Bhattacharya v Freedman [2000] NSWSC 730

New South Wales Supreme Court

CITATION : Bhattacharya v Freedman [2000] NSWSC 730 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20363 of 1998 HEARING DATE(S) : 19 May, 10 July 2000 JUDGMENT DATE : 27 July 2000

Pranay Kumar Bhattacharya (Plaintiff) PARTIES : v Harry Norman Freedman Trading as Milne Berry & Berger (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : N/A (Plaintiff) Mr P Strasser (Defendant) SOLICITORS : In person (Plaintiff) Charles G Roth & Co (Defendant) CATCHWORDS : Summary relief - security for costs - unrepresented plaintiff who is impecunious and a prolific litigator. LEGISLATION CITED : Mental Health Act 1990. Supreme Court Rules 1970, Part 13 rule 5, Part 15 rule 26. Cherry and Others v Reid and Others (Federal CASES CITED : Court, 21 November 1996). Rajski and Another v Computer Manufacture & Design Pty Ltd (1982) 2 NSWLR 443. Shannon v Australia and New Zealand Banking Group Limited (No 2) (1994) 2 Qd R 563. DECISION : See paragraphs 15, 23 & 24.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 27 JULY 2000

20363 of 1998 PRANAY KUMAR BHATTACHARYA v HARRY NORMAN FREEDMAN Trading as MILNE BERRY & BERGER JUDGMENT 1 The plaintiff appears in person. The defendant is a solicitor. 2 The plaintiff's wife died on 15 November 1992. Since then, the plaintiff has entertained fears as to conspiracy inter alia concerning her death. There is a long history (including a detention under the Mental Health Act 1990 and an arrest). There has been a plethora of litigation. It is unnecessary to produce the detail in this judgment. 3 The plaintiff instructed the defendant to act on his behalf. Costs Agreements have been made. Legal services have been provided. The defendant has rendered Bills of Costs. Largely, the costs have not been paid. 4 Costs have been assessed and a filing of the Certificate of Determination has taken place. A Bankruptcy Notice has been issued. The plaintiff's attempts to have it set aside have been unsuccessful. 5 Subsequent to the issue of the Bankruptcy Notice, the plaintiff took the stance that he had a claim for negligence against the defendant for damages in excess of $1,000,000. Thereafter, he brought these proceedings. A Statement of Claim was filed on 14 September 1998. 6 The purport of the process is to propound a claim for exemplary damages based on professional negligence. It contains numerous allegations. They relate inter alia to the alleged conspiracy. 7 Although it has pleading deficiencies, these have been pleaded over. A Defence was filed on 15 February 1999. Apart from an admission, it traverses other allegations made in the Statement of Claim. The stance taken by the defendant is that inter alia there has been no breach of retainer, no negligence and no basis for claiming exemplary damages. 8 The proceedings have been the subject of Differential Case Management. Two Notices of Motion have been filed. One has been filed by the plaintiff. He seeks the entry of judgment for damages in the sum of $1,000,000. The other has been filed by the defendant. he seeks firstly, relief under either Part 13 rule 5 or part 15 rule 26 of the Supreme Court Rules 1970, or secondly, security for costs. 9 The plaintiff relies on a number of affidavits. The defendant has sworn two affidavits. There has been a substantial tender of documentation by the parties. There has been lengthy cross-examination. Submissions have been made at great length (both orally and in writing). The hearing extended over two days. 10 The court is faced with the extraordinary situation of both parties seeking summary relief. The court has a discretionary power to grant such relief. The discretion is exercised having regard to the relevant circumstances in the particular case before the court and so that justice is best served between the parties. The effect of the decided cases is to impose restriction on the exercise of the discretion (it is to be exercised only in what might be described as clear cases). The party seeking summary relief bears the onus of demonstrating an entitlement to it. 11 It is not necessary to canvass the many submissions that have been made. The summary applications can be disposed of without getting immersed in the mass of material before the court. 12 The material offered by the plaintiff even falls short of satisfying the formal matters required by the rules. The claim is founded on either breach of contract or breach of duty. It is rare that summary relief is granted in negligence cases. The court has always been loath to summarily intervene where questions of negligence are involved. The view has been taken that these can only really be satisfactorily resolved at trial where the court has the advantage of all of the evidence. Where there is a claim for damages, the damages need to be assessed. This is not appropriate in a hearing for summary relief. On the material before the court, the plaintiff has failed to demonstrate either a clear case of liability or quantum in the sum of $1,000,000 or any other amount. 13 The material reveals that the plaintiff's case may have real difficulties. Whilst remaining doubt has prevented me from reaching the conclusion that it is clearly hopeless, the prospects of success seem to be at best very slender. Not only are there serious liability problems, there are real difficulties confronting the recovery of exemplary damages. 14 The pleading deficiencies would normally be expected to be the subject of relief under Part 15 rule 26 of the Supreme Court Rules 1970. However, because a Defence was filed back in February 1999, I am not satisfied that relief of this nature should now be given to the defendant. 15 In my view, neither party has demonstrated an entitlement to summary relief. Both applications are refused. The costs of the applications are to be costs in the cause. 16 I shall now turn to the claim for security for costs. The defendant looks to the inherent jurisdiction of the court. This power is an additional one to that provided by statute and rules of court. 17 The court has a discretion to make the orders sought. It is exercised having regard to the circumstances of the particular case before the court and so that justice is best served between the parties. The defendant bears the onus. The court has been referred to a number of authorities (including Rajski and Another v Computer Manufacture & Design Pty Ltd (1982) 2 NSWLR 443; Shannon v Australia and New Zealand Banking Group Limited (No 2) (1994) 2 Qd R 563 and Cherry and Others v Reid and Others (Federal Court, 21 November 1996) ). 18 The indications are that proceedings would be time consuming. The hearing could be expected to occupy several days. 19 The plaintiff is a prolific litigator (the word "vexatious" has been used). He has instigated numerous proceedings and appeals (since at least 1982). Largely, he has been unsuccessful. Many costs orders have been made against him. Many costs orders remain unsatisfied (including costs owed to the defendant). 20 On the evidence, the plaintiff is not in a position to satisfy an adverse order for costs. He appears to be impecunious. His major, if not sole, asset was divested in 1992. This was his house. It was transferred to his daughters in consideration of love and affection. 21 For some years the plaintiff has been in a position where he has been able to litigate without being subjected to the costs burdens of litigation. In this case, he is prosecuting litigation which at best has very slender prospects of success. 22 I am satisfied that this is an appropriate case in which an order for security should be made. At this stage, an interim order only is sought. There is evidence which justifies the making of such an order in the sum of $20,000. 23 I order that the proceedings be stayed until security towards the costs of the defendant be provided by the plaintiff in the sum of $20,000. Any question as to the manner of the giving of the security can be dealt with by a registrar. The defendant is to have liberty to apply for additional security for his costs. The plaintiff is to pay the costs of the application for security for costs. 24 The Exhibits may be returned. **********