Ghosh v Baycorp Collections PDL Aust Pty Ltd

[2016] NSWSC 481

Supreme Court

New South Wales

Medium Neutral Citation:	Ghosh v Baycorp Collections PDL Aust Pty Ltd [2016] NSWSC 481
Hearing dates:	15 April 2016
Date of orders:	28 April 2016
Decision date:	28 April 2016
Before:	Garling J
Decision:	(1)   First Further Amended Summons filed 18 May 2015 is dismissed. (2)   The plaintiff is to pay the defendant’s costs of the proceedings.
Catchwords:	PRACTICE AND PROCEDURE – civil – Summons seeking to appeal judgments of the Local Court – where Local Court entered default judgment and subsequently refused to set the default judgment aside – whether any of the Local Court judgments disclosed an error of law
Legislation Cited:	Legal Profession Uniform Conduct (Barristers) Rules 2015 Local Court Act 2007 NSW Barristers Rules (January 2014) Uniform Civil Procedure Rules
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Dr Ratna Ghosh (P) Baycorp Collections PDL Aust Pty Ltd (D)
Representation:	Counsel: R Rasmussen (P) A Kaufman (D)   Solicitors: Smith Leonard Fahey (D)
File Number(s):	2014/147232
Publication restriction:	Not Applicable

Judgment

1. Baycorp Collections PDL Aust Pty Ltd (“Baycorp”) commenced proceedings against Dr Ratna Ghosh in the Local Court in 2013. On 20 May 2013, Baycorp obtained default judgment against Dr Ghosh in the sum of $15,026.87.

2. Between June 2013 and September 2014, Dr Ghosh filed seven Notices of Motion in the Local Court seeking, in various ways, to challenge the default judgment.

3. By a Summons filed on 15 May 2014, Dr Ghosh commenced proceedings in this Court seeking leave to appeal against the various decisions of the Local Court. The original Summons was amended on 2 February 2015. It was further amended on 18 May 2015 when Dr Ghosh filed a document entitled “First Further Amended Summons” (the Summons).

4. The Summons came before the Court for hearing on 15 April 2016.

5. For the reasons which follow, the Summons must be dismissed with costs.

First Further Amended Summons

6. The Summons seeks leave to appeal “… from the whole of the decision below”. In addition to costs it seeks the following substantive orders:

“3. Whole Judgment of the Court below be set aside.

4. Stay the proceedings and execution of the whole judgment of the Parramatta local court, any costs orders and resulting bankruptcy proceedings.”

7. The grounds of appeal are contained in 34 paragraphs. There is some infelicity of expression as it is obvious that the Summons was drafted by Dr Ghosh herself, without the assistance of a legal representative. All of the grounds make it sufficiently plain that Dr Ghosh is contending that the default judgment ought not to have been entered because there was no evidence of debt and the originating process had not been adequately served. She also contends that the judgments of the Local Court on her seven Notices of Motion each disclose an error of law because the correct result ought to have been, but was not, the setting aside of the default judgment.

8. Other challenges are mounted. They include:

1. that the original pleadings of Baycorp were “hopelessly inadequate” and failed to comply with r 14.13 of the Uniform Civil Procedure Rules (“UCPR”) because, accurately described, Baycorp’s claim was for unliquidated damages and the pleadings claimed a specified amount;

2. that, according to r 16.7 of the UCPR, the default judgment ought to have been entered for an unliquidated sum with an order that damages be assessed. It was not so entered and therefore failed to comply with the rules;

3. that the Local Court erred in refusing to set aside the default judgment in light of Baycorp’s failure to respond to Dr Ghosh’s subpoena to produce documents, and the failure of a third party to respond to a subpoena intended to produce proof that the debt was not owed;

4. that the Local Court failed to set aside the default judgment in circumstances where the debt relied upon by Baycorp was said by Dr Ghosh to be fraudulently entered in the relevant bank records;

5. various diverse criticisms of the conduct of Baycorp, ranging from deliberate fabrication of evidence, intentional backdating of documents, abuse of process, and a refusal by Baycorp to honour its own offer to settle the proceedings.

9. Finally, Dr Ghosh pleads that the decision was against the weight of evidence, and was not fair and equitable.

10. It is fair to say, as Fagan J did in an interlocutory judgment in these proceedings on 19 November 2015, that the Summons “… does not clearly identify what orders are the subject of the appeal nor what are the grounds of the appeal”.

Factual Background

11. Dr Ghosh entered into a credit card contract with the National Australia Bank Ltd (“NAB”) which resulted in her being the named cardholder for an “NAB Qantas Platinum Card”. Her nominated address on that account was 49 Patricia Avenue, Charlestown, NSW.

12. According to the claim made by Baycorp, Dr Ghosh fell into arrears with respect to this account in the sum of $12,084.52. By Deed of Assignment dated 26 October 2011, the NAB assigned the credit contract and the debt to Baycorp, a debt collection agency.

13. Baycorp asserted that it gave notice of the assignment of the contract and debt to Dr Ghosh in October 2011 and, by letter in 2012, demanded repayment of the outstanding debt. At the time Baycorp filed its Statement of Claim in the Local Court, it alleged that Dr Ghosh had not paid the relevant debt.

14. Dr Ghosh contends, to put her case generally, that the debt was not properly due and owing by her to NAB. She states that her account was not in default at the time of the assignment of the debt to Baycorp because a sum of $7,000 was wrongly debited to her account, not reversed when she complained, and a further $7,000 was debited to her account without proper foundation.

The Default Judgment

15. On 14 March 2013, Baycorp filed a Statement of Claim in the Local Court.

16. On 23 March 2013, Baycorp filed an Amended Statement of Claim, the only amendment being an alteration in the amount claimed.

17. On 10 May 2013, Baycorp filed a Notice of Motion seeking default judgment. In support of that application, an affidavit was affirmed by Mr Logan Wiggins, an officer of Baycorp. He deposed to the fact of the debt, and that it was outstanding at that time. He further deposed to the fact that the Statement of Claim had been served on Dr Ghosh by reference to an affidavit of service of Matthew Ellsmore sworn on 12 April 2013. That affidavit deposed to the delivery of the Amended Statement of Claim, and a letter from Baycorp to Dr Ghosh dated 5 April 2013, to a male person apparently over the age of 16 years and apparently residing at 49 Patricia Avenue, Charlestown, NSW. The deponent asked that male person whether Dr Ghosh resided there. He was informed that she did. The deponent deposed to having left the documents in the presence of the male “… as he refused to accept the same by hand”.

18. On 20 May 2013, a Registrar of the Local Court entered judgment for Baycorp against Dr Ghosh for $15,026.87 inclusive of interest and costs. That sum consisted of the original amount owing set out in the Amended Statement of Claim, interest on that amount claimed at the contract rate of 13.49%, and filing fees of $434. No monies were claimed for service fees or solicitor’s fees.

19. Dr Ghosh attacks the entry of that judgment on the basis that it was irregularly obtained, no hearing was held, that the material before the Registrar did not support the entry of judgment and that, contrary to the affidavit of service, she had not in fact been served with the document because the process server had been informed when he attended the premises that she did not live at 49 Patricia Avenue, Charlestown, NSW.

20. The obtaining of default judgment is dealt with in Part 16 of the UCPR. The rules provide that where a defendant has not filed a defence, a plaintiff may apply for default judgment: rr 16.2(1) and 16.3(1). Such an application may be dealt with in the absence of the parties and need not be served on the defendant: r 16.3(1A). The application must be accompanied by an affidavit of service of the statement of claim, and an affidavit in support of the application: r 16.3(2).

21. Rule 16.6 of the UCPR provides that the affidavit in support of the application must deal with particular items: r 16.6(2). It also provides that judgment may be given for the plaintiff against the defendant for a sum not exceeding the sum claimed, interest up to judgment, and costs: r 16.6(1).

22. The material before the Local Court in support of the default judgment complied with Part 16 of the UCPR. The affidavit of Mr Wiggins addressed each of the matters required by the UCPR. The affidavit of Mr Ellsmore deposed to adequate service of the Amended Statement of Claim and it was clear that no defence had been filed by Dr Ghosh as required by the rules.

23. Accordingly, the default judgment of 20 May 2013 was regularly and properly made. The judgment dated 28 May 2013 and signed by the Registrar is a document produced under r 31.11 of the UCPR which regularly and properly records the terms of the judgment entered on 20 May 2013.

24. Unless and until the Local Court orders the default judgment to be set aside, the judgment having been regularly entered remains on foot and Baycorp is entitled to act upon it.

25. I reject any challenge made in this appeal by Dr Ghosh to the entry of default judgment on 20 May 2013.

Judgment of 26 September 2014

26. It is convenient next to consider the judgment of 26 September 2014. This judgment is the last in point of time.

27. On 5 September 2014, Dr Ghosh filed a Notice of Motion which sought the following orders:

“1.   Reinstate the Notice of Motion and affidavit of 22 August 2014.

2.   Stay the default judgment in the absence of both parties effective 5 September 2014, to continue until the case is final.”

28. This Notice of Motion was accompanied by an affidavit of Dr Ghosh of the same date which read, relevantly, as follows:

“1.   I am the defendant.

2.   I emailed and phoned Parramatta Court registry and Andrew Mitchell to put the motion on last on the list, and wait for counsel, Chris Dibb, to arrive as he had another hearing in the Sydney District Court at 9.30am today. Counsel Dibb arrived at 10.45am and I arrived (from Newcastle) just after, but the motion was already dismissed by Magistrate George. This has denied me natural justice.”

29. The reference in the Notice of Motion to the earlier Notice of Motion and affidavit of 22 August 2014 can conveniently be addressed here, as it formed a part of the proceedings on 26 September 2014.

30. On 22 August 2014, Dr Ghosh filed a Notice of Motion in which the following orders were sought:

“1.   Stay the default judgment against Dr Ratna Ghosh and its execution.

2.   Dismiss the amended statement filed by the plaintiff as leave of the Court was not obtained to file an amended statement.

3.   Strike out the claim by Baycorp Collections PDL Aust Pty Ltd as no evidence or proof of the debt has been produced by them in over 1 year, even in response to a subpoena.

4.   As an alternative to 3., reduce the judgment amount to $8,000 as offered by Baycorp as full and final settlement but later withdrawn.” (sic)

31. This Notice of Motion was supported by an affidavit of Dr Ghosh sworn 22 August 2014. In that affidavit, she asserted that she had never been served notice “of the initial hearing of this case by Baycorp during which they obtained a default judgment against me”. The UCPR did not require service of this application.

32. She annexed an affidavit of her ex‑husband, Dr Bhaskar Bandyopadhyay, which addressed the issue of service of the Amended Statement of Claim at the address at Patricia Avenue, Charlestown. As well, Dr Ghosh annexed some NAB statements, and other correspondence with NAB. The affidavit asserted that Baycorp had failed to provide any evidence of the debt which they sought to enforce, and that any debt owing was less than the amount upon which the default judgment was based. It complained that Baycorp was attempting to make her bankrupt based upon the default judgment of the Court. It also asserted that a third party, Mr Barrie Goldsmith, had failed to respond to a subpoena.

33. According to the transcript of 5 September 2014, George LCM called the matter. Mr Kaufmann of counsel appeared for Baycorp.

34. George LCM had the matter called outside the Court. There was no appearance for Dr Ghosh as the applicant. George LCM then dismissed the Motion and ordered Dr Ghosh to pay Baycorp $1,700 by way of costs within 14 days.

35. It seems that, later that day, after Mr Kaufmann had left the Court, Mr Dibb of counsel appeared on behalf of Dr Ghosh and asked to mention the matter. He apologised to the Magistrate for not being at Court when the matter was called. He informed the Court that he had arranged for Dr Ghosh to be present, but that she had only just arrived.

36. George LCM said:

“Well, [the] failure of anybody to appear on behalf of Dr Ghosh, the motion has been dismissed and costs have been awarded to the plaintiff represented by Mr Kaufmann of counsel in the amount of $1,700. Dr Ghosh has 14 days to pay.”

37. George LCM went on to inform Mr Dibb that Dr Ghosh had been called “elaborately and at length”, that the matter had been stood down at one point to allow further instructions to be taken from the solicitor instructing Mr Kaufmann and that, as far as he was concerned, the matter had been concluded.

38. By her Motion of 5 September 2014, Dr Ghosh apparently sought to “reinstate” these proceedings. The matter came before Tsavdaridis LCM on 26 September 2014. Mr Kaufmann of counsel again appeared for Baycorp and Mr Fozzard of counsel appeared for Dr Ghosh.

39. Mr Fozzard was asked to explain in brief terms what the matter was about. He said that it was a Notice of Motion to set aside a default judgment in circumstances where Dr Ghosh was the judgment debtor. Mr Fozzard identified Dr Ghosh as his client and then said:

“Your Honour, in short compass, we say that default judgment was entered without the applicant present in court. The substance of the argument is a debt for goods and services. I don’t have instructions on what those goods and services were, but we would argue that if it was set aside, we would agitate that there wasn’t enough evidence to satisfy the existence of debt, and also refer to the affidavit with some further evidence of the debt being instructed (sic) in the bank account later being reversed.”

40. Tsavdaridis LCM, on looking through the file, identified the Notice of Motion of 22 August 2014. Mr Fozzard indicated that while Order 1 of that Notice of Motion sought a “stay” of the default judgment, he requested that the Motion be read as seeking an order that the default judgment be set aside.

41. The matter proceeded on the basis that such an amendment could be made to the Notice of Motion of 22 August 2014. The Magistrate was then informed that the default judgment had been entered on 20 May 2013.

42. Tsavdaridis LCM then sought to clarify with Mr Fozzard precisely what orders he was seeking. Mr Fozzard indicated that while he wished for the balance of the orders in the Motion of 22 August 2014 to remain, he was not pressing them because if he was successful on the first order – to set the judgment aside – then the balance of the orders would be of no utility. He went on to say to Tsavdaridis LCM:

“And the substance of my application before you today is to really set aside and to seek to attack the default judgment.”

43. The following exchange then took place:

“Magistrate:   You have a draft defence?

Counsel:   No, there’s not your Honour.

Magistrate:   Should there be one?

Counsel:   There should be.

Magistrate:   You’re not on a good start Mr Fozzard.

Counsel:   No your Honour, and if I can read the affidavit of Dr Ghosh.”

44. The following exchange then took place:

“Magistrate:   That’s an important point though isn’t it? There is no defence. I say that because Mr Kaufmann needs to know what case he has to meet as well.

Counsel:   Yes your Honour. I don’t have instructions on when I could otherwise file a defence.

Magistrate:   Has a draft one been circulated?

Counsel:   Not that I am aware.”

45. The affidavit of Dr Ghosh sworn 22 August 2014 was read. Some words were not pressed. Mr Fozzard indicated that this affidavit constituted the entirety of the evidence he wished to put before the Court.

46. Mr Kaufmann then sought leave to file an affidavit of Mr Logan Wiggins sworn 17 September 2014. He was granted leave, but before reading the affidavit, Mr Kaufmann drew the Court’s attention to the fact that the Motion before the Court was the one of 5 September 2014. He then addressed the difficulties raised by the form of the proceeding and described the history of the proceedings to the Magistrate. By reference to the affidavit of Mr Wiggins, he drew the Court’s attention to the existence of two matters, namely that there were bankruptcy proceedings on foot in the Federal Circuit Court but that, as of 9 September 2014, the amount the subject of the default judgment had been paid by Dr Ghosh.

47. Mr Kaufmann then went on to submit that there was no defence before the Court, no proper explanation for the delay in bringing the application to set aside the default judgment in circumstances where there had already been seven Motions dealt with by the Court and, finally, in light of the fact that the judgment debt had been paid, there was no utility in making orders of the kind sought by Dr Ghosh, in particular the order staying the execution of the default judgment.

48. He made some substantive submissions with respect to the orders sought. In particular, he pointed to the fact that leave was not required to file an amended statement of claim in accordance with the rules. He also pointed out that the order asserting that the Statement of Claim should be struck out because no evidence of the debt had been produced was wholly inappropriate in circumstances where default judgment had been properly entered and there had been no requirement for a hearing on the application for default judgment.

49. In reply, Mr Fozzard submitted that even though the judgment debt had been satisfied, the Court still had the power and the discretion to set aside the default judgment.

50. That led to a further submission by Mr Kaufmann to the following effect:

“Just in respect of that, if a defence is to be asserted by Dr Ghosh, it should be brought before the Court in the form which it … there’s no defence before you. Although I do object to the course taken by my learned friend, no doubt as a consequence of only having come to the matter recently, but seeking to amend a motion that’s strictly … that clearly sought a stay to a motion that seeks to set aside a default judgment, and if your Honour were to allow that amendment in respect of the previous motion of 22 August, that’s already been dealt with on 5 September. Even if your Honour were to allow that, there is no defence before the Court and it is difficult to see there could be one when the judgment itself had been satisfied which in my submission, would be an admission in any event in respect of indebtedness.”

51. Mr Fozzard did not seek to respond to that submission.

52. Tsavdaridis LCM then gave an ex tempore decision. He gave a brief summary of the history of the proceedings. He observed that the Notices of Motion sought to set aside the default judgment obtained on 20 May 2013. He said:

“One or two notices of motion dated 22 August 2014 and 5 September 2014 in which it was sought that the default judgment obtained on about 20 May 2013 be set aside for various reasons. It’s not entirely clear from the documents before me what those reasons are, and indeed, in the absence of a defence in draft form, or indeed a piece of correspondence one might think could have been sent by the solicitors for the judgment debtor to the solicitors for the judgment creditor indicating what the defence might be, is in my view a gaping omission in the judgment debtor’s case. Over and above that it seems that the amount in respect of which the judgment debtor was indebted to the judgment creditor was paid in its entirety on or about 9 September 2014. … Having now understood the nature of the application brought by Mr Fozzard’s client, I am not satisfied that this is a matter in respect of which there would really be utility notwithstanding the fact that ultimately there may be some adverse finding made against the judgment debtor in circumstances it was unable, where she was unable to set aside at least nominally, the judgment entered against her and in favour of the judgment creditor.

When one takes all of those matters into account, but more particularly the fact that the absence of the draft, a draft defence for the basis on which there would be an arguable case, one arrives at the conclusion militating against acceding to the notice of motion or the orders sought in the notice of motion whether it be the one dated 22 August or one dated 5 September.”

53. His Honour then went on to make the following orders:

“1.   Notice of Motion dated 5 September is dismissed.

2.   To the extent necessary, the decision to dismiss the Notice of Motion dated 22 August made on 5 September 2014 is confirmed.

3.   Dr Ghosh to pay the costs of Baycorp in the sum of $1,650 including GST in 28 days.”

Appeal to this Court

54. Dr Ghosh appeals against this judgment pursuant to s 39 of the Local Court Act 2007.

55. Section 39 of the Local Court Act provides:

“(1)   A party to proceedings before the Court sitting in its General Division who is to dissatisfied with a judgment or order of the Court may appeal to the Supreme Court but only on a question of law.

56. …”

57. Mr Rasmussen of Counsel, who appeared for Dr Ghosh in this Court, submitted that there had been a fundamental miscarriage of justice and an error of law in the proceedings before Tsavdaridis LCM. He described the error of law in this way:

“The error of law fundamentally is the learned magistrate proceeded upon a fundamental misapprehension as to the applicant’s case. He proceeded upon a fundamental misapprehension that there was no defence when in fact there was one. And had it have been drawn to his Honour’s attention at the hearing, his Honour may well have taken and, in my submission, probably would have taken, a very different position simply because of the fact that in his reasons he raised the fact that there was no defence to such a high level. It was fundamental to his reasons why he was not going to allow the default judgment to be set aside.”

58. Mr Rasmussen accepted that there was no document containing a draft defence prepared and handed up to the Court. Nevertheless, he submitted that:

“Counsel appearing on the motion for Baycorp on 26 September 2014, had an obligation to draw the attention of the Court, and his opponent, to the fact that on 4 April 2014, Dr Ghosh had sent an email to the Local Court at Parramatta, a document entitled ‘Defence’ which was unsigned. There was on that day a Notice of Motion brought by the plaintiff which was fixed for hearing. It had been filed on 13 March 2014. When that Motion was before the Court on 4 April 2014, there was no appearance by Dr Ghosh, although Baycorp was represented.”

59. Although the transcript of the hearing is difficult to follow (much of it is not reproduced) it does appear that the Magistrate presiding on 4 April 2014 was informed of the receipt by the Local Court Registry of the unsigned Defence. A copy was provided to Baycorp’s representative. Brown LCM, who was presiding on 4 April 2014, refused to make some of the orders in the Motion dealing with a stay of the proceedings and staying enforcement action, but seems to have stood over the balance of the Motion to 2 May 2014.

60. On 2 May 2014, the matter was again before Brown LCM. Dr Ghosh was represented by a solicitor, Mr Henness. Baycorp was also represented.

61. The transcript of the proceedings on 2 May 2014 is incomplete because parts of the sound recording were regarded by the transcribers as garbled or indistinct. What is apparent, however, is that the only evidence put before the Local Court by Dr Ghosh’s solicitor was an affidavit sworn by her on 17 April 2014.

62. It contained the following:

“1.   I am the defendant.

2.   While this case is still ongoing, with the next listing on 2 May 2014, in PARRAMATTA LOCAL COURT, BAYCORP COLLECTIONS PDL AUST PTY LTD is trying to make me bankrupt in a different state (Queensland) on 30 April 2014, using their fraudulently obtained default judgment in the PARRAMATTA LOCAL COURT in 2013, without any evidence or proof of the debt they seek to enforce, without serving me any notice of a hearing, and in an abuse of process by telling LIES to the Finance Ombudsman who was investigating my complaint against NAB at the time when this non-legally represented case filed in a form 3B in the PARRAMATTA LOCAL COURT by BAYCORP COLLECTIONS PDL AUST PTY LTD.

3.   This is the second time BAYCORP COLLECTIONS PDL AUST PTY LTD has tried to make me bankrupt in Queensland using their fraudulently obtained default judgment.

4.   Their notice of their second attempt to make me bankrupt is attached, listed for hearing in Brisbane on 30 April 2014. Therefore I seek an URGENT STAY of the default judgment and its execution.”

63. No other evidence was put before the Local Court. In particular, the draft defence which had been sent to the Local Court by email on 4 April 2014 was not sought to be filed in the Court, nor was it indicated to the Court that Dr Ghosh wished to rely upon that defence.

64. At the conclusion of the evidence being read for Dr Ghosh by her solicitor, Brown LCM engaged in the following discussion with Dr Ghosh’s solicitor:

“Magistrate:   Well, I can’t see having read that, it provides any basis for making orders 3 or 4.

Solicitor:   I’m in the Court’s hands your Honour.

Magistrate:   I mean it is a completely unsupported assertion of fraudulently obtaining default judgment. There’s just nothing to support it. That’s been the view of myself and everybody else who has dealt with the matter for considerable time.

Solicitor:   Yes, I have been in this matter once before and only came in it this morning. But on the face of it, it doesn’t seem it has progressed.

Magistrate:   It hasn’t. And I certainly do not have any evidence there that would justify me making orders to dismiss an amended statement of claim which has now passed into judgment. Or to strike out the claim because it has been settled by default judgment. I mean it’s just … , this is gibberish.

Solicitor:   There is also … my document there is leave to issue subpoena against the police. I don’t know what that is all …

Magistrate:    I don’t have that and it’s not a matter I could deal with.

Solicitor:   That’s not before the Court, OK. Umm, I don’t think there’s a great deal more I can add your Honour.”

65. The Magistrate then delivered a short judgment refusing to make Orders 3 and 4 being the balance of the Notice of Motion which had been before the Court on 4 April 2014.

66. These exchanges in the Local Court provide the context for Mr Rasmussen’s submission in this Court that Baycorp’s counsel had an obligation to draw to the Local Court’s attention on 26 September 2014 the existence of the unsigned defence which had been circulated on 4 April 2014. The following matters are relevant to consider.

67. First, at the time of the proceedings in September 2014, counsel for Baycorp was bound by the NSW Barristers Rules (January 2014). Rule 28 was in the following form:

“A barrister must alert the opponent, and if necessary inform the Court, if any express concession made in the course of trial in civil proceedings by the opponent about evidence, caselaw or legislation is to the knowledge of the barrister contrary to the true position and is believed by the barrister to have been made by mistake.”

68. That rule is now r 26 of the Legal Profession Uniform Conduct (Barristers) Rules 2015.

69. There is some doubt as to whether this rule, having regard to the inclusion of the words “trial in civil proceedings”, applies to an interlocutory motion as opposed to a final hearing. However, assuming that r 28 did apply in the proceedings on 26 September 2014, there is nothing within that rule which required counsel for Baycorp to draw to the Court’s attention the existence of an unsigned defence which had been emailed to the Court almost six months before. The unsigned defence was not in proper form. The contents of it did not disclose matters, in many paragraphs, which were capable of constituting a defence. To the extent that facts were raised in two of the paragraphs, 10 and 11, the statement of those facts was muddled and confused. It was not at all clear upon which facts Dr Ghosh relied, or that those facts were capable of constituting an arguable defence.

70. Secondly, the draft defence was not put before the Court in May 2014 by Dr Ghosh’s solicitor, when it was most appropriate to do so.

71. Thirdly, the evidence relied upon by Dr Ghosh’s counsel in the September hearing touched upon facts of the kind referred to in that defence, but put them somewhat differently.

72. Finally, counsel for Dr Ghosh did not provide that unsigned defence (or any final copy of it) to the Court. This is not surprising because, in my view, it was not in a form which complied with the rules and, more fundamentally, it did not disclose a defence on its face. Dr Ghosh knew of the existence of the defence. Whether counsel was instructed about its existence is not addressed in the evidence before this court.

73. In those circumstances, particularly where Dr Ghosh was represented by counsel, the proposition that counsel for Baycorp was obliged to inform the Court of the existence of the unsigned defence is simply incorrect. Baycorp’s counsel was under no such obligation.

74. It was a matter for counsel for Dr Ghosh to put before the Court all evidence upon which he relied in seeking the orders set out in the Notice of Motion. If the Notice of Motion included an order for the setting aside of the default judgment, which it did following the amendments made to the Motion at the request of counsel for Dr Ghosh, then counsel needed to address, at least, two matters, namely:

1. provide an explanation for the extensive delay between the entry of default judgment in May 2013 and the making of the application to set it aside in September 2014; and

2. provide to the Court a draft defence upon which Dr Ghosh would rely in the event that the default judgment was set aside and the matter proceeded to hearing, together with such evidence as may have been necessary to demonstrate that it was an arguable defence and that there was evidence which, if accepted, would support it.

75. Counsel for Dr Ghosh did neither of these things. First, he did not provide any explanation at all for the delay in making the application to set aside the judgment. An assertion by Dr Ghosh that she had never been served with the proceedings, even if such an assertion could be regarded as corroborated by the affidavit of her ex-husband, did not of itself provide an explanation for the delay in seeking to have the judgment set aside. After all, Dr Ghosh first moved to have the judgment set aside in June 2013. What was required was an explanation as to why it was not until September 2014 that this Motion in the form in which it was amended was being brought.

76. Secondly, and as already mentioned, no draft defence was handed up. The affidavit of Dr Ghosh of 24 August 2014 did not articulate any defence to the claim.

77. I therefore reject Mr Rasmussen’s submission in this Court that the conduct of counsel for Baycorp led to a fundamental miscarriage of justice.

78. The second submission made by Mr Rasmussen was that Tsavdaridis LCM erred in law by failing to find that, although a draft defence had not been provided to the Local Court, Dr Ghosh had demonstrated by her evidence, in particular her affidavit of 22 August 2014, that she had a substantive defence to the proceedings. Mr Rasmussen accepted that a submission to this effect was not made to the Local Court.

79. I reject this second submission. It was the obligation of counsel for Dr Ghosh to draw to the Local Court’s attention all matters upon which Dr Ghosh relied in seeking the orders in the Notice of Motion.

80. It is not the obligation of a court in circumstances where both parties are represented by counsel, as was the case at the hearing on 26 September 2014, to attempt unilaterally and in a manner going beyond the submissions of counsel for the relevant party, to identify the existence of an arguable defence which is not specifically articulated. Even if there was such an obligation, it was open to the Magistrate reading the affidavit of Dr Ghosh of 22 August 2014 to conclude that the facts deposed to did not on their face constitute an arguable defence. Tsavdaridis LCM did not err in law in this regard. I reject this second submission.

81. The third basis upon which counsel for Dr Ghosh argued in this Court that there had been an error of law was that the Magistrate refused to set aside the default judgment “… simply because there was professed to be no utility in it because [Dr Ghosh] paid the judgment”.

82. Counsel submitted that there was evidence before the Court that, although the monies reflected in the substantive judgment debt had been paid by Dr Ghosh prior to 26 September 2014, there was utility in setting aside the judgment. He put it this way:

“Now the issue of utility was a false one … because there was utility for Dr Ghosh to set it aside because she would then be allowed in cross-claim … against Baycorp for a return of the monies had and received, so for a return of the money paid by her to them on the basis of a judgment which had been set aside.”

83. Counsel accepted that this argument was not put to Tsavdaridis LCM. He also accepted that no cross-claim was ever articulated to the Magistrate as being in the contemplation of Dr Ghosh, and that a defendant to such a cross‑claim had not been nominated.

84. Counsel’s attention was drawn to the fact that the mere existence of a right to bring a cross-claim did not necessarily mean that there was utility in setting aside the judgment. Following further discussion, counsel accepted that there may be unfavourable consequences for his client with respect to the mounting of a successful cross-claim if the default judgment was set aside. Although he did not withdraw the submission, he added no further argument in support of it.

85. The Magistrate was not told that there was any cross-claim in prospect. All he was told was that Dr Ghosh had paid the judgment amount in light of threatened bankruptcy proceedings.

86. The Magistrate did not commit any error of law in reaching the conclusion that that there was no utility to be derived from setting aside the default judgment.

87. In any event, the principal basis for his Honour’s conclusion regarding the lack of utility in setting aside the default judgment was that Dr Ghosh had failed to demonstrate that she had a defence to the substantive claim.

88. In summary, the judgment of Tsavdaridis LCM of 26 September 2014 does not disclose an error of law. The decision was in all respects correct.

89. Accordingly, the appeal against this decision fails.

Remaining Motions

90. As indicated earlier, the orders made by the Local Court on the remaining Notices of Motion were also challenged. It is necessary to consider briefly each of those orders.

Judgment of 5 September 2014

91. On 5 September 2014, George LCM dismissed Dr Ghosh’s Notice of Motion of 22 August 2014.

92. He did so because, when the matter was listed before him and was called, there was no appearance by or on behalf of Dr Ghosh.

93. No error of law with respect to this approach has been identified or articulated. None is apparent. The plaintiff has not identified any basis for a successful appeal to this Court in respect of this judgment.

Judgment of 2 May 2014

94. On 2 May 2014, the proceedings were listed before Brown LCM. As earlier indicated, Dr Ghosh was represented by Mr Henness and Baycorp was also represented. I have referred above to much of the interaction between Mr Henness and the bench. The bench was engaged in dealing with Orders 3 and 4 of the plaintiff’s Notice of Motion filed on 13 March 2014. The orders sought in the Notice of Motion of 13 March 2014 were as follows:

“1.   Stay the default judgment against Dr Ratna Ghosh and its execution.

2.   Stay the judgment of 7 March 2014.

3.   Rehearing to present new evidence not available at the 7 March hearing.

4.   Dismiss the amended statement filed by the plaintiff as leave of the Court was not obtained to file an amended statement.”

95. It was Orders 3 and 4 of that Notice of Motion to which Brown LCM was referring in the comments referred to above at [62].

96. The evidence relied upon by Mr Henness at that hearing, and the submissions which he put on behalf of Dr Ghosh, did not support in any way the making of the orders sought. There was no basis demonstrated upon which the Local Court could exercise its discretion to re-hear the proceedings. It is not suggested in this Court that, in refusing to make the discretionary order that the proceedings be reheard, the Magistrate made an error of law.

97. The Magistrate’s conclusion that the Amended Statement of Claim had properly been amended without leave, and therefore was not to be struck out, was also undoubtedly correct. Leave was not required to amend the Statement of Claim because it was amended as permitted by the UCPR.

98. There is no basis for upholding the appeal in respect of the decision of Brown LCM on 2 May 2014.

Judgment of 4 April 2014

99. On 4 April 2014 the proceedings were listed before Brown LCM. Baycorp was represented. The matter was called outside the Court, and there was no appearance by or on behalf of Dr Ghosh.

100. The Magistrate dismissed the Notice of Motion of 13 March 2014 insofar as Orders 1 and 2 were concerned, and adjourned Orders 3 and 4 to a further hearing.

101. There was no evidence put before the Court, and no submissions made, in support of the Notice of Motion. Brown LCM’s refusal to make the first two orders sought in the Notice of Motion was, in those circumstances, unremarkable. In this Court, counsel appearing for Dr Ghosh did not identify any error of law with respect to this decision.

102. There is no basis for upholding an appeal to this Court in respect of Brown LCM’s judgment of 4 April 2014.

Judgment of 7 March 2014

103. There is no transcript of the proceedings before the Local Court on 7 March 2014. From a handwritten note of Mr Wilkinson, it appears that Mr Henness appeared for Dr Ghosh. Before the Court was a Motion to set aside service of the Statement of Claim. The Magistrate dismissed the Motion, finding that he was satisfied that service had been effected. He also expressed doubt as to whether he could rule on matters which Knight LCM had already dealt with in February 2014.

104. In addition to dismissing the Motion, the Local Court ordered Dr Ghosh to pay $200 by way of costs.

105. As Dr Ghosh had appeared in the Local Court, unconditionally, there was no basis to set aside the service of the Statement of Claim. The provisions of r 12.11 of the UCPR were not invoked, and time had elapsed for an application under that rule.

106. Counsel for Dr Ghosh in this Court did not identify any error of law in the Magistrate’s decision of 7 March 2014. None is readily apparent from the scarce material placed before this Court. It is impossible to conclude that there was any error of law demonstrated with respect to this hearing and these orders.

Judgment 7 February 2014

107. On 7 February 2014, Knight LCM dealt with a Notice of Motion filed by Dr Ghosh on 25 October 2013.

108. It appears that the orders sought in that Notice of Motion were as follows:

“1.   Rehearing request.

2.   Costs to defendant (Dr Ratna Ghosh).”

109. When the matter was called, there was no appearance by Dr Ghosh. There was some material before the Court indicating that Dr Ghosh might attend later in the day because she was travelling from Newcastle.

110. The matter stood in the list until it was the final matter in the list. There was still no appearance by Dr Ghosh at 12.30 pm when the matter was called.

111. Knight LCM said:

“So let me just see … the Notice of Motion rehearing request, costs to the defendant. Alright, in the absence of the applicant, having waited until 12.30 pm, and it being the last case in the list, the Notice of Motion is dismissed and the subpoena is dismissed.”

112. The absence of the plaintiff, or her representative, before the Court to move the Notice of Motion and place evidence before the Court in support of it, was an entirely justifiable basis for Knight LCM to dismiss the Notice of Motion. There was no error of law in him so doing and therefore no basis for an appeal against his decision to this Court.

Other Proceedings

113. The Summons also challenges orders which were made on 16 August 2013 and 25 October 2013.

114. On 25 October 2013, the Local Court dismissed Dr Ghosh’s Notice of Motion seeking a stay of execution of the default judgment.

115. There is no transcript of that matter in evidence. It is not clear what was put before the Court and whether anybody appeared on behalf of Dr Ghosh.

116. The available evidence with respect to the proceedings on 25 October 2013 indicates that the Registrar rejected the Motion as there was no evidence from Dr Ghosh in support of it.

117. There is simply inadequate material available to enable this Court to conclude that there was an error of law in the orders made on 25 October 2013.

118. On 16 August 2013, a Notice of Motion to set aside default judgment which had been filed in June 2013 was listed for hearing, having been adjourned from 5 July 2013. Baycorp served affidavit evidence in opposition to the orders sought in the Notice of Motion. It appears that Dr Ghosh did not file any evidence in support of the Notice of Motion.

119. The transcript of the proceedings of 16 August 2013 is not before the Court. However, the Court has been informed by affidavit that the Registrar rejected Dr Ghosh’s Motion as there was no evidence from her in support of it.

120. On 5 July 2013, when Dr Ghosh was unable to attend, the Court listed the matter for hearing on 16 August 2013. It noted that the Notice of Motion had been:

“… adjourned for determination of the Notice of Motion to set aside default judgment, on material on file, if the applicant/judgment debtor fails to appear on the adjourned date. No further adjournments.”

121. On 16 August 2013, there was no appearance by or on behalf of Dr Ghosh at 11.15 am when the matter was called. The Court proceeded to determine the Notice of Motion in the absence of Dr Ghosh. In the absence of evidence and submissions in support of the Notice of Motion, the Court dismissed the Notice of Motion.

122. No error of law has been identified in this decision.

Summary

123. Dr Ghosh, through her counsel, has mounted a broad attack on the entirety of the proceedings in the Local Court. However, as s 39 of the Local Court Act makes clear, an appeal to this Court can only be made on a question of law.

124. No error of law in any of the proceedings in the Local Court has been identified.

125. Accordingly, the appeal fails.

Orders

126. I make the following orders:

1. First Further Amended Summons filed 18 May 2015 is dismissed.

2. The plaintiff is to pay the defendant’s costs of the proceedings.

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Decision last updated: 28 April 2016