Ghosh v Scott Newton trading as Shaw Gidley

The parties' cases

1. It emerged at the hearing that Dr Ghosh no longer wished to pursue her original or proposed amended statement of claim. Instead she pressed for leave to proceed on Mfi A, opposed orders dismissing any part of the proceedings; and if not given leave to proceed on Mfi A, sought another opportunity to amend her pleadings.
2. To resist Mr Newton's case and to pursue the leave which she sought Dr Ghosh relied on what Adamson JA observed in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 at [123]. Namely, that summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272. She also contended that Mfi A raised a triable issue about Mr Newton's claimed breach of trust and so the proceedings could not be dismissed.
3. Mr Newton pressed dismissal orders in so far as Mfi A still sought to pursue a collateral attack on the judgments of other courts, which he contented involved an obvious abuse of process which had already led to the rejection of the injunctive relief which Dr Ghosh had earlier pursued in these proceedings.
4. Mr Newton also opposed Dr Ghosh being granted leave to proceed on Mfi A, which he argued was still legally embarrassing; involved an abuse of process; was not pleaded in accordance with the requirements of the applicable Rules; sought to advance some claims which Dr Ghosh had no standing to pursue; and in respect of some allegations, disclosed no cause of action or any basis for the grant of either damages or injunctive relief.
5. It was also foreshadowed that if the leave sought was granted, questions would arise about whether this Court was the appropriate forum, given the orders which Dr Ghosh sought to pursue.
6. Dr Ghosh contended that dismissal orders could not be made, the applicable tests not being satisfied by the case Mr Newton advanced. Further, that she should be given the leave which she requires, given the serious questions which she sought to pursue on arguable grounds, relying on General Steel and Wickstead v Brown.
7. In the circumstances, the balance of convenience favoured her being granted leave to file Mfi A and the proceedings being transferred to the Equity Division, to be dealt together with the matters the subject of the orders made in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239.
8. That was because she had no other means of obtaining relief from her forced insolvency and the theft of her unencumbered properties, she having a recognised cause of action which struck at the heart of her solvency and financial security. It would thus cause substantial injustice if she was unable to pursue her claims. Interlocutory orders, in so far as they result in a determination of issues between the parties, which summary dismissal orders would, creating a prima facie case for granting her leave to appeal.
9. At the hearing Dr Ghosh also sought an order for another referral for pro bono legal assistance, the Court's earlier referrals having not resulted in the provision of such assistance. This was not supported by any affidavit evidence which would provide a basis for yet another referral. That was not opposed by Mr Newton, but has to be considered in light of the Court's earlier referrals and that from her submissions, it emerged that Dr Ghosh has obtained advice from counsel, which had resulted in the pursuit for equitable relief proposed by Mfi A.

What Mfi A pleaded

1. The pleading Dr Ghosh seeks leave to pursue includes claims that she has suffered loss and damage as the result of:

• Fraud and Breach of Trust:
• A - Fraud and breach of trust by forcing her while solvent into insolvency by fraud, the claimed conduct pleaded being that of Mr Newton, Mr Miller, and Shaw Gidley at 1-3;
• B - Continued forced insolvency by fraud and breach of trust, her annulment application and appeal having been dismissed as the result of fraud and breach of trust and breach of fiduciary duty, relevant conduct pleaded being that of Mr Newton at 4-5;
• C - Extending her bankruptcy period to 8 years by fraud and breach of trust, relevant conduct pleaded being that of Mr Newton and Shaw Gidley at 6;
• D - Lodging caveats and charges against superannuation fund property by fraud and breach of trust, relevant conduct pleaded being that of Mr Newton at 7-8; and
• E - Obtaining a s 139ZQ Bankruptcy Act 1966 (Cth) notice from the Australian Financial Security Authority by fraud and breach of trust, relevant conduct pleaded being that of Mr Newton at 9.
• Breach of Trust and Breach of Fiduciary Duty:
• A - Breach of trust and breach of fiduciary duty by refusing to discharge bankruptcy with approved loan, relevant conduct pleaded being that of Mr Newton at 10;
• B - Failing to get any costs assessed in seven years, relevant conduct pleaded being that of Mr Newton and Shaw Gidley at 11;
• C - Forcing sale of exempt superannuation fund properties by ex parte consent orders without any proof that she owed outstanding debts, relevant conduct pleaded being that of Mr Newton, at 12;
• D - Allowing massive theft by Dr Bandyopadhyay, relevant conduct pleaded being that of Mr and Ms Chowdhury, at 13-14;
• E - Underselling prime properties, relevant conduct pleaded being that of Mr Newton and Shaw Gidley, at 15;
• F - Writing off debts owed to her, relevant conduct pleaded being that of Mr Newton and Shaw Gidley, at 16;
• G - Paying Mr Miller, Shaw Gidley and their common lawyer $581,000 without any assessed costs in 7 years, relevant conduct pleaded being that of Mr Newton and Shaw Gidley, at 17-19;
• H - Refusing to pay creditors, despite removing $700,000, relevant conduct pleaded being that of Mr Newton and Shaw Gidley, at 20;
• I - Causing delay by opposing short adjournments for her counsel to appear repeatedly, in order to defeat justice, relevant conduct pleaded being that of Mr Newton, at 21; and
• J _ Refusing to pay her basic costs of living, relevant conduct pleaded being that of Mr Newton and Shaw Gidley, at 22-23.
• Deceit:
• A - Deceit, by deceiving Dr Bandyopadhyay into signing consent orders on behalf of her superannuation fund, which he had no authority to sign, relevant conduct pleaded being that of Mr Newton and Shaw Gidley, at 24;
• B - Deceiving Dr Bandyopadhyay into signing consent orders in February 2022 by alleging they had released the s139ZQ notice property, relevant conduct pleaded being that of Mr Newton and Shaw Gidley, at 25; and
• C - Deceiving Dr Bandyopadhyay on his condition for consent, relevant conduct pleaded being that of Mr Newton and Shaw Gidley, at 26.
• Telecommunication offences and criminal hacking by Mr Newton, Mr Miller and Shaw Gidley, at 27-29.
• Impersonation and fraud by Mr Miller, at 30.
• Contempt of court, perjury and breach of trust, relevant conduct pleaded being that of Mr Newton, Mr Miller and Shaw Gidley, at 31-35.
• Theft by fraud, breach of trust and breaches of Superannuation Industry Supervision Act 1993 (Cth) and Corporations Act 2001 (Cth), relevant conduct pleaded being that of Dr Bandyopadhyay, at 36-55.
• Breach of trust, fraud and theft by Mr and Ms Chowdhury, at 56-65.
• Breach of trust, fiduciary duty and duty of care by Mr Newton, Shaw Gidley, Mr and Ms Chowdhury by reason of the earlier pleaded matters, at 66.
• Fraud by all defendants as the result of the earlier pleaded matters, at 67.
• Mr Newton and Shaw Gidley being knowingly concerned in or procuring breaches by Dr Bandyopadhyay, as the result of the earlier pleaded matters, at 68.

The earlier judgments

1. To resolve what is in issue it is relevant to note the various judgments which have already been given in these proceedings, which have not been challenged:

• Referring Dr Ghosh to the Pro Bono Panel for legal assistance pursuant to subr 7.3 of the Rules: Ghosh v Newton Unreported Adams J 30 November 2022.
• Refusing Dr Ghosh leave sought by motion to move on a proposed amended statement of claim, her original statement being accepted as being defective. Leave to proceed on that proposed pleading, which spoke of 26 causes of action, was refused, it being considered that it was unorthodox, inappropriate and a move backwards: Ghosh v Newton Unreported Button J 9 February 2023.
• Refusing Dr Ghosh injunctive relief also pursued by motion, given that her claims concerned voluminous litigation in bankruptcy proceedings on foot in federal courts for years and also refusing her application for removal of the trustee's caveat over a property: Ghosh v Newton Unreported Button J 9 February 2023.
• Refusing Dr Ghosh an adjournment of the hearing of a motion when she failed to appear, having sought an adjournment that morning by email sent to the duty judge's associate and refusing to make a further order for referral for pro bono assistance sought by that motion: Ghosh v Newton Unreported Adams J 16 March 2023.
• Refusing Dr Ghosh's further pursuit of injunctive relief at a time when she had appealed the February 2023 orders of the Federal and Family Circuit Court in respect of the Charlestown property, of which Mr Newton was pursuing orders for possession. The view taken being that the Court had no power to grant the relief sought and even if it did, it would be improper to exercise it, so as to interfere with orders made by the Federal and Family Circuit Court: Ghosh v Newton Unreported Sweeney J 17 April 2023.
• Refusing Dr Ghosh's further application for an injunction, it being concluded that most if not all of Dr Ghosh's claims involved collateral attacks on the appropriateness of orders of the former Federal Circuit Court, the Federal Court and the Federal Circuit and Family Court, it being concluded that this Court was not the appropriate court to deal with the matters Dr Ghosh sought to pursue and that what was pursued involved an abuse of process and facilitating a contempt of those courts: Ghosh v Newton Unreported Rothman J 27April 2023.

1. Despite these judgments Dr Ghosh's case remained that she was entitled to pursue orders impugning or challenging orders of the federal courts by which she remains bound, her appeals having failed.

Strike out of the original statement of claim

1. It became common ground at the hearing that Dr Ghosh's original statement of claim should be struck out, she no longer seeking to pursue that pleading further and instead seeking either leave to proceed on Mfi A and if that was refused, another opportunity to replead.
2. I am satisfied, given what Dr Ghosh originally pleaded, what has already been decided in these proceedings and the parties' common position, that her original statement of claim should thus be struck out.
3. In 2022, Button J refused Dr Ghosh leave to proceed on the amended statement of claim which she then proposed, being satisfied that it did not address the obvious deficiencies of her original statement of claim. Dr Ghosh accepts that she cannot proceed on that pleading.
4. Given what Button J and other judges of this Court have already observed about its problems, I am satisfied that the appropriate order is to strike out that pleading, utilising the powers granted by r 4.28.
5. It is concerned with pleadings which disclose no reasonable cause of action, have a tendency to cause prejudice, embarrassment or delay in the proceedings, or involve an abuse of the Court's process. Dr Ghosh's failure to plead in accordance with the requirements of the applicable rules, in pursuit of claims which concern proceedings in other Courts and the orders which they resulted in, by which Dr Ghosh remains bound, brings the original statement of claim within the strike out power.
6. Given all that has unfolded since the proceedings were commenced, it is now appropriate to make the strike out order, given what s 56 of the Civil Procedure Act requires.
7. That leaves to be resolved the question of whether the proceedings should be dismissed, or the leave to proceed on the proposed amended statement of claim or to further replead granted.

The applicable requirements of the Civil Procedure Act and Rules

1. That also requires consideration to be given to the requirements of the Civil Procedure Act and the Uniform Civil Procedure Rules, which regulate all parties' pleadings, whether they are legally represented or not.
2. The Rules require not only that a statement of claim be brief, but it must:

• contain a summary of the material facts on which the plaintiff relies, not the evidence by which those facts are to be proven - r 14.7;
• state the effect of material documents and words spoken - r 14.9;
• plead any matter which if not specifically pleaded, may take the defendants by surprise, including any facts which show illegality, including claimed fraud or deceit, which must all be properly particularised by specifying the acts involved and that they were done in a manner amounting to the illegality claimed - r 14.14;
• disclose the basis of any claim to a right to possession of land, including any act or omission by a defendant, including its date and nature - r 14.15; and
• when defamation is pursued, the claimed defamatory statements must be pleaded, as well as the defamatory imputations which are relied on and the publication which it is claimed has caused serious harm to reputation - r 14.30.

1. The Court has undoubted powers to order the amendment of any documents in the proceedings: s 64 of the Civil Procedure Act. But its powers in relation to leave to amend pleadings, strike out and dismissal must all be exercised in light of the requirements of s 56, which imposes obligations on the Court, the parties and their legal representatives in respect of furthering the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings.
2. Other matters necessary to take into account on such applications are specified in ss 57-61, to which I will return. This means that matters such as timeliness and a proper purpose arise to be considered whenever the Court is asked to exercise its powers: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; ALR 14 [2009] HCA 27.
3. Given the importance of the matters which Dr Ghosh seeks to pursue, the difficult situation she is in, given that she is bound by orders of other courts which she has unsuccessfully challenged, the Court's earlier orders referring her for pro bono assistance can readily be understood. Even though she has not obtained such assistance, on her case she has had legal advice about her pleadings.
4. That is relevant to the discretions which arise to be exercised.

Leave to proceed on Mfi A must be refused

1. Having taken into account the cases which the parties advanced in light of these requirements, I am satisfied that leave to proceed on Mfi A cannot be granted.
2. That is because the Court cannot, consistently with the requirements of s 56, grant a party leave to proceed in respect of claims which are futile, because they are doomed to fail.
3. It has already been repeatedly held in these proceedings that some of the claims which Dr Ghosh still seeks to advance by Mfi A attempt to impugn what other courts have already decided and ordered, so that she can achieve a different outcome, cannot succeed. Dr Ghosh has not appealed any of these decisions.
4. By Mfi A she still seeks to pursue such claims. But she has already litigated them against the same parties in competent courts. Dr Ghosh having failed as she did in those proceedings, cannot now justly pursue them again as she seeks to do in these proceedings. That was long ago established in Bayne v Blake (No 3) [1909] HCA 60; (1909) 9 CLR 366.
5. Nor does this Court have any power to entertain what is effectively an appeal from what has already been decided by the former Federal Circuit Court, by the Federal Court on appeal and by the Federal Circuit and Family Court at first instance and on appeal, about the matters which Dr Ghosh now wishes to litigate again in this Court. It is understandable that she seeks thereby to arrive at a different result and/or to be relieved of the consequences of what has already been decided against her and the orders by which she is currently bound. But that is not for this Court to consider or order.
6. Claims that such orders were obtained as the result of fraud, deceit or other illegality are matters which may be pursued in those other courts, which have jurisdiction to deal with orders which have resulted from fraud or other claimed illegality and the contempt involved. But they do not fall within this Court's jurisdiction and their pursuit necessarily involves an abuse of process.
7. It follows that leave to proceed on such claims cannot justly be granted.
8. Mr Newton accepted that this conclusion does not apply to all of the claims Dr Ghosh seeks to advance by her proposed pleading. That includes those sought to be advanced against parties who were not party to the earlier proceedings in other courts and so are not bound by their orders, as well as claims which were not considered or resolved between he and Dr Ghosh in those earlier proceedings.
9. But still, in order for the leave sought to be given in respect of those aspects of the proposed amended statement of claim, it must comply with the requirements of the Rules.
10. I am satisfied that Mfi A does not.
11. For example, the claim that Mr Newton, Shaw Gidley and Dr Bandyopadhyay allowed the alleged "massive theft" Dr Ghosh seeks to pursue was pleaded as: "13 The first third and fourth defendants allowed the plaintiff's malicious ex-husband to sell 5 unencumbered properties since February 2019, without communication to the plaintiff, and gave her ex - husband contents of a property in Rydalmere Sydney that were purchased in superannuation fund name in the plaintiff's share including a brand new 2 bedroom fully fitted out granny flat with brand new rainwater tank, pump, whitegoods, furniture, electrical goods and manchester. 14. The first, third and fourth defendants mismanaged the plaintiff's estate, by allowing theft of company, personal, family trust and superannuation fund assets by the plaintiff's ex - husband who also paid himself a pension from her superannuation fund while they both left the plaintiff no money to live on."
12. This describes claims which Dr Ghosh seeks to advance. But it fails to disclose, as the Rules require, the material facts on which Dr Ghosh relies to advance those claims. For example, the five properties the subject of what is pursued at 13 are not identified, nor are the company, personal, family trust and superannuation fund assets, the subject of what is pleaded at 14 identified. Nor is the factual basis of the claim that they belonged to the alleged owners revealed. Nor are the acts which are claimed to have amounted to the claimed theft specified.
13. Similar problems exist in respect of other claims.
14. The Rules require that such material facts be particularised, so that the defendants are not taken by surprise by the case Dr Ghosh seeks to advance against them. Further, so that they have a real opportunity to do what the Rules also intend, to consider and plead any defence which they might seek to advance in respect of all claims advanced against them.
15. Dr Ghosh's case was that such particulars are to be found in affidavits she has sworn in these and other proceedings. But even if that were accepted, it would not satisfy the requirements of the Rules, which require the material facts to be pleaded in her statement of claim. They cannot be provided only after time for filing a defence has passed, nor by reference to affidavits which necessarily requires the defendants to determine what Dr Ghosh is relying on, in respect of particular claims. That is for her to plead.
16. Dr Ghosh also seeks to pursue various other claimed illegality, including alleged deceit, fraud and various criminal offending, without disclosing the acts relied to establish what she claims.
17. For example, the factual basis on which the claim that Mr and Ms Chowdhury forced a power of attorney on Dr Ghosh's mother as soon as her father had passed away, is not particularised. Nor the basis of the claim that using such a power of attorney, Ms Chowdhury had signed her father's will. Nor is what is relied on in respect of the claimed theft particularised. The bank accounts, shares, investments, jewellery and household contents which it is claimed formed part of the estate and were the subject of the alleged theft, are also not identified as they must be.
18. Nor are the properties, cars, assets and holidays it is claimed Mr and Ms Chowdhury illegally took out of the estate for their own benefit identified, apart from the Dover Heights property. The dates and nature of the acts which it is claimed resulted in the purchase of the Dover Heights property out of estate funds, are also not particularised.
19. A great deal of what is sought to be pursued concerns alleged acts of Dr Bandyopadhyay. By what is pleaded at 66, 67 and 68 Mr Newton is also implicated in his alleged wrongdoing, as well as that of Mr and Ms Chowdhury. But again the material facts upon which those claims are advanced against Mr Newton were also not particularised. Further, in the case of some of her claims, Dr Ghosh's causes of action are not identified. Nor is the basis of any claimed loss or damage revealed.
20. The defamation claim has also not been pleaded in accordance with the requirements of the Rules which specifically govern such claims.
21. It is unnecessary to further dissect all of the problems and deficiencies of Mfi A. But I am well satisfied that they preclude the leave sought to proceed on that pleading being granted.

Should the proceedings be dismissed?

1. I am also satisfied that in all of these circumstances the proceedings cannot at this stage be dismissed.
2. For her part, Dr Ghosh relied on what was observed by Adamson J in GR v Secretary, Department of Communities and Justice at [123] which involved an appeal from orders made by Hammerschlag CJ in Eq summarily dismissing certain proceedings, as well as her successful appeal in Ghosh v Miller (No 2) [2018] NSWCA 212. There, while the appeal was upheld, the proceedings below were stayed because of the way Dr Ghosh had conducted them, until she had satisfied a judge conducting the Defamation List noting that she had taken all steps required of her pursuant to the Uniform Civil Procedure Rules, but also any extant orders and that she is able and willing to conduct a trial of the matter efficiently and expeditiously.
3. Adamson J observed in GR that "A plaintiff is not obliged to substantiate the allegations made in support of the claim in order to resist summary dismissal of the proceedings. Issues of fact are pre-eminently matters for final hearing. Summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272."
4. But it seems that unlike the position in GR, in this case there are no factual issues lying between the parties about the crucial matters relevant to certain aspects of Dr Ghosh's claims. Namely, that she seeks to pursue relief in respect of orders which have been made by the other courts by which both she and Mr Newton remain bound, about which the parties have already been heard and she has not successfully challenged on appeal.
5. The injunctive relief by which Dr Ghosh sought to impugn those orders has already been refused in these proceedings, given the view repeatedly taken about the Court's lack of power to grant her such relief. She has not appealed those decisions and so is also bound by them. Her original statement of claim will now be dismissed and leave to proceed on Mfi A will also be refused, but as I will explain, I have been persuaded that she should have one final opportunity to replead.
6. Given the course which the proceedings have already taken and the advice Dr Ghosh explained she has received about the need to amend her original claims, it follows that when she repleads, she will be unlikely given the leave she still requires, if she persists in seeking to further impugn the orders of other courts by which she remains bound.
7. The approach discussed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, arises, because the effect of refusal of a final opportunity to replead would be to finally dismiss Dr Ghosh's claims.
8. The General Steel test is particularly stringent and may only result in dismissal of proceedings at an early stage, where there is no reasonable cause of action disclosed on the pleadings and where it is clear that the plaintiff's case is so untenable, that it cannot possibly succeed. The Court's power to strike out proceedings must thus be exercised with great care, essentially only in cases which are doomed to fail and where no pleading amendment could cure the defect.
9. I consider that in the case of some of her claims, pleading amendment could cure the defects earlier discussed.
10. But parties cannot justly have unlimited opportunities to replead their cases, given the requirements of the Civil Procedure Act and its emphasis on timely and fair litigation and the proportionality of costs: ss 56-61. Even if they pursue available causes of action, if they fail to plead their cases in accordance with the requirements of the Rules, ultimately the proceedings will be dismissed.
11. That is because while plaintiffs must be given a fair opportunity to plead and pursue their cases, the rights of defendants cannot justly be ignored. They are entitled to have a plaintiff's pleadings comply with the requirements of the Rules, so that they can understand and have a fair opportunity to respond to the claims which are brought against them and so that the proceedings before the Court can proceed in an orderly fashion, with unnecessary costs not being incurred, to final hearing.
12. If a plaintiff fails to adhere to the pleading requirements of the Rules, that ultimately risks the proceedings being dismissed, the Court always being obliged to adhere to the requirements of s 56 and to have regard also to those imposed by ss 57 and 58. They respectively requiring that: 1. the Court have regard to the objects specified in s 57(1): (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. 1. The Court act in accordance with what the dictates of justice require, having regard also to the matters specified in s 58(2)(b): i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
13. The latter makes relevant the procedural history of the course which a plaintiff pursues and the costs which are incurred as a result. That is consistent with s 60, which requires that the Court's practices and procedures be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
14. The matters Dr Ghosh seeks to litigate are undoubtedly very important to her, raising as they do very serious allegations of wrongdoing by various people.
15. But that is why justice requires her to adhere to the pleading requirements of the Rules. Not only so that the basis on which she advances those allegations are properly revealed, in order that the defendants can each understand the case they have to meet, but ultimately, so that the Court can resolve the real issues lying between the parties, in accordance with the obligations which the Civil Procedure Act imposes on it.
16. On all that has been advanced I am satisfied that at this stage, these proceedings cannot justly be dismissed. But it follows that unless Dr Ghosh makes and succeeds in a further, timely application for the leave to replead which she requires, she risks the Court then making an order dismissing her case in its entirety.

Dr Ghosh should have a further opportunity to replead

1. If she was not given leave to proceed on Mfi A Dr Ghosh sought a further opportunity to replead claims which are available to her to pursue in these proceedings.
2. As I have explained, there must be a limit to the number of opportunities Dr Ghosh is given to replead her case. But in all of the circumstances I have discussed, I have concluded that she should have a final opportunity to replead claims which are available to her to advance. That will require her to file a further motion supported by an affidavit.
3. If the proceedings were not dismissed as Mr Newton sought, that was not opposed. The parties were agreed that she should have until the beginning of February 2024 to do so.
4. In the result I have concluded that the hearing of Dr Ghosh's dismissal motion should be adjourned to be further heard and finally determined together with any further motion seeking leave to replead which Dr Ghosh may file.

Should the matter be transferred to the Equity Division?

1. Dr Ghosh contended that there were other proceedings on foot in the Equity Division, including other common law proceedings which have been transferred to that Division, which raise issues in common with those which she seeks to pursue in these proceedings.
2. Mr Newton did not oppose that order, which I am satisfied in all the circumstances is appropriate to be made.

Further referral for pro bono assistance

1. But I am not persuaded that yet another referral for pro bono assistance should be made, even though Mr Newton accepted that such assistance would be of benefit in this case. Undoubtedly it would be, given the ongoing problems with Dr Ghosh's pleadings.
2. But these resources are scarce and such referral is governed by the requirements of r 7.36. Dr Ghosh having already been referred as she has been in these proceedings, r 7.36(2A) requires that she establish special reasons for a further referral. That was not established by the evidence and submissions which Dr Ghosh advanced.

Costs

1. The usual order under the Rules is that costs follow the event. Dr Ghosh has been unsuccessful in obtaining the leave sought in her belatedly filed October motion, which Mr Newton successfully resisted, while consenting to the transfer she sought to the Equity Division and the further opportunity she sought to have until February to replead if the case was not dismissed at this stage.
2. Dr Ghosh sought either an order that costs of the motions be costs in the cause, or that each party bear their own costs.
3. I am not satisfied that would be the just order.
4. Neither party complied with all of the Court's orders for preparation of the motions for hearing, but Mr Newton accommodated Dr Ghosh's late changes in position, so that the fixed hearing could proceed. The approach which Dr Ghosh pursued by the blizzard of email communications which she sent before the hearing so that she could pursue yet another version of her statement of claim, undoubtedly unnecessarily increased the costs which the parties will have to bear in respect of those motions.
5. In the result I am satisfied that there should be no departure from the usual order, it being just that Dr Ghosh bear the costs of her motions, as agreed or assessed. Costs of Mr Newton's motion should be reserved.

Orders

1. For these reasons I order that: 1. Dr Ghosh is given leave to amend her March 2023 motion by her late filed October motion. 2. Dr Ghosh's original statement of claim is struck out. 3. Dr Ghosh file and serve any further motion seeking leave to file any further amended statement of claim on or before 1 February 2024, together with a supporting affidavit. 4. Mr Newton inform Dr Ghosh within 7 days of service whether the leave thereby sought will be consented to or opposed. 5. Dr Ghosh bear Mr Newton's costs of her motions, as agreed or assessed. 6. The hearing of Mr Newton's motion is adjourned to be heard and finally determined together with any further motion seeking leave to replead which Dr Ghosh may file. 7. Costs of Mr Newton's motion are reserved. 8. The matter be transferred to the Equity Division. 9. The matter is adjourned for further directions at 9.30 am on 12 February 2024 before Kunc J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2023