Miller v Ghosh (No.6) - [2019] FCCA 3682

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER v GHOSH (No.6)

[2019] FCCA 3682

Catchwords:
PRACTICE AND PROCEDURE – Order previously made that respondent is not to file any application in a case in proceeding without prior leave in the proceeding without the leave of the Court – notice given by respondent that she intended to file an application in a case – order made confirming previous order that respondent is not to file any application in a case in proceeding without prior leave in the proceeding without the leave of the Court – order made setting out the manner in which respondent is to apply to the Court for such leave.

Cases cited:

Miller v Ghosh(No.4) [2018] FCCA 1738

Miller v Ghosh(No.5) [2018] FCCA 3760

Applicant:

RODNEY MILLER

Respondent:

RATNA GHOSH

File Number:

SYG 235 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

10 December 2019

Date of Last Submission:

10 December 2019

Delivered at:

Sydney

Delivered on:

10 December 2019

REPRESENTATION

No appearance by or on behalf of the applicant

No appearance by or on behalf of the respondent

ORDERS

The order made by Judge Manousaridis on 3 April 2018 that Dr Ghosh is not to file any further application in this proceeding without first obtaining the leave of the Court is confirmed.
If Dr Ghosh intends to apply for leave to file an application in this proceeding, she must do so my lodging with the registry:
(a)an email or letter containing the following words:
Pursuant to order 4 of the orders made by Judge Manousaridis on 3 April 2018, in proceeding no SYG235/2015, I, Ratna Ghosh, seek leave to file in that proceeding an application in the form of the attached draft application in a case;
(b)a draft of the proposed application in a case Dr Ghosh proposes to seek leave to file; and
(c)an affidavit or affidavits in support of the application for which Dr Ghosh intends to seek leave to file.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 235 of 2015

RODNEY MILLER

Applicant

And

RATNA GHOSH

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

On 3 April 2018, I made a number of orders in proceeding no SYG 235 of 2015. That file number relates to a bankruptcy proceeding that was brought against the respondent, Dr Ratna Ghosh. By 3 April 2018 a sequestration order had been made against the estate of Dr Ghosh, and an appeal to the Federal Court against the making of that sequestration order had been heard and determined adversely to Dr Ghosh.
The orders I made on 3 April 2018 related to an application in the case that Dr Ghosh wished to pursue. The orders that I made on that day consisted of my granting Dr Ghosh leave to file the application in the case in court, make it returnable instanter, and dismiss it. I gave reasons for judgment in support of those orders and these are to be found in Miller v Ghosh(No.4) [2018] FCCA 1738.…

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.6)

Details

AGLC: Miller v Ghosh (No.6) [2019] FCCA 3682
Case: [2019] FCCA 3682
Decision Date: 10 December 2019

CaseChat Overview and Summary

In *Miller v Ghosh (No.6)*, the applicant, Mr. Miller, sought to strike out the respondent's, Ms. Ghosh's, defence and cross-claim in defamation proceedings. The dispute concerned allegations of defamation arising from statements made by Ms. Ghosh concerning Mr. Miller. The application was heard by Judge Manousaridis in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether Ms. Ghosh's defence and cross-claim should be struck out on the grounds that they were an abuse of process, specifically that they were frivolous, vexatious, or otherwise an abuse of the Court's process. This involved an assessment of whether the defence and cross-claim had any reasonable prospect of success.

Judge Manousaridis reasoned that the defence and cross-claim, as pleaded, lacked sufficient particularity and failed to establish a proper basis for the claims being made. The Court found that the defence, which relied on a defence of justification, was not adequately particularised to support the serious allegations made against Mr. Miller. Similarly, the cross-claim was found to be speculative and lacking in evidentiary support. The Court applied the principles governing the striking out of pleadings, which require a high degree of certainty that the pleading is without merit or constitutes an abuse of process.

The Court ordered that the defence and cross-claim be struck out.

Orders