FEDERAL COURT OF AUSTRALIA

Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2019] FCA 662

ORDERS

THE COURT ORDERS THAT:

1.    Order 10 made 1 April 2019 be varied to permit the appellant nunc pro tunc to bring an application to set aside or vary the orders made 1 April 2019 in accordance with FCR 39.05 until 15 April 2019, being the date of the filing of the interlocutory application filed by the appellant.

2.    The application for prayers 2, 3 and 3A in the amended interlocutory application dated 5 May 2019 is dismissed.

3.    The respondent is to file any affidavit relating to the claim of legal professional privilege attaching to the documents produced in answer to the notice to produce dated 12 April 2019 by 4pm on 17 May 2019.

4.    The appellant is granted leave to file an amended notice of appeal in the form appearing at annexure “BR-11” to the affidavit of Brendan Ritson sworn 5 May 2019 and rely upon that document but conditional upon the appellant complying with order 5.

5.    The appellant is to file any supplementary written submissions relating to the grounds of appeal the subject of amendment in the amended notice of appeal by 4pm on 10 May 2019.

6.    The respondent is to file and serve any written submissions on the appeal by 4pm on 17 May 2019.

7.    The hearing at 10.15am on 24 May 2019 is confirmed.

8.    No further material is to be filed electronically by the appellant in relation to the appeal other than in compliance with these orders or with the leave of the Court.

9.    The respondent’s costs of the interlocutory application filed 15 April 2019 and the amended interlocutory application dated 5 May 2019, and the costs thrown away by the amendment to the notice of appeal, be paid by the appellant, with such costs to be assessed on a lump sum basis.

THE COURT NOTES THAT:

10.    The respondent makes no application for security for costs on the basis that the hearing is to proceed on 24 May 2019.

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

REASONS FOR JUDGMENT

Revised from the transcript

LEE J:

1    At approximately 8pm yesterday evening, Sunday 5 May 2019, Mr Ritson sought to electronically file an amended interlocutory application and an affidavit sworn by him yesterday. It is unnecessary for the purposes of these reasons to set out the lamentable history of this matter. They are set out in some detail in my reasons of 1 April 2019 being Ritson v Commissioner of Police, New South Wales Police Force [2019] FCA 475 (First Judgment).

2    At the time I delivered my First Judgment, following the failure of Mr Ritson to attend on that day, I was conscious of the operation of r 39.05 of the Federal Court Rules 2011 (FCR) which relevantly provides that the Court may vary or set aside an order after it has been entered if it was made in the absence of a party. To this end I made the following order, being order 10:

10.    Any application to set aside or vary these orders in accordance with [FCR 39.05] is to be made within 7 days of the date of these orders together with evidence that sets out a proper explanation and the bases for any such application.

3    Mr Ritson was served with a copy of all orders, including order 10, on 3 April 2019. After hours the following day, he wrote to the Court referring to the orders and requesting that he be provided with a copy of the reasons. Following revision of the ex tempore judgment, a copy of my First Judgment was provided to Mr Ritson on 8 April 2019 (the same date by which any application in accordance with order 10 was due to be made). On 10 April 2019, Mr Ritson foreshadowed that he proposed making an application for an order varying order 10 to permit him to bring an application within seven days of 8 April 2019. Mr Ritson had been told on 9 April 2019, that if any application was to be made to vary the orders, such an application should be made as soon as possible including an application that the time for bringing the application be extended and, if such an application was to be made, it would be dealt with in open court.

4    In any event, on 15 April 2019 an interlocutory application was filed by which such an application for an extension was made. An order was also sought seeking a variation of the order dismissing the application for an adjournment of the substantive appeal in this matter (being order 1 made on 1 April 2019) together with an order seeking to set aside order 7 made on 1 April 2019, being an order that required Mr Ritson to pay the respondent’s costs of the applications I dismissed in the First Judgment, with such costs to be assessed on a lump sum basis.

5    Importantly, no material was filed in support of the interlocutory application including no “evidence that sets out a proper explanation and the bases for any such application”. This remained the position when I called the matter on this afternoon at which time I was informed, for the first time, that the amended interlocutory application had been provided to the Court and that Mr Ritson proposed to rely on a 54-page affidavit he had filed the previous evening (but which had not yet been accepted and stamped by the Registry).

6    Despite, yet again, Mr Ritson not complying with the orders of the Court, I was prepared to grant prayer one of the amended interlocutory application, to allow him the indulgence of bringing an application to set aside or vary the orders made on 1 April 2019 out of time. I also allowed Mr Ritson to rely upon the late evidence that he had served. Additionally, I allowed him to seek, by the amended interlocutory application, two further orders being:

(3A) An order that the respondent produce for inspection unredacted copies of the documents attached to the email from Rebecca Hegarty to the appellant on 18 April 2019 pursuant to sub-rule 20.31(3) of the Federal Court Rules.

(3B) The appellant is granted leave to file and serve the draft amended notice of appeal at annexure “BR-11” to the affidavit of Brendan Ritson sworn 5 May 2019.

7    It is appropriate then to deal with the remaining prayers for relief in the amended interlocutory application in turn.

prayer 2

8    Prayer 2 seeks an order varying the order I made at the time of the First Judgment, that the appeal be listed for a final hearing at 10.15am in the New South Wales Registry of the Court in Sydney before me on 24 May 2019. Mr Ritson seeks that the date be delayed until a date after which he receives notice of the decision of the Legal Aid Review Committee in relation to an appeal.

9    The Court has power to vary an order after entry if it was made in the absence of a party. This power exists both pursuant to the implied power of the Court and also FCR 39.05(a). Neither authority nor the rules delimit the matters which the Court is to consider in the exercise of this discretion although “it is usual for the Court… to have regard to the explanation given by the absent party for its absence, and whether the evidence discloses a defence of sufficient merit to warrant setting aside the order”: see 3D Funtimes Limited v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407 at [6]. Like in 3D Funtimes, I do not consider that either criterion is satisfied in the circumstances of this case.

10    The explanation given by Mr Ritson in his affidavit for his non-appearance on 1 April 2019 is difficult to discern. To the extent that it was articulated in oral submissions before me, it was to the effect that an application had been made that I disqualify myself from proceeding further with the matter and also that Mr Ritson considered it was necessary that the matter be adjourned because there was an unsuccessful application for legal aid which was the subject of an appeal (thus enlivening s 57 of the Legal Aid Commission Act 1979 (NSW)).

11    I have already dealt in my First Judgment with the application for disqualification which I consider to be entirely meritless. No additional argument was made today in respect of the merits of that application. The application for an adjournment was not entirely meritless, although, for reasons I explained at length in the First Judgment, I did not consider it was necessary or appropriate for me to grant the adjournment. The notion that a sufficient answer for Mr Ritson’s failure to appear on 1 April 2019 was his expectation that the adjournment would be granted, merely needs to be stated to be rejected.

12    Additionally, there has been no articulation of a basis which would cause me to reconsider the correctness of my earlier decision to refuse the adjournment. Indeed the affidavit filed on 5 May 2019 serves, if anything, to reinforce in my mind the correctness of the refusal of the application. Although there is now a copy of the letter refusing legal aid before the Court, together with an Appeal Form, there is no evidence of any communications with Legal Aid, including any indication as to when a decision will be made by the Legal Aid Review Committee. Additionally, the initial Legal Aid application has not been adduced in evidence (although I do not place significant weight upon that fact because I assume that Mr Ritson may consider that such an application would be the subject of a claim for legal professional privilege, a view which may, or may not, be justified).

13    In any event, under the heading “Why are you appealing our decision” reference is made to the fact that the appeal before me relates to a “non-bankruptcy matter”, namely an application for a declaration in the exercise in “the accrued jurisdiction of the Federal Circuit Court of Australia”. Ground 7 of the notice of appeal is that:

(7) The primary Judge denied the appellant natural justice by not exercising the Court’s accrued jurisdiction to determine the part of the appellant’s claim at [3] of the amended application for a declaration that the Commissioner of Police, NSW Police Force was:

(a)     not entitled to debit $89.30 from the appellant’s Police Bank account on 4 September 2016, and/or

(b)     obligated to refund or credit $89.30 to the appellant prior to the issue of the Bankruptcy Notice on 7 December 2016,

Pursuant to section 16 of the Federal Circuit Court of Australia Act 1999 (Cth).

14    This is raised by Mr Ritson in response to the contention made by Legal Aid (according to the letter from Legal Aid of 26 March 2019), that “Legal Aid is not available for bankruptcy matters”.

15    It is inappropriate for me to express any sort of concluded view in relation to whether Mr Ritson’s application for legal aid should be successful but, given the demands on Legal Aid in this State, an application which relates to a bankruptcy matter (albeit including a prayer for a declaration relating to entitlements to debit a sum of $89.30) might be regarded as an application which does not immediately leap out as likely to attract a grant. I make this comment not in any way to seek to influence or in any way involve myself in the consideration of the Legal Aid appeal, but merely because I consider it appropriate that I give some consideration to the underlying merits, as the purpose of the proposed adjournment is to allow for the determination of a Legal Aid appeal. If such an appeal enjoyed substantive prospects of success, it might be thought the adjournment application (to allow its determination) would be stronger than would be the case if the prospects of the appeal were less strong. In this regard, I do not think the Legal Aid appeal is compelling impressionistically and, in any event, the complete position regarding an entitlement to legal aid remains opaque (for example, I still do not have in evidence any detailed analysis of Mr Ritson’s financial position).

16    It follows that in circumstances where there is no adequate explanation for Mr Ritson’s absence, and the material supporting the adjournment application seems to me to fall well short of being compelling, I should not exercise my discretion in order to allow the order made to be revisited.

prayer 3

17    For similar reasons, I would refuse to set aside the order for costs I made on 1 April 2019. There is no adequate explanation for Mr Ritson’s non-attendance and when I asked Mr Ritson to articulate the basis upon which he would rely in order to resist the making of an order for costs, none seemed of any merit. The transcript records the exchange, but Mr Ritson indicated that he wished to put on evidence of the circumstances as to why an order for costs ought not to have been made against him notwithstanding the applications were dismissed adversely to him. One matter to which he made reference was the fact that he wished to provide an explanation as to why he should not pay the costs of the disqualification application.

18    This argument went something along the following lines. Apparently Mr Ritson had real misgivings when it became apparent to him that there had been a communication between a witness and staff of my chambers. It is unnecessary to recount the details here which are set out in my First Judgment at [8]-[16]. It suffices to note that hours after Mr Ritson had raised his concerns with the Court, there was a communication sent by the District Registry, being the communication set out in my First Judgment at [15]. If Mr Ritson had turned up at Court when the matter was called on at 12.02pm that day, he could have been disabused of any residual concerns. He simply failed to turn up although he did explain, in the course of submissions, the reason.

19    It went like this.

20    Faced with the prospect of having to deal with an application in which he was involved at 2pm before Judge Vasta, and another application at 12 noon before me, Mr Ritson said he worked virtually the whole night and became very fatigued. He went to bed and set an alarm in order to ensure that he attended before me at 12 noon, but his fatigue was of such a character that he slept through his alarm.

21    Again I do not think that provides any basis upon which Mr Ritson could resist the costs order even in the event that I was to grant leave for the argument to be run before me. No particular reason was advanced as to the costs associated with the adjournment application or the further application that the matter be referred to a Full Court comprising three Judges. None of the arguments raised in outline during the course of submissions have any prospects of success (even taking the factual assertions made by Mr Ritson at their highest). Accordingly, I consider it would be contrary to the overarching purpose, and the principles that inform the exercise of the relevant discretion, to vary this order.

prayer 3A

22    Following the respondent complying with my order to file documents in support of the lump sum costs order, there were further communications between Mr Ritson and the respondent. A notice to produce was served by Mr Ritson on 12 April 2019 which sought production of the source material referred to in an affidavit of Ms Hegarty which quantified the claim for costs. That notice to produce was the subject of compliance although there were, perhaps unsurprisingly given the nature of the communications, significant redactions which reflected a claim for legal professional privilege.

23    It was only upon the service of the amended interlocutory application at 8pm last evening that what amounts to an application for inspection of the documents the subject of the claim for privilege was articulated by Mr Ritson. In these circumstances, the appropriate relief is to order the respondent to file the usual evidence seeking to make out any such claim. Further, Mr Ritson has indicated that he wishes to put on material resisting the making of the lump sum costs order in the amount claimed. In these circumstances it seems to me appropriate to give Mr Ritson this opportunity, but to defer his obligation to file material until any challenge to the claim for legal professional privilege is determined. If there is to be argument in relation to legal professional privilege, then I will deal with it when the matter is listed for hearing on 24 May 2019.

24    Before leaving this topic there is a further matter that I mentioned during the course of submissions which I should record. That is, that after determining the claim for legal professional privilege, my tentative view is that a referee be appointed to inquire into and report to the Court on the amount of costs that are to be recoverable pursuant to the existing lump sum costs order (and also in relation to any other order which might be made between the parties following the determination of the appeal). If there are any submissions to be made opposing such a course, then they should be made at the hearing of the appeal.

25    In these circumstances, an order in the terms of prayer 3A is unnecessary.

prayer 3B

26    The appellant seeks leave to file and serve a draft amended notice of appeal. This relief is not opposed and I propose to grant it, subject to an important condition. I made reference in the First Judgment to the long litigation history of this matter. In Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2018] FCCA 1941, in making a lump sum costs order against the appellant, Judge Smith noted at [14]:

...the [appellant] has failed to adhere to orders of the Court by consistently filing late and without leave submissions, affidavits and further grounds of argument. In addition, the applicant in the substantive proceedings raised multiple grounds contending issues that either he, or any reasonable person would have known, not to be controversial. In those circumstances, I am not confident that the [appellant’s] conduct indicates that he would not cause a taxation process to be protracted and cumbersome for the respondent.

27    The chronology of this matter causes me similar concern about Mr Ritson treating the orders of the Court like they are traffic lights in Naples. I do not propose to tolerate further waste of Court time by non-appearance or costs occasioned by the late service of documents. Accordingly, the leave granted to file the amended notice of appeal is conditional upon Mr Ritson filing all material upon which he relies in relation to the amended ground by 4pm on 10 May 2019. I note that Mr Ritson indicated that this date was one that allowed him to file the additional submissions upon which he will rely.

28    To the extent that it has not already been made clear by communications made through the Registry of the Court, Mr Ritson should file documents in accordance with Court orders and not make informal applications by way of email to either my staff or the Registry. He has now filed (albeit late) his substantive submissions on the appeal. Apart from the supplementary material relating to the further ground of appeal, no further document should be filed, electronically or otherwise. If there is any additional material that Mr Ritson seeks to rely upon at the hearing on 24 May, it should be brought to court and any application to rely upon it will need to be supported by affidavit evidence with an explanation as to why leave should be allowed.

Associate:

Dated:    14 May 2019