Ghosh v Miller [2016] NSWSC 430

Supreme Court New South Wales

Medium Neutral Citation: Ghosh v Miller [2016] NSWSC 430 Hearing dates: 24 March 2016 Decision date: 14 April 2016 Before: Fullerton J Decision: Amended summons dated 17 December 2014 dismissed. Catchwords: APPEAL FROM LOCAL COURT – costs – costs review panel – application for leave to appeal from determination of costs review panel – whether Magistrate erred in dismissing the plaintiff's application for leave to appeal Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Act 2004 (NSW) (since repealed) Local Court Act 2007 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: House v The King HCA 40; 55 CLR 499 Category: Principal judgment Parties: Ratna Ghosh (Plaintiff) Rodney Miller (Defendant) Representation: Counsel: In person (Plaintiff) M Maconachie (Defendant)

Solicitors: In person (Plaintiff) Higgins & Dix (Defendant) File Number(s): 2014/333115 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court Date of Decision: 17 December 2014 Before: Atkinson LCM File Number(s): 2014/247066

Judgment 1. HER HONOUR: By amended summons dated 17 December 2014, the plaintiff seeks leave to appeal the decision of Atkinson LCM dismissing the plaintiff's application for leave to appeal the decision of a costs review panel ("the Review Panel"). As with the original costs assessment and the plaintiff's application for a review of that assessment by the Review Panel, the appeal is governed by the provisions of Div 11 of Part 3.2 of the Legal Profession Act 2004 (NSW) (since repealed). 2. Section 385(2) of the Act provides: A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor. 1. The relief sought by summons effectively seeks an order that: 1. (i) The decision of the Magistrate of 3 November 2014 refusing leave to appeal the Review Panel's decision be set aside; 2. (ii) The costs order made on 8 December 2014 as a consequence of the refusal of the grant of leave also be set aside; 3. (iii) An order that all proceedings in the Local Court involving the parties also be stayed; and 4. (iv) An order is also sought for an award of costs in the plaintiff's favour in these proceedings. 1. The proceedings in this Court are said by the plaintiff to be brought pursuant to s 39(1), s 40(1) or s 40(2) of the Local Court Act 2007 (NSW). 2. Section 39(1) of the Local Court Act provides for an appeal from a judgment or order of the Local Court sitting in its General Division to this Court as of right, but on a question of law only. Section 40(1) provides for an appeal, involving a question of mixed fact and law but only by leave and s 40(2)(a) an appeal from an interlocutory judgment or order of the Local Court, also only by leave. In either case, s 75A of the Supreme Court Act 1970 (NSW) dictates that the appeal shall be by way of a rehearing. In this case, there being no fresh evidence upon which the plaintiff relies, and there being no submissions that the governing law has changed since the proceedings were heard in the Local Court, the question is whether the decision of the Magistrate was correct, that is neither the result of any legal, factual or discretionary error nor attended by any procedural irregularity. 3. The plaintiff appeared on her own behalf on the hearing of the summons on 24 March 2016 (as she has on the hearing of the succession of notices of motion filed since the summons was originally filed on 11 November 2014), at which time she applied for an adjournment of the hearing to enable her to be legally represented. That application was foreshadowed in an email sent to my Associate at 1.09am on 24 March 2016. The application for the adjournment was opposed. I refused the application. My reasons for the refusing the application appear later in this judgment. 4. On the hearing the plaintiff relied upon her affidavit of 19 October 2015. She was cross-examined by counsel for the defendant in respect of an assertion that the transcript of proceedings on 3 November 2013 had been altered. As with many of the claims made by the plaintiff both in her submissions and in the grounds of appeal particularised in the summons, this claim was unsubstantiated. The plaintiff also relied upon written submission signed by her and dated the day of the hearing. 5. It would appear that the summons was not drafted or settled by a legal practitioner. The amended summons, which included two further grounds in the plaintiff's handwriting, includes numerous "grounds of appeal" which are argumentative. Some "grounds" allege unsubstantiated allegations of illegality and others allegations of unconscionable behaviour of either the defendant or his legal representatives. Other "grounds" are simply a restatement of the final orders sought by the summons and others a narrative rendition of the course of proceedings in the Local Court, including criticisms of the Magistrate's conduct of the proceedings and the imputation to her of an attitude of bias.