I do not believe the court had chance, or it did, consider cross demand. Now, the court ought to have considered the cross demand and, on the basis of the judgment which, when you look at it, you could not actually form the view whether the judge says there is no cross demand or cross demand.

I take you to the judgment of Einfeld J on 2 July 1999, page 006. It starts from there and if you have a look at page 14 of the judgment he quite clearly mentions the amount of cross demand was a.....questions. On the basis of the material, I think Justice Einfeld formed the wrong view, that there was no cross demand. Once that is the case, then the second point of law is whether the Legal Profession Act, section 8A - - -

GLEESON CJ: The critical part of the reasoning of Justice Einfeld, as I understand it, commences on page 17 from paragraph 28, beginning with the words "It is well settled". Do you see that?

MR BHATTACHARYA: Yes.

GLEESON CJ: So the question is, what is the error in the reasoning on that point of Justice Einfeld?

MR BHATTACHARYA: Your Honour, prima facie, the point of what constitutes prima facie is a question. The error is, on the evidence, which is facts stated by the Judge himself, and what are available to him, that is the prima facie evidence. In fact, may I say this with due respect, if you look at the Evidence Act, if you look at all the public documents which are available in terms of the facts alleged, not only is there a prima facie but a balance of probability tilts my way, that there has been serious problem. Once you define the serious problem, then I would like to say that you will give effect to the material which has been given for the hearing, American Cyanamid v Ethicon, Lord Diplock what he said.

Once there is a serious question remains unanswered and has not been answered, the judgment is not final. Not related to the debt but in totality of it. That simply means the matter remains interlocutory. The further question that arises as to my knowledge goes, your Honour, in interlocutory proceedings my status quo or applicant's status quo, in law, ought not to have been disturbed and day by day since I have met you in the first occasion in 1994, my position has been gradually, by various reasons, had been reduced. That is error of law. If my position to be restored, before we can start, all material in the facts for determination, whatever that might be, that simply means that my family need to be restored at the point of 14 October 1984.

Alternatively, a court will have to make an order which will subjectively satisfy me that I am exactly in that position. In that respect, your Honour, with due respect, I will submit to you that I am not a qualified lawyer, and forgive me, that I am incompetent in that sense. So I have not been able to provide you all the material that I have. When the matter remains interlocutory, this is authority, Egerton and Others v Shirley (1944) All ER 583, and I have copies for you, your Honour. Having said that, may I allow you to read that judgment, your Honour?

GLEESON CJ: Yes.

MR BHATTACHARYA: Shall I go ahead?

GLEESON CJ: Yes, you have 20 minutes to address us, so you can occupy that time as you wish, by reading judgments, or otherwise.

MR BHATTACHARYA: Yes, I have about 13 minutes from now, your Honour. If, and that is the case, taking totality of all cases, to date 45 of them all, ranging from the Magistrates Court, the District Court and the Court of Appeal, they are all interlocutory. My prayer is the common law find a solution to put me exactly in the same position when this problem started, and that is 14 October 1980. Then we will start all the matter. The allegations, what anybody has against me - all will go. Place to place. I lived in three countries. Will go place to place to determine where those allegations are, number one.

Secondly, in Justice Einfeld's judgment, Justice Einfeld AO, his judgment, the names are mentioned and the point of law is that if you look at the public documents available, which are a Royal Commission report against police, which I have here, your Honour, no time, and reports prepared by Carmel Niland, while investigating the Police Minister, demonstrates this person's psychology. I am a victim of the psychology. So, point of law is the court.....satisfied that I have cross demand. Statement of claim was so material, secondly.

Now principle of - which have been affirmed by your Honour on 11 May 2000, Guss v Johnstone, I stick to the observation what Justice Callinan made, that whether the word "determination" - the judge has determined the fact - has got some meaning. My submission in law is that word has meaning. It is not only the statement the judge has made, judge ought to have determined. If he has not determined, the matter is interlocutory and I seek an order today in restore me before we can start. Now, before I forget, your Honour, I will take you to the material which I have submitted at the back of the document where I have asked Auscript to provide me the transcript of oral judgment, in addition to the written judgment, which was delivered by Justice Einfeld. That is page 187 onwards, of the material which I have submitted, precisely page 188.

That written material was not made available to me. I am not sure whether the appeal judge had it but even if it is extempore, it is not extempore for the purpose of appeal because appeal was heard subsequent to the date and applying all principles of natural justice, in particular, the principles stated in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, it was my legitimate expectation, or at least expectation in terms of procedural fairness, I ought to have given the material to answer it for the purpose of appeal. That was not done. I believe - I do not know what is in there but I am inclined to believe that because I was not given that material there is something in there I ought to answer it. I have a right to do that.

That is not delusional, it was simple fact that I have not got the material. That is evidence, your Honour, if not clear, that would Auscript write to me that on page 188, that 2/7/99 judgment delivered at 3.04, that means it is a time on the tape. It is not the written judgment.....3.04. So it is a short judgment. There are bias indicated in the judgment. With due respect to all the judges, I look at the judgment, not the judges. I think there was bias in the judgment. Justice Einfeld ought to have disqualified himself from hearing the matter for various reasons. I give one reason.

Justice Einfeld says in 1990 he left Human Rights Commission. It is in that area between 1988 and 1999 my family has been destroyed by abuse of human right carried out by officers, including officers of the Human Rights Commission. I cannot accept that. I want with due respect ask him. As a matter of fact, truthfully speaking, I did that to preserve his position, not my position, because I could then sort it out with other person who I could have sort it out in a better way.

Your Honour, there are a couple of other things. I know that I have been asked time and again, what is the point of law? But there is a serious point of law. The High Court decision on Earthline, State Rail Authority of New South Wales v Earthline Construction Pty Ltd [1999] HCA 3; 160 ALR 588, lays down quite clearly, in circumstances when appellate court should exercise totality of its power and complete jurisdiction in those cases where there is a obviously wrong conclusion. May I say this? That today I have been nailed, not close to the wall - I am close to the wall, I am not nailed, but I am close to the wall simply because some court, Court of Appeal, has determined psychiatric evidence against me, without any evidence and Justice Einfeld mentioned that.

They say that he has a paranoid delusion or there is a serious conspiracy against him. They cannot say which. My submission is that is a very serious point of law. That you pick up a person, ordinary person, ordinary person that is....., that today my asset in the world is $90 and a few cents, which I have in my pocket. Now, obviously, I have given you some material here, page 172 of the material, your Honour, "Commentaries on The Laws of England" by Sir William Blackstone, Garland Publishing, page 477.

Certainly, there is, historically, to try to get somebody bankrupt, certainly there is some element of dishonesty, fraud, involved in it, in almost all cases. Certainly, the bankruptcy, where debtor should be protected by the court order - it is not the case where you pick up a person, you kill his wife, then put him in prison, declare him mad, take his job away and then you say, "Righto, we will bankrupt you as well". I believe that is invasion of primary right which is granted by the Constitution. I say this because if you look at Justice Murphy's judgment, that is, Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556, and I have included that relevant part in page 53 to 57. Now, page 55, where he starts - I will read out only part. It is a small part within the time limit:

The Australian Constitution must be interpreted against a background of responsible government and democratic principles generally. Implications should be made which would promote such principles rather than those of arbitrary government and tyranny.

GLEESON CJ: Thank you, Mr Bhattacharya.

This is an application for special leave to appeal against a decision of the Full Court of the Federal Court of Australia given on 14 September 1999. The Court is of the view that there is no reason to doubt the correctness of the decision of the Full Court of the Federal Court. The application is refused.

Call the next matter, please.

AT 3.03 PM THE MATTER WAS CONCLUDED