Ghosh v Scott Newton trading as Shaw Gidley (No 9)

The Court has before it an amended notice of motion filed in Court on 30 November 2023 by the Plaintiff, Ms Ghosh, seeking leave to file a proposed amended statement of claim. Since that motion was filed the proposed form of her amended pleading has changed more than once. For the avoidance of doubt, the argument today was conducted by reference to a document entitled 'Proposed Amended Statement of Claim' affirmed by Ms Ghosh on 9 February 2024 which was provided to my chambers by email on 7 May 2024. I marked it Exhibit 1P and will refer to it as the proposed ASC.

For the reasons which follow, the Court will not grant leave to Ms Ghosh to file the proposed ASC. Contrary to an application which she has made from the bar table, the Court also will not grant leave to replead. In the absence of a pleading, the Court will dismiss the proceedings.

The fundamental reason for this outcome is that the proposed ASC is liable to be struck out as an abuse of process being embarrassing - indeed impenetrable in places – in form, vexatious and not disclosing any reasonable cause of action. The history of attempts by Ms Ghosh to plead her case is the basis for the Court’s decision not to grant leave to replead.

Ms Ghosh appeared for herself today.

This is the last remaining proceeding of the various actions brought by Ms Ghosh that it has fallen to me to case manage since last year. It was not in dispute that Ms Ghosh is an undischarged bankrupt. The date of Ms Ghosh's bankruptcy is 30 September 2016. She was made bankrupt on the application of the second defendant, Mr Miller, and she is due to be discharged from bankruptcy on 19 October 2024.

In Ghosh v Scott Newton trading as Shaw Gidley (No 6) [2023] NSWSC 1393, Schmidt AJ struck out Ms Ghosh's statement of claim. Her Honour gave Ms Ghosh leave to replead, but making it clear that it was her last chance, which if unsuccessful, would likely result in the dismissal of the proceedings.

Having regard to the history of this matter, in particular as set out in her Honour's reasons, I respectfully agree that the opportunity which Ms Ghosh has now been afforded should be her last. It must follow, given the Court will not grant leave for the proposed ASC to be filed, that the proceedings should be dismissed.

The same history, including the form of the proposed ASC, satisfy me that there would be no utility in affording Ms Ghosh a further opportunity to attempt to replead her claim, and that it would in fact do an injustice to the various parties who she has sought to vex by these proceedings to put them to the time and trouble of considering yet another draft of a claim which she has had more than adequate opportunities to attempt to formulate in a legally cognisable way.

The amended notice of motion which is before me is the means by which Ms Ghosh took advantage of the last chance given to her by Schmidt AJ. Before coming to the present hearing, it is also necessary that I record that in Ghosh v Scott Newton trading as Shaw Gidley (No 7) [2023] NSWSC 1558, I refused Ms Ghosh's application for the issue of an injunction to restrain the first defendant, Mr Newton, her trustee in bankruptcy, from taking possession of a property in Charlestown.

That refusal was by reference to an earlier version of the proposed ASC, but in most material respects substantially identical to it. In that judgment I said:

Regrettably for Ms Ghosh, and despite her having informed the Court that she has had the benefit of consultations with several firms of lawyers, the criticisms that I made of that proposed draft pleading are equally applicable to the proposed ASC.

The parties to the proposed ASC are as follows. The proposed defendants appeared by leave and all opposed Ms Ghosh’s application.

The first defendant is Mr Newton. Mr D Neggo of Counsel appeared for him today.

The second defendant is Mr Rodney Miller, who was the petitioning creditor on whose application Ms Ghosh was made bankrupt. Mr Miller did not appear today but sent an email to my chambers on 9 May 2024 saying:

The proposed third defendant, Shaw Gidley Port Macquarie Pty Ltd, is Mr Newton's firm, which was also represented today by Mr Neggo.

The fourth defendant, Mr Bhaskar Bandyopadhyay who is referred to without disrespect as Mr Bandy, is Ms Ghosh's ex-husband. Mr Bandy appeared for himself.

In addition to relying on some affidavit evidence in which he has taken issue with a number of the allegations made against him in the proposed ASC, Mr Bandy invited me to have regard to an "interim defence" which he had emailed to the Court, and also to take notice of a proposed cross-claim, which if he were joined in these proceedings he sought leave to file.

The first two prayers of the proposed cross-claim relate to the dismissal of these proceedings and the dismissal of the present notice of motion. To that extent the proposed cross-claim is superfluous. The third prayer for relief in the proposed cross-claim is that Ms Ghosh be declared a vexatious litigant.

I have explained to Mr Bandy that it is not necessary for him to seek that relief in a cross-claim, the need for which has been overtaken by the Court's conclusion in these reasons. It is a matter for him whether he wishes to pursue separate proceedings against Ms Ghosh to have her declared to be a vexatious litigant.

The proposed fifth, sixth and seventh defendants are respectively the nephew, sister and brother-in-law of Ms Ghosh. They did not appear today.

However, the proposed eighth defendant, Ms Supriya Chowdhury, who is Ms Ghosh's niece, was represented before me today and submissions were made on her behalf by Mr W Abramowicz, Solicitor. While he did not appear for the other members of the Chowdhury Family, his submissions extended to, at least by reference, dealing with the claim against his client as one that was purportedly sought to be brought against the Chowdhury Family.

The proposed ninth defendant is the Commonwealth Bank of Australia (CBA). It was represented today by Ms Z Hillman of Counsel.

The proposed tenth defendant is the Bank of Queensland Limited. It did not appear.

The proposed eleventh defendant is the National Australia Bank Limited (NAB). It was represented today by Mr J Hynes of Counsel.

Each of the represented parties has filed detailed written submissions which I have taken into account. Ms Ghosh has filed several written submissions which I have read, including those filed most recently by way of reply to the submissions of some of the proposed defendants. Ms Ghosh has supplemented those written submissions by her oral submissions today.

The tenor of the proposed ASC may be conveniently demonstrated by setting out its description of the type of claim and the relief claimed:

The proposed ASC is 140 paragraphs in length, over some 30 pages. I accept Mr Neggo's description that it is a "document ventilating all of [Ms Ghosh's] complaints against all the world". It is important to note that in accepting the various criticisms made of the proposed ASC, the Court is not to be taken as judging the merits or otherwise of Ms Ghosh's various complaints. The only question before me today is whether, as a matter of pleading, the proposed ASC as a document for which leave to file ought be granted.

The Court's general conclusions may be summarised as:

Before turning to some of the specific submissions, I should also record the other applications which Ms Ghosh made from the bar table. She accepted that the primary matter before the Court today was whether she should be given leave to file the proposed ASC. She also applied in response to some of the jurisdictional issues raised by some of the proposed defendants, that this Court should transfer her claims against the first and third defendants to the Federal Court of Australia (FCA) as special federal matters. That application falls away because of the view to which the Court has come about the merits of her pleading.

I should also note in that context that Ms Ghosh informed the Court that she currently has an application for annulment of her bankruptcy being case managed by Justice Jackman in the FCA. As a matter going to the exercise of this Court’s discretion, I have taken into account that insofar as Ms Ghosh has any complaints about the conduct of her bankruptcy, the dismissal of these proceedings does not finally determine any such complaint. If she wishes to prosecute those complaints those are matters that, in my respectful view, are properly for the FCA. It is a matter for her whether she wishes to seek to have whatever those complaints are to be added to the matters currently under the case management of Justice Jackman. However, insofar as Ms Ghosh submitted that the dismissal of those claims in this Court would lead to some prejudice to her, for the reasons I have just given I do not accept that submission.

Ms Ghosh also applied for an order that what she referred to as a charge that Mr Newton has over one of her properties be moved to another property. That was not an application, even if I had jurisdiction to deal with it, that I would permit to be dealt with without proper notice and evidence.

Finally, before turning to the specific submissions made by the various represented parties, I will set out several paragraphs of Ms Ghosh's pleading. I have selected these at random and reproduce them as examples of the difficulties which I have highlighted in paragraph [28] above. In doing so, I accept Mr Neggo's submission that ultimately it is not the task of this Court to attempt to "blue pencil" the proposed ASC in an attempt to find a maintainable cause of action, if there be such, in the document.

The proposed ASC is the document the subject of Ms Ghosh's application, and it must be read as a whole. Nevertheless, these paragraphs are illustrative of the fundamental difficulties which I have identified as standing in the way of leave being granted:

I have already referred to the fact that Ms Ghosh has filed various submissions in support of, and in reply to those of other parties on, the present application. I have read them carefully and heard Ms Ghosh today. However, the fundamental difficulty with Ms Ghosh's submissions is that she does very little more than disagree with propositions that are advanced against her, both as to the facts and the difficulties with the pleading.

Much of her submissions continue to consist of serious allegations of fact against the various parties concerned, without engaging with the actual issue before the Court today, being the adequacy of her pleading and the existence or sustainability of the causes of action sought to be pleaded in it. With the greatest of respect to Ms Ghosh as an unrepresented litigant, and while I accept that she has undoubtedly attempted to do the best she can, she has not succeeded in engaging with the complaints that have been advanced against her by the various current and proposed defendants.

In making these observations, I have not overlooked Ms Ghosh’s detailed eight-page submission in relation to jurisdiction. Navigating the jurisdictional division between courts in relation to bankruptcy matters can be difficult even for qualified lawyers. It is unnecessary for me to deal with her submissions on jurisdiction and transfer for the reasons I have set out in paragraph [28] above. In the result, even if the Court were minded to transfer anything to the FCA or had to transfer anything to the FCA, there will be nothing to transfer to that court.

I accept Mr Neggo's submissions as set out in his document dated 15 March 2023. In particular, the following two matters seem to me to be especially determinative against Ms Ghosh’s application.

First, I accept that much of her claim against the first and third defendants constitutes a collateral attack on decisions in other courts. These include findings as to solvency: Miller v Ghosh (No 3) [2016] FCCA 2491; Miller v Ghosh (No 2) [2017] FCA 890. Furthermore, paragraphs 12, 15, 18, 21, 34 and 35 of the proposed ASC seek to traverse challenges to a s 139ZQ notice which has already been dealt with at first instance and on appeal in the Federal Circuit and Family Court of Australia (FCFCA): Lahiri & Saha [2022] FedCFamC1F 271; Lahiri & Saha (No 2) [2022] FedCFamC1A 181. Furthermore, orders have been made in the FCFCA giving judgment for the trustee against the company which is or was the trustee of the plaintiff's superannuation fund for $853,875 and authorising the sale of real property owned by that company. Those orders have been upheld on appeal: Saha v Lahiri (No 3) [2023] FedCFamC1A 144.

Second, the proposed ASC repeats claims that have previously been rejected in earlier pleading disputes. For example, paragraphs 22 to 23 of the proposed ASC is in substance the same as paragraphs 13 to 14 of the earlier pleading struck out by Schmidt AJ (see [44] Ghosh (No 6)). Similarly, the proposed ASC includes a heading relating to "criminal hacking", which does not appear to have changed in the proposed ASC from the version dealt with by Schmidt AJ.

I accept Mr Abramowicz's characterisation of the claim against Ms Chowdhury that in reality it appears to be a claim against the Chowdhury Family. Ms Ghosh in reply described this claim as an attempt by her to recover property stolen from her parents’ estate. If that be the true nature of the claim, and it is not entirely clear from the proposed ASC, then Ms Ghosh has not disclosed how she has standing to make such a claim (or others relating to the alleged treatment of her mother) or how it is said that the various members of the Chowdhury Family, including Ms Chowdhury, may be liable for it.

The nature of the claim against the Chowdhury Family appears from the heading in the proposed ASC:

I accept Mr Abramowicz's written submissions dated 16 May 2024 as to the deficiencies in the pleading against his client and for that matter against the Chowdhury Family. It is sufficient by way of example that I reproduce one such criticism from those submissions:

I reaching this conclusion I have considered and reject Ms Ghosh's submissions in reply, which may be exemplified by this extract:

I accept Ms Hillman's submissions dated 10 May 2024. The primary difficulty with the case sought to be pleaded against CBA is that it fails to plead how any steps said to have been taken by CBA were causative of any loss to Ms Ghosh. Similarly, a bare assertion of damages is insufficient to demonstrate a proper claim without material facts having been pleaded, let alone to claim aggravation by "the defendant's [sic] failure to apologise or offer remedies or compensation" to Ms Ghosh. I am unable to discern what the pleaded claim against CBA is that would be recognised in law.

I have not overlooked Ms Hillman's submission that even if there were a cause of action, it would have vested in Ms Ghosh's trustee and bankruptcy. That may well be right, but for the reasons I have set out in [28] above, it is not a matter on which I can reach a final view.

In her reply to CBA's submissions, Ms Ghosh said that insofar as she had suffered damage it was in the nature of personal injury as a result of the CBA's alleged actions, whatever they may have been. Ms Ghosh relied upon s 116(2)(g) of the Bankruptcy Act 1966 (Cth):

I accept Ms Hillman's submission that the type of personal injury which Ms Ghosh appears to be complaining about would not fall within s 116(2)(g). The damage she appears to wish to claim arises from the loss of property alleged to have been caused by CBA. Any such cause of action would have been vested in her trustee in bankruptcy: Samootin v Shea [2010] NSWCA 371 per JC Campbell JA at [81] (Beazley and Hodgson JJA agreeing).

I accept the submissions of Mr Hynes of Counsel on behalf of the NAB dated 16 May 2024. The claim against NAB appears in three paragraphs of the proposed ASC which may conveniently be reproduced here:

In particular, I accept Mr Hynes' submission that those paragraphs raise unparticularised assertions which cannot be reconciled with the relief sought or as demonstrating an apparently arguable cause of action. It is not possible to determine how the alleged conduct constituted the breaches alleged, or how that may have led to the bankruptcy of Ms Ghosh. Nor is it identified how it is said that NAB failed to act in accordance with the Banking Code of Practice, or even if it had so failed, what the consequence of such a breach was that would give rise to a cause of action in Ms Ghosh.

I also accept Mr Hynes' submission that it would appear that the proposed ASC proceeds on an erroneous assumption, being that Baycorp Pty Ltd was in some way involved with the sequestration order that was made in relation to Ms Ghosh in September 2016. However, the National Personal Insolvency Index searches, tendered in evidence before me, make clear that Baycorp Pty Ltd's creditor's petition was dismissed on 1 October 2014, and that no sequestration order was made in relation to it. Neither Baycorp Pty Ltd nor NAB were petitioning creditors in respect of the sequestration order that was ultimately made in relation to the plaintiff on the application of the second defendant on 30 September 2016. I therefore accept the submission that quite apart from the fatal pleading defects, it would appear that the claim is factually unsustainable.

For these reasons, the Court will dismiss the amended notice of motion with costs and without leave to replead, respectfully accepting and adopting Schmidt AJ’s indication that Ms Ghosh should have only one last chance to produce a pleading that was eligible to be filed. This means that there is no extant originating process, so the Court will also dismiss the proceedings with costs.