Miller v Ghosh (No.7) - [2020] FCCA 2125

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER v GHOSH (No.7)

[2020] FCCA 2125

Catchwords:
BANKRUPTCY – Application by bankrupt for various orders based on alleged misconduct of the trustee in bankruptcy and the asserted solvency of the bankrupt – whether there is evidence capable of supporting facts asserted in support of application – no such evidence – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.77A, 139ZQ

Cases cited:

Ghosh v Miller (No 2) [2017] FCA 890

McIntosh v Shashoua Petitioner [1931] HCA 56; (1931) 46 CLR 494

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

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

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

Applicant:

RODNEY MILLER

Respondent:

RATNA GHOSH

File Number:

SYG 235 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

31 July 2020

Date of Last Submission:

31 July 2020

Delivered at:

Sydney

Delivered on:

4 August 2020

REPRESENTATION

No appearance by, or on behalf of, the Applicant

Respondent in person, by telephone

Mr C Davis appeared on behalf of Scott Newton (as trustee of the estate of the respondent), by telephone

ORDERS

The application in a case filed by the respondent on 6 July 2020 is dismissed.
The costs of the application in a case of the trustee in bankruptcy of the respondent be paid out of the estate of the respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 235 of 2015

RODNEY MILLER

Applicant

And

RATNA GHOSH

Respondent

REASONS FOR JUDGMENT

Introduction

The respondent, Dr Ghosh, by an application in a case filed on 7 July 2020, applies for a number of orders. The application came before me on 31 July 2020. Mr Davis appeared for the trustee in bankruptcy of the estate of Dr Ghosh (Trustee).
At the hearing I heard submissions from Dr Ghosh, who is not legally represented, and from Mr Davis. Mr Davis submitted that the application should be summarily dismissed.

Background

The necessary background includes the background I set out in a judgment I delivered on 10 December 2019 (Sixth Ghosh Judgment):[1]
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…

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.7)

Details

AGLC: Miller v Ghosh (No.7) [2020] FCCA 2125
Case: [2020] FCCA 2125
Decision Date: 4 August 2020

CaseChat Overview and Summary

In *Miller v Ghosh (No.7)*, Judge Manousaridis of the Federal Circuit Court of Australia considered an application brought by the bankrupt, Dr Ratna Ghosh. Dr Ghosh sought various orders, including a stay of the sequestration order made against her estate, an order for the trustee to provide a list of provable debts, and an order for disclosure of costs and funding sources related to proceedings involving Mr and Mrs Miller. The application was based on allegations of misconduct by the trustee and assertions of the bankrupt's solvency.

The central legal issues before the Court were whether there was any evidence capable of supporting the factual assertions made by Dr Ghosh in support of her application, and consequently, whether the orders sought should be granted. This involved a review of previous judgments and orders made in the bankruptcy proceeding, including an order that Dr Ghosh was not to file any further applications without leave of the Court.

Judge Manousaridis dismissed Dr Ghosh's application, finding no evidence to support the facts she asserted. The Court noted that Dr Ghosh had previously been granted leave to file applications, but these had been dismissed. Furthermore, a prior order prohibited her from filing further applications without leave. As Dr Ghosh had not obtained such leave for the current application, and in the absence of any evidence substantiating her claims of trustee misconduct or solvency, the Court concluded that the application lacked merit and was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The necessary background includes the background I set out in a judgment I delivered on 10 December 2019 (Sixth Ghosh Judgment):[1]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. [1] Miller v Ghosh (No.6) [2019] FCCA 3682, [1]-[3] As I noted in the Sixth Ghosh Judgment, by email sent to my associate on 20 November 2019 Dr Ghosh indicated she intended to apply for leave to file an application in a case. That led to the matter being listed before me on 10 December 2019. As set out in the Sixth Ghosh Judgment, Dr Ghosh did not provide any application in a case and she did not appear at the hearing on 10 December 2019. At the hearing Dr Ghosh, who is not legally represented, said that she seeks orders in terms of paragraphs 3, 4, and 6 of the orders sought in the application in a case. These are:3.In the alternative to 1 and 2, Stay the sequestration order of 30 September 2016 pursuant to the BANKRUPTCY ACT 1966 – SECT 60 Stay of legal proceedings, or rule 13.09 of Federal Circuit Court Rules 2001, pending final determination of this application, and pending proof of debt as in (4), and pending final determination of Supreme Court 2013/238215against Rodney Miller4.Order the trustee provides a list of all provable debt pursuant to the BANKRUPTCY ACT 1966 – SECT 82 Debts provable in bankruptcy, as of 30/9/16, 21/10/16 and 25/6/20 to the applicant within 7 days . . . .6.Order that Mr Tony Maher provides proof of payment of costs by Rodney Miller and Mrs 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 or on behalf of Mr Miller and Mrs Miller

Ratio Decidendi

Legal Principle Established

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