Miller v Ghosh (No.6)
[2019] FCCA 3682
•10 December 2019
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. In addition to those orders, I also ordered that Dr Ghosh is not to file any further application in this proceeding without first obtaining leave of the Court. My reasons for so ordering are set out in my reasons for judgment, which I published on 3 April 2018, and it is not necessary for me to repeat what I there said. What I there said should be incorporated into these reasons.
Dr Ghosh did seek leave to file an application. That application was heard by me on 15 November 2018, and I made orders in relation to that application on 17 December 2018. By those orders I dismissed an application in the case that Dr Ghosh had filed and I published reasons for judgment in support of that order. And these are to be found in Miller v Ghosh(No.5) [2018] FCCA 3760.
Almost one year later my associate received an email communication from Dr Ghosh. That was sent on 20 November 2019. The email was as follows:
I request listing of my application emailed to you in July tomorrow morning. I request leave to call the trustee. I will bring an affidavit to Court, but there are urgent matters requiring his Honour’s attention. The trustee has stolen at least two properties without any communication to me, has extorted money from my separated husband for exempt superannuation fund properties, is attempting to seize exempt superannuation fund properties, and has extended my bankruptcy period by another five years without any communication to me. He has sold two properties at cost price, and less than half the market price without any communication to me.
My associate brought that email to my attention, and, on my instructions, my associate wrote the following email to Dr Ghosh. My associate wrote that email to Dr Ghosh on 20 November 2019:
I refer to your email dated 20 November 2019. His Honour is currently away on leave. All urgent applications may be made to the duty judge. Please contact the registry on (02) 9230 8567 with a request that your application be brought before the duty judge.
I should note that, although Dr Ghosh referred in her email of 20 November 2019 to an application having been emailed, it is unclear what application she is referring to. Certainly there was no fresh application attached to the email.
There then followed communications between Dr Ghosh and the Court, the details of which it is unnecessary for me to set out here. The end result of those communications was an email sent on 20 November 2019 from the associate to Judge Barnes to Dr Ghosh, stating that:
The application for leave to file an application in the case dated 17 July 2019 has been listed for hearing at 2.15 pm on 10 December 2019 before Judge Manousaridis as he has carriage of this matter.
This email refers to an application in the case dated 17 July 2019, but it is unclear, at least to me, what application it is that is being referred to in that email.
That brings me to events that occurred today. The first relevant event is that my associate received a letter by email dated 10 December 2019 from Dr Ghosh’s trustee in bankruptcy. The letter is as follows:
I refer to the Application of Ms Ratna Ghosh dated 17 July 2019 in Federal Circuit Court of Australia Proceedings SYG235/2015 which I am informed by Ms Ghosh is before Your Honour today at 2.15 pm.
I have been joined as a respondent to the proceedings by Ms Ghosh. I am the trustee appointed to the bankrupt estate of Ratna Ghosh.
Please note that Ms Ghosh only served the application on my yesterday, 9 December 2019 at approximately 12.22 pm.
I have not been providing with the supporting affidavit of Ms Ghosh dated 18 July 2019, as referred to in her Application.
I am not able to attend Court today, given the short notice provided by Ms Ghosh, and if Your Honour requires my presence, I would kindly request that the matter be stood over to a day when I can arrange counsel to attend.
I note that the orders sought in Ms Ghosh’s latest application are identical to the orders Ms Ghosh sought in an application dated 28 June 2018. I refer to your Honour’s orders dated 17 December 2018 dismissing such application. I also refer to Your Honour’s reasons for judgment of 17 December 2018.
I also note order 4 of Your Honour’s orders dated 3 April 2018, where Ms Ghosh was ordered not to file any further application in the proceeding without first obtaining the leave of the Court.
To assist the court, I have provided Ms Ghosh with the following information:
1) my latest report to creditors in the Bankrupt Estate;
2) a detailed schedule of my receipts and payments since my appointment;
3) a summary of my receipts and payments since my appointment; and
4) a list of the named creditors in the Bankrupt Estate.
Should you have any queries regarding the above, please do not hesitate to contact the writer…
Shortly after my associate received that email from the trustee, Dr Ghosh sent the following email on 10 December 2019 at 12.58 pm:
I agree to stand the application over to 11am tomorrow, providing that suits his Honour. It must be heard for the reasons in the brief attached affidavit.
At 1.05 pm, at my request, my associate sent an email to all parties, including Dr Ghosh and the trustee, as follows:
I have brought the below two emails to his Honour’s attention. The matter will remain listed before his Honour this afternoon. His Honour does not expect any appearance by any person other than Dr Ghosh or her legal representative.
As foreshadowed in that email, I came on the bench at 2.15 pm. There is one matter I should note. For administrative reasons, this listing has been identified as an administrative listing. That is purely a matter of administration. The matter was listed before me. It is listed in an extant proceeding in the Court, and that is the bankruptcy proceeding. So to that extent, it is a properly constituted listing. The reason it has been described as an “administrative listing” is the order I made on 3 April 2018 requiring Dr Ghosh to obtain my prior leave before she can file any application.
As I have said, the matter was properly listed before me. Although I did not expect any appearance by Dr Ghosh, nevertheless the matter was called and there was no appearance by her. That then leads me to consider what, if anything, I should do next. As is apparent from the letters and emails I have quoted there, it appears to be the case that Dr Ghosh is relying on some application filed in July 2019. I am not aware of what that application is. If it has been filed, then it has been filed without my prior leave.
In order to minimise the risk of confusion, what I propose to do today is to make two orders. One is to confirm the order I made on 3 April 2018 that Dr Ghosh is not to file any application in this proceeding without the prior leave of the Court. Secondly, however, I propose to make an order setting out the means by which Dr Ghosh is to apply to this Court for leave to file a further application in this proceeding. Essentially, what that order will require is that Dr Ghosh make that request by email or by letter and that she attach to the email a draft of the application for which she proposes to seek leave to file, together with an affidavit or affidavits on which she intends to rely in support of her intended application.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 16 December 2019
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