Bhattacharya, Pranay Kumar v Berger, Victor & Ors [1998] FCA 1797

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 7269 OF 1998

BETWEEN: PRANAY KUMAR BHATTACHARYA

Applicant

AND: VICTOR BERGER & HARRY NORMAN FREEDMAN TRADING AS MILNE BERRY & BERGER

Respondent

JUDGE: THE HON JUSTICE MARCUS EINFELD AO

DATE: 8 OCTOBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT The applicant debtor has applied to set aside a bankruptcy notice. The matter has been in my personal docket since the middle of the year and on 28 August the applicant and the second respondent, Harry Norman Freedman, appeared before me. On that occasion the application was adjourned and the applicant was ordered to file and serve an affidavit of the evidence upon which he relied, and particulars of the allegations of negligence which he then said constituted a cross claim for an amount exceeding the debt claimed in the bankruptcy notice. The matter was adjourned to 14 September when I directed that the submissions in the matter be taken in writing. I set a timetable for the submissions which involved the applicant filing his submissions by 12 October and the respondent by 26 October with any submissions in reply by 2 November. After those orders were made and without any prior notice, the applicant moved the Court by a motion dated 1 October for an order that I disqualify myself from the hearing. The grounds for the application are in part set out in an affidavit of the applicant of 1 October. There appear to be two separate bases upon which the application was made, although the language and format of the affidavit are somewhat confusing. The first is that the name Einfeld "had something to do with the Labor Party". He said that he had himself been, and may still be, a member of the Labor Party but in 1980 he heard the name Einfeld in that context. The second basis for the application is that the applicant was also told by Irene Moss and Carmel Niland somewhat later something about the name Einfeld. I have nothing to do with the Labor Party. It is well known that my late father was a member of that Party for probably 60 years or more and served in Labor parliamentary parties and governments, but that could not possibly be a basis for my disqualifying myself. When I explained this to Mr Bhattacharya, he expanded the submission into a suggestion that in some way some or all of the predicament in which he finds himself was engineered by the Wran Labor Government in which my father was a minister. If so, my father never mentioned it to me and I had never heard of Mr Bhattacharya until his application came before me in court. Having in mind the fact that the Wran Labor Government has been now out of office for very many years, and my father retired from Parliament in 1982, I find it very difficult to understand how it or he could become relevant in relation to an application to set aside a bankruptcy notice issued in 1998. Even if there was a connection, I certainly had nothing to do with any part of Mr Bhattacharya's predicament. I know nothing about any association or otherwise of him with the Labor Party or anything that the Labor Party or any Labor Government might have had to do with his situation. No member of the public with knowledge of these facts could entertain a doubt about my capacity to deal impartially with the present application. The second ground which emerges from the affidavit seems to relate to my involvement with human rights work in Australia and overseas over many decades. The mention of Irene Moss and Carmel Niland is a reference to, in the first instance, a fellow Commissioner of mine when I was President of the Human Rights Commission and in the second instance the then President of the New South Wales Anti-Discrimination Board with whom I worked closely in human rights during my term of office. I have not seen or spoken to either of them for some time. When I did, Mr Bhattacharya's name or predicament was never mentioned or adverted to. Mr Bhattacharya also mentioned my membership of the International Commission of Jurists and other bodies that have to do with justice, the rule of law and human rights. Although I am a member of the organisations mentioned by the applicant, I do not hold office in most of them. Many judges are members of the same or similar professional bodies as those to which I belong. That fact could never be a basis for disqualification unless the judge, while in office, had become aware of or had any part to play in a consideration of any representations made by Mr Bhattacharya which have relevance to proceedings which the judge was hearing. In those of the mentioned organisations where I do or have held office, I have never heard of Mr Bhattacharya or any applications he might have made to any of those bodies for some consideration of his situation. In his affidavit Mr Bhattacharya also explains that he has a different view about human rights than he suspects I do and a different view of multiculturalism which I have long supported. He says that he supports a concept of "mono multi-culture". I have not asked him to explain the term. I have not heard of it before but I have no view favourable or otherwise of people who do not agree with my point of view on some of these wider social issues. Certainly I never ask any litigants to tell me what their political or social views are when they appear in my Court. If Mr Bhattacharya had not raised these matters in his affidavit and his submissions, I would not have known of his views and I would not have asked what they were. Even if I were to know whether he held the same or a similar view to me, it would not affect my judgment in the slightest. Most importantly of all, none of the matters which have been raised in the application have anything to do at all with a determination of an application to set aside a bankruptcy notice on the grounds that Mr Bhattacharya has a counter claim for negligence against Mr Freedman. In his oral arguments today, in addition to his written affidavit, Mr Bhattacharya has raised such matters as the involvement of politicians, human rights activists, at least one or more judges – some three have been named in the course of proceedings – and other people in doing injustice to him. None of these assertions are related to this case. Even if the allegations he makes in this regard were correct, they would as I see it have nothing to do with the application to set aside the bankruptcy notice where the issue is whether he can establish, at least arguably, a counter or cross-claim against Mr Freedman for negligence in his legal representation of him. As I see it at the moment, and subject only to the submissions yet to come, there is no connection between the allegations involving other judges and public figures and the application to set aside the bankruptcy notice. No difficulties Mr Bhattacharya may have had in that group of people can be taken into account. Even if I wanted to, there is no basis in accordance with authority on which I could disqualify myself. Clearly, judges cannot disqualify themselves from hearing cases just because somebody makes an application. If the position were otherwise, there would be no judges to hear some cases at all as an application for disqualification was made to every judge to whom the case was allocated. The papers show that this case came to me by random selection in accordance with this Court's completely objective mechanism of determining the allocation of cases. If there were any merit and substance in some of the more personal allegations made, it may be reasonable in the overall interests of justice that the Court transfer the case to another Judge whatever the inconvenience to its internal arrangements. But there is no basis for suggesting that I could not and would not bring an impartial and objective mind to the matters which are going to be presented to the Court in this case. The motion for disqualification is dismissed. [AFTER DISCUSSION] The respondent's costs of this motion will be reserved until the case is decided.