Ghosh v Scott Newton trading as Shaw Gidley (No 7)

These proceedings are before me today as part of my current responsibility to manage first instance matters involving the plaintiff, Dr Ratna Ghosh. The question which I have been required to determine today is a narrow one: Would a document entitled “Proposed Amended Statement of Claim” (which I have marked exhibit 1) propounded by Dr Ghosh, if allowed to be filed, provide any sufficient basis to restrain the first defendant (her trustee in bankruptcy, Mr Newton) from seeking to enforce an order (the Possession Order) in his favour made by the Federal Circuit and Family Court of Australia Division 1 (FCFCA) for the possession of a property in Charlestown (the Property). For the reasons which follow, the Court answers that question in the negative.

Today Dr Ghosh appeared for herself. Mr D Neggo of Counsel appeared for Mr Newton. There was also an appearance in person by the second defendant, Mr Miller, who ultimately did not wish to be heard.

Behind the narrow question to which I have just referred lies a long, convoluted procedural history both in the FCFCA and in this Court. I am grateful to be able to say that the history is more than fully set out in two recent judgments, which must be read with these reasons:

The position which now pertains as a result of those judgments may be summarised as follows:

Today is 7 December 2023, and Dr Ghosh has confirmed that she has not and does not intend to vacate the Property. It will be recalled that pursuant to Schmidt AJ's orders, these proceedings were originally to come back before me on 12 February 2024 (see [4(2)] above). At the request of Dr Ghosh the proceedings were relisted before me on 30 November 2023. On that occasion I accelerated the repleading ordered by Schmidt AJ by making these orders:

Two other matters should be recorded about that occasion. First, in making those orders I said of what was to happen today (Tcpt, 30 November 2023, 11(12-14)):

Second, on the issue of an appeal from Campton J, I had this exchange with Dr Ghosh (Tcpt, 30 November 2023, 3(35)-4(27)):

Dr Ghosh has confirmed again today that she has not sought a stay pending any appeal from the decision of Campton J, nor had she in fact lodged any appeal from that decision. The reasons which she gave today were substantially to the same effect as those which she gave me on 30 November 2023 that I have set out in the preceding paragraph.

Dr Ghosh's amended notice of motion seeks these orders:

Consistently with what I said on the last occasion (see [7] above], given the accelerated timetable and the short time everyone has had to consider the new proposed pleading, I indicated to the parties today that I would only deal with prayer 4 of the amended notice of motion. Dr Ghosh acceded to that course.

Turning to the parties’ submissions, Dr Ghosh contended that Mr Newton's actions were variously “illegal”, “wrong”, “breach of trust” and “fraud”. I invited her to take me to those parts of the proposed pleading where those matters, in her submission, could be said to have been properly pleaded and particularised. She did not immediately do so, and for the purposes of focussing the discussion I drew her attention, for example, to paragraphs 7, 8 and 9 of the proposed pleading:

When I put to Dr Ghosh that the “false grounds” and “fraud” referred to in those paragraphs did not appear to be sufficiently pleaded or particularised, she responded that further information on those matters was to be found in existing affidavit evidence or evidence which she proposed to file. Beyond otherwise complaining generally about Mr Newton’s conduct, Dr Ghosh did not take me to other specific parts of the proposed pleading to demonstrate its adequacy.

For his part, Mr Neggo, over and above making the submission that the pleading remained inadequate, made three particular submissions.

First, he submitted that Dr Ghosh had been refused injunctive relief to the same effect as paragraph 4 of the amended notice of motion presently under consideration on more than one occasion. It is convenient at this point to set out the brief history of interlocutory motions which appears at [19] in the Common Law judgment (emphases added):

Mr Neggo in particular drew attention by way of example to the judgments of Button J and Sweeney J, which are referred to in that summary, in which applications by Dr Ghosh to restrain Mr Newton from taking steps in relation to the Property were refused. Mr Neggo submitted that there had been no relevant change in circumstances since the refusal of those applications, which, in accordance with the usual principles, would have to be demonstrated to allow the Court to revisit what were otherwise interlocutory decisions.

Second, Mr Neggo submitted, by reference to the relief sought in the proposed pleading, that the primary form of relief sought against the first defendant was damages. I set out the relief sought in [25] below. Having regard to the primary characterisation of the relief being sought as being for damages, Mr Neggo submitted that there was no serious question to be tried on any issue raised by the proposed pleading that would give Dr Ghosh, as it were, an equity to restrain the Property being dealt with in accordance with the Possession Order.

Third, Mr Neggo drew attention to the only claim made against Mr Newton, which related to the period before Dr Ghosh’s insolvency. As to the latter period, Mr Neggo — correctly, in my view — characterised the claims sought to be brought against Mr Newton as complaints about his conduct of Dr Ghosh's bankruptcy.

The claim made in the proposed pleading against Mr Newton as the first defendant in relation to the period before the bankruptcy is this:

Quite apart from drawing attention to the fact that how Mr Newton was said to be aware of Dr Ghosh's solvency and how he may have misled the court was not properly pleaded or particularised in paragraph 3, Mr Neggo submitted that by way of example of the thoroughness with which the various aspects of Dr Ghosh's bankruptcy have been dealt with by the FCFCA, this Court could have regard to decisions of the FCFCA on the question of Dr Ghosh’s solvency. To that end, he referred to the judgment of Manousaridis J, then sitting in the Federal Circuit Court of Australia in Miller v Ghosh (No 3) [2016] FCCA 2491, in which his Honour made Dr Ghosh bankrupt. In that case I record that Dr Ghosh appeared for herself.

Manousaridis J concluded:

Mr Neggo then relied on the appeal from that decision, which was heard by Farrell J in the Federal Court of Australia in Ghosh v Miller [2017] FCA 890. On the hearing of that appeal, I note that Dr Ghosh was represented both by solicitors and counsel. Farrell J dismissed the appeal, concluding:

Special leave to appeal from Farrell J's decision was refused by the High Court of Australia.

In reply, Dr Ghosh sought to take issue with the factual findings of both Judge Manousaridis and Farrell J. She asserted that they were acting on a false affidavit allegedly provided by Mr Newton. She submitted that the FCFCA, on those occasions it had considered her affairs, had been “ridiculous” and “engaged in a gross miscarriage of justice”. She submitted that Campton J's decision was no more than a continuation of what she described as “wrong judgments” by the FCFCA.

Turning to the proposed pleading, the parties to that pleading, in addition to Dr Ghosh as plaintiff and Messrs Newton and Miller as the first and second defendants (Mr Miller being the original petitioning creditor), include the third defendant, Shaw Gidley Port Macquarie Pty Limited; the fourth defendant, Dr Ghosh's ex-husband; the fifth defendant, her nephew; and the sixth defendant, her sister. The third to sixth defendants are proposed to be added to the proceedings, were the proposed pleading to be permitted to be filed.

The relief which is sought is:

In so far as claims are made against Mr Newton, the relevant headings of the allegations are sufficient to give a flavour of the claims made:

In order to succeed today, Dr Ghosh would have had to have demonstrated a serious question to be tried that she has a cause of action against Mr Newton set out in the proposed pleading that would lead to final orders being made that would necessitate preventing him from enforcing the Possession Order. Given any such order by this Court would at least be a collateral interference with the orders of another court, in my respectful view this Court would have to be more than comfortably satisfied that there was such a serious question to be tried.

I am not satisfied at all that the proposed pleading discloses any such serious question to be tried. That is because the allegations against Mr Newton are prolix, are made in general terms, make serious allegations (including fraud) in a rolled-up fashion without any attempt at particularisation, and do not disclose as a matter of pleading any reasonably maintainable causes of action. Furthermore, it is not sufficient for Dr Ghosh to refer to unspecified affidavit evidence either filed or yet to be filed to fill the substantial gaps in her pleading.

I also accept Mr Neggo's submission that to the extent it appears that the primary cause of action sought to be advanced against Mr Newton is damages, there is no serious question to be tried if the pleading were otherwise a good pleading on an issue that would give rise to an equity that would require the execution of the Possession Order to be restrained.

However, even if I am wrong in those conclusions, I would not make order 4 in the amended notice of motion as a matter of discretion for the following reasons, the first three of which essentially reduce to the proposition that dealing with the Possession Order is a matter for the FCFCA, and this Court will not make orders which directly interfere with the orders of another court save in the most clear and compelling circumstances:

For these reasons, the result is that paragraph 4 of the amended notice of motion will be dismissed with costs.