Re the Will and Estate of Aroti Ghosh
[2024] VSC 75
•27 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2022 02700
IN THE MATTER of r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015
-and-
IN THE MATTER of the Will and Estate of AROTI GHOSH, deceased
-and-
IN THE MATTER of the GHOSH SUPERANNUATION FUND
-and-
IN THE MATTER of GHOSH ENTERPRISES PTY LTD ACN 070 687 679
-and-
IN THE MATTER of ss 236(1)(a), 237(1), 247A and 1324 of the Corporations Act 2001
BETWEEN:
| ANABAN GHOSH (in his capacity as executor of the Will of AROTI GHOSH, deceased) | Plaintiff |
| v | |
| NEELANJAN GHOSH (both personally and in his capacity as executor of the Will of AROTI GHOSH, deceased) & ORS (according to the attached schedule) | Defendants |
S PRB 2022 21557
IN THE MATTER of the deceased estate of AROTI GHOSH
BETWEEN:
| ANABAN GHOSH | Plaintiff |
| v | |
| NEELANJAN GHOSH | Defendant |
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JUDGE: | Barrett AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2024 |
DATE OF JUDGMENT: | 27 February 2024 |
CASE MAY BE CITED AS: | Re the Will and Estate of Aroti Ghosh |
MEDIUM NEUTRAL CITATION: | [2024] VSC 75 |
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PRACTICE AND PROCEDURE – Application to vacate trial date pending determination of application for leave to appeal procedural orders including the fixing of a trial date – Supreme Court (General Civil Procedure) Rules2015 (Vic) rr 48.06, 64.39 and 66.16 – Consideration of overarching purposes - Civil Procedure Act 2010 ss 7, 8, 9, 47, 48, 49 – Application to strike out or dismiss proceedings – Application to re-open judgments and orders – r 36.07 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) – Application to restrain legal representatives and counsel from continuing to act – Miller v Martin [2019] VSCA 80 – application to join legal representatives, and witnesses to will, as defendants – r 9.02 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) – Application to join overseas persons as parties – All applications refused.
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S ECI 2022 02700
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms R G Morison | Shiff & Company Lawyers |
| The First Defendant in person | N/A | |
| The Second Defendant | No appearance | |
| The Third Defendant | No appearance |
S PRB 2022 21557
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms R G Morison | Shiff & Company Lawyers |
| The Defendant in person | N/A |
HIS HONOUR:
These reasons relate to two proceedings, essentially between two brothers, in relation to the estate of their late mother, Aroti. They are:
(a) S ECI 2022 02700: which is an application filed on 18 July 2022 for orders dealing with the body of the deceased and passing over Neelanjan as executor and orders in relation to the production of documents and maintaining the status quo in relation to some assets (‘the Passing Over Proceeding’).
(b) S PRB 2022 21557: which is an application filed on 25 October 2022 by Anaban for the for the grant of letters of administration with the will annexed later amended to an application for a grant of probate (‘the Probate Proceeding’). This proceeding included a caveat lodged by Neelanjan which remains in issue.
On 14 September 2023, John Dixon J ordered that the proceedings be heard and determined together and that evidence in one proceeding be evidence in the other, and fixed them for hearing on 19 March 2024.
By summonses filed 8 February 2024 in each proceeding, the first defendant (‘Neelanjan’) seeks numerous orders but most significantly an order to vacate the trial date of 19 March 2024. The applications, affidavits in support, and submissions are substantially the same in relation to each proceeding. The differences are immaterial for present purposes. The summonses are not in proper form and contain many pages of submissions. These reasons are necessarily brief having regard to the proximity of the trial and the need for the parties to know whether the trial is going ahead, and notwithstanding the length of the summonses and the affidavit material in support and the lengthy oral submissions made by Neelanjan, much of which were repetitive.
Neelanjan relies on:
(a) the Notice of Appeal filed 11 October 2023;
(b) the summonses filed on 8 February 2024 in each proceeding;
(c) his affidavits affirmed on 19 February 2024 filed in support of the summonses; and
(d) written submissions filed on 22 February 2024.
Neelanjan listed in his Notice of Appearance that he was going to rely on numerous other submissions and affidavits going back to July 2022. Many of these documents were not referred to in argument, and it was not apparent from Neelanjan’s submissions what their relevance was or if they went any further than the extensive submissions he actually made on material he actually referred to.
The plaintiff (‘Anaban’) relies on:
(a) the affidavit of Emma Nadia Julian affirmed on 21 February 2024; and
(b) proposed orders dated 21 February 2024.
Much of the factual background to the dispute is set out in the decisions of Ghosh v Ghosh[1] (22 July 2022) and Neelanjan’s unsuccessful appeal from that decision in Ghosh v Ghosh[2] (19 April 2023). Neelanjan sought special leave to appeal from the latter decision which was refused: Ghosh v Ghosh[3] (9 November 2023).
[1][2022] VSC 410 (Gorton J).
[2][2023] VSCA 77.
[3][2023] HCASL 171.
Neelanjan’s primary arguments for present purposes are founded on his application for leave to appeal from all of the procedural orders made by John Dixon J on 14 September 2023, (being an appeal from the procedural orders made on 16 September 2022 by Keith JR). In addition to fixing the trial date, those orders included orders that the two proceedings be heard together and that evidence in one be evidence in the other, and further orthodox procedural orders for preparation for trial including the filing of affidavits, a court book and written submissions.
Neelanjan’s application for vacation of the trial date is based on his submissions that many other steps need to be taken having regard to events that have transpired. Neelanjan has made numerous submissions, repeated many times, that Anaban and his legal representatives have engaged in misleading, deceptive and fraudulent conduct in concealing various matters form him and the court.
One of the main submissions made by Neelanjan is that Anaban and his legal representatives have engaged in misleading and deceptive and fraudulent conduct by concealing the fact that one of the witnesses to the propounded copy will from 2011 has dementia. Stated briefly, the submission is that an employee of Anaban’s lawyers was told during a telephone conversation on 19 October 2022 by someone identifying themselves as the witness’s son said that the witness had dementia, but Anaban’s lawyers did not disclose that fact until January 2024 and therefore almost all orders that have been made since then, and some from before then, should be overturned. The facts are considered in more detail below.
Anaban seeks probate of a copy will dated 18 October 2011. Anaban submits that they have been unable to locate an original will. Anaban submits that insofar as one exists, it is likely to be in the family property which is occupied by Neelanjan who refuses to permit access to search for any such will. The copy will has been witnessed by two witnesses. One is a policeman, Senior Constable[4] Robert Hansen, who has verified his signature. The other is a registered Justice of the Peace named Thi Phan. Attempts have been made to locate Thi Phan with limited success.
[4]At the time of witnessing.
The evidence of the searches for Thi Phan is provided by Michelle Butler (‘Ms Butler'), a legal practitioner previously in the employ of Shiff & Company lawyers (‘Shiff & Co’), Anaban’s lawyers. In her affidavit affirmed on 18 January 2024 in the Probate Proceeding, Ms Butler deposes that on 14 September 2022 she undertook searches for Thi Phan. She obtained a phone number and called it on 19 October 2022, ultimately speaking to someone who identified himself as Thi Pahn’s son, Mr Aiden Tran. Ms Butler’s evidence is as follows:
Mr Tran advised me:
-his mother, Ms Phan, has been unwell, may be suffering from dementia and is unlikely to have the capacity to sign an affidavit of due execution regarding her witnessing of the will;
-his mother was previously a justice of the peace in or around 2011; and
-his mother operated as a justice of the peace in Wheelers Hill.
Mr Tran asked me to email him and provided the email address [email protected]. I confirmed the email address with Mr Tran twice. I sent an email to the email address provided to me, however I received an “undeliverable” message noting that this email address was not found. I then attempted to email Mr Tran using the email address [email protected], however I cannot recall if I received an undeliverable message for email, and no longer have access to my Shiff & Company emails.
On 24 October 2022, I attempted to call Mr Tran again using the contact number listed on the Victorian government website as I have proposed above. There was no answer and I left a message on voicemail requesting that Mr Tran called me regarding his mother’s witnessing of the will.[5]
[5]Affidavit of Michelle Stephanie Butler affirmed 18 January 2024, [7]-[8].
Neelanjan submits that by the conduct in not disclosing the result of these inquiries between October 2022 and January 2024, Anaban and his legal representatives have engaged in misleading and deceptive and fraudulent conduct, which has precipitated an appeal by Neelanjan against the procedural orders made on 14 September 2023. Neelanjan says that as a result of this appeal, and perhaps other matters, the trial date must be vacated and he seeks numerous other orders, which I will deal with in turn.
First, Neelanjan seeks an orders staying, striking out or summarily dismissing both proceedings because of what he describes as this fraudulent concealment of mental incapacity. It is not appropriate to make such orders. First, the fact that someone who identified himself as the witnesses’ son said in October 2022 that his mother is ‘unwell and may be suffering from dementia’ does not establish that she did not have capacity to witness a will 11 years earlier. Secondly, insofar as such evidence does raise any questions or inferences of a lack of capacity 11 years earlier in 2011, as Neelanjan submits it does, they are matters that can be dealt with at trial. If there is a question about late disclosure of that information and any prejudice that may be suffered by Neelanjan, that will be a matter for the trial judge. That is particularly so where these proceedings have been on foot since 2022 and if they do not proceed to trial and Neelanjan pursues the various applications and appeals he intends to, the proceedings will likely take at least several more months before they are heard. Finally, staying or summarily dismissing proceedings is a drastic step that would in any case almost certainly trigger the issuing of new proceedings seeking substantially the same relief.
Secondly, Neelanjan seeks orders reopening all judgements and orders that have been heard and determined since at least 22 July 2022. I take this application to be based on the assertion that Schiff & Co acted fraudulently in not disclosing the content of the conversation with Aiden Tran until January 2024.
As a general rule, once a final order is authenticated, it is perfected and cannot be amended other than on appeal, or to correct a clerical mistake or other such error.[6] There are exceptions to this rule[7] and it applies less rigidly to interlocutory orders.[8]
[6]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.07 (‘Rules’).
[7]Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45, ; 28 FLR 195, 198 (Brennan J).
[8]Booth v Ward (2007) 17 VR 195, [39].
Neelanjan’s submission was broadly that all of the decisions since 22 July 2022 would have been dealt with differently if he had known of the conversation with Aiden Tran, because he would have argued about that lack of capacity and that would have affected the results albeit in ways that were not particularised by Neelanjan.
I am not convinced it is within my power to reopen and consider matters heard before trial division judges or orders made by them on the basis of any non-disclosure of information. In any event, I would not make the orders sought in the circumstances having regard to the lack of clarity around what matters were taken into account in making the orders complained of and how any reference to the 19 October 2022 phone conversation may have affected them. Accordingly, I will limit my further comments to the order I made on 13 October 2022 in relation to Neelanjan’s objection to the subpoena issued to Sharrock Pitman Legal, which Neelanjan also seeks to reopen. Those orders concerned a subpoena issue by Anaban to Sharrock Pitman Legal, the deceased’s previous lawyers, seeking production of estate planning documents and advice from 2010 to 2012, and any dispute regarding fees. I made orders on 13 October 2022 rejecting Neelanjan’s objections to the subpoena. That order was made a week prior to the conversation upon which Neelanjan now says he wishes to rely, and which he says would have led to a different result. In those circumstances, I am not satisfied that any non-disclosure did, or logically could have, affected the orders made. Further, Neelanjan’s primary argument that the 2011 copy will is invalid and fraudulent supports the conclusion that the documents sought by the subpoena serve a legitimate forensic purpose. Finally, Neelanjan submitted that Sharrock Pitman Legal was in fact Anaban’s lawyer and that therefore the subpoena was somehow a deceptive pretence which justified the relief Neelanjan sought. I do not consider that any issue arises in relation to who retained Sharrock Pitman Legal. For those reasons I will not reopen that decision for consideration.
Neelanjan also seeks to vacate the 22 July 2022 orders and ‘reopen the judgment’ on the basis of Anaban ‘concealing Shamrock [sic] Pitman draft wills, colluding with Carly Dalton and Dr Gergory Alan Wyatt to mutilate the deceased body without knowledge of the court …’ As noted above, I do not consider it is open to me, or would be appropriate, to reopen the 22 July decision.
Thirdly, Neelanjan seeks orders restraining Anaban’s legal representatives Shiff & Co, and counsel, Ms Reegan Grayson Morison (‘Ms Morison') from representing Anaban in these proceedings.
The Court has inherent jurisdiction to restrain lawyers from acting. The test to be applied is:
… whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.[9]
[9] Miller v Martin [2019] VSCA 86, [17]-[20].
The jurisdiction is ‘exceptional’ and is to be exercised with caution and ‘due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.’[10] Further, ‘the timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.’[11]
[10]Ibid.
[11]Ibid.
Neelanjan made no submissions that these principles were engaged or satisfied and I am not satisfied that they are. Any allegations as to misconduct by any legal practitioner, insofar as such allegations involve alleged non-disclosure of information, may be dealt with by the trial judge. If it is established that there has been any misconduct, and if such misconduct causes difficulties in the running of the trial, or warrants censure, then the trial judge is best placed to make such orders as are appropriate in the circumstances. Further, having regard to how far advanced the case is, how much material has been filed in the various proceedings and applications, and the fact that Ms Morison holds the brief for trial, there would be significant inconvenience, impracticality, expense and delay in compelling Anaban to retain new lawyers and counsel. There is no apparent basis upon which it could reasonably be concluded that the administration of justice requires Anaban’s lawyers to be restrained from acting.
Fourthly, Neelanjan seeks orders barring all lawyers of Shiff & Co including Ms Butler (previously of Shiff & Co) and Ms Morison of Counsel involved in these proceedings, ‘from any professional fees for all of these proceedings, strikes them off court rolls and refer them to Legal Commissioner for expelling them from law practice.’ This application has no merit and is rejected.
Fifthly, Neelanjan seeks orders joining as defendants in their personal capacities Anaban’s legal representatives including: Shiff & Co; Emma Julian (of Shiff & Co); Julia Adams (of Shiff & Co); Gregory Schiff (of Shiff & Co); Ms Butler (previously of Shiff & Co); Ms Morison (of counsel). Neelanjan further seeks orders that they pay ‘costs and punitive damages’ for ‘misleading deceptive and fraudulent conduct.’
Rule 9.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)(‘Rules’) provides:
Two or more persons may be joined as plaintiffs or defendants in any proceeding—
(a) where—
(i)if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; or
(ii)all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court, before or after the joinder, gives leave to do so.
The Court has discretion to order joinder. A party alleging fraud must do so clearly and with detailed particulars. In this case, Neelanjan has provided no basis at all for joining any legal representatives in their personal capacities or otherwise. Neelanjan bases his application on the general assertion that there was a delay in disclosing that 11 years after a will was witnessed, someone identifying themselves as the son of a witness to the will (that Neelanjan says is invalid) said the witness ‘is unwell and may be suffering dementia.’ Neelanjan has not sufficiently explained what causes of action he says he has against the identified legal representatives, nor how the conduct complained of may sound in any relief, particularly having regard to the fact that the trial is yet to be conducted. The broad assertion that there has been misleading and deceptive and fraudulent conduct is insufficient to warrant an order for joinder.
Further, any allegations as to misconduct by any legal practitioner, insofar as such allegations involve alleged non-disclosure of information, may be dealt with by the trial judge. If it is established that there has been any misconduct, and if such misconduct causes difficulties in the running of the trial, or warrants censure, then the trial judge is best placed to make such orders as are appropriate in the circumstances having regard to the consequences of any transgressions.
As for the application for an order for costs and punitive damages. As the claims Neelanjan wishes to make have not been articulated or issued or resolved, there is no basis to make any such orders.
Sixthly, Neelanjan seeks to join Thi Pahn or her guardian Aiden Tran and Robert Hansen as defendants to the Passing Over Proceeding so he can make ‘cross applications for relief against these defendants.’ Neelanjan did not identify any basis upon which he intended to claim against the witnesses to the will, nor did he explain what relief he intended to seek against either of them. Neelanjan appears to be convinced that the will was fraudulently created, and if the proposed claim against the witnesses to the will is that they are somehow implicated in a fraud, then those proposed claims must be articulated clearly with proper particulars. In the circumstances, I refuse to order joinder of Thi Phan or her guardian Aiden Tran or Robert Hansen.
Seventhly, Neelanjan seeks a number of orders in relation to the filing and exclusion of affidavits including the following:
(a) Neelanjan seeks an order that ‘Aiden Tran and Thi Pahn’s guardian submit an affidavit and allows time for Neelanjan to respond.’ The only information about Thi Phan is that in October 2022 she was unwell and ‘may be suffering from dementia.’ If Neelanjan wishes to argue that Aiden Tran’s comment in October 2022 as to Thi Phan’s possible dementia is relevant to the question of whether she had capacity to witness the will 11 years earlier, then it is open for him to do so. The trial judge will be well placed to determine whether Anaban has proved the will or whether further evidence is required. At present, particularly given how little is known of Thi Phan’s situation and the remoteness and imprecision of Aiden Tran’s comments, I do not consider Aiden Tran or Thi Phan should be ordered to file affidavits.
(b) Neelanjan seeks an order that the Principals of Shiff & Co file an affidavit ‘to explain their conduct in concealing witness Thi Pahn’s dementia across the proceedings and to be available for cross-examination.’ I do not accept that Thi Phan’s ‘dementia has been concealed.’ The most that is apparent at present is that in October 2022, Shiff & Co was told by someone identifying himself as Thi Pahn’s son that she was unwell and ‘may be suffering from dementia.’ It is unclear at present whether she was suffering from dementia in October 2022 at all. And even if she was, it is not at all clear that that means she may not have had capacity 11 years earlier when she apparently witnessed the will. In any case, Neelanjan has had this information since January 2024 and may rely on it in support of his case, whatever that is. If the October 2022 communications raise any issues that warrant further investigation, the trial judge will be well placed to make such orders as are required in the circumstances.
(c) Neelanjan also seeks an order that Shiff & Co submit confirmation of the ‘undeliverable’ email message and all file notes of conversations with Aiden Tran. The parties to the proceeding are subject to ongoing discovery obligations. Shiff & Co are reminded of those obligations. If there are any documents that are discoverable going to issues in dispute, they should be disclosed.
(d) the defendant seeks an order that Ms Butler file an affidavit explaining the delay in filing her affidavit filed on 19 January 2024 regarding her conversation with Aiden Tran, and her reason for departure from the employment of Shiff & Co and ‘any remuneration she may have derived from Shiff & Co and counsel for delaying her affidavit’. The suggestion that Ms Butler has been paid by Shiff & Co or counsel ‘for delaying her affidavit’ is scandalous and made without any apparent foundation. I will not order Ms Butler to file a further affidavit. If Neelanjan wishes to make submissions about the late filing of material, and any prejudice he suffered as a result, he can do so to the trial judge; and
(e) Neelanjan seeks orders that ‘fraudulent inventory of assets and all evidence / documents fraudulently obtained by concealing the fact of witness dementia … are struck off and all such evidence / documents rendered inadmissible in both proceedings.’ It is not clear what documents Neelanjan is referring to, but in any case, questions of admissibility of evidence are appropriately dealt with by the trial judge, and such objections as Neelanjan wishes to make, may be made at trial.
By his summons, Neelanjan seeks an order that ‘the Court grants probate/letters of administration to me.’ That is a matter to be resolved at trial, rather than summarily on an application such as this.
Neelanjan also seeks an order that Robert Hanson’s affidavit is inadmissible and that Robert Hanson ‘appear at trial and produce a recording of a conversation he had with Neelanjan.’ As noted above, Robert Hanson is a police officer who was one of the witnesses to the will. Questions of the admissibility of affidavits and whether a party should attend for cross-examination are matters for the trial judge.
Neelanjan also seeks orders amending the heading of the originating motion in the Passing Over Proceeding to strike off the word ‘will’ and include instead the words ‘copy will.’ The question of the status of the will that is in evidence and whether probate is granted is a matter for trial. The result at trial will not be determined by the heading of the document in this regard.
Neelanjan also seeks orders permitting him to file applications to join overseas parties and submit an overseas asset list beneficially devolving to the deceased estate. Neelanjan has provided no adequate explanation as to why such applications and filing could not have occurred well before now. The proceedings have been on foot since 2022 and by order made on 14 September 2023 Neelanjan was given a month to file and serve any application to join any other party to the proceeding. The nature of the proceedings ought to have been obvious to Neelanjan. If there were other persons who should be joined as parties to the proceeding, they should have been joined earlier. Neelanjan submits that I should make orders for service that avoid the difficulties around the Hague Convention. I am not satisfied on the present material that I should order the joinder of any other parties or service of documents on them. The basis upon which they are to be joined is not clear. Neelanjan referred in oral submissions to customary Hindu law and the devolution of property to the eldest son, being him, but it is not clear what the Hindu law is, what property Neelanjan is talking about, or the parties relationships to that property. Any application to join further parties should be made to the trial judge who is seized of the issues.
Neelanjan seeks vacation of the trial date, being 19 March 2024, on the basis that he has filed an application for leave to appeal (in proceeding S EACPI 2023 0105) from the orders of John Dixon J made on 14 September 2023 in each proceeding. Neelanjan submits that if the trial proceeds, then there will effectively be two parallel concurrent proceedings at two different courts on the same subject matter and will render the application for stay/leave to appeal/appeal nugatory.
The 14 September 2023 orders were made on the hearing of Neelanjan’s appeal from procedural orders made by Keith JR made on 6 February 2023. The procedural orders made on 14 September 2023, that Neelanjan seeks leave to appeal from are set out below with Neelanjan’s grounds of appeal against each of them noted. The orders are substantially the same in each proceeding and include the following:.
(a) Order: that Neelanjan be added as a defendant to the Probate Proceeding.[12] Neelanjan’s ground is that he ‘cannot not’ be named as a party to the Probate Proceeding and notification requirements have not been satisfied. It is unclear what issue Neelanjan has about being named a party. He is a prime protagonist in each of the proceedings. He is a named executor in the Passing Over Proceeding, and it is apparent from the material he has filed in this application, that he seeks orders that he be granted probate or letters of administration.
[12]Order 1 in the Probate Proceeding.
(b) Order: that the proceeding is set down for trial commencing on 19 March 2024 on an estimate of 2-3 days.[13] Neelanjan’s ground of appeal against this order is that the proceedings cannot be set down because each proceeding will have to be by judge and jury with separate trial dates and different estimates for each. It is not clear why Neelanjan says this, or the basis upon which he says separate trials must be by judge and jury particularly having regard to: the terms of r 47.02 the Rules; the discretion the court otherwise has in relation to the mode of trial; the principle that a decision as to mode of trial cannot itself amount to a miscarriage of justice as which ever form is a trial according to law;[14] and the statutory imperative in s 7 of the Civil Procedure Act 2010 (Vic)(‘CPA’) ‘to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.’
[13]Order 2 in Probate Proceedings and 1 in Passing Over Proceeding.
[14]Birti v SPI Electricity Pty Ltd [2011] VSC 566, [15] (Forrest J).
(c) Order: that the proceedings be listed together and evidence in one be evidence in the other.[15] Neelanjan appeals this order on the basis that evidence in the Passing Over Proceeding was obtained fraudulently and the application for Probate has not been advertised as required.
[15]Order 3 in Probate Proceedings and 2 in Passing Over Proceeding.
(d) Order: that subject to any order by the trial judge, evidence is to be given by affidavit.[16] Neelanjan appeals this order on the basis that ‘evidence cannot be given by affidavit and can only be given orally.’ He further says that Anaban has made false statements in his affidavits. I note that the order is expressed to be ‘subject to any order by the trial judge.’ That being the case, Neelanjan retains the ability to raise with the trial judge such submissions as he wishes to as to the appropriate mode of giving evidence.
[16]Order 4 in Probate Proceedings and 3 in Passing Over Proceeding.
(e) Order: that by 13 October 2023, Neelanjan file and serve any application to join any other party to the Passing Over Application.[17] Neelanjan’s grounds of appeal are that it is an unreasonably short time frame. It appears that Neelanjan has not filed any application to join any party in the five months since the orders were made on 14 September 2023.
[17]Order 4 in Passing Over Proceeding.
(f) Order: that by 8 December 2023, Neelanjan file and serve any further affidavits.[18] Neelanjan’s ground of appeal is that the transcript will show the order was by 15 December 2023.
[18]Order 5 in both proceedings.
(g) Order: that by 16 February 2024 Anaban shall file and serve an ecourt book in searchable form.[19] Neelanjan’s ground of objection is that it is unfair that Anaban have control of the contents court Book, but Orders were also made in each proceeding that by 5 March 2024, Neelanjan may file a court book with any additional documents.[20] Accordingly, it is not clear what prejudice Neelanjan says he may suffer as a result of the orders made, or that either party is precluded from including any documents in their court books upon which they intend to rely.
[19]Order 6 and 7 in both proceedings.
[20]Order 8 in both proceedings.
(h) Order: that Anaban file submissions by 12 March[21] and Neelanjan file submissions by 15 March.[22] Neelanjan’s ground is that the dates will have to be adjusted because of the error in the date of order 5, and also because there will have to be separate judge and jury trials for each proceeding.
(i) Order: that Neelanjan pay Anaban’s costs of and incidental to the appeal to be taxed immediately.[23] Neelanjan’s ground seeks to reagitate the basis for the costs order and states that ‘the unusual order reflects the racial prejudice, apparent and apprehended bias against a self represented litigant of Indian ethnic origin.’
(j) Order: granting leave to immediately tax costs ordered on 4 August 2023 by Moore J and 13 October 2022 by Barrett AsJ.[24] Neelanjan’s ground of appeal is that order 12 should not have been made because the costs orders were subject to an application for special leave to appeal to the High Court, and raises allegations of bias and prejudice among other matters.
[21]Order 9 in both proceedings
[22]Order 10 in both proceedings.
[23]Order 11 in both proceedings.
[24]Order 12 in the Passing Over Proceeding.
Rule 48.06 of the Rules provides:
At any time after a date has been fixed for the trial of a proceeding, the Court may vacate the date so fixed and give further directions for the conduct of the proceeding.
The parties did not refer to any authorities on this point, but it is clear that in making procedural orders, such as those made by Keith JR on 6 February 2023 and John Dixon J on 14 September 2023,[25] and in making any order to vacate a trial date, the Court must act in accordance with the provisions of the CPA. In particular the Court must ensure that the orders it makes are made in accordance with the over-arching purpose of facilitating ‘the just, efficient, timely and cost‑effective resolution of the real issues in dispute.’[26] That requires the Court to have regard to:
[25]Civil Procedure Act 2010 (Vic) ss 47, 48 and 49.
[26]Ibid ss 7 and 8.
(a) the just determination of the civil proceeding;
(b) the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i) the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.[27]
[27]Ibid s 9.
Neelanjan’s submission is that the failure to vacate the trial date would mean that the appeal will be rendered futile. Neelanjan submits that if the trial is not vacated there ‘will effectively be two parallel concurrent proceedings at two different courts on the same subject matter and will render the application for stay/leave to appeal nugatory.’
There is force to the submission that often the interests of justice require a stay of a primary decision where that decision has been appealed, and the fruits of any successful appeal will be irretrievably lost unless the stay is granted. But that it not an invariable rule. If it was an invariable rule, a party could potentially avoid an imminent trial date merely by lodging an application for leave to appeal from an interlocutory/procedural order. It would be contrary to the overarching purposes set out in the CPA to accept the inevitability of a stay or vacation of a trial date in such circumstances, without also considering the other factors set out in s 9 of the CPA.
In this case, for the following reasons, I do not consider that it would be appropriate to vacate the trial date.
These proceedings have been on foot since July and October 2022, and the steps taken and proposed by Neelanjan have served, and will serve, to unduly delay the proceedings. By way of example, procedural orders for trial were made by Keith JR on 3 February 2023 which were then appealed by Neelanjan. Upon hearing that appeal John Dixon J made further procedural orders for trial on 14 September 2023. Those orders are now subject to an appeal.
In Ghosh v Ghosh[28], Gorton J ordered that the deceased’s body could be dealt with over Neelanjan’s objection because of its advancing state of decay. Neelanjan unsuccessfully appealed from that decision and in Ghosh v Ghosh[29], Forrest AJ rejected the appeal. Neelanjan then sought special leave to appeal to the High Court from the latter decision which was refused: Ghosh v Ghosh[30] (9 November 2023). Neelanjan continues to argue that his mother’s body was dealt with improperly, despite that issue having been resolved many months ago, and through two appeals, and a further attempted appeal to the High Court. In his current summons filed on 8 February 2024, one of the bases upon which he seeks vacation of the trial date is:
Court orders in view of … other fraud/indicatable offences under the Cemeteries and Crematoria Act related to deceased cremation, Carly Dalton’s false affidavit of 22 July 2022, Dr Gergory Alan Wyatt’s invalid and false certificate of registered medical practitioner authorising cremation and plaintiff’s unlawful application for cremation authorisation of deceased person of known identity, … that the trial date of 19 March 2024 … is vacated.
[28][2022] VSC 410.
[29][2023] VSCA 77 (19 April 2023).
[30][2023] HCASL 171.
Neelanjan has raised numerous issues, including allegations of misleading and deceptive conduct and fraud against legal practitioners and witnesses and Anaban. He says that he wishes to pursue many of these allegations by issuing proceedings or joining parties to existing proceedings, and needs time to do so. On the material before me the interests of justice would not be served by vacating the trial date to enable Neelanjan to make any of the further applications he proposes. Those are not matters that are necessary for the fair and just determination of the real issues in dispute. A party is not entitled to unlimited time to pursue every perceived wrong irrespective of the relevance of it to the present proceeding, or the lack of any apparent evidentiary or legal foundation for it. The procedural orders that have been made gave Neelanjan adequate opportunity to prepare his case for trial. To the extent he wishes to make any further applications or seek to raise issues not already raised, or resolved on appeal, application may be made to the trial judge.
I also note that Neelanjan’s application to vacate the trial date is effectively an application to stay the proceedings pending the hearing of the application for leave to appeal. In the absence of an appeal, an Associate Justice has power under r 66.16 to stay execution of a judgment, but where a judgment or order is appealed to the Court of Appeal, only the Court of Appeal has power under r 64.39 to grant a stay of execution ‘or of proceedings’. [31] For that reason also, it would not be appropriate for me to vacate the trial date.
[31]Rules (n 6) rr 77.01(a),77.02(3)(a).
For those reasons Neelanjan’s summonses must be dismissed.
The parties are directed to provide draft proposed orders including as to costs within seven days. If there is a dispute about costs, I direct the parties to file and serve any submissions as to costs within seven days and I propose to make orders on the papers.
SCHEDULE OF PARTIES
| S ECI 2022 02700 | |
| BETWEEN: | |
| ANABAN GHOSH (in his capacity as executor of the Will of AROTI GHOSH, deceased) | Plaintiff |
| - v - | |
| NEELANJAN GHOSH (both personally and in his capacity as executor of the Will of AROTI GHOSH, deceased) | First Defendant |
| GHOSH ENTERPRISES PTY LTD (ACN 070 687 679) | Second Defendant |
| GREENHAVEN FUNERALS PTY LTD (ACN 159 798 964) | Third Defendant |
-and-
| S PRB 2022 21557 | |
| BETWEEN: | |
| ANABAN GHOSH | Plaintiff |
| - v - | |
| NEELANJAN GHOSH | Defendant |
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