Dr Ghosh filed a motion on 24 October 2016 seeking orders setting aside and staying judgments given by Fullerton J on 14 April 2016 (see Ghosh v Miller [2016] NSWSC 430) in these proceedings, after a contested hearing and by Fagan J in matter number 2014/00333115 on 3 August 2016, also after a contested hearing.
Dr Ghosh also sought gross sum costs orders under s 98(4) of the Civil Procedure Act 2005 (NSW) against Mr Miller for non-attendance on specified occasions in 2013 and 2014 in Matter number 2013/235153 and in matter number 2014/00333115, for "failed and hopeless applications" made on identified dates in 2014 and 2015, as well as damages for the delayed settlement of the sale of a unit and for a "failed and hopeless gross sum costs order" made against her on May 2016. Leave to subpoena Mr Miller's bank records "of what costs were actually paid by Mr Miller and who is funding his defence in all of his cases" was also sought.
An order merging case 2013/235153 and case 2014/00333115 with case number 2013/76771, defamation proceedings brought by Dr Ghosh against Mr Miller, which are still on foot, was also sought.
Mr Miller's position was that the motion would be dismissed as frivolous and vexatious and an abuse of process, with a gross costs order in his favour, given not only that Dr Ghosh was an undischarged bankrupt with no standing to commence or pursue the application, but because her case was hopeless, given the history of the proceedings.
Dr Ghosh did not appear when her motion first came into the duty judge's list on 28 October, in circumstances where the parties had mistakenly understood that her motion would be heard that day by Rothman J. When she appeared unrepresented on 1 November at the adjourned hearing, after, she said, having taken legal advice, there was no issue that a sequestration order had been made against Dr Ghosh on 30 September and that a Mr Newton had been appointed as her Trustee. She then acknowledged that this caused her a difficulty, but still she sought to press her motion in circumstances where Markovic J in the Federal Court had reserved on her application for a stay of the sequestration order.
Ghosh v Miller [2016] NSWSC 1568 | Case summary | Zoe
The position then was, however, that despite her application to the Federal Court, her bankruptcy precluded her pursuit of the motion, because her property, including any interest which she could conceivably have in these proceedings, thereupon vested in the Trustee under the Bankruptcy Act 1966 (Cth).
After advice was given to the parties on 4 November that the matter would be listed on 7 November for this judgment to be delivered, Dr Ghosh provided, by email, a copy of a judgment given on 2 November by Markovic J in the bankruptcy proceedings, suspending the operation of the sequestration order made on 30 September, pending any determination of her appeal (see Ghosh v Miller [2016] FCA 1293).
This was not an appropriate way in which to advance further submissions in respect of an application on which judgment had been reserved. Nevertheless, it is apparent that the judgment that Dr Ghosh has obtained suspending the operation of the sequestration order has no impact on the matters over which the parties joined issue at the hearing.
At the hearing, Dr Ghosh had explained that her motion rested on her belief that Mr Miller had failed to comply with obligations imposed upon him by s 34(4) of the Legal Aid Commission Act 1979 (NSW), to notify her that he had been granted legal aid in respect of the proceedings. Further, she contended that Mr Miller and those who had represented him in various proceedings had misled the Court, by not disclosing that grant, when pursuing applications for gross costs orders which had been made against her.
That either Mr Miller had failed to give notices required under the Legal Aid Commission Act, or that he or his legal representatives had misled the Court on the occasions when he had sought that costs orders be made in his favour in any proceeding, was also denied by his counsel, Mr Maconachie.
These were very serious allegations, involving as they did not only claims that Mr Miller had misled the Court in evidence advanced on costs applications, but also that various legal representatives, officers of the Court, had also misled the Court as to costs they had rendered for representing Mr Miller under costs agreements they had entered with him, when he had in fact been legally aided.
Dr Ghosh led no evidence to support her claims, other than exhibit M1, which was an extract from information published on the NSW Online Registry in relation to matter number 2013/235153, which indicated that on 29 April 2014 a "waived fee notice" had been produced by the court. That did not establish any basis for the belief Dr Ghosh said in her submissions that she holds, that Mr Miller had received any grant of legal aid in that or any other matter in which Dr Ghosh has pursued him.
There is simply no evidence which explains how Dr Ghosh has come to hold these beliefs, or that there is any rational basis for their existence.
In the circumstances, I am satisfied that the orders which she seeks cannot be entertained and that her motion must be dismissed.
The only proceedings currently on foot are the claims Dr Ghosh brought in defamation in matter number 2013/76771.
In these proceedings, Dr Ghosh sought leave to appeal a decision given in the Local Court, by Atkinson LCM, dismissing her application for leave to appeal the decision of a costs review panel. On 14 April, Fullerton J dismissed her amended summons, after a contested hearing. In her judgment her Honour outlined the matter's considerable procedural history, refused a further adjournment application and concluded for reasons there given, that no error had been demonstrated, with the result that her Honour ordered that the summons be dismissed (see Ghosh v Miller [2016] NSWSC 430).
In June 2016 her Honour noted that even though the costs in issue had been only $5,496.94, she declined to make a gross costs order, but instead ordered that Dr Ghosh pay Mr Miller's costs (see Ghosh v Miller (No 2) [2016] NSWSC 713).
Neither of Fullerton J's judgments have been appealed. The principle of finality discussed in D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34] - [36] precludes controversies, once so resolved, being reopened except in limited circumstances, the principle one of which is an appeal. Dr Ghosh explained that she had not exercised that right, because of the cost involved.
Dr Ghosh contended that Fullerton J's judgment should be set aside under Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), having been given irregularly, illegally or against good faith, given her belief that Mr Miller had been legally aided. As I have said, there is simply no basis on which that belief could justly be accepted as having any foundation, or be acted on, to set aside the judgments regularly given after a contested hearing in which Mr Miller was legally represented.
The same conclusion must be arrived in relation to the judgment given by Fagan J on 3 August (see Ratna Ghosh v John Bee (Supreme Court (NSW), 3 August 2016, unrep)). In those proceedings, commenced in 2013, Dr Ghosh had sought leave to appeal a decision made in the Local Court by Cheetham LCM, striking out Dr Ghosh's statement of claim. Fagan J was dealing with a motion pressed by Dr Ghosh against Mr Miller, the Sixth defendant, staying costs orders made against her and instead, making a gross sum costs order in her favour.
Fagan J concluded that the motion had to be dismissed, in circumstances where the proceedings had been brought to an end as the result of steps taken by Dr Ghosh on 24 April 2014; that Dr Ghosh's motion was accordingly incompetent, given that it sought interlocutory relief in proceedings which were no longer on foot; that Dr Ghosh had not established, on the balance of probabilities, that she had ever served the summons personally on Mr Miller; and that in any event, there was no merit in the claims for relief which she pursued, given that the order as to costs sought could not be made in advance of a final hearing of the appeal.
Dr Ghosh's beliefs as to Mr Miller's legal aid funding are not relevant to what fell to Fagan J to decide on that application, which was not concerned with questions of costs, but rather whether the motion could be entertained. That she is dissatisfied with his Honour's decision is not a basis on which orders under Rule 36.16 can be made. That process is not an alternative to an appeal.
In the result, I am well satisfied that the motion must be dismissed. I order accordingly and will hear the parties on the application Mr Miller foreshadowed for a gross costs order.
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Decision last updated: 07 November 2016