Ghosh v Scott Newtown trading as Shaw Gidley (No 10)

At the conclusion of a hearing on 13 June 2024, I made orders giving effect to a judgment in which I declined to grant the plaintiff, Ms Ratna Ghosh, leave to file a proposed amended statement of claim (proposed ASC) or to be given a further opportunity to replead her case. These proceedings were therefore dismissed: Ghosh v Scott Newton trading as Shaw Gidley (No 9) [2024] NSWSC 740. These reasons assume familiarity, and should be read, with the judgment.

By an amended notice of motion dated 1 September 2024, Ms Ghosh applies, pursuant to Uniform Civil Procedure Rules 2005 (NSW) Part 36, r 36.16 (UCPR) to set aside the orders. For the reasons which follow, the Court will refuse that application.

Ms Ghosh appeared for herself. Mr D Neggo of Counsel appeared for the first defendant. There were no appearances by any other party (actual or proposed).

The judgment was delivered ex tempore on Thursday, 13 June 2024. The orders were pronounced in court shortly before 1pm on that day:

According to the Court's records, on Friday, 14 June 2024:

There was therefore no dispute before me today that r 36.16(1) was engaged:

I note in passing that one of the other bases on which Ms Ghosh contended that r 36.16 had also been engaged was because the orders had been made in the absence of a party (see r 36.16(2)(b)). True it is that the orders had been made in the absence of some of the parties (or at least proposed parties, assuming they would fall within the definition of "party"). It seems to me that, as a matter of practice, that provision is generally only invoked where one of the absent parties is making the application under the rule. While I accept that in its terms the rule is not so limited, insofar as Ms Ghosh might have been relying on it, she has failed to demonstrate what prejudice she has suffered by reason of the orders being made in the absence of other parties (or proposed parties).

In the course of case managing the present application, I gave leave to Ms Ghosh to amend her notice of motion filed on 14 June 2024 (see [5] above). This resulted in the motion. I fixed today to hear the first three prayers of the motion:

I explained to Ms Ghosh on an earlier occasion that the other 21 prayers in the motion could not be heard by the Court at this stage because, whatever their merits, they could only be heard if she had proceedings on foot, which is presently not the case.

The Court has had regard to Ms Ghosh's written submissions, dated 11 September 2024, as supplemented by her in address today. Mr Neggo made oral submissions in response to Ms Ghosh's submissions.

There was no dispute concerning the relevant legal principles as to the application of r 36.16. Ms Ghosh primarily relied on the proposition that it was appropriate for a party to make an application under r 36.16 to the trial judge if she or he had not dealt with a significant submission made by that party: Consolidated Lawyers Limited v Abu-Mahmoud [2016] NSWCA 4 per Macfarlan J (Bathurst CJ and Tobias AJA agreeing) at [39-41].

Ms Ghosh also relied on the oft-cited dictum of Mason J (as his Honour then was) in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 302-303; [1993] HCA 6.

Ms Ghosh's primary submission was that the Court had failed to deal with her submission relying on s 6 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that the Court should have considered whether or not the proposed ASC raised a special federal matter and, if it did, whether the Court should make an order under s 6(3) of that legislation:

That submission is, with respect, unsustainable in the face of the judgment. In the judgment at [36] I said:

That paragraph then must be read in conjunction with the judgment at [28] (emphasis added):

In short, the position was that, before the Court could determine whether or not there was a special federal matter among the various causes of action pleaded in the proposed ASC, it was necessary for that document to be in a form where, whatever the causes of action were, they could be clearly discerned in accordance with the rules of pleading. It was because of the form of the pleading that the Court had to deal with the matter in the way it did, namely to determine first whether the pleading should be allowed to be filed. It might also be observed that because there was no extant pleading, until the Court had granted leave to file the proposed ASC there was no "matter for determination in a proceeding pending" (emphasis added) in the Court that could be identified as a special federal matter to engage s 6(1)(a).

I therefore reject Ms Ghosh's primary submission that the Court failed to deal with a significant submission that she had made.

Her next submission contained in her written submissions and emphasised from the bar table was put in several ways. However, it may be fairly summarised in the proposition that summary dismissal cannot occur if the plaintiff has a cause of action. She submitted that both the proposed ASC and evidence upon which she proposed to rely (including in relation to her case against her ex-husband) demonstrated that she did have a cause of action. Ms Ghosh's reference to summary dismissal was apposite because, in effect, leave to file her proposed ASC was refused because it would have been liable to be struck out for the reasons set out in the judgment.

In support of her submission, Ms Ghosh drew attention to what was said by Adamson JA in GR v Secretary, Department of Communities and Justice [2023] NSWCA 239 (Griffiths AJA agreeing with separate reasons) at [122] and [123].

Two things may be said about this submission and her reliance on what was said by Adamson JA:

For these two reasons, the submission set out in [18] above is rejected.

I next record that Ms Ghosh made a number of submissions about why the Court should, under r 36.16, set aside the costs order that was made as part of the orders. This was an alternative prayer for relief in the motion. There is no basis for the Court to make such an order if, as I have determined, the orders and judgment are not to be set aside.

I also note a section of Ms Ghosh's written submissions entitled "Discretionary Considerations in Setting Aside the Summary Dismissal Order and Costs Order". This sets out a number of complaints which, with respect, generally fall within the category of her "complaints against the world" referred to in the judgment at [27]. I am unable to see how any of the matters raised in that section are relevant to the question of whether or not relief should be granted to Ms Ghosh under r 36.16.

This brings me to the one other matter of potential significance from her written submissions which Ms Ghosh emphasised in the course of argument. Ms Ghosh submitted that she was prejudiced by the orders because the dismissal of the proceedings meant that any claims that she sought to bring in fresh proceedings against the defendants for breach of trust would be statute barred by s 48 of the Limitation Act 1969 (NSW).

She further submitted that, whether or not she had in fact made that submission at the hearing, she was entitled to raise that consideration on the present application. In support of this submission, she drew the Court's attention to the Court of Appeal's decision in Ghosh v Miller (No 2) [2018] NSWCA 212. In that case she had succeeded in an appeal from a decision of a judge of the Common Law Division in circumstances where she had raised before the Court of Appeal an argument concerning the statute of limitations which had not been raised before the primary judge at a time when she was unrepresented.

The submission of prejudice by reason of the application of the limitations legislation to any fresh proceedings was not put in terms at the hearing. However, the transcript of that occasion records these submissions made by Ms Ghosh in answer to submissions made by Ms Z Hillman of Counsel who appeared for the proposed ninth defendant, the Commonwealth Bank of Australia (Tcpt, 13 June 2024, p14(49)-15(32)):

Mr Neggo properly accepted that there was at least some reference to the statute of limitations in the passage which I have just set out. He submitted that it was not clear which of the causes of action that were sought to be raised in the proposed ASC might be statute barred and that the position could be different as between the various proposed defendants. Nevertheless, he also fairly indicated that, were fresh proceedings to be commenced, his client would plead the statute of limitations in answer to any causes of action to which that defence was properly available.

I propose to deal with Ms Ghosh's submissions as to limitation (including that it can be raised now even if it had not been raised at the hearing) in this way. To use the language of Mason J (see [12] above) I will assume in her favour that the Court misapprehended that she was in fact making a submission that she would be potentially prejudiced by the limitation legislation if the proceedings were dismissed, and that the misapprehension was through no fault of her own as a litigant in person. Mr Neggo acknowledged that would be sufficient to enliven the Court's discretion under r 36.16. I will also assume in Ms Ghosh's favour that her submission was correct, at least in relation to some cause of action for breach of trust that she sought to plead in the proposed ASC against at least the first defendant.

Based on those assumptions in Ms Ghosh's favour, I proceed on the basis that the Court's discretion under r 36.16 has been enlivened, but it must be recalled that it is a discretion. In this case, I decline to exercise the Court's discretion under r 36.16 because the assumptions that I have made would have made no difference to the outcome had those matters been considered at the hearing. In other words, given all of the other circumstances outlined in the judgment, I would still have reached the same conclusion as to the inadequacy of the proposed ASC and as to refusing leave to replead, with the consequence of dismissal. Even if that would have caused the prejudice to Ms Ghosh that I have assumed for the purposes of the present argument, unlike the cases to which Ms Ghosh referred, the present case was decided against the background of multiple attempts by Ms Ghosh to plead her case, and an indication by Schmidt AJ with which I respectfully agreed, and still agree, that Ms Ghosh should only be given one more chance to plead her case.

There is an additional reason why I have reached this conclusion. In accordance with directions I made on an earlier occasion, Ms Ghosh has provided the Court with a form of pleading which she says is what she would rely on if either leave to replead were granted or she were to commence fresh proceedings. It is sufficient for me to observe for present purposes that the latest iteration of her proposed draft pleading suffers from the same kinds of deficiencies from which the proposed ASC suffered, and which led to the judgment and orders.

It follows that for the reasons I have given, Ms Ghosh’s application fails.

While I have today only dealt with prayers 1 to 3 of Ms Ghosh's motion, as I recorded in [9] above, the balance of the motion sought relief which assumed that Ms Ghosh in fact had proceedings on foot. Given the view to which I have come as to the first three prayers in the motion, the occasion will never arise (subject to what may happen in another place) for the balance of those prayers to be considered. In those circumstances, it is appropriate to dismiss the entire motion.

I invited the parties' submissions as to the costs of the motion. Mr Neggo has submitted that costs should follow the event.

Ms Ghosh resisted a costs order and sought leave to file further written submissions as to costs. In my respectful view, as I have said more than once in the course of the various proceedings brought by Ms Ghosh, it is necessary to draw a line under these proceedings. The costs issue is a short one and I saw no reason for further delay by allowing written submissions, not least when on any view Ms Ghosh is well versed in representing herself. I declined her request to file further written submissions.

I then gave Ms Ghosh an opportunity to address me as to why she should not pay the costs of the motion. Her submission was that there should be no order as to costs. In support of that submission she made a number of what I can only, with respect, describe as extraneous allegations concerning the conduct of the first defendant and the solicitors and counsel retained for the first defendant. None of the matters which Ms Ghosh put to me would warrant the Court displacing the ordinary position, which is that costs should follow the event.

The orders of the Court are: