FEDERAL COURT OF AUSTRALIA

Ritson v Commissioner of Police, New South Wales Police Force [2017] FCA 1192

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the Federal Circuit Court of Australia made on 6 June 2017 be set aside and, in their place:

(i)    the proceeding be remitted to that Court for further hearing and determination by that Court, differently constituted;

(ii)    the respondent pay the costs of the applicant, limited to his disbursements, such as filing fees, and to the amounts payable by the applicant to the legal practitioner who represented him on 6 June 2017, as agreed or taxed.

3.    The respondent pay the appellant’s costs of the appeal, limited to his disbursements, such as filing fees and any costs of copying the appeal books, and to the amounts payable by the applicant to the barrister who represented him until about 22 September 2017, including on 6 September 2017, as agreed or taxed.

4.    Under s 41(6A) of the Bankruptcy Act 1966 (Cth), time for compliance with bankruptcy notice BN 210799 is extended until the close of business on the day that the matter is next listed before the Federal Circuit Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    By his amended notice of appeal dated 22 September 2017, the appellant appeals from the judgment of the Federal Circuit Court of Australia given on 6 June 2017, Ritson v Commissioner of Police, New South Wales Police Force [2017] FCCA 1204.

2    There is also an interlocutory application filed by the appellant, dated 23 September 2017, seeking leave to adduce further evidence, being his affidavit sworn 22 September 2017.

3    The orders made by the primary judge on 6 June 2017 were that the present appellant’s application to set aside the bankruptcy notice BN 210799 (issued on 7 December 2016) was dismissed, with costs.

The facts

4    It is necessary to set out a chronology of the relevant events. I note that in the proceedings in the Federal Circuit Court, apart from the hearing on 6 June 2017, the appellant, who is not a lawyer, has represented himself.

5    Events began with a summons filed in the Supreme Court of New South Wales on 29 October 2012, the appellant brought administrative law proceedings against the Commissioner of Police, NSW Police Force. That summons was dismissed and the present appellant ordered to pay the defendant’s costs by order made by Garling J on 27 September 2013.

6    On 30 October 2015 consequential enforcement orders were made in the Local Court of New South Wales to the effect that the present appellant was to pay the present respondent $43,966.79.

7    The bankruptcy notice, to which I have already referred, claimed that the present appellant owed a debt in that amount together with added interest accrued since the date of judgment in the amount of $3815.85.

8    Proceedings were commenced by the appellant in the Federal Circuit Court of Australia by application filed on 13 April 2017.

9    The appellant claimed an order that the bankruptcy notice, served on him on 22 March 2017, be set aside on the ground of misstatement, “namely the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, pursuant to section 41(6A)(b) of the Bankruptcy Act 1966 (Cth).”

10    In support of his application, the appellant swore an affidavit on 12 April 2017 stating that on 4 September 2016 the respondent Commissioner debited $89.30 from the appellant’s Police Bank account. He said the bankruptcy notice failed to include the payment made or credit allowed in respect of the sum of $89.30. He said in this affidavit that on 11 April 2017 notice was given to the respondent that the validity of the bankruptcy notice was disputed. He annexed to that affidavit an email dated 11 April 2017, that email being in the following terms:

Dear Ms Hegarty,

I refer to bankruptcy notice BN 210799 issued on 7 December 2016.

The validity of the bankruptcy notice is disputed on grounds that include misstatement, namely the sum specified in the bankruptcy notice as the amount due to the creditor exceeds the amount in fact due.

This notice is given to the creditor pursuant to section 41(5) of the Bankruptcy Act 1966 (Cth).

Yours faithfully,

Brendan Ritson

11    On 13 April 2017 a Registrar of the Federal Circuit Court extended the time for compliance with the bankruptcy notice. This was done administratively and without a listing for hearing.

12    On 26 April 2017, the District Registrar of the Federal Circuit Court extended the time for compliance and adjourned the proceeding until 11am on 10 May 2017. The District Registrar directed that the respondent Commissioner file and serve any evidence on which he intended to rely in support of grounds of opposition by 2 May 2017 and that the then applicant file and serve any evidence in reply by 9 May 2017.

13    There is in evidence a transcript of the hearing before the District Registrar on that date. The appellant raised the question of the authority of the legal representatives to act on behalf of the Commissioner in respect of the bringing or the issuing of the bankruptcy notice.

14    On 2 May 2017 the respondent Commissioner filed a notice of grounds of opposition to the application stating that he intended to oppose the application on the following grounds:

1.    That Bankruptcy notice numbered BN210799 issued 7 December 2016 and served on the Applicant on 22 March 2017 (the “Bankruptcy Notice”), contains no misstatement.

2.    That the amount claimed in the Bankruptcy Notice does not exceed the amount in fact due to the Respondent.

3.    That no valid notice under section 41(5) of the Bankruptcy Act 1966 has been served on the Respondent by the Applicant.

15    Section 41(5) provides that a bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.

16    On 2 May 2017 the respondent filed an affidavit in the Federal Circuit Court sworn by Nathan John Roberts, solicitor in the employ of Henry Davis York, bearing the same date. Mr Roberts deposed that the judgment arose from a costs order made against the present appellant in favour of the present respondent in the Supreme Court of New South Wales proceedings to which I have referred. He deposed that in or about June 2015, the respondent made an application for assessment of party/party costs in relation to the Supreme Court proceedings. On 28 October 2015 Mr Roberts received a letter from the Supreme Court attaching Certificates of Determination of Costs and Costs Assessment in relation to the costs order to be paid. He then caused the Certificates to be registered with the Local Court as a judgment.

17    Also on 2 May 2017, the respondent filed an affidavit in the Federal Circuit Court sworn by David John Caldwell, the Acting Manager, Payroll Services, Shared Services, employed by the New South Wales Police Force. Relevantly, at [12], the deponent stated that he found a document record entry for receipt of a summons by NSW Police on 8 August 2016. This recorded a subpoena fee of $89.30 and a subpoena reference. This related to a Summons for Production in the New South Wales Civil and Administrative Tribunal (NCAT). He deposed that the sum of $89.30 was received by NSW Police on 2 September 2016 and the session name indicated the payment was made by way of credit card and paid by the present appellant. A receipt had been issued by NSW Police in the sum of $89.30 to the present appellant relevant to the NCAT summons.

18    On 3 May 2017 there was an email from the appellant raising the question of the solicitors’ authority to apply to the Official Receiver for the issue of the bankruptcy notice, to serve the bankruptcy notice on the present appellant and to appear in the Federal Circuit Court proceeding and oppose the application to set aside the bankruptcy notice. There was an answering email from Ms Rebecca Ann Hegarty, solicitor of Coleman Greig, to the effect that the authority question was first raised by the present appellant during a directions hearing, I assume on 26 April 2017, and stating: “as you are the applicant in this proceeding, if you have evidence to lead in support of that claim, we invite you to do so by 9 May 2017 in accordance with the Court’s orders. Our client does not intend to serve any evidence in that regard but reserves his rights to respond to any evidence from you.”

19    On 10 May 2017, Ms Hegarty swore an affidavit in the Federal Circuit Court proceedings annexing email correspondence. One of the emails annexed was from the present appellant dated 10 May 2017 referring to email correspondence on 8 May 2017, in particular, emails on that date from the present appellant stating that he was challenging Ms Hegarty’s retainer and stating: “The challenge to your retainer should be determined before any further steps are taken in the proceeding.”

20    There is in evidence a transcript of the adjourned hearing before the District Registrar on 10 May 2017. The present appellant said, amongst other things, that whether the solicitor on the record had authority and whether the authority was given by the Commissioner were the same issue, framed in a different way. He said that he had not formally filed an application but sought to do so and sought to adduce evidence in due course to support that application. The appellant submitted that the question of retainer should be dealt with promptly and prior to any substantive matter.

21    On 10 May 2017, the District Registrar of the Federal Circuit Court made the following orders:

1.    The Applicant file and serve, by Friday, 26 May 2017 an amended application, clearly and succinctly setting out:

(a)    His claims with respect to an overstatement in Bankruptcy Notice Number 210799, issued on 7 December 2016;

(b)    His claims with respect to the authority of the Respondent Commissioner of Police of the New South Wales Police Force to have the Bankruptcy Notice issued;

(c)    His claims with respect to the retainer between Respondent (sic) Commissioner of Police of the New South Wales Police Force and the Respondent’s legal representatives; and

(d)    Any other claims.

2.    The Applicant file and serve, by Friday, 26 May 2017 any evidence in support of the grounds set out in the amended application on which he intends to rely.

3.    The Applicant file and serve, by Friday, 26 May 2017 any list of legal authorities, complete with citations, in support of the amended application on which he intends to rely.

4.    The Respondent file and serve any amended grounds of opposition no later than Wednesday, 7 June 2017.

5.    The Respondent file and serve, by Wednesday, 7 June 2017 any evidence in support of the amended grounds of opposition on which the Respondent intends to rely.

6.    The Respondent file and serve, by Wednesday, 7 June 2017 any list of legal authorities, complete with citations, in support of the amended grounds of opposition on which the Respondent intends to rely.

7.    The Respondent may serve documents in relation to these proceedings on the Applicant at the email address recorded on the Application filed with the Court and service by email is good and sufficient service.

8.    The Applicant:

(a)    will not be able to raise a claim that is not included in the amended application made pursuant to Order 1, without the leave of the Court;

(b)    will not be able to rely on any evidence that has not been filed and served in accordance with Order 2, without the leave of the Court; and

9.    The time for compliance with Bankruptcy Notice Number 210799, issued on 7 December 2016, be extended up to and including Friday, 16 June 2017.

10.    The proceedings be adjourned to Friday, 16 June 2017 at 12pm.

11.    Costs be reserved.

22    On 26 May 2017 the appellant filed in the Federal Circuit Court an application for review of the orders made by the District Registrar on 10 May 2017. He sought orders that the orders made by the District Registrar be set aside; that he file and serve, within 14 days of the date of any order, an application challenging the purported retainer of Coleman Greig Lawyers by the respondent; an order that the applicant’s application be decided separately from any other questions in the proceeding; that the proceeding be listed before a Registrar for directions as to the timetabling of the filing and service of evidence and submissions, and the hearing of the applicant’s application; and that the time for compliance with the bankruptcy notice be extended up to and including the date of determination of the applicant’s application.

23    There is in evidence email correspondence from and to the Registry of the Federal Circuit Court and from the associate of the judge of the Federal Circuit Court. This correspondence is central to the resolution of the present appeal.

24    The first email dated 26 May 2017 was to the effect that the application for review was to be heard on 1 June 2017 unless indicated otherwise by his Honour’s chambers. The hearing before the District Registrar on 16 June 2017 was vacated: see order 10 set out at [21] above. Next, by email on the same date, counsel for the respondent asked for the matter to be heard during the week following 1 June 2017 as he was unavailable on 1 June 2017. The same request was made on 29 May 2017 but to the chambers of the judge of the Federal Circuit Court. An email on 29 May 2017 stated that the matter remained fixed for hearing on 1 June 2017. There was then an email from the present appellant asking that the date for hearing of his application for review be moved from 1 June 2017.

25    On 30 May 2017 the parties were informed by the associate that the matter had been fixed for hearing on 6 June 2017 at 9:30am and the listing for 1 June 2017 had been vacated. Orders to that effect were enclosed with the email. A later email refused the appellant’s request to appear by telephone at the hearing on 6 June 2017.

26    There is in evidence the transcript of the hearing on 6 June 2017.

27    Orders having being made on 6 June 2017, on 27 June 2017 the present appellant filed in this Court a notice of appeal from the Federal Circuit Court.

28    It is clear from the reasons for judgment that the judge of the Federal Circuit Court considered that he was dealing with, and dealt with, an application to set aside the bankruptcy notice. Although, at [4], the judge noted that the present appellant had filed an application for review of the orders made by the Registrar on 10 May 2017, this was described, at [10], as the desire of the present appellant to re-agitate a timetable on a review application and that it “on its face appears to be nothing more than a delay tactic.” The reasons for judgment also reject, at [11], the contention that only the application concerning the review was fixed for hearing. Further, at [17], the judge said that he regarded the application for a review of the Registrar’s orders in respect of the timetable to reflect an endeavour by the applicant to protract hopeless proceedings.

The grounds of appeal

29    The grounds of appeal in the amended notice of appeal, omitting particulars, are as follows:

1.    [The primary judge] erred by failing to conduct a review of the orders made by Registrar Wall on 10 May 2017 by way of a hearing de novo under s. 104 of the Federal Circuit Court of Australia Act 1999 (Cth) and r. 20.03 of the Federal Circuit Court Rules 2001 (Cth).

2.    [The primary judge] denied the appellant natural justice by refusing to entertain any application challenging the purported retainer of Coleman Creig (sic) Lawyers by the respondent and erred by proceeding to find, without evidence from the appellant, that such application was vexatious and an abuse of process and there was no proper basis for the challenge.

3.    [The primary judge] denied the appellant natural justice by refusing his application for an adjournment to enable the appellant an opportunity to file and serve an amended application to set aside the bankruptcy notice, further evidence and submissions.

4.    [The primary judge] denied the appellant natural justice by proceeding to hear and determine on 6 June 2017 his application to set aside the bankruptcy notice in circumstances where the appellant was unprepared for the final hearing of that application and had grounds to believe that only his application for review was fixed for hearing [on] that date.

5.    [The primary judge] erred by dismissing the appellant’s application to set aside the bankruptcy notice and ordering the appellant to pay the respondent’s costs of the proceeding.

The legislation

30    Section 104 of the Federal Circuit Court of Australia Act 1999 (Cth) is in the following terms, so far as relevant:

104    Registrars—additional provisions

…

Review of the exercise of Registrars’ powers

(2)    A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia under subsection 102(2) or under a delegation under subsection 103(1) may:

(a)    within the time prescribed by the Rules of Court; or

(b)    within any further time allowed in accordance with the Rules of Court;

apply to the Federal Circuit Court of Australia for review of that exercise of power.

…

31    Registrars’ powers are to be found in Div 20.1 of Pt 20 of the Federal Circuit Court Rules 2001 (Cth). Rule 20.03 provides, relevantly:

20.03    Procedure for review

The review of an exercise of power by a Registrar:

(a)    must proceed by way of a hearing de novo;…

The parties’ submissions

32    The present appellant submitted that he had grounds to believe that only his application for review was fixed for hearing on 6 June 2017 and he was unprepared for the final hearing of his application to set aside the bankruptcy notice. The appellant sought an adjournment to enable him an opportunity to file and serve further evidence but the judge of the Federal Circuit Court refused that application. The appellant submitted that it was patently clear from the transcript and reasons for judgment that the judge of the Federal Circuit Court did not conduct a hearing de novo. The appellant submitted that the criticisms in Zdrilic v Hickie [2016] FCAFC 101; 246 FCR 532 at [90] were apposite. Furthermore, the appellant submitted, the judge made no order in relation to the disposition of the review application. The appellant also submitted that there had been a denial of procedural fairness by the refusal of the application for an adjournment and by the hearing and determination of the substantive application where he was unprepared.

33    The respondent submitted that the central question on the appeal was whether procedural fairness granted litigants carte blanche to disregard and act in spite of courts’ orders, case management principles and the policy of the federal bankruptcy regime.

34    The respondent submitted that the content of procedural fairness was affected by the policy evident by the provisions of the Bankruptcy Act that proceedings concerning bankruptcy should be resolved speedily.

35    The respondent submitted that the appellant’s purpose in making the review application was to delay the proceeding. The appellant neither led any evidence in support of his review application nor made any submissions in that regard.

36    The respondent submitted, in effect, that no amount of preparation would have assisted the appellant on the hearing of the grounds set out in the application as it was hopeless.

Consideration

37    I find that the only matter listed before the Federal Circuit Court on 6 June 2017 was the rehearing, de novo, of the orders made by the District Registrar on 10 May 2017, being the orders I have set out at [21] above. In my view the judge of the Federal Circuit Court was mistaken in thinking, and proceeding on the basis that, the application to set aside the bankruptcy notice was listed for hearing on that day, 6 June 2017. The application to set aside the bankruptcy notice was not so listed. Indeed this was pointed out to the judge by counsel for the respondent at page 2 of the transcript reproduced at page 221 of the Appeal Book. Those orders of 10 May 2017 did not have the consequence that a final hearing of the substantive application to set aside the bankruptcy notice was ready for hearing. Those orders were to the opposite effect. In my opinion it is clear that the appellant was denied procedural fairness. Ground 4 of the notice of appeal is made out. That is sufficient to dispose of the appeal. Ground 5 is consequential on ground 4, and I also uphold ground 5.

38    I find it is also the case that the review, de novo, of the orders of 10 May 2017 has not occurred. I do not accept the respondent’s submission that the judge of the Federal Circuit Court dealt with that application, by way of rehearing, at [10] of the reasons. And I refer, in that respect as well, to the form of orders made by the judge of the Federal Circuit Court which did not, in terms, refer to the application for review. Ground 1 of the notice of appeal is therefore also made out.

39    A description of that process was given in Totev v Sfar [2008] FCAFC 35; 167 FCR 193 at [13] per Emmett J as follows:

In the case of a hearing de novo, however, the judge reviewing the order begins afresh and exercises for himself or herself any discretion exercised by the registrar. The parties commence the proceeding again, subject to any rules concerning the use of evidence adduced before the registrar. The hearing de novo involves the exercise of the original jurisdiction and the petitioner, in the case of a bankruptcy petition, must start again, call witnesses and make out the petitioner's case (Harris v Caladine [(1991)] 172 CLR [84] at 124).

40    Justice Emmett also explained the requirements, flowing from Ch III of the Constitution, for there to be provision for the review de novo of orders of a Registrar. It was not submitted by the respondent on the hearing of this appeal that the Registrar was exercising powers which stood outside s 104 of the Federal Circuit Court of Australia Act or r 20.03 of the Federal Circuit Court Rules.

41    Against those requirements, I do not accept the respondent’s submission as to the appellant’s purpose in making the review application being to delay the proceeding on the basis that he neither led any evidence in support of his review application nor made any submissions in that regard. I find that, although listed, the application for review was not heard by the judge of the Federal Circuit Court. The judge made it clear that he did not intend to hear that application.

42    In those circumstances it is not necessary to address separately whether the refusal of the appellant’s application for an adjournment of the hearing of the application to set aside the bankruptcy notice was itself a denial of procedural fairness. The true position was that that application, the substantive application, was not before the Federal Circuit Court on 6 June 2017. This appears also from the terms of the orders of 10 May 2017 setting out a timetable for the preparation for hearing of that substantive application to set aside the bankruptcy notice.

43    I do not accept the respondent’s submission, which I have set out at [33] above, that the central question on the appeal was whether procedural fairness granted litigants carte blanche to disregard and act in spite of courts’ orders, case management principles and the policy of the federal bankruptcy regime. That is to confuse fair procedure with substance.

44    Neither do I accept the respondent’s submission that the appellant should have done more to present his review application on 6 June 2017 or that he did not provide any reason why the orders of 10 May 2017 should be reviewed. It is clear that the judge of the Federal Circuit Court refused to hear that application and did so on the basis, which was incorrect, that the matter set down for hearing was the substantive application to set aside the bankruptcy notice. In my opinion it is immaterial why the appellant did not comply with the orders of the Registrar made on 10 May 2017. Those orders were the subject of his application for review. Further, the judge’s decision to proceed with the substantive application was unrelated to any reason on the part of the appellant for non-compliance with the orders of the Registrar made on 10 May 2017.

45    I do not need to consider the present appellant’s interlocutory application for leave to file further evidence, referred to at [2] above. Counsel for the respondent Commissioner accepted that if the appellant could demonstrate that he was denied procedural fairness then this Court would send the matter back to the Federal Circuit Court.

46    For completeness, I do not accept the respondent’s submission that no amount of preparation would have assisted the appellant on the hearing of the grounds set out in the application as it was hopeless. I take this as a reference to the application to set aside the bankruptcy notice, but that was not the matter before the Federal Circuit Court. In these circumstances, and in a matter of bankruptcy, I would be slow to conclude and do not conclude that a denial of procedural fairness should have no remedy because there would have been nothing of substance the appellant could have put in support of his application. I also note that so to approach the disposition of the appeal would override the appellant’s application for review of the orders of 10 May 2017, which application has not been determined by the Federal Circuit Court. In other words, even if not complied with, those orders contemplated a procedural timetable.

47    As to unfairness, the timetable set out in the orders of 10 May 2017 was incomplete and the appellant sought to have that timetable reviewed by a judge of the Federal Circuit Court, including the implicit rejection of this point about the appropriate procedure for challenging the authorisation of the proceedings in respect of the bankruptcy notice and the retainer of the solicitors by the respondent. His opportunity to finalise his evidence and submissions was not complete as at 6 June 2017.

48    I do not accept the relevance for present purposes of the respondent’s submission that the appellant was given, by the Registrar, every opportunity to put all of his claims before the Federal Circuit Court. That is inconsistent with the procedure contemplated by the 10 May 2017 orders of which, in any event, the appellant sought review.

49    It is not, in my opinion, appropriate for this Court to deal with any aspect of the case other than procedural fairness.

50    In the result, the matter that was not listed for hearing on 6 June 2017 was heard and determined and the matter which was listed for hearing was not heard or determined.

51    Nothing in these reasons should be taken to express a view about the merits or the absence of merits of the case before the Federal Circuit Court.

Conclusion and orders

52    The appeal is allowed with costs, bearing in mind that the appellant, who is not a lawyer, has represented himself. The judgment of the Federal Circuit Court of Australia is set aside and the respondent should pay the applicant’s costs, subject to the same proviso. The proceeding is remitted to the Federal Circuit Court for further hearing and determination by that Court, differently constituted.

Associate:

Dated:    5 October 2017