Ghosh v Miller - [2018] NSWCA 138

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ghosh v Miller [2018] NSWCA 138
Hearing dates: 18 June 2018
Date of orders: 18 June 2018
Decision date: 22 June 2018
Before: Sackville AJA
Decision:
1. The Respondents’ motion filed on 16 May 2018 is dismissed.
2. The Respondents pay the appellant’s costs of the motion.

Catchwords: COSTS – security for costs – appellant is an undischarged bankrupt – motion filed after leave to appeal granted – whether special circumstances established
Legislation Cited:
Bankruptcy Act 1966 (Cth), s 116(2)(g)

Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Cases Cited: Ghosh v Miller (No 2) [2017] NSWSC 791
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Li v State of New South Wales [2013] NSWCA 165
Category: Procedural and other rulings
Parties: Dr Ratna Ghosh (Appellant)
Rodney Miller (First Respondent)
Elizabeth Everingham Miller (Second Respondent)
Marilyn Bee (Third Respondent)
John Bee (Fourth Respondent)
Michael Ryan (Fifth Respondent)
Adam Schuch (Sixth Respondent)
Karen Schuch (Seventh Respondent)
Representation:
Counsel:
Mr R Rasmussen (Applicant)
Mr M Maconachie (First and Second Respondents)
Solicitors:
Higgins & Dix (First and Second Respondents)

File Number(s): 2017/190932
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 791

Date of Decision:

19 June 2017

Before:

Rothman J

File Number(s):

2013/238215

Judgment

SACKVILLE AJA: On 19 June 2017, Rothman J delivered judgment on a series of motions filed in proceedings commenced by the appellant. [1] In those proceedings the appellant seeks damages for defamation against the respondents. The claim arises out of matters published on websites in 2013 concerning a rental property owned by the appellant.
1. Ghosh v Miller (No 2) [2017] NSWSC 791 (Primary Judgment).
The defamation proceedings were commenced as long ago as August 2013. There are seven defendants in the defamation proceedings and all are named as respondents to the appeal. However only the first and second respondents (Respondents) have pursued the application for security for costs on the appeal.
The lamentable history of the litigation is recounted in Rothman J’s judgment. His Honour made orders dismissing the proceedings against the respondents. His Honour also directed that the appellant not file any application, other than an appeal from the judgment itself, in relation to commencing further proceedings for defamation arising from the publications without the leave of the Court.
The appellant filed a summons on 20 September 2017 seeking leave to appeal from Rothman J’s decision. Leave was required because his Honour’s orders are interlocutory. [2]
2. Supreme Court Act 1970 (NSW), s 101(2)(e).
On 3 April 2018, this Court (McColl and Leeming JJA) granted the appellant leave to appeal. The appellant was required to pay the respondents’ costs thrown away by the appellant’s amendment to the notice of appeal. The costs of the application for leave to appeal otherwise were to be costs in the appeal.
On 16 May 2018, the Respondents filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ghosh v Miller

Details

AGLC: Ghosh v Miller [2018] NSWCA 138
Case: [2018] NSWCA 138
Decision Date: 22 June 2018

CaseChat Overview and Summary

In *Ghosh v Miller*, the appellant, an undischarged bankrupt, sought to appeal a decision. The respondents filed a motion seeking security for costs. The appeal had already been granted leave.

The central legal issue before the court was whether special circumstances existed to justify ordering the appellant to provide security for costs, given his status as an undischarged bankrupt.

The court considered the appellant's bankruptcy and the timing of the application for security for costs. It found that the respondents had not established the necessary special circumstances to warrant an order for security for costs against the appellant. Consequently, the court dismissed the respondents' motion. The respondents were ordered to pay the appellant's costs of the motion.

Orders

Orders of the court

1. The Respondents’ motion filed on 16 May 2018 is dismissed.

2. The Respondents pay the appellant’s costs of the motion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ghosh v Miller [2018] NSWCA 138
Hearing dates:	18 June 2018
Date of orders:	18 June 2018
Decision date:	22 June 2018
Before:	Sackville AJA
Decision:	1. The Respondents’ motion filed on 16 May 2018 is dismissed. 2. The Respondents pay the appellant’s costs of the motion.
Catchwords:	COSTS – security for costs – appellant is an undischarged bankrupt – motion filed after leave to appeal granted – whether special circumstances established
Legislation Cited:	Bankruptcy Act 1966 (Cth), s 116(2)(g) Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), r 51.50
Cases Cited:	Ghosh v Miller (No 2) [2017] NSWSC 791 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Li v State of New South Wales [2013] NSWCA 165
Category:	Procedural and other rulings
Parties:	Dr Ratna Ghosh (Appellant) Rodney Miller (First Respondent) Elizabeth Everingham Miller (Second Respondent) Marilyn Bee (Third Respondent) John Bee (Fourth Respondent) Michael Ryan (Fifth Respondent) Adam Schuch (Sixth Respondent) Karen Schuch (Seventh Respondent)
Representation:	Counsel: Mr R Rasmussen (Applicant) Mr M Maconachie (First and Second Respondents) Solicitors: Higgins & Dix (First and Second Respondents)
File Number(s):	2017/190932
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2017] NSWSC 791 Date of Decision: 19 June 2017 Before: Rothman J File Number(s): 2013/238215