Ghosh v Ghosh

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0105

S EAPCI 2024 0062

S EAPCI 2024 0135

NEELANJAN GHOSH	Applicant
V
ANABAN GHOSH	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2024
DATE OF JUDGMENT:	2 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 294
JUDGMENTS APPEALED FROM:	Ghosh v Ghosh (Unreported, Supreme Court of Victoria, John Dixon J, 14 September 2023); Ghosh v Ghosh (Unreported, Supreme Court of Victoria, O’Meara J, 19 March 2024); [2024] VSC 259 (O’Meara J); Ghosh v Ghosh (Unreported, Supreme Court of Victoria, Quigley J, 14 November 2024)

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ADMINISTRATION AND PROBATE – Appeal – Applications for leave to appeal procedural orders – Application for leave to appeal substantive orders – Whether trial judge erred in granting probate of copy will – Whether trial judge erred in passing over one of two executors – Whether trial judge erred in making orders for production of documents and inspection of books of company – Whether other judges erred in making procedural orders – Whether any injustice in leaving procedural orders unreversed – Bias – Whether any orders affected by racial, cultural or apparent bias – Application for leave to appeal from judge’s orders directing Prothonotary not to accept for filing proposed notices of appeal from procedural orders made by associate justices – 81 proposed grounds of appeal – Proposed grounds of appeal devoid of merit – Proposed appeals having no prospects of success – Applications for leave to appeal refused.

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Counsel
Applicant:		In person
Respondent:		Ms E Julian, solicitor
Solicitors
Applicant:
Respondent:	Shiff & Company Lawyers

BEACH JA:

Neelanjan Ghosh (‘the applicant’) and Anaban Ghosh (‘the respondent’) are brothers. They have been in dispute since at least the death of their mother, Aroti Ghosh (‘the mother’ or ‘the deceased’), on 9 June 2022. Their disputes have concerned, amongst other things, the circumstances of their mother’s death; the existence and terms of their mother’s will; the existence and terms of the will of their father, Biswanath Ghosh, who died 10 years earlier, on 14 February 2012; their mother’s estate; the Ghosh Superannuation Fund; and the shares in, and assets of, Ghosh Enterprises Pty Ltd (‘Ghosh Enterprises’). Their disputes have occupied a considerable amount of judicial time at all levels of the judicial hierarchy.[1]
[1]See for example Re Ghosh [2022] VSC 410 (Gorton J) (‘Practice Court Reasons’); Re Ghosh (Unreported, Supreme Court of Victoria, Moore J, 4 August 2022); Ghosh v Ghosh [2023] VSCA 77 (J Forrest AJA) (‘First Appeal Reasons’); Ghosh v Ghosh [2023] HCASL 171 (Edelman and Gleeson JJ); Ghosh v Ghosh (Unreported, Supreme Court of Victoria, Keith JR, 3 February 2023); Ghosh v Ghosh (Unreported, Supreme Court of Victoria, John Dixon J, 14 September 2023) (‘Procedure Reasons’); Re the Will and Estate of Aroti Ghosh [2024] VSC 75 (Barrett AsJ) (‘Barrett AsJ Reasons’); Re the Will and Estate of Aroti Ghosh (Unreported, Supreme Court of Victoria, Goulden AsJ, 7 March 2024) (‘Goulden AsJ Reasons’); Ghosh v Ghosh [2024] VSC 259 (O’Meara J) (‘Trial Reasons’); and Ghosh v Ghosh (Unreported, Supreme Court of Victoria, Quigley J, 14 November 2024) (‘Post-trial Reasons’).
The respondent was the plaintiff in two proceedings in the Trial Division: first, a proceeding known as the ‘passing over proceeding’,[2] in which the respondent sought an order passing over the applicant as executor of the estate of their mother, and orders directing the applicant to provide him with documents relating to the Ghosh Superannuation Fund, and permitting him to inspect the books of Ghosh Enterprises;[3] and secondly, a proceeding known as the ‘probate proceeding’, in which the respondent sought probate of a document referred to at trial as the ‘mother’s copy will’ (the ‘mother’s copy will’).[4]
[2]Trial Reasons, [54].
[3]The orders sought by the respondent in the passing over proceeding were set out by the trial judge at Trial Reasons, [55].
[4]Trial Reasons [64], [160]–[161], [187].
The applicant, who was the first defendant in the passing over proceeding[5] and the defendant in the probate proceeding,[6] opposed all of the orders sought by the respondent in both proceedings. In opposing the orders sought by the respondent, the applicant asserted that:
(a)the respondent was not close to either of their parents;
(b)the mother’s copy will was a ‘completely fraudulent document’ that had been ‘manufactured’ by the respondent or an (unidentified) ‘related party’;
(c)much, or perhaps all, of what might be thought to be the assets of the estate of the mother in fact belonged to the applicant and/or would eventually devolve to him — particularly the family home (‘the Property’), in which the applicant has resided for many years to the exclusion of the respondent, and which the applicant described as ‘my property’; and Ghosh Enterprises;
(d)in that regard, it followed that the applicant was properly in control of and lawfully able to access the deceased’s bank accounts;
(e)the Ghosh Superannuation Fund did not form part of the deceased’s estate and was not properly within the ambit of the proceedings; and
(f)in light of the above, the proceedings were ‘totally frivolous’.
[5]Ghosh Enterprises was the second defendant, and Greenhaven Funerals Pty Ltd was the third defendant.
[6]The applicant was originally the caveator in the probate proceeding, but was added as a defendant to that proceeding by an order of Keith JR made on 3 February 2023.
On 23 May 2024, following a five-day trial of both proceedings conducted in March 2024, the trial judge made orders in favour of the respondent. Specifically, the judge ordered:
(1)A grant of probate be made of the mother’s copy will.
(2)The applicant is passed over as an executor of the estate of the deceased.
(3)The applicant provide to the respondent, in his capacity as executor of the estate of the deceased, any documents in his possession, custody or control relating to the assets or liabilities of the deceased, including documents relating to the Ghosh Superannuation Fund and Ghosh Enterprises and its assets.
(4)The respondent, as executor of the estate of the deceased, be authorised to inspect the books of Ghosh Enterprises.
(5)The applicant pay the respondent’s costs of both proceedings.
The applicant now seeks leave to appeal from the orders made by the trial judge. In his application for leave to appeal, he advances 60 proposed grounds of appeal; 49 of which relate to the orders made on 23 May 2024 by the trial judge, and 11 of which relate to orders made by the trial judge on the first day of the trial (19 March 2024) dismissing applications made by summonses filed on 4 and 15 March 2024.[7]
[7]Ghosh v Ghosh (Unreported, Supreme Court of Victoria, O’Meara J, 19 March 2024) (‘First Trial Ruling’).
The applicant also seeks leave to appeal against pre-trial orders, relating to procedure and the manner in which the trial was to be conducted, made on 14 September 2023 by John Dixon J.[8] In that application for leave to appeal, the applicant advances 12 proposed grounds of appeal.
[8]Procedure Reasons.
Additionally, the applicant seeks leave to appeal against orders made by Quigley J on 14 November 2024,[9] almost six months after O’Meara J had given Judgment following the trial of the proceedings. In his application for leave to appeal against the orders of Quigley J, the applicant advances nine proposed grounds of appeal, contending that her Honour erred when she made orders pursuant to r 28A.04(5)(f) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) upholding decisions made by the Prothonotary, on 5 and 9 April 2024, rejecting and refusing to seal proposed notices of appeal against orders made by Barrett AsJ and Goulden AsJ prior to trial.[10] The applicant also complains about additional orders, made by Quigley J, directing the Prothonotary to refuse to seal the proposed notices.
[9]Post-Trial Reasons.
[10]See Barrett AsJ Reasons and Goulden AsJ Reasons.
Pursuant to r 64.15(1) of the Rules, the Registrar of the Court of Appeal has referred all three of the applicant’s applications for leave to appeal for hearing and determination by a single Judge of Appeal.[11] Following an oral hearing of those applications on 25 November 2024, this is the determination of the applicant’s three applications for leave to appeal. For the reasons which follow, all three applications for leave to appeal will be refused.
[11]As to the power of a single judge to hear and determine an application for leave to appeal, see First Appeal Reasons, [33]–[35].

Procedural history in a little more detail

The passing over proceeding was issued on 18 July 2022. On 19 July 2022, the respondent applied in the Practice Court for orders giving him control of the deceased’s body[12] and restraining the applicant from dealing with or disposing of any of the deceased’s assets, including the family home, the deceased’s bank accounts, and any assets owned by Ghosh Enterprises. On 22 July 2022, after hearing argument, Gorton J made orders:
(a)joining the funeral parlour Greenhaven Funerals Pty Ltd, which then had possession of the deceased’s body, so that it could be bound by any orders made by the court;[13]
(b)permitting the deceased’s body to be cremated as sought by the respondent;
(c)restraining the applicant from dealing with, or disposing of, the family home, the deceased’s bank accounts and the assets of Ghosh Enterprises.[14]
[12]The circumstances in which the parties had come into dispute about whether the deceased’s body should be preserved (as was the wish of the applicant who claimed that his mother had been ‘murdered’ by the hospital in which she died) or cremated (as was the wish of the respondent, who accepted the Coroner’s finding that his mother died of natural causes) is set out at Practice Court Reasons, [1]–[4].
[13]Greenhaven Funerals Pty Ltd subsequently provided a letter to the Court indicating that it did not intend to appear, and that it agreed to be bound by any orders made by the Court: see Practice Court Reasons, [12].
[14]First Appeal Reasons, [31].
The applicant responded by filing an application for leave to appeal to the Court of Appeal and an application in the Trial Division seeking to vary or lift the orders made by Gorton J. The Trial Division application was dismissed by Moore J on 4 August 2022.
Various orders of a procedural and timetabling nature were made by Keith JR on 16 September 2022. At that time, it was noted that no application for probate or for a grant of representation had been made. In response, on 25 October 2022, the probate proceeding was issued. Shortly thereafter, the respondent filed an affidavit of due execution from one of the subscribing witnesses to the mother’s copy will, Leading Senior Constable Robert Hansen (who ultimately gave evidence on behalf of the respondent at trial).
On 8 December 2022, the applicant filed grounds of objection to the granting of probate. As the trial judge described it:
Among other things, there came to be an issue concerning the presumption of the revocation animo revocandi. In Welch v Phillips …, Lord Wensleydale described the substance of the presumption as follows –
... if a Will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it.[15]
[15]Trial Reasons, [65] (citation omitted).
Both proceedings (the passing over proceeding and the probate proceeding) came before Keith JR on 3 February 2023. The Judicial Registrar ordered that the proceedings be listed for hearing together and that evidence in one proceeding be evidence in the other, subject to any further order. In the passing over proceeding, the Judicial Registrar ordered that the evidence-in-chief be given by affidavit, subject to any order of the trial judge, and made other orders preparatory for trial.
On 10 February 2023, the applicant filed a notice of appeal seeking that the orders made by Keith JR be vacated and that, in substance:
(a)the two proceedings be heard separately;
(b)the evidence in one proceeding not be used in the other; and
(c)evidence be given orally in both proceedings.
On 19 April 2023, following a hearing on 24 March 2023, the Court of Appeal (constituted by J Forrest AJA) refused the applicant leave to appeal from the orders made by Gorton J.[16] In response, the applicant filed an application for special leave to appeal to the High Court.
[16]First Appeal Reasons, [97].
On 14 September 2023, the applicant’s appeal against the orders of Keith JR came on for hearing before John Dixon J. As his Honour observed, the appeal from the judicial registrar was de novo appeal. After hearing argument, his Honour essentially remade the orders that had been made by Keith JR and made further orders relevant to the preparation for the proceedings for trial, which he set down for hearing on 19 March 2024. I will say more about this hearing and these orders when dealing specifically with the applicant’s application for leave to appeal against these pre-trial orders.
Subsequently, the applicant made applications in February and March 2024 (heard by Barrett AsJ and Goulden AsJ respectively) seeking the vacation of the trial date; the striking out or summary dismissal of the proceedings because of, amongst other things, what the applicant described as, ‘fraudulent conduct’; and the setting aside of a witness subpoena addressed to LSC Hansen. In these applications, the applicant made various allegations of fraud, submitted that various further persons needed to be joined as parties, contended that evidence proposed to be called by the respondent was irrelevant, and submitted that the trial could not proceed as he had applied to the Court of Appeal for leave to appeal from the orders of John Dixon J — which application had not been heard or determined. The application heard by Barrett AsJ was refused,[17] as was the application heard by Goulden AsJ.[18]
[17]Re the Will and Estate of Aroti Ghosh [2024] VSC 75. This application was heard on 22 February 2024; the Barrett AsJ Reasons were delivered on 27 February 2024; and, on 18 March 2024, his Honour made the orders, from which the applicant now wishes to appeal.
[18]Re the Will and Estate of Aroti Ghosh (unreported, Supreme Court of Victoria, Goulden AsJ, 7 March 2024). This application was heard on 7 March 2024; the Goulden AsJ Reasons were given ex tempore on the same day; following which, and again on the same day, her Honour made the orders, from which the applicant now wishes to appeal.
As I have already said, the trial commenced on 19 March 2024, with the applicant seeking to agitate, amongst other things, matters previously agitated before John Dixon J, Barrett AsJ and Goulden AsJ — about which I will say more below.
On the same day (19 March 2024), the applicant attempted to file a notice of appeal from the orders made by Goulden AsJ.[19] The document was not accepted for filing.
[19]Dated 18 March 2024 on its front page, but said to be filed 19 March 2023 (scil, 19 March 2024) on its last page.
On 4 April 2024, following the conclusion of the trial before O’Meara J, the applicant attempted to file two notices of appeal from the orders made by Barrett AsJ. The documents were not accepted for filing.
Following the Prothonotary’s rejection of the applicant’s three notices of appeal sought to be filed in relation to the orders made by Barrett AsJ and Goulden AsJ, the proposed notices of appeal were referred to Quigley AsJ pursuant to r 28A.04(5) of the Rules. On 14 November 2024, her Honour upheld the Prothonotary’s decisions and directed the Prothonotary to refuse to seal the applicant’s proposed notices of appeal.

THE APPLICATION FOR LEAVE TO APPEAL AGAINST THE PRE-TRIAL ORDERS MADE BY JOHN DIXON J ON 14 SEPTEMBER 2023

Applicant’s submissions at first instance

The applicant made a number of wide-ranging submissions on his appeal from the orders of Keith JR. These included:
•the appeal from Keith JR should be adjourned because, at the time it came on for hearing, the High Court had not heard and determined the applicant’s application for special leave to appeal from J Forrest J’s orders refusing leave to the applicant to appeal from the orders of Gorton J;
•the proceedings should be summarily dismissed because of (unspecified) fraudulent conduct on the part of the respondent;
•the proceedings could not be fixed for trial until the High Court heard and determined the special leave application that was then before it;
•the two proceedings should be heard separately because, amongst other things, there were different defendants and the evidence in each proceeding would be ‘completely different’;
•the evidence in one proceeding should not be used as evidence in the other; and
•the evidence in both proceedings should be given orally, notwithstanding that a number of affidavits had already been filed.[20]

Decision of Justice John Dixon

[20]At Trial Reasons, [95], the trial judge observed that the applicant affirmed and tendered no less than 24 separate affidavits.

At that conclusion of the argument on 14 September 2023, John Dixon J delivered reasons in which he rejected the applicant’s submissions and made the orders of which the applicant now complains.[21] The judge accepted the submissions of the respondent that there was a ‘close relationship’ between the two proceedings, such that it was appropriate that an order be made that they be heard together with the evidence in one being evidence in the other. His Honour concluded that there was no reason not to fix the trial of the proceedings and that the procedural orders to which I have already referred (which could be subject to further order by the trial judge) should be made.
[21]Procedure Reasons.
Additionally, the judge ordered the applicant to pay the costs of and incidental to the appeal from the orders of Keith JR.

The application for leave to appeal the orders made on 14 September 2023

In support of his application for leave to appeal against the orders made by Justice John Dixon, the applicant advanced 12 prolix and largely incoherent proposed grounds of appeal. Amongst these grounds, the applicant made the following statements:
•Both of these trials will have to be by judge and jury and will require separate dates and different estimates of days.
•Caveator cannot be added as a defendant in the proceeding and the title of the proceeding cannot be amended.
•Evidence in chief in both proceedings cannot be given by affidavit and may only be given orally.
•Evidence in the so called passing over proceeding was obtained misleadingly, fraudulently … and all of the evidence in that proceeding is inadmissible.
•Besides, oral evidence [in] chief will facilitate proceeding if and when additional parties are joined as is likely.
•His Honour did not have all the relevant material for 14^th September 2023 hearing because plaintiff [respondent] left out documents that would have assisted my case.
Additionally, amongst the applicant’s proposed grounds of appeal are statements which appear to assert that particular orders made against him are the product of actual bias. For example, one such order is said to:
reflect the unusual and extremely biased response to a self-represented litigant of Indian ethnic origin raising relevant questions regarding conduct of the plaintiff [respondent] and these are simply attempts at punishing me for raising and revealing the fraud being perpetrated by the plaintiff at each and every step.

Similarly, as to costs orders made against the applicant, which he described as ‘punitive’, the applicant said that they:
can only be explained by extreme racial prejudice, apparent and apprehended bias against a self-represented litigant of Indian ethnic origin.
In his written application for leave to appeal, amongst other proposed orders, the applicant seeks the vacating and/or staying of all of John Dixon J’s orders until the determination of the High Court special leave application; an order that the two proceedings be heard and determined as two separate trials; an order that each proceeding be tried by judge and jury, with a separate jury for each trial; and orders that evidence in one proceeding cannot be used in the other.

Application for leave to appeal against 14 September 2023 orders: consideration and conclusion

The applicant’s proposed appeal against the orders made on 14 September 2023 is totally devoid of merit. Putting to one side the difficulties facing an applicant who seeks to pursue an interlocutory appeal from a discretionary decision on a question of practice and procedure,[22] there is simply no merit in any of the applicant’s submissions.
[22]As to which, see this Court’s recent summary in Fei v Hexin Pty Ltd [2024] VSCA 158, [67]–[71] (Kennedy, Macaulay and Lyons JJA) (‘Fei’).
Specifically, the two proceedings were plainly interrelated, and an order that they be tried separately would not have been rational. The applicant’s contention that the evidence in one proceeding could not be used as evidence in the other proceeding was patently absurd. Moreover, there was no basis upon which his Honour could or should have ordered that either proceeding be tried by a jury. Neither proceeding fell within the operation of r 47.02 of the Rules; and, even assuming some power in the court to order a jury trial, no basis for such an order was ever made out by the applicant.
Additionally, the existence of the then-unresolved special leave application did not form any basis upon which the appeal from the orders of Keith JR (or the proceedings more generally) could or should have been adjourned. The judge was plainly correct in rejecting the applicant’s submissions on that issue. In any event, the special leave application was ultimately dismissed on 9 November 2023. There was thus no injustice caused to the applicant by his Honour’s refusal to adjourn the appeal and/or stay the proceedings pending the outcome of the applicant’s soon-to-be unsuccessful special leave application.
Next, there is nothing in the applicant’s complaints of bias (actual, apparent or apprehended) or racial prejudice. Contrary to the applicant’s assertions, nothing in, or about, the orders made by John Dixon J discloses any arguable basis for any assertion that his Honour’s orders were actuated by any form of bias or racial prejudice. In any event, it is to be noted that both the applicant and the respondent have the same racial heritage. Quite why his Honour might be racially biased against one party, to the exclusion of the other party with the same background, is difficult to imagine.
The applicant has not demonstrated any doubt about the correctness of any of the orders made by John Dixon J on 14 September 2023. Additionally, putting to one side the costs orders of which the applicant complains, he has failed to demonstrate that any injustice (let alone substantial injustice) was, or would have been, caused if those orders were allowed to stand. It follows that there is no basis for granting the applicant leave to appeal, much less allowing any appeal, against the orders made by John Dixon J on 14 September 2023.[23]
[23]Fei [2024] VSCA 158, [71]. See also Qu v Wilks [2023] VSCA 198, [67] (Beach, Kennedy and Walker JJA); Kajula Pty Ltd v Downer EDI Ltd [2024] VSCA 236, [83]–[84] (Macaulay, Lyons and Orr JJA) (‘Kajula’).
Finally, on the question of costs, this Court has repeatedly observed that appeals from orders as to costs are treated as exceptional and require this Court to exercise particular restraint.[24] The test is not whether this Court would have exercised the discretion as to costs in the same way as the primary judge, but whether there was a ground on which the primary judge could reasonably have made the order in question.[25] That said, in the circumstances of this case, the judge was plainly correct to order that costs follow the event. Moreover, there was no error in his Honour granting the respondent ‘leave to immediately tax such costs’.
[24]Cargill Australia Ltd v Viterra Malt Pty Ltd [2023] VSCA 301, [63] (Sifris, Walker and Whelan JJA).
[25]Ibid.
It follows that the application for leave to appeal against the orders made by John Dixon J on 14 September 2023 must be refused.

THE APPLICATION FOR LEAVE TO APPEAL AGAINST THE FIRST TRIAL RULING

While the application for leave to appeal against the orders made consequential upon the First Trial Ruling is contained within the application for leave to appeal against the final orders made by the trial judge, it is convenient to deal with the applicant’s complaints about the First Trial Ruling separately before coming to the merits of the applicant’s proposed appeal against the trial judge’s final orders.

Applicant’s submissions to the trial judge

At the commencement of the trial, relying upon summonses he filed on 4 and 15 March 2024, the applicant made lengthy submissions in support of contentions which included that:
•the hearing of the trial should be vacated or stayed;
•there should be orders directing that each proceeding ‘further proceed by writ’;
•the proceedings should be heard separately;
•the mode of trial for each proceeding should be a judge and jury;
•the proceedings should ‘proceed only by reference to oral evidence’;
•various additional persons should be joined to one of the proceedings, but not the other — including the legal representatives of the respondent; and
•the proceedings should be summarily dismissed because they are the product of, or constitute, an elaborate fraud perpetrated by the respondent.

First Trial Ruling

In rejecting the applicant’s submissions and refusing him the relief he sought, the trial judge observed that many of the applicant’s arguments had previously been ventilated by him before John Dixon J and Barrett AsJ. Arguments that had not been ventilated in the hearings before their Honours, however, he said ‘could or should have been made at an earlier time, certainly much earlier than the date on which the case was to come on for trial’.[26]
[26]First Trial Ruling, p 84.
The trial judge also observed that the applicant ‘seem[ed] to have determined not to comply with [the] orders of John Dixon J, unless he want[ed] to’.[27]

The application for leave to appeal the First Trial Ruling

[27]Ibid p 83.

In support of his application for leave to appeal against the First Trial Ruling, the applicant advanced 11 proposed grounds of appeal. Largely these grounds merely asserted that the trial judge erred in not taking the course the applicant urged him to take on the first day of the trial. That said, the applicant also asserted that the trial judge
… ignored that the doctrine of mutual wills rendered void [the respondent’s] application to seek grant of probate of only the deceased’s alleged copy will without my father’s alleged identical mutual copy having been applied for grant of probate.
as well as ignoring a number of other specified matters and committing other specified errors.
In his last two proposed grounds of appeal against the First Trial Ruling, the applicant asserted that the trial judge’s orders dismissing his two summonses ‘were fraught with apprehended and apparent bias’; and that his Honour erred in ordering costs against the applicant and ‘not taking into consideration the cost exceptions that applied to probate proceedings’.

Application for leave to appeal against First Trial Ruling: consideration and conclusion

The applicant’s proposed appeal against the dismissal of the summonses he filed in March 2024 and the refusal to grant him the relief he sought pursuant to those summonses is devoid of merit. The trial judge was plainly correct, for the reasons he gave, in concluding that there were features of these applications which had ‘the hallmarks of an abuse of process’.[28]
[28]First Trial Ruling, p 85. See also the trial judge’s reference to DA Christie Pty Ltd v Baker [1996] 2 VR 582.
The short answer to the applicant’s proposed appeal against the dismissal of the summonses he filed in March 2024 is that there was no merit in any of the applications made by the applicant to the trial judge on the first day of the trial. Specifically, there was no basis for any adjournment or stay; no basis for altering the mode of trial; no basis for re-agitating issues which had already been determined prior to trial; no basis for the joinder of any additional parties; and no basis for summarily dismissing either of the proceedings. It follows that there was no error in the judge’s refusal to grant the applicant the relief he sought on the first day of the trial; and no error in the judge making orders for costs against the applicant in respect of his unsuccessful applications.
Moreover, whether or not, in some other case, it might be correct to assert that no order for costs should be made against a litigant in a probate proceeding because ‘cost exceptions apply to probate proceedings’, the conduct of the applicant in arguing and rearguing manifestly hopeless points well entitled the trial judge to make the costs orders he made against the applicant when he dismissed the March summonses.
Finally, there is nothing in the applicant’s assertion that the trial judge’s orders dismissing his two summonses ‘were fraught with apprehended and apparent bias’. The fact that the applicant was unsuccessful in persuading the judge to accept his manifestly hopeless submissions does not in any way disclose the existence of any form of bias on the part of the trial judge.
It follows from the above that the applicant’s application for leave to appeal against the orders made by the trial judge on the first day of the trial (19 March 2024) must be refused.

THE APPLICATION FOR LEAVE TO APPEAL AGAIST THE ORDERS MADE IN THE PROCEEDINGS AFTER TRIAL

As I have already said, the applicant advances 49 proposed grounds of appeal relating to the orders made by the trial judge on 23 May 2024. The proposed grounds of appeal are detailed and, in single space typing, occupy some 7 pages of the applicant’s application for leave to appeal.[29]
[29]This is to be contrasted with the applicant’s written case which, purporting to cover all 60 of the applicant’s proposed grounds of appeal in relation to the orders made on the first day of the trial and following the trial, paradoxically, occupies less than three pages of single-spaced typing.
While the applicant’s proposed grounds of appeal and written case must be kept steadily in mind when considering whether his proposed appeal has a real prospect of success,[30] I will not burden these reasons by setting out the detail of all of the applicant’s proposed grounds of appeal. Before dealing with the prospects of success of the applicant’s proposed appeal, however, it is necessary to summarise in a little detail the trial judge’s reasons for making the orders in respect of which the applicant now complains.

Trial judge’s reasons for judgment

[30]See s 14C of the Supreme Court Act 1986.

The trial judge commenced his reasons for judgment by saying:
Even among the cases in the Trust, Equity and Probate List of the Court, the circumstances of the present case are lamentable.[31]
[31]Trial Reasons, [1].
Having observed that the ‘principal protagonists are brothers’ whose parents passed away on 14 February 2012 and 9 June 2022 respectively,[32] the judge recorded that the applicant, who had appeared in person, ‘took issue with a great number of facts, documents and events, including aspects of that to which [he had] already referred’.[33] The judge described much of what the applicant disputed or queried as having been ‘presented as bizarre and lacking in much in the way of proportion or reality’.[34]
[32]Ibid [2].
[33]Ibid [3].
[34]Ibid [6].
The judge then broadly outlined the little that was common ground between the parties,[35] before describing some relevant background;[36] noting that the applicant had, late in the trial, sought and obtained leave to seek a grant of probate in respect of a draft will prepared in respect of the mother and referred to at trial as the ‘mother’s draft will’ (‘the mother’s draft will’); and summarising some assertions made by the applicant.
[35]Ibid [7].
[36]Ibid [8].
The judge described the mother’s draft will as a document prepared by Sharrock Pitman Legal, solicitors, in April 2011. The mother’s draft will (and a draft will for the father) were drawn and provided by a solicitor named Shubha Rau. The judge referred to the respondent’s evidence that, in late 2011 or early 2012, his father gave him a copy of his will, and that in mid-2012, his mother gave him a copy of her will. The copy wills were both dated 18 October 2011. The judge said that the copy wills were ‘in some ways similar to the draft wills prepared by Shubha Rau, but there are differences;[37] including that neither copy will appears to have been drawn by a solicitor’.[38] Additionally, the copy wills contained copy signatures of the testator/testatrix and ascribing witnesses, whereas the draft wills did not contain any signatures or copy signatures.
[37]After her husband’s death, the mother’s copy will appointed the applicant and the respondent as her executors and trustees of her estate; whereas the mother’s draft will appointed the applicant and an accountant as her executors and trustees of her estate. While both wills left the Property to the applicant, the mother’s draft will bequeathed the sum of $200,000 to the applicant as well. Both wills, however, had provisions requiring the ultimate value of the bequests to each son to be equalised (so that the value of what each son inherited from the estate was equal), by payments out of the estate (or other adjustments) if the value of the bequests to each son were not otherwise equal.
[38]Trial Reasons, [8].
The judge noted that the applicant broadly asserted the matters which I have set out in para [3] above.[39] The judge also observed that the applicant had advanced a range of serious allegations against the respondent (for example, that he was a serial fraudster; who targeted single, vulnerable mothers with assets; and who was connected with animal poaching syndicates), before concluding that ‘the entire exercise raised a lot more questions about [the applicant] than it did about [the respondent]’.[40] The judge said that he accepted the respondent’s denials of ‘the serious and scandalous allegations levelled at him’ by the applicant during the course of the trial.[41]
[39]Ibid [9].
[40]Ibid [10]–[13].
[41]Ibid [13].
After further summarising the positions of the parties and some of the evidence about Ghosh Enterprises, the judge said:
It will be evident that there were real tensions (and, I tend to think, great improbabilities) in the first defendant’s [applicant’s] evidence concerning the alleged changes in beneficial ownership of the shares of Ghosh Enterprises and the ultimate registration by ASIC of changes in company ownership. While he sought to advance various purported explanations, I was not satisfied that any of it would allow me to safely conclude that the company had ever been ‘his’; beneficially or otherwise.[42]
[42]Ibid [30]. See further, Trial Reasons, [18]–[29] and, in particular, [28] where his Honour referred to ‘the significant tension’ between the various accounts given by the applicant in relation to his claim of ‘ownership’ of Ghosh Enterprises.
In relation to the applicant’s claim of ownership over the Property, the judge noted the following matters:
(1)On 23 August 1990, the applicant, together with his father and mother, were recorded on the title as joint proprietors of the Property. A more recent title search, however, disclosed that a transfer of land was lodged on 26 September 2002, and that the registered proprietors of the Property have since been only the father and the mother (and not the applicant).[43]
(2)The applicant relied upon one page of a document purporting to be dated 4 May 2012 and purporting to contain the signatures of his mother, himself and a witness. The applicant described the document as a ‘transfer … that wasn’t registered’ and said that the effect of it had been to transfer the Property back to him.[44]
(3)At various points in the trial, the applicant said that he would produce additional documents establishing that he had ‘always owned the property since 1990’. These documents would include declarations of trusts, naming the applicant as sole beneficiary. The documents would be ‘original’ and ‘pristine’.[45] No documents of that kind were ever produced.
(4)The applicant described a copy transfer as having given him ‘sole proprietorship’ of the Property in 2015. He also described this document as ‘redundant’. At the same time, he also referred to ‘statutory declarations which indicate the existence of a declaration of trust over the house’, which were said to have been executed by his mother on 27 June 2013.[46]
(5)As to the alleged 27 June 2013 declaration of trust, while the applicant had foreshadowed that he would produce it to the Court, ultimately he ‘refrain[ed] from producing the document’.[47] For completeness, I note that, in saying that he would refrain from producing that document, the applicant said to his Honour that ‘The trust existing, that would fall outside the proceedings anyway’.
(6)In support of a further application to strike out the proceedings, the applicant put what the judge described as the following ‘quite extraordinary theory’:
… the main application I want to make is in respect of the transfer document relating to 2002 which I’m astonished to find that the transfer was actually fraudulently effected by the plaintiff [respondent] himself and himself planting as a witness to the transfer. I hadn’t seen that document before. I retrieved that document from the Land Titles Office … and I saw it for the first time, and I realised what happened in 2002, which is, as I said your Honour. I haven’t determined the exact dates my parents and I were present or not present, but in 2002 it was the year of the Sydney Olympics and my parents were living in Singapore and I was travelling extensively overseas as well. In the month of September and October are the month of Indian Hindu festivities and we generally, me and my parents would go overseas back to India for those particular months.[48]
[43]Ibid [33]–[34].
[44]Ibid [35].
[45]Ibid [36]–[38].
[46]Ibid [39]–[40].
[47]Ibid [40].
[48]Ibid [45] (footnote omitted). As the trial judge noted, however, the Sydney Olympics were in the year 2000: ibid [46].
In the course of dealing with this evidence, and the changing positions adopted by the applicant during the trial, the judge said that he could not accept the applicant’s various assertions that he has always owned the Property or that it is his, either beneficially or legally.[49] Additionally, the judge said that he felt ‘no sense of confidence in the various copy documents proffered by [the applicant] and [did] not accept that they were authentic or efficacious’.[50]
[49]Ibid [51].
[50]Ibid.
After describing further the course of the trial and the history of the proceedings, the judge turned to the witnesses and other evidence given at trial. The respondent gave evidence and called two other witnesses: LSC Hansen, who gave evidence concerning this witnessing of the mother’s original will (of which the mother’s copy will is a copy); and Michelle Butler, a solicitor formerly employed by the respondent’s solicitors, Shiff & Company Lawyers, who gave evidence concerning, among other things, the steps she had taken to locate the other subscribing witness to the original will (Ms Phan). For his part, the applicant gave evidence, but did not call any other witnesses.[51]
[51]Ibid [78]–[81], [89], [92].

The judge found the respondent to be ‘substantially a witness of truth’. He said that while there were a few moments where the respondent ‘took some liberties’, the overall circumstances of the case and the cross-examination was ‘apt to fray the nerves of the most tranquil witness’, and he did not regard those ‘relatively isolated incidents as displacing the likely truth in the overall substance of [the respondent’s] evidence’.[52]
[52]Ibid [86]–[87].
The judge described LSC Hansen as presenting ‘as a plain witness of truth’;[53] and Ms Butler as presenting ‘in a straightforward manner’, who he accepted as a witness of truth.[54]
[53]Ibid [88]–[91].
[54]Ibid [92]–[94].
By contrast, in a detailed analysis,[55] the judge concluded that much of the applicant’s evidence ‘was simply unpersuasive and cannot be accepted’.[56] The judge noted that, notwithstanding he had overruled objections the applicant had to answering questions on particular topics, the applicant simply refused to answer the questions.[57] In one case, after his objection had been ruled against, the applicant purported to ‘recuse’ himself from answering.[58] Later, when dealing with the critical issue of whether the property could be searched in an attempt to find the original of the mother’s copy will, the judge said that the applicant seemed implacably opposed to any such prospect and his evidence on the topic was ‘the epitome of evasiveness’.[59]
[55]Ibid [95]–[137].
[56]Ibid [97].
[57]See, for example, Trial Reasons [130].
[58]Ibid 132].
[59]Ibid [205].
Ultimately, the judge concluded that significant parts of the applicant’s evidence were probably untrue; or it was unreliable; and that the applicant had not been a witness of truth.[60]
[60]Ibid [135]–[137].
Next, the judge dealt with applicable legal principles.[61] Under the heading, ‘The mother’s copy will and the presumption of destruction or revocation animo revocandi’, the judge said that where an original will is lost or unavailable, a copy may be admitted to probate if the court is satisfied that it is a true copy and the original was duly executed. His Honour then set out what the propounder of such a will must establish, being:
(a)the will existed;
(b)the will revoked all previous wills;
(c)the presumption of destruction by the deceased animo revocandi is overcome;
(d)there is evidence of the terms of the will; and
(e)there is evidence of due execution of the will.[62]
[61]Ibid [138]–[159].
[62]Ibid [139] (citations omitted).
As the applicant sought to have the mother’s draft will admitted to probate, the judge summarised the relevant principles concerning the admission of an informal will to probate.[63] His Honour then noted that if neither the mother’s copy will nor the mother’s draft will could be admitted to probate, ‘it seemed ultimately not to be in issue that the intestacy provisions would apply’.[64]
[63]Ibid [145]–[149].
[64]Ibid [150].
Under the heading, ‘Passing over’, the judge said that, generally speaking, a named executor is entitled to a grant of probate. His Honour said that it followed that:
(a)the jurisdiction to pass over an executor will only be exercised in special or exceptional circumstances;
(b)in that connection, the Court will have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate; and
(c)sufficient circumstances may be present when the particular executor has a conflict of interest and/or the relationship between named executors is such that there is ‘no realistic expectation that they will be able to work together in the interests of the estate’.[65]
[65]Ibid [152] (citations omitted).
The judge then referred to s 13(1) of the Administration and Probate Act 1958 and ss 231, 236, 237 and 247A of the Corporations Act 2001 with reference to the respondent’s claims that the applicant be directed to provide him with documents relating to the assets and liabilities of the estate and documents relating to the Ghosh Superannuation Fund, as well as the respondent’s entitlement to inspect the books of Ghosh Enterprises.[66]
[66]Ibid [154]–[159].
The judge then turned to consider the draft and copy wills, noting that the respondent sought a grant of probate of the mother’s copy will and ‘belatedly, and in an endeavour to avoid an intestacy, [the applicant] came to seek a grant of probate of the mother’s draft will’.[67] The judge noted that the issues were ‘linked, at least in the manner in which they were argued’.[68]
[67]Ibid [160].
[68]Ibid [161].
His Honour conducted a detailed analysis of the evidence and the copy and draft wills,[69] in the course of which he noted the respondent’s evidence that:
(a)the father handed the plaintiff [respondent] a copy of his will in late 2011 or early 2012 and said that the father and mother had used the draft wills as ‘templates’ to prepare their ‘final wills’ and that the original wills were kept at the Property;
(b)the mother gave the plaintiff a copy of her will in 2012, after the death of the father; and
(c)the first defendant [applicant] has not permitted the plaintiff to access the Property to search for the mother’s original will.[70]
[69]Ibid [163]–[224].
[70]Ibid [201].
In respect of the original of the mother’s copy will, the judge concluded that ‘the one location that cried out to be properly searched was the Property’.[71] As I have already noted, however, the judge concluded that the applicant ‘seemed implicitly and quite implacably opposed to any such prospect and his own evidence on the topic was the epitome of evasiveness’.[72]
[71]Ibid [204].
[72]Ibid [205].
The judge noted the appropriate acknowledgement by the respondent that the ‘most difficult aspect’ of his claim for the admission of the mother’s copy will to probate was overcoming the principle of revocation animo revocandi.[73] The judge said that, from the evidence, he readily accepted that the other principles relating to lost or copy wills were satisfied, specifically that:
(a)the original will existed;
(b)the mother’s copy will is evidence of the terms of that original will;
(c)in its terms, that will revoked all previous wills; and
(d)the original will was duly executed in the presence of two witnesses.[74]
[73]Ibid [209].
[74]Ibid [210] (footnote omitted).
After further reference to the evidence and further analysis,[75] the judge said:
In light of the above, while the wisdom encapsulated in the presumption of revocation animo revocandi must be acknowledged, it seems to me that this is one of those cases in which the relevant circumstances are such that it is most unlikely that that (sic) the mother’s original will was destroyed by her prior to her death and, indeed, it is most likely that the original will existed in the very place which the father said it was located and which has not subsequently been able to be reliably searched.
Accordingly, I accept that –
(a)in the unusual circumstances of the present case, the presumption of revocation animo revocandi has been shown to be repelled or overcome; and
(b)a grant of probate should be made in respect of the mother’s copy will.[76]
[75]Ibid [211]–[224].
[76]Ibid [225]–[226].
As part of his analysis of the issue, the judge said that the ‘glaring point’ is that, up to the time of trial, it had not been possible for the respondent to reliably search the Property, where the father said that the original wills were kept and where, on the evidence, it seems most likely that the original wills would have been located.[77]
[77]Ibid [212]. See further, [218]–[224].
The judge then turned to the issue of passing over, noting that the mother’s copy will relevantly appointed the applicant and the respondent as joint executors.[78] In considering the passing over issue, the judge noted the applicant’s ‘bizarre and other scandalous contentions concerning [the respondent]’, which he had rejected; and that the applicant’s behaviour had become ‘considerably more bizarre and extreme since the mother’s death’.[79] The judge concluded his analysis of the passing over issue by saying:
[78]Ibid [229].
[79]Ibid [232], [236].
In the circumstances, it seems to me to be inevitable that despite the findings made in these proceedings, the first defendant will continue widely to claim to own practically all or at least most of the significant assets in his mother’s estate while at the same time continuing to assert that the plaintiff is a ‘fraud’ and a ‘serial liar’.
In my view –
(a)that position would plainly place him in a significant and intractable conflict of interest if he were to remain an executor of the estate;
(b)there is no realistic prospect that the first defendant will be able to co-operate with the plaintiff in the proper administration of his mother’s estate;
(c)if the first defendant were to serve as executor together with the plaintiff he will continue to behave obstructively with the consequence that the estate would continue not to be called in and administered; and
(d)it is in the interests of all beneficiaries, including the first defendant himself, that he be passed over as executor.
It follows that I accept that special or exceptional circumstances are shown and that the first defendant should be passed over as executor of his mother’s estate.[80]
[80]Ibid [242]–[244].
Finally, the judge turned to the respondent’s claims concerning documents relating to the assets and liabilities of the estate, the Ghosh Superannuation Fund, and the books of Ghosh Enterprises. His Honour noted that, in substance, the respondent sought orders that:
(a)the first defendant [applicant] provide to the plaintiff [respondent], as executor, any documents in his possession, custody or control relating to the assets or liabilities of his mother’s estate;
(b)in particular, the first defendant provide to the plaintiff, as executor, any documents relating to the Ghosh Superannuation Fund, including any binding death benefit nomination form and any documents pertaining to the identity of the trustee; and
(c)the plaintiff, as executor of the estate of the mother, be authorised to inspect the books of Ghosh Enterprises.[81]
[81]Ibid [245].
The judge said that the orders sought by the respondent were ‘in aid of the most basic obligation of the executor to identify the assets that form the estate and get them under his control’.[82]
[82]Ibid [246].
The judge summarised his conclusions about the applicant’s conduct in relation to these matters as follows:
As I have indicated, to this point the first defendant [applicant] has largely sought to obstruct the efforts of the plaintiff to establish the estate and to obtain the personal papers of the parents, whilst at the same time drip feeding a sequence of documents of dubious provenance in support of contentions that most or all relevant assets are, in fact, his; or that such assets and associated documents are irrelevant to the estate.
It will be evident that I do not accept –
(a)that the Property is the first defendant’s, legally or beneficially;
(b)that the bank accounts were or are the first defendant’s, or properly to be operated and administered by him; or
(c)that the officeholders and membership of Ghosh Enterprises were properly altered.
As to Ghosh Enterprises, in particular, upon the grant of probate the mother’s property is taken to vest in the plaintiff as executor from the date of her death.[83]
[83]Ibid [249]–[251].
Ultimately, the judge held that the respondent was entitled to the orders he sought as the sole executor of the mother’s estate. With respect to the Ghosh Superannuation Fund, the judge noted that the applicant had been asked about it in cross-examination, describing the applicant’s answers as comprising ‘a masterclass in evasiveness and stonewalling in the course of which he quite untenably purported to “recuse” himself from answering’.[84] The judge then said:
I note that in the course of that lengthy exercise the first defendant [applicant] did not deny that there was a Ghosh Superannuation Fund. However, he did deny that there were documents relating to the superannuation fund at the Property and that he knew the name of the trustee. That sequence of answers is among the category of answers given by the first defendant that I consider to be likely to have contained untruths.[85]
[84]Ibid [269].
[85]Ibid [270].
The judge observed that the documents relating to the Ghosh Superannuation Fund which had been ‘essentially shielded from any proper examination’, by the applicant, formed part of the relevant papers that should be produced to the respondent as executor of the mother’s estate, in order that they might be considered, and it determined whether they give rise to or contain an asset for the benefit of the estate.[86]

The 49 proposed grounds of appeal

[86]Ibid [283].

As I have already said, I do not propose to burden these reasons by setting out the detail of all of the applicant’s proposed grounds of appeal against the orders made by the trial judge on 23 May 2024. Some are simply unintelligible; while others appear to have little, if any, rational relationship to the issues that were litigated at trial. Examples of these include:
6.His Honour erred in not considering that I had asserted that the secret cremation effected by the Plaintiff and related parties were fraught with illegalities to an extent where even several final checks were abandoned and its not possible to state with certainty that the deceased was actually cremated at the time and on the day cremation paperwork alleges deceased was cremated.
…
27.His Honour erred in dismissing my objection to the photo taken by me exhibited by the plaintiff in his affidavit because plaintiff had not explained the probative value of that photo. Plaintiff should have exhibited a photo taken by him if plaintiff wanted to ascribe a probative value to it but did not exhibit an (sic) photo taken by him because plaintiff being distant from my deceased's rarely took any photos that included her and therefore plaintiff did not have such a photo. His Honour erred in stating that exemption in copyright may exist. I submit that no such exemption exist in copyright laws.
That said, there are a number of proposed grounds of appeal which disclose a complaint made by the applicant that is capable of being addressed. These include:
1.His Honour’s judgement and orders were fraught with apprehended, apparent and cultural bias.
…
10.His Honour erred in his judgment and orders regarding the plaintiff’s inadequate rebuttal of presumption of revocation of the copy will of the deceased.
…
21.His Honour erred in his judgement in his interpretation of the scope of s 247 (scil, 247A) of Corporations Act.
…
37.His Honour erred in relying on Robert Hansen’s evidence as it became evident during cross examination that Robert Hansen was not a witness of Truth.
…
49.His Honour erred in not considering [the] exception to the cost follows the event in probate proceedings.

The application for leave to appeal against orders made after trial: consideration and conclusion

Applicant’s complaints of bias

Under proposed ground 1, the applicant contended that the Trial Reasons, and the orders made following the trial, ‘were fraught with apprehended, apparent and cultural bias’. As originally argued, the applicant submitted that the cultural bias displayed by the trial judge was against him because of his Indian ethnic origin. When it was pointed out to the applicant, in oral argument, that the respondent had the same background, the argument morphed into a claim that the judge was biased against self-represented litigants of Indian ethnic origin.
Essentially, the applicant’s complaints of bias were advanced on the basis of the language used by the judge in the Trial Reasons. The applicant took exception to the judge describing his behaviour as ‘bizarre’, and his submissions as ‘illogical’. Such descriptions were said to demonstrate a cultural bias; alternatively, actual or apparent bias. That is, a fair-minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the issues the judge had to decide.[87]
[87]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In the course of oral argument, the applicant expanded proposed ground 1 to make it a complaint, not only in respect of the post-trial orders, but also in relation to the various rulings (and in particular the First Trial Ruling) made by the judge during the course of the trial.
The applicant’s complaints of bias are devoid of merit. The applicant’s conduct of the trial was, to say the least, unsatisfactory in significant respects. The making of multiple hopeless applications to the judge, which applications had previously been refused,[88] was undoubtedly a source of some frustration for the trial judge. From the transcript of the trial, it appears that the applicant felt himself entitled to disregard orders previously made, with which he did not agree; at liberty to make numerous serious allegations of fraud and misconduct, when there was no proper basis for them; and simply not to answer any question, or engage with any issue, if he thought that it was not in his interests to do so.
[88]See, in particular, the references to some of these applications in proposed grounds 42, 43, 45 and 46.
While the applicant obviously cavils with some of the language used by the judge, none of his Honour’s language (either during the course of the trial or in the Trial Reasons) gives rise to any basis upon which it might sensibly be submitted that any of the orders made by the judge were affected by any form of bias. The judge’s use of the words ‘lamentable’,[89] ‘bizarre’[90] and ‘illogical’[91] was, in the circumstances of these proceedings, well-justified. Perhaps, in another jurisdiction, the trial judge might have described the applicant’s conduct of these proceedings as ‘an omnishambles’.[92]
[89]Trial Reasons, [1].
[90]Ibid [6], [105], [232], [236], [239] and [241(f)].
[91]Ibid [97] and [239].
[92]See Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369, [2] (Lee J).
Any judge hearing these proceedings would have been entitled to be highly critical of the applicant for the way in which he conducted the proceedings. Any party to legal proceedings who conducts them in the way they were conducted in this case could expect nothing less than to be the subject of serious criticism and opprobrium for such conduct — whatever the cultural, racial or other background of that party. The fact that the judge was very critical of the applicant in this case does not give rise to any serious suggestion that his Honour might not have brought an impartial mind to the resolution of these proceedings.

The scope of the Trial Reasons

Many of the applicant’s complaints, and much of his argument in this Court, concerns the judge’s refusal to engage with issues which the applicant wanted to explore and have investigated.[93] Thus, one of the applicant’s themes was that, as his parents had lived overseas for many years of their lives, there may be other assets and wills outside Australia which needed to be found and then appropriately dealt with.[94] Related to this theme was that the wills tendered at trial only dealt with Australian assets, were thus incomplete and (at least in the case of the mother’s copy will and the corresponding father’s copy will) were fraudulent. It was submitted that investigations needed to be made with a view to discovering overseas assets and wills and joining additional parties. All of these themes, ideas and assertions made by the applicant (both at trial and in this Court) ignored the more limited nature of the issues relevantly in dispute in these proceedings. Those issues, as ultimately joined by the parties, were:
(1)whether the mother’s copy will (alternatively, the mother’s draft will) was to be admitted to probate;
(2)in the event that the mother’s copy will was to be admitted to probate, whether the applicant should be passed over as executor; and
(3)whether orders should be made requiring the applicant to provide to the respondent documents of, and/or relevant to the administration of, the estate.
[93]See, for example, proposed ground 16.
[94]See, for example, proposed ground 12.

To the extent that any of the applicant’s proposed grounds of appeal assert that the judge erred in not dealing with issues which were not relevantly before the Court, or for which there was no appropriate evidentiary foundation, those proposed grounds of appeal must of course be rejected. Much of what the applicant appears to want to rely upon was (and is) no more than unsupported assertion, or mere speculation on his part. So, for example, in the applicant’s summonses,[95] dismissed by the trial judge on the first day of the trial, there are assertions made by the applicant that the respondent and his wife:
should be charged for sex trafficking (offering the Indian migrant woman for sex and marriage), human trafficking, immigration fraud and employing the migrant woman in slave labour like conditions.
[95]Filed on 5 and 19 March 2024.
Next, while the applicant makes complaint in this Court that the trial judge ignored documentary evidence tendered by him, two things should be noted: first, the applicant’s documentary evidence was voluminous, consisting of no less than 24 separate affidavits, their exhibits and other exhibits; and secondly, the relevance of a considerable amount of the applicant’s documentary evidence was, to say the least, tenuous.[96]
[96]For example, see Exhibit D30, a document entitled, ‘Life in the field: Meeting with people, protecting Namibia’s rhinos’, attached to which was an anodyne email from the respondent — but which was submitted by the applicant to show that the respondent was ‘trying to expose the people who are trying to protect wildlife on the ground’.
Having examined all of the material tendered by the applicant at trial, I am unable to see any basis on which it might sensibly be suggested that the judge ‘ignored’ the applicant’s documentary evidence. The Trial Reasons disclose, to the contrary, that the judge examined all of the relevant evidence with some care. The fact that his Honour did not accept all of it, and in some instances outright rejected it, does not disclose any basis upon which it could realistically be contended that the applicant’s proposed appeal enjoys any prospects of success.

The judge’s findings in relation to the witnesses

A number of the applicant’s proposed grounds of appeal are predicated upon three assertions: first, that the applicant was an honest and reliable witness, whose evidence had to be accepted by the judge; secondly, that the respondent was a ‘serial’ and ‘total’ fraudster, none of whose evidence could be accepted on any topic;[97] and thirdly, that the respondent’s witnesses were either dishonest[98] or unreliable and, where their evidence conflicted with the applicant’s evidence, it was not open to the judge to accept their evidence.
[97]See, for example, proposed grounds 2, 3, 4, 5 and 7.
[98]See, for example, proposed grounds 37 and 39.
Plainly, the judge had the benefit of seeing and hearing the witnesses over the course of the trial. In that respect, his Honour enjoyed a significant advantage over this Court.
The Trial Reasons contain careful and detailed analyses of the witnesses who gave evidence at trial. As I have already noted, the judge concluded that the applicant was an unsatisfactory witness; whereas, by contrast, he concluded that the respondent and his witnesses were witnesses of credit, whose evidence could be relied upon. In order to overturn these conclusions and/or the findings of the judge based upon the evidence of these witnesses, the applicant would have to show that his Honour’s conclusions and findings were ‘glaringly improbable’, or ‘contrary to compelling inferences’.[99] Having reviewed the evidence for myself, far from being persuaded that there is some prospect that the appellant might persuade this Court on appeal to overturn the judge’s credibility and reliability findings (and thus his conclusions based on that evidence), there is in fact no real prospect of that occurring on the hearing of any appeal from his Honour’s final orders.
[99]Lee v Lee (2019) 266 CLR 129, 148–149 [55] (Bell, Gageler, Nettle and Edelman JJ).
In summary, the judge gave detailed and cogent reasons for preferring the evidence of the respondent and his witnesses over the evidence of the applicant. The applicant plainly does not agree with his Honour’s reasons in this regard (or at all). He has not, however, shown any basis upon which those reasons, or the findings based upon them, might be overturned. More specifically, the applicant’s proposed grounds of appeal that are predicated upon the proposition that the judge was required to accept the applicant’s evidence, or to reject the evidence of the respondent and/or his witnesses, must be rejected.[100]

Did the trial judge err in making a grant of probate of the mother’s copy will?

[100]See, for example, proposed grounds 6, 8, 24, 25, 26, 37 and 39.

In order to obtain probate of the mother’s copy will, the applicant had to establish: first, that the original of the will existed; secondly, that that will revoked all previous wills; thirdly, that the presumption of destruction by his mother with the intention of revoking that will was rebutted; fourthly, the terms of the will; and fifthly, that the will was duly executed.
At trial, the applicant contested all five elements — saying, among other things, that the mother’s copy will was a ‘total fraud’ for a number of reasons: including, that the Property was not owned by the mother at the time the original of the mother’s copy will was purportedly made.
A difficulty with the applicant making that submission is that, in propounding the mother’s draft will, the applicant was himself propounding a document that purported to bequeath the Property as part of the mother’s estate. So, while the applicant submitted that it was fraudulent for the respondent to propound a document containing an asset that did not form part of the estate, there was no problem so far as he was concerned (fraud or otherwise) in the applicant doing exactly the same thing.
Having accepted the evidence of the respondent and his witnesses (and in particular, LSC Hansen), the judge was almost bound to accept the first, second, fourth and fifth matters which the respondent was required to establish in order to obtain a grant of probate of the mother’s copy will. To the extent that the applicant’s proposed grounds of appeal seek to contest that proposition, for the reasons given by the trial judge,[101] there is no prospect that any of them could be made out. On any rehearing of these issues, this Court would come to the same conclusions as his Honour did on these issues.
[101]Trial Reasons, [161]–[210].
The only issue that might sensibly be described as having been contestable at trial is whether the presumption of destruction by the applicant’s mother with the intention of revoking the original of the mother’s copy will had been rebutted.[102] As I have already described, the judge dealt with this issue in some detail.[103] Notwithstanding the applicant’s attacks on that reasoning, in the circumstances of this case, his Honour’s reasoning is compelling. Having examined all of the evidence for myself, I am of the view that there is no real prospect of the applicant successfully overturning any of it, or his Honour’s ultimate conclusion.
[102]See, for example, proposed ground 10.
[103]Particularly at Trial Reasons, [201], [204]–[205], [209] and [211]–[226].
It follows that, to the extent that the applicant contends that there is some real prospect of him overturning the judge’s reasoning which led to the order granting probate of the mother’s copy will, that submission must be rejected. Indeed, the proposition is untenable on the evidence called at trial.

Did the trial judge err in ordering that the applicant be passed over as an executor of the estate?

The principles concerning the passing over of an executor are well-settled.[104] While it is a serious matter to pass over an executor named by a deceased, the power of the Court to do so is well-established.[105]
[104]See In the Estate of Crane (2005) 93 SASR 198, 202–205 [15]–[30] (Besanko J); O’Halloran v Coffey (No 2) [2023] VSC 51, [52]–[72] (Moore J); Coffey v O’Halloran [2024] VSCA 52, [58] (Beach and Lyons JJA).
[105]Ibid.
To the extent that the applicant submitted that the judge erred in passing over him as an executor of his mother’s estate,[106] that submission must be rejected. The applicant’s claim to be the owner of the Property gave rise to a hopeless conflict of interest in him acting (or continuing to act) as his mother’s executor — her will purporting to bequeath the Property. Moreover, in the face of the terms of the mother’s copy will, the applicant could hardly be permitted to be an executor (much less, the executor) of his mother’s estate when he claims that much, or perhaps all, of what might be thought to be the assets of the estate in fact belonged to him and/or would eventually devolve to him.
[106]See, in particular, proposed ground 3.
The competing claims run at trial were: on behalf of the applicant, that the applicant should be the sole executor of his mother’s estate (in particular, pursuant to the provisions of the mother’s draft will); and, on behalf of the respondent, that the respondent should be the sole executor (pursuant to the terms of the mother’s copy will, with the applicant being passed over). Neither party put the alternative position that an independent person should be appointed as the executor of the mother’s estate.
While, given the conflict between the applicant and the respondent, there is much to be said for the appointment of an independent person to be the executor, that is not the function of this Court on these applications — given the way the matter was argued at trial. It may be that, subject to how events unfold from here, one or other of the parties might ultimately make an application for the appointment of an independent executor. I say nothing about the likelihood or the appropriateness of that occurring at some time down the track. It is sufficient to say that the judge did not err in ordering that the applicant be passed over as an executor of his mother’s estate. Indeed, his Honour’s decision was plainly correct.

Did the judge err in making the orders he made for the provision of documents and the inspection of the books of Ghosh Enterprises?

The short answer to this question is ‘No’. The contrary is not reasonably arguable. The judge, having made orders which would result in probate being granted of the mother’s copy will with the respondent as executor, was, on the evidence, essentially bound to make the orders he made requiring the applicant to produce documents and permit the respondent to inspect the books of Ghosh Enterprises. Indeed, the judge would have erred if he had not done so.
In proposed ground 21, the applicant asserts that the judge erred ‘in his interpretation of the scope of s 247 of [the] Corporations Act’. There is no s 247 of the Corporations Act. The analysis which the applicant wishes to complain about is the judge’s treatment of s 247A of that Act — a section which permits applications to be made to the Court, in specified circumstances, for an order authorising the applicant to inspect books of a company. His Honour’s treatment of the relevant statutory provisions, and the applicant’s submissions in respect of them, is to be found at Trial Reasons [157]–[159] and [255]–[263]. With respect, his Honour’s analysis is entirely correct. The applicant’s submissions to the contrary are without merit. More particularly, in the circumstances of this case, the orders made by the judge were entirely appropriate.

Did the judge err in ordering the applicant to pay the costs of both proceedings?

This question is raised by the assertion contained in proposed ground 49 that the judge erred ‘in not considering exception to the cost follows the event in probate proceedings (sic)’.
The ‘usual order as to costs’ is that a successful party in litigation is entitled to an award of costs in his or her favour. However, in relation to probate litigation, there are well-known exceptions to the usual order.[107]
[107]See generally Rowe v Storer [No 2] [2013] VSC 635, [6]–[9] (McMillan J) (‘Rowe’); Theofanous v Aizen [No 2] [2023] VSC 118 (McMillan J).
The difficulty for the applicant in the present case is that, having been told by the court to attend for judgment and for the making of costs submissions on 23 May 2024 (the day his Honour made the orders about which the applicant now complains), the applicant did not attend. He thus made no submissions in opposition to the respondent’s submission that the applicant should pay the respondent’s costs.
The authenticated orders made on 23 May 2024 show that the solicitor for the plaintiff (respondent) appeared, but that there was no appearance for the defendant (applicant). In the ‘Other Matters’ section of the orders, it was recorded that the orders ‘follow the reasons for judgment delivered [that day]’.
The exceptions to the usual order for costs in probate matters are well-known. There is no basis for the applicant’s contention that the judge did not consider them.
That said, in any event, the applicant has no prospect of overturning the costs orders made by the trial judge. The origin of this litigation was not the fault of the deceased. Its origins stemmed from unreasonable positions taken by the applicant, together with the advancement of multiple propositions which were devoid of merit. There was no reasonable cause for the investigations contended for by the applicant. His conduct in this regard, and more generally of the proceedings themselves, was unreasonable.[108]
[108]See generally Gray v Hart [No 2] [2012] NSWSC 1562, [19] (White J); Rowe [2013] VSC 635, [9].
Moreover, the applicant made numerous, serious allegations of fraud and other serious criminal conduct against the respondent during the course of the proceedings. None of these allegations were made out. On the evidence, those allegations were baseless. In all the circumstances, it would have been plainly unjust not to order the applicant to pay the respondent’s costs of both proceedings. The applicant has no prospect of overturning the trial judge’s costs orders.

THE APPLICATION FOR LEAVE TO APPEAL AGAINST THE ORDERS MADE BY QUIGLEY J ON 14 NOVEMBER 2024

At the risk of repetition, shortly prior to trial, Barrett AsJ and Goulden AsJ dismissed applications made by the applicant and made procedural orders with which the applicant was dissatisfied. On the first day of the trial, the applicant attempted to file a notice of appeal from the orders made by Goulden AsJ; and, following the conclusion of the trial, he attempted to file two notices of appeal from the orders made by Barrett AsJ. The Prothonotary rejected these documents; and, on 14 November 2024, Quigley J made orders upholding the Prothonotary’s decisions.
By his application for leave to appeal filed on 21 November 2024, the applicant advances nine proposed grounds of appeal in support of the proposition that her Honour erred in making the orders she made on 14 November 2024.
The applicant’s application for leave to appeal from the orders made by Quigley J on 14 November 2024 is utterly devoid of merit. The applicant’s proposed appeal has no prospects of success. For the reasons which follow, her Honour was entirely correct in making the orders of 14 November 2024.
First, there was no error on the part of either Barrett AsJ or Goulden AsJ in refusing the applicant’s applications, or in the making of the orders their Honours made.
Secondly, and in part by reason of the fact that the correctness of their Honours’ orders were not attended with any doubt, the proposed appeals from the orders of Barrett AsJ and Goulden AsJ were foredoomed to fail. It would therefore have been an abuse of process to permit the applicant to file his proposed notices of appeal.
Thirdly, the proposed appeals were also foredoomed to fail because leaving their Honours’ orders unreversed would not (and did not) occasion any substantial injustice to the applicant.[109]
[109]Fei [2024] VSCA 158, [71]; Kajula [2024] VSCA 236, [83]–[84].
Fourthly, the applicant reventilated the substance of his applications to Barrett AsJ and Goulden AsJ (and more) during the course of the trial. O’Meara J dealt with these matters, appropriately rejecting again the applicant’s contentions which had been previously rejected. There was no error in O’Meara J’s rejection of the applicant’s contentions, and thus no possibility that the filing of notices of appeal from the orders of Barrett AsJ or Goulden AsJ could possibly have affected the ultimate outcome of the proceedings.

CONCLUSION

Section 14C of the Supreme Court Act 1986 requires this Court to refuse an application for leave to appeal unless it is satisfied that the appeal has a real prospect of success. For the reasons given above, the appeals which the applicant seeks leave to commence against the orders made by John Dixon J on 14 September 2023, the orders made by O’Meara J on 19 March 2024 and 23 May 2024, and the orders made by Quigley J on 14 November 2024 have no prospect of success. Accordingly, the applicant’s applications for leave to appeal must be refused.
The applicant’s applications for leave to appeal are refused.
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[2024] VSCA 294

2 December 2024