Legal Research
Cases
Miller v Ghosh (No.5)

Miller v Ghosh (No.5)

Case [2018] FCCA 3760 17 December 2018

Type to search within this case.

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER v GHOSH (No.5)

[2018] FCCA 3760

Catchwords:
BANKRUPTCY – PRACTICE & PROCEDURE – Whether application in a case filed in court by respondent should be summarily dismissed – whether respondent has reasonable prospects of successfully prosecuting any of the claims for relief made in the application in a case – whether it would be an abuse of process to permit the respondent to proceed with the application in a case – application in a case dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.5, 43, 52, 58
Federal Circuit Court Rules 2001 (Cth), ss.13.10, 16.01, 16.05

Cases cited:

Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728
Angelides v James Stedman Hendersons Sweets Ltd [1927] HCA 34; (1927) 40 CLR 43
Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA
Deputy Commissioner of Taxation v Caporale [2013] FMCA 5
Fuller v Toms [2012] FCAFC 155
Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255
Pardo v Legal Practitioners Complaints Committee [2000] FCA 355
Rigg v Baker [2006] FCAFC
Sandell v Porter (1966) 115 CLR 666

Applicant:

RODNEY MILLER

Respondent:

RATNA GHOSH

File Number:

SYG 235 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

15 November 2018

Date of Last Submission:

13 December 2018

Delivered at:

Sydney

Delivered on:

17 December 2018

REPRESENTATION

No appearance by, or on behalf of, the applicant

Respondent in person, assisted by a litigation representative, Mr S Piscopo

ORDERS

Pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth), and the implied incidental power of the Federal Circuit Court of Australia, the application in a case filed in Court by the respondent on 15 November 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 235 of 2015

RODNEY MILLER

Applicant

And

RATNA GHOSH

Respondent

REASONS FOR JUDGMENT

Introduction

In these reasons for judgment I consider whether an application in a case dated 28 June 2018 that I gave leave to the respondent, Dr Ghosh, to file in Court on 15 November 2018, should be summarily dismissed.

Background

Much of the necessary background to the question I consider in these reasons for judgment is contained in the reasons for judgment I delivered on 3 April 2018 in Miller v Ghosh (No.4).[1] On that day I dismissed an application in a case filed by Dr Ghosh. I did so after Dr Ghosh, by her counsel, said she did not wish to proceed with the application. Dr Ghosh withdrew her application after I had indicated to her counsel that, given the nature of the allegations on which the application was based, I had a number of concerns about whether Dr Ghosh should be permitted to proceed with it.
[1] [2018] FCCA 1738
In addition to ordering that the application in a case be dismissed, I ordered that Dr Ghosh was not to file any further application in this proceeding without first obtaining the leave of the Court. On 28 June 2018…

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 Miller v Ghosh (No.5)

Details

AGLC: Miller v Ghosh (No.5) [2018] FCCA 3760
Case: [2018] FCCA 3760
Decision Date: 17 December 2018

CaseChat Overview and Summary

Miller, as the applicant, sought to have an application filed by Ghosh, the respondent, in the Federal Court of Australia summarily dismissed. The core of the dispute concerned whether Ghosh's application had reasonable prospects of success and whether permitting it to proceed would constitute an abuse of process.

The court was required to determine two primary legal issues: first, whether Ghosh's application disclosed any reasonable cause of action or had any reasonable prospect of success; and second, whether it would be an abuse of the court's process to allow Ghosh to continue with the application.

Manousaridis J found that Ghosh's application lacked the necessary specificity and failed to articulate a coherent legal basis for the relief sought. The judge concluded that the application was devoid of merit and that allowing it to proceed would serve no useful purpose and would be vexatious. Consequently, the court ordered that Ghosh's application be dismissed.

Orders