Miller v Ghosh (No.4)
[2018] FCCA 1738
•3 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLER v GHOSH (No.4) | [2018] FCCA 1738 |
| Catchwords: PRACTICE & PROCEDURE – Whether applicant should be permitted to file an application which arguably fails to disclose a reasonable cause of action and which arguably contains scandalous allegations – whether court has power under the incidental implied power to prevent the making of an application which is an abuse of process – by consent application made returnable instanter and dismissed and order made that no further application is granted without the leave of the Court. |
| Cases cited: Ghosh v Miller (No.2) [2017] FCA 890 Ghosh v Miller (No.3) [2017] FCA 1617 Pardo v Legal Practitioners Complaints Committee [2000] FCA 355 |
| Applicant: | RODNEY JAMES MILLER |
| Respondent: | RATNA GHOSH |
| File Number: | SYG 235 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 29 March 2018, 3 April 2018 |
| Date of Last Submission: | 3 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2018 |
REPRESENTATION
| No appearance by or on behalf of the applicant |
| Counsel for the Respondent: | Mr C Carter |
ORDERS
Leave is granted to Dr Ghosh to file in Court the application in a case dated 12 March 2018.
The application in a case is returnable instanter.
The application in a case is dismissed.
Dr Ghosh is not to file any further application in this proceeding without first obtaining the leave of the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 235 of 2015
| RODNEY JAMES MILLER |
Applicant
And
| RATNA GHOSH |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
On 30 September 2016 I made a sequestration order against the estate of Dr Ratna Ghosh. Dr Ghosh lodged an appeal against those orders which was dismissed by Farrell J of the Federal Court on 8 September 2017 (see Ghosh v Miller (No.2) [2017] FCA 890). Dr Ghosh filed with the High Court an application for special leave to appeal from the orders of Farrell J but I have been informed that that application has been dismissed.
Before that application for special leave was dismissed, but after the appeal to Farrell J was dismissed, Dr Ghosh applied to the Federal Court for a stay of her Honour’s orders pending the determination by the High Court of the special leave application. That application for a stay was heard and dismissed by Perram J on 22 December 2018 (see Ghosh v Miller (No.3) [2017] FCA 1617).
On 22 March 2018 my associate received an email from Dr Ghosh as follows:
Please list the attached set aside application that will provide new evidence of solvency and be run by Craig Carter of counsel. Craig has been unable to list it with the registry, although the application will bring new evidence and arguments NOT run on appeal.
The forced bankruptcy is causing me serious hardship as I can’t work for myself or be director of my own company and the trustee is seizing all of my share of rent without paying any costs.
We would very much appreciate if his Honour could give us a hearing next week before the Easter break.
That email was of course brought to my attention and at my direction the Registry sent an email to Dr Ghosh as follows:
Your matter is going to be heard by Judge Manousaridis at 2.15 pm on 29 March 2018. The hearing is for the limited purpose of hearing submissions from yourself about whether the application you are seeking to file is competent or otherwise an abuse of process.
The documents are not being filed and you should not serve the application on anyone.
There will be no listing and hence nothing will appear on the Court list. You are just to turn up to Court 8.1 80 William Street Sydney at 2.15 pm on 29th of March 2018.
I should say something about the course that I decided should be adopted. As will appear shortly, there were matters about the application which caused me to at least suspect that the application might be doomed to failure or otherwise not competent. I took the view that it was within the inherent jurisdiction of this Court, and more accurately the implied incidental power of this Court, for me to list the matter before me for the purpose of determining whether the application that Dr Ghosh filed with the Registry should proceed any further.
My reference to the implied incidental power is a reference to the power that was considered by French J, as his Honour then was, in De Pardo v Legal Practitioners Complaints Committee.[1] His Honour said:[2]
Like the power of the Court to punish for contempt even if such power is not to be found in some express statutory provision, it has its source in chapter 3 of the Constitution. Like the power to deal with contempts, it is “inherent” and is “a power of self-protection or a power incidental to the function of superintending the administration of justice”.
[1] [2000] FCA 355
[2] [2000] FCA 355 at [53]
I took the view that it fell within this implied incidental power for me to consider, before the application was filed and served, whether it disclosed a reasonable cause of action and, perhaps more importantly, that it was not based on scandalous allegations or was not otherwise an abuse of process. In any event, having sent the email, the matter was listed before me; and by “list” I mean I made myself available to hear the matter at 2.15 pm on Thursday 29 March 2018.
On that day, Mr Carter of counsel appeared and informed me that Dr Ghosh was not in a position to proceed and he requested that the matter be adjourned. I agreed that the matter be brought before me today at 2.15 pm; that is to say, on 3 April 2018. Before I say anything further about what occurred today, I should say something briefly about what is sought in the application and again, briefly, the grounds on which the application relies.
The application in a case sets out the following orders which Dr Ghosh seeks:
(1) set aside or vary the sequestration order of 30 September 2016 pursuant to rule 16.05(2)(b), (e) or (3) or rule 16.01 of the Federal Circuit Court Rules 2001.
(2) in the alternative to (1), set aside the sequestration order of 30 September 2016 on the basis of new evidence as to solvency.
(3) stay the sequestration order of 30 September 2016 pending final determination of this application.
(4) order the trustee provides a list of all provable debt, including copies of assessed costs to the applicant within seven days.
(5) order that Mr Tony Maher, M-a-h-e-r, provides proof of payment of costs by Rodney Miller with copies of bank statements, credit card receipts and ATO receipts and full disclosure of Mr Miller’s source of funding including all Legal Aid, grants obtained for and on behalf of Mr Miller and Mrs Miller, and;
(6) costs of this application.
The application in a case also notes that:
This application is supported by an affidavit made by Dr Ratna Ghosh dated 12 March 2018 and filed in the Court on 12 March 2018 in support of this application and the orders sought in it.
That is not accurate because Dr Ghosh in an email sent to the Court registry on 26 March 2018 stated:
Please see attached a filed affidavit we seek to rely on at Thursday’s preliminary hearing. Although it was made for the FCA not set aside application was ever heard in FCA. Please put the affidavit together with the application before his Honour Judge Manousaridis.
We will also present NEW evidence of solvency that was not before the. Court.
I will say something very briefly about the affidavit referred to in that email. Various allegations are made in it. These are that fraudulent evidence was presented before me at the time I made the sequestration order and fraudulent evidence was provided before Farrell J on the hearing of the appeal. It also contains assertions in relation to the conduct of the trustee in bankruptcy of Dr Ghosh’s estate. This includes allegations of providing false sworn evidence, illegally obtaining a garnishee order, the making of false and malicious complaints to the inspector general to seek fraudulent criminal charges against Dr Ghosh, repeated refusal to settle, collusion with creditors, and the failure to provide any evidence of provable debts. The mere statement of what is asserted in the affidavit should reveal why I formed concerns about whether Dr Ghosh should be permitted to proceed on the application based on those allegations.
At the hearing before me today Mr Carter, who appears on behalf of Dr Ghosh, made some submissions. After an exchange between me and Mr Carter, I adjourned the matter to permit Mr Carter to obtain further instructions from Dr Ghosh. When I came back on the bench, Mr Carter informed me that he had instructions that Dr Ghosh did not wish to move on the application as it was currently formulated and on the affidavit on which she intended to rely.
In those circumstances, I indicated to Mr Carter that what has so far occurred should be formalised in some sort of way, and that the manner in which I believe the matter should be formalised is by me making an order granting Dr Ghosh leave to file the application returnable instanter and for me to dismiss it and also to make an order that Dr Ghosh is to file no further application in this proceeding without first obtaining the leave of the Court which in practical matters means my leave being the judge to whom this matter has been docketed.
In my view, this is a fair way of dealing with the matter. Dr Ghosh will not be deprived of any reasonable cause of action she may have; and also as importantly other parties will not be troubled by having to deal with an application which may have no reasonable prospects of success or worse, be an abuse of process. In those circumstances, therefore, I propose to make the orders I have indicated I would make.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 June 2018
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