FEDERAL COURT OF AUSTRALIA

Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal, which will be assessed on a lump-sum basis.

3.    Within seven days, the appellant file any material, in accordance with the practice note (GPN – COSTS), that they rely upon in relation to the quantification of this lump-sum costs order or any other costs order.

4.    The appellant put on any further material that he wishes to rely in relation to the opposition to the quantification of this lump-sum costs order within 14 days.

5.    Direct that these orders not be entered until publication of the revised reasons for judgment.

THE COURT NOTES THAT:

6.    The order extending the life of Bankruptcy Notice Number BN210799 made today is to be entered forthwith.

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:

A     Introduction and Background

1    The appellant (Mr Ritson) is an indefatigable litigant. The genesis of this appeal from the Federal Circuit Court goes back as far as 29 October 2012 when Mr Ritson brought administrative law proceedings in the Supreme Court of New South Wales against the respondent, the Commissioner of Police, New South Wales Police Force (Commissioner). That summons was dismissed, and Mr Ritson was ordered to pay the Commissioner’s costs by Garling J on 27 September 2013. On 30 October 2015, consequential enforcement orders were made in the Local Court of New South Wales to the effect that Mr Ritson was to pay the Commissioner $43,966.79.

2    A bankruptcy notice relying on the judgment of $43,966.79 together with accrued interest was issued by the Official Receiver on 7 December 2016. It claimed a total debt in the amount of $47,782.64.

3    Earlier proceedings were commenced by Mr Ritson in the Federal Circuit Court on 12 April 2017, which sought that the bankruptcy notice which had been served upon him on 22 March 2017, be set aside on various grounds. On 10 May 2017, the District Registrar of the Federal Circuit Court made a series of interlocutory orders requiring Mr Ritson to serve an amended application together with evidence in support. The Commissioner was ordered to file and serve amended grounds of opposition and evidence. Orders were made that Mr Ritson be prevented from raising a ground that was not included within the amended application. After extending the time for compliance with the bankruptcy notice, the proceeding was adjourned to 16 June 2017.

4    On 26 May 2017, Mr Ritson filed in the Federal Circuit Court an application for review of the District Registrar’s orders (First Interlocutory Application). In Ritson v Commissioner of Police, New South Wales Police Force [2017] FCA 1192, Robertson J set out the circumstances of communications between the parties and the Court relating to the First Interlocutory Application. As indicated by his Honour at [23]-[25], the correspondence between the parties and the Court was central to the resolution of the First Interlocutory Application. It is convenient to set out those paragraphs below:

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.

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 [Commissioner] 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 [Mr Ritson] asking that the date for hearing of his application for review be moved from 1 June 2017.

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 Mr Ritson’s request to appear by telephone at the hearing on 6 June 2017.

5    On 6 June 2017, the matter came before a judge of the Federal Circuit Court who made the following orders:

1. The affidavit of Ms Rebecca Hegarty dated 10 May 2017 is treated as having been filed electronically.

2. The application to set aside the bankruptcy notice is dismissed.

3. [Mr Ritson] to pay the [Commissioner’s] costs of the proceedings as agreed or taxed.

6    At [37] of his reasons, Robertson J found that the only matter listed before the Federal Circuit Court on 6 June 2017 was the re-hearing, de novo, by way of review, of the orders made by the District Registrar on 10 May 2017, and the underlying substantive application to set aside the bankruptcy notice was not listed. Despite this, and in circumstances where he had sought an adjournment, the Federal Circuit Court judge dealt with the substantive application adversely to Mr Ritson. In these circumstances, Robertson J found that Mr Ritson was denied procedural fairness, which led his Honour to allow the appeal and remit the matter to the Federal Circuit Court for further hearing and determination.

7    What then occurred, relevantly, was that on 16 October 2017, a communication was provided to the parties confirming that “the application to review a Registrar’s decision” had been listed before the Court on 1 November 2017 (Appeal Book (AB) 39).

8    The day before that listing, an interim application was filed by Mr Ritson (AB 41) (Second Interlocutory Application). The interim relief sought in the Second Interlocutory Application was partly a form of final relief, being a declaration that neither Ms Hegarty nor Coleman Greig Lawyers Pty Ltd (Coleman Greig Lawyers) (solicitors for the Commissioner) had at any time, been retained by the Commissioner; a consequential order was also sought and that a notice of appearance filed by Ms Hegarty be struck out and removed from the file. A further order was sought that the issue of the retainer be determined separately and prior to all other questions in the proceeding in the form of a separate hearing.

9    The matter came before the Federal Circuit Court the following day when Ms Mullee appeared on behalf of Mr Ritson. Mr Afshar, who appears for the Commissioner in this proceeding, appeared on behalf of the Commissioner.

10    At that time, the primary judge made a number of detailed interlocutory orders concerning both the Second Interlocutory Application and also the substantive proceeding, both of which were to come back before his Honour on 16 November 2017. The orders were made with a view to: (a) setting down a timetable for further conduct of [the] matter; (b) “determining whether the proceeding and [the Second Interlocutory Application] ought be heard together or separately”; and (c) [allocate] hearing dates.

11    On 16 November 2017, Ms Mullee again appeared on behalf of Mr Ritson and Mr Afshar on behalf of the Commissioner. An order was made that the solicitor for Mr Ritson file and serve a notice of appearance (but it appears that at all stages following this appearance Mr Ritson has represented himself).

12    The orders dated 16 November 2017 provided that the “amended application and [Second Interlocutory Application] be heard together on 25 January 2018” before the primary judge, and a number of interlocutory orders were made in order to facilitate that hearing. The matter was ultimately heard by the primary judge on 25 January 2018.

13    After making some orders on that date relating to evidentiary matters, his Honour reserved and delivered judgment on 20 April 2018, that judgment being the subject of the appeal before me.

14    In previous judgments in this proceeding, I have detailed the lamentable history of the appeal proceeding in this court: see Ritson v Commissioner of Police, New South Wales Police Force [2019] FCA 475 and Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2019] FCA 662. There is no need to repeat that history within this judgment.

B     The Appeal

15    Both prior to and following the filing of an amended notice of appeal by Mr Ritson on 10 May 2019, I received extensive submissions on behalf of both Mr Ritson and the Commissioner. There are currently seven (in some respects partly overlapping) grounds of appeal that are pressed at the hearing. During the course of his oral submissions (T3. 40), Mr Ritson indicated that he no longer wishes to press grounds 1 and 3 as expressed in his original outline of submissions filed on 29 April 2019. On this basis, grounds 1 and 3 can be put to one side and I will deal with the balance of the grounds seriatim.

C     Ground 2: “The Official reciever did not issue the bankruptcy notice on the application of the commissioner of police, new south wales police force”

16    It will be recalled that one of the issues in the Second Interlocutory Application, filed by Mr Ritson on 31 October 2017, was the retainer of both Ms Hegarty and Coleman Greig Lawyers. Ground 2 is a similar but logically distinct contention that there was an error in the finding by the primary judge that Ms Keating, a senior solicitor at the Office of the General Counsel, New South Wales Police Force, had authority from the Commissioner to give instructions to Ms Hegarty to issue a bankruptcy notice against Mr Ritson. The argument of Mr Ritson was, contrary to a finding of the primary judge, that it was impermissible for the Commissioner to act through an agent, Ms Keating, in giving instructions to Ms Hegarty to take steps to have the bankruptcy notice issued. At [13] of his appeal submissions, Mr Ritson advanced the contention that the Commissioner “is not permitted to act through an agent and must personally exercise the power to have the bankruptcy notice issued”. This is said by Mr Ritson to arise for broadly four reasons. First, there was no power to issue a bankruptcy notice; secondly, even if there was power, the power would be discretionary; thirdly, bankruptcy involves a change in status and quasi-penal consequences and significantly affects the rights and liabilities of another; and fourthly, it would be rare for the Commissioner to have a bankruptcy notice issued.

17    The primary judge found at [42] that there can be no question that Ms Keating, as a solicitor within the Office of General Counsel, New South Wales Police Force, under the control and management of the Commissioner, at the very least, had ostensible authority to issue instructions to retain solicitors as an agent of the Commissioner. His Honour found that in light of that conclusion all of Mr Ritson’s arguments in relation to ground 2 fall away.

18    New South Wales Police is established by s 4 of the Police Act 1990 (NSW) (Police Act). The Commissioner is, pursuant to s 8(a) of the Police Act “responsible for the management and control of the New South Wales Police Force”. The relevant statutory context is explained by Leeming JA in New South Wales v Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467 at 481 [50]-[52].

19    The notion that the Commissioner must act personally in order to give instructions for the issue of a bankruptcy notice is misconceived, and there is no reason to doubt the correctness of the primary judge’s conclusion in this regard. Ground 2 has no merit.

D     Ground 4: “The bankruptcy notice is liable to be set aside because it is founded on an irregular judgment OF THE LOCAL COURT OF New South Wales MADE AND ENTERED ON 30 OCTOBER 2015”

20    Although this ground is expressed in terms that there was an error in the finding of the primary judge at [54], it amounts to an assertion that a decision of the Supreme Court of New South Wales in Kassem v Koutavas [2012] NSWSC 236 was not wrongly decided. The real point being advanced by the ground is that the judgment of the Local Court of New South Wales relied upon to ground the bankruptcy notice was irregular, with the consequence that this irregularity was a basis upon which it was appropriate for the Court to go behind the judgment.

21    As I have previously noted, this argument raised by Mr Ritson is, as Campbell AJA described it in Penson v Titan National Pty Limited (No 2) [2015] NSWCA 120 at [72], based on a “technicality of the most arid kind”.

22    The argument arises because there were two certificates of costs issued by the costs assessor. The first in respect of the assessment of party-party costs in the Supreme Court proceeding and; the second with regard to the costs of the costs assessment itself. The Commissioner lodged both certificates in the Local Court together, and one judgment was issued in the following terms:

Brendan Ritson, First Defendant is to pay the Commissioner of Police, New South Wales Police Force, First Plaintiff the sum of

Claim amount $43,966.79

Total $43,966.79

Determination of Costs

23    As the primary judge observed at [52], the amount of $43,966.79 (which, it will be recalled, is the judgment amount referred to in the bankruptcy notice) is the sum of the party/party costs as assessed ($42,375.34) and the costs of the costs assessment itself ($1,591.45).

24    The primary judge at [53] referred to the fact that in Kassem, Ward J (as her Honour then was) found that a judgment of the Local Court of New South Wales based on both the assessed value of party/party costs and the costs of the costs assessment was an “irregular judgment”. Mr Ritson placed reliance on this judgment in his application to go behind the judgment of the Local Court of New South Wales and set aside the bankruptcy notice.

25    As the primary judge recognised at [59], the same issue arose for consideration before Garling J in Weber v Aquaqueen International Pty Limited [2013] NSWSC 1181. His Honour came to a different view to that of Ward J and explained his reasons for such a conclusion at [104]-[114]. It is worth setting out those reasons in full:

Was the Judgment Irregular?

For my part, I cannot accept that the judgment entered in these proceedings was irregular by reason of the inclusion in the judgment of a sum payable for the costs of the costs assessment, and, in particular, the costs assessor’s costs component, because the judgment included sums contained on a s 369 Certificate.

I have formed that conclusion because I am satisfied of the following propositions dealing with a s 369 Certificate.

First, the fees (or costs) charged by a Costs Assessor are included within the definition of the term “costs” of the costs assessment in s 369(10) of the [Legal Professional Act 2004 (NSW)] (LP Act). Accordingly, it is expected that they will form a part of the assessment process which is initiated by one party or another, in order to obtain a determination of the fair and reasonable amount of costs as between the parties.

Secondly, at the conclusion of the costs assessment process, the LP Act gives to the Costs Assessor the obligation to determine in what sum, and by whom, the costs of the costs assessment ought be paid: s 369(2), and s 369(2A) of the LP Act;

Thirdly, that determination is to be recorded in a Certificate: s 369(2A) of the LP Act.

Fourthly, that Certificate, consequent upon being filed in a court of competent jurisdiction, becomes a judgment which determines that one of the parties to the costs assessment process is obliged to pay to the other party, the sum which the costs assessor has determined. The party determined by the Certificate to be liable, and obliged by the judgment, to pay the sum so determined, is the party who has had a right under the LP Act to participate in the costs assessment process, to put arguments and objections to the costs assessor, and who has the right under the LP Act to challenge in the ways there permitted, the contents of the Certificate.

Fifthly, the Manager, Costs Assessment does not have any right to participate in the costs assessment process, nor to make any submissions as to the outcome of that process. The Manager is not named as, nor is he or she in fact, a party to the matter. No obligation is created in favour of, or against, the Manager, by the issue of a determination, and then a Certificate under the LP Act. In fact, rather than being a party, the Manager, Costs Assessment is the person given the responsibility for the effective operation of the costs assessment scheme: see LP Act, Part II Subdivisions 1, 2, 4 and 5.

Sixthly, it is clear that the judgment once entered, is then enforceable as a judgment of the Court in the terms which it is entered. That is a judgment by one party against the other party named in the Certificate as liable for a fixed and identified sum. Again, the Manager is not a party to the judgment. The judgment is not expressed to be in favour of (or against) the Manager. There is no requirement under the [Uniform Civil Procedure Rules 2005 (NSW)] (UCPR), for the Manager to be joined as a party when the Certificates are registered. Nor would the Manager be a necessary party to those proceedings.

Seventhly, the fact that the legislation provides a mechanism by which the Manager, Costs Assessment is entitled to be paid the costs of the costs assessor, and that the Manager may be entitled to exercise a right to collect those costs, does not seem to me to make a judgment in the sum determined in accordance with the legislation between the parties to the costs assessment matter to be irregular. On the contrary, the judgment so entered is a regular one, entered just as the UCPR permits.

Lastly, this construction means that it remains open, at all times, where the costs of the costs assessment have not been paid, for the Manager, Costs Assessment to take action to recover those costs. In those circumstances, the Manager would be [a] party to the recovery action, as the plaintiff, and if successful, would obtain a judgment in his or her favour, upon which enforcement action could then be taken in the same way as for any other debt.

I appreciate that this conclusion differs from that reached by Ward J in Kassem. However, to the extent that it is necessary for me to disagree with her Honour's central finding, which I have described above, I do so with the utmost respect. However, I do so because it seems that her Honour’s view, that a judgment entered against a party to the proceedings, in consequence of the filing and registration of a s 369 Certificate, is one which takes effect in favour of a person who is not a party to the proceedings (the Manager, Costs Assessment), and not in favour of the party filing the judgment, in whose favour it is expressed to be, is in the absence of any specific provision in the LP Act which enables this to occur, erroneous.

26    His Honour’s judgment was the subject of an application for leave to appeal, which was determined by Beazley P and Emmett JA in Aquaqueen International Pty Limited v Weber [2014] NSWCA 101. Emmett JA (with whom Beazley P agreed) at [9] referred to the fact that leaving aside some other arguments advanced by the application for leave, the contention that the judgment should be set aside because the total sum for which the judgment was registered included components that represented the costs of the costs assessment process was of “some moment” because it involved persuading Garling J that he should not follow an earlier decision of a judge of the Equity Division (being Kassem).

27    Emmett J went on to note at [10] that Garling J reached a conclusion inconsistent with Kassem and in doing so referred to the fact that his Honour would not, as a matter of discretion, set aside the judgment even if he had formed a different view as to whether Kassem was correctly decided. Although the Commissioner somewhat overstates the position in saying that the Court of Appeal decision emphatically endorses the approach taken by Garling J, his Honour did note at [14] that he was not persuaded that there was any error on the part of Garling J in reaching the conclusion that no basis had been established for setting aside the judgment.

28    With respect to their Honours, to the extent they identified no error, I share the same view. I do not consider that there is any reason to doubt the correctness of the reasoning extracted above by Garling J and it was entirely open to the primary judge to follow Aquaqueen as he did at [60]. Moreover, as Campbell AJA observed in Penson at [71], it was held by Ward J in Kassem, that the party who is required to pay the costs of the costs assessment is, in any event, required to reimburse the party that paid the costs in order to obtain the certificate. When this is understood, the correctness of Kassem is not determinative of the question of whether Mr Ritson still owes the whole of the money set out in the Local Court of New South Wales judgment as reflected in the bankruptcy notice issued by the Commissioner. Precisely why this would form a basis for going behind the judgment eludes me.

29    His Honour did not fall into error in rejecting ground 4.

E     Ground 5: “THE Bankruptcy notice is invalid because it fails to meet the requirements made essential by the Bankruptcy Act 1966 (Cth)”

30    This ground has three distinct components but all have the common thread which arise from an allegation made by Mr Ritson that the bankruptcy notice was not, as required by s 41(2) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), in accordance with the form prescribed by the Bankruptcy Regulations 1966 (Cth) (Bankruptcy Regulations): see reg 4.04 and sch 1. It is convenient to deal with Mr Ritson’s three arguments separately.

31    These attacks on the bankruptcy notice might be regarded as being technical but they are no worse for that description. The process of bankruptcy is triggered by the issue of a bankruptcy notice and given the quasi-penal nature of the bankruptcy jurisdiction, it is important that the requirements of a valid bankruptcy notice are met. It follows that a bankruptcy notice which fails to meet a requirement made essential by the Bankruptcy Act, or which could reasonably mislead a debtor as to what needs to be done to comply with its terms, is a nullity regardless of whether the debtor was in fact misled: see James v Federal Commissioner of Taxation (1955) 93 CLR 631 at 644. With these principles in mind, I will deal with each of the three defects alleged by Mr Ritson.

E.1     Address of Creditor

32    Mr Ritson correctly states that a creditor in a bankruptcy notice must give an address or addresses where the creditor may be found. The address stated in the bankruptcy notice must be one at which the debtor may, during the currency of the notice, either: (a) make payment of the debt claimed in the bankruptcy notice; or (b) make arrangements to secure or compound the debt claimed in the bankruptcy notice.

33    It is well-established that the address of the creditor or the creditor’s agent must be set out in the body of the notice (Bank of Melbourne Limited v Hannan (1997) 78 FCR 249 at 253) and that a bankruptcy notice that does not contain an address for the creditor is a nullity: Re St Leon; ex parte National Australia Bank Limited (1994) 54 FCR 371 at 378. Further, as Pincus J observed in Re Nugent; ex parte Nugent (1985) 5 FCR 161 at 164, the address given should be one which, during the currency of the notice, is “reasonably practicable [for the debtor] to make payment or secure or compound”.

34    Here, as the primary judge observed at [64] the bankruptcy notice included the following:

2.    Payment of the debt can be made to:

(Emphasis in original)

35    The primary judge at [65] found that it is permissible, in a bankruptcy notice, for the address for payment to be identified as the office of the creditor’s solicitors, provided that those solicitors are authorised by the creditor to collect payment on behalf of the creditor: see also Nugent v Brialkim Pty Limited (1985) 61 ALR 725 at 726-727 per Lockhart J. The primary judge concluded that there is “no question that there was authority here”.

36    With respect, I agree with his Honour’s view. The argument of Mr Ritson seems to be based on a number of contentions including that he personally attended an address known as Police Headquarters and was told that the Commissioner was not located at that address, and because of this fact Mr Ritson was unable to make the necessary arrangements for payment and left the location. Further evidence was said to establish that the Commissioner’s business address is a separate address in Elizabeth Street, Sydney. Allied to this contention was that Mr Ritson asserted that no evidence was adduced by the Commissioner to establish that its solicitors were, in fact, authorised by the Commissioner to accept payment of the debt.

37    Further, it is said by Mr Ritson at [80] of his submissions, that no evidence was adduced that the solicitors for the Commissioner had instructions or authorisation from the former Commissioner, Mr Scipione, after his retirement on 31 March 2017 in his then capacity as a private citizen. It was further submitted by Mr Ritson that no evidence had been adduced that the solicitors for the Commissioner had instructions or authorisation from the newly appointed Commissioner Mr Fuller who, it was said at [77], was the beneficiary of an “equitable assignment of the benefit of the order for costs”, with Mr Scipione remaining as the bare trustee of the benefit of the costs order for Mr Fuller.

38    These arguments need only to be stated, to be rejected. Such submission confuses the person who, from time to time, occupies the office of the Commissioner with the statutory office. The notion that the bankruptcy notice ceased to be valid because Mr Scipione, the only person capable of giving good discharge for the alleged debt, could not be found at the address expressed in the bankruptcy notice, is one which is entirely misconceived.

39    It is plain as a pikestaff that Coleman Greig Lawyers were authorised, expressly, to accept payment on behalf of the Commissioner in the terms of the bankruptcy notice. There could be no confusion in this regard, and the primary judge was correct to reject this argument.

E.2     Identification of the Creditor

40    This argument, again, seems to relate to the proposition advanced by Mr Ritson at [83] of his submissions that “it must be [a] natural person who is the creditor who must be named in the bankruptcy notice”.

41    It was said by Mr Ritson at [86] that the bankruptcy notice is invalid because the creditor is identified as “Commissioner of Police, New South Wales Police Force”, but it fails to identify the natural person who occupied that office. It is contended that the failure to identify the natural person who occupied the office is fatal. I have already explained why this argument is misconceived. This is a somewhat different argument, however, than what appears to have been run before the primary judge who recorded at [67] that Mr Ritson’s point, was that the Police Act establishes the “NSW Police Force”, and not the “New South Wales Police Force”.

42    It was said, for that reason, that the description of the creditor as the “Commissioner of Police, New South Wales Police Force” is incorrect and misleading. This argument was rightly treated by his Honour as absurd given that any reasonable person would know that the two expressions meant the same thing (even leaving aside the operation of s 12 of the Interpretation Act 1987 (NSW) that his Honour concluded at [67] incorporates a reference to ‘New South Wales’ into every reference to an office, officer or statutory body”). It is clear that the creditor is properly described and the primary judge was correct in rejecting Mr Ritson’s contentions in this regard.

E. 3    Final Judgment, or Final Order, Not Attached

43    A failure of the creditor to attach the judgment to the bankruptcy notice as required by s 41(2) of the Bankruptcy Act with reference to Reg 4.02(1)-(2) and cl 2 of Form 1 in Sch 1 of the Bankruptcy Regulations, is a fatal defect that cannot be cured by the operation of s 306(1) of the Bankruptcy Act: see Anne v Ask Financing [2015] FCA 1111; (2015) 240 FCR 229 at 243 [82]; and American Express International Inc v Held (1999) 87 FCR 583. The purpose of the requirement is to clearly identify the judgment or order upon which the bankruptcy notice is founded. In this regard, in St George Bank Ltd v Klintworth (1998) 86 FCR 240, Hill J held that a computer generated document which contains the particulars of the judgment, constitutes a copy within the meaning or Reg 4.01(1)(a)(iii) of the Bankruptcy Regulations.

44    Mr Ritson raises two complaints in this regard. First, the only document attached to the bankruptcy notice is the certificate of judgment issued on 23 November 2016 by the Local Court of New South Wales. It is said by Mr Ritson at [92] of his submissions that the certificate of judgment is not a product of adjudication by any judicial officer but rather a ministerial act and it is not a judicial act. Secondly, the final judgment on which the bankruptcy notice is based is a foundational element, and the statutory language requires identification of “the judgment” as a condition of issue, but the certificate of judgment does not identify the cost certificates which constitute “the judgment”.

45    This point relates to what appears to be the primary complaint of Mr Ritson, being that, without the cost certificates being attached, the bankruptcy notice does not provide the reader with sufficient detail of the principal debts, and that the reader cannot make sense of the notice without such attachments to work out the debts relied upon. This is said to be in part, due to the certificate of judgment combining the amounts from two certificates. Without the certificates of costs being attached to the judgment, uncertainty is created and the debtor is said to be capable of being misled.

46    This is a somewhat different point than that considered by Lee J in Genovese v BGC Construction Pty Ltd [2006] FCA 105; (2006) 4 ABC(NS) 127, where his Honour observed at [16] that it would be necessary to attach a certificate of taxed costs where the judgment merely provided for costs to be taxed. This, of course, makes sense because without providing a certificate of taxed costs in these circumstances, it would fail to meet the evident purpose of a bankruptcy notice namely, to give a debtor notice of how the amount set out in the notice has been calculated as the amount owing.

47    This is qualitatively different. The liability was merged in the judgment and it was the judgment that represented the amount owing. It was the judgment (together with interest accruing) that represented the amount owing by Mr Ritson to the Commissioner. In circumstances where the Local Court of New South Wales judgment accompanied the bankruptcy notice, the argument is misconceived, and it follows that the primary judge was correct to reject all of the matters raised in ground 5.

F     Ground 6: “The bankruptcy notice is invalid because the sum specified in it as the amount due to the respondent exceeds the amount in fact due by at least $89.30”

48    It is important, in understanding this ground, to explain that the argument is based on the fact that an amount of $89.30 was paid to the Commissioner in connexion with a summons addressed to the Commissioner, issued at the request of Mr Ritson, in the New South Wales Civil and Administrative Tribunal (NCAT). In evidence before the primary judge (AB 339) was a tax invoice/receipt issued by the New South Wales Police Force on 2 September 2016, printed on 1 May 2017. It referred to what was described in the records held by the New South Wales Police Force as an “OVER-THE-COUNTER PAYMENT”. It had one entry which referred to Mr Ritson and referred to an amount of $89.30, which carried the description of “subpoena processing”.

49    Mr Ritson denies having made an “over-the-counter” payment and contends at [105] of his submissions, that the amount of $89.30 was debited, at Mr Ritson’s request, by the Commissioner from Mr Ritson’s bank account for conduct money in relation to a summons to produce documents. It is said by Mr Ritson at [106] that no documents were produced to NCAT in response to the summons, and that the Commissioner did not attend NCAT in response to the summons. Mr Ritson further submitted at [108] that the “conduct money” in the sum of $89.30 was apparently debited for the purposes of defraying expenses of the Commissioner’s journey to and from NCAT, and as there was no journey, there was no expense and consideration fails. The principles of unjust enrichment referred to in Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516 are called in aid by Mr Ritson. It is submitted at [110]:

The Commissioner’s obligation, which is correlative to [Mr Ritson’s] right to restitution, is to refund the $89.30 which the Commissioner has received and which it is unjust that the Commissioner should retain.

50    Although not expressed in these terms, I assume, given the way that the argument has been framed, that using the old common money count, Mr Ritson would have a right to bring an action for money had and received. Mr Ritson goes on to submit at [113] that a decision by the Commissioner to instruct its solicitors to make an application to the Official Receiver for the issue of a bankruptcy notice would “constitute an appropriation by the Commissioner of the sum of $89.30 to the alleged debt” and at [115] that “the sum specified in the bankruptcy notice as the amount due to the [Commissioner] exceeds the amount in fact due by at least $89.30”.

51    It is further contended by Mr Ritson at [117] that on 16 April 2017, within the extended time allowed for payment by reason of extensions of time, Mr Ritson gave notice to the Commissioner by means of an affidavit disputing the validity of the bankruptcy notice on the ground of misstatement. The primary judge dealt with this argument by noting the following at [77]-[78]:

The way in which the ground is stated reflects the operation of s.41(5) of the [Bankruptcy] Act which provides:

“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”.

This ground is entirely misconceived. In effect, [Mr Ritson] is claiming that he has a counter-claim set off or cross-demand against the [Commissioner] for the amount of $89.30 and that that should be deducted from the amount of the judgment of the Local Court. However, s.41(5) [of the Bankruptcy Act] is not addressed to the situation where a judgment debtor has a counter-claim set off or cross-demand for an amount against the judgment debtor, but where, as at the time of the issue of the bankruptcy notice, the amount owing by reason of the judgment is misstated. Where a debtor has a counter-claim set off or cross-demand against the creditor he or she may “satisfy” the [Court] of that and either (sic) have the Bankruptcy Notice set aside (if the amount of the claim equals or exceeds the amount of the bankruptcy notice): sub-s.40(1)(g) and s.41(7).

(citations omitted)

52    His Honour’s analysis is correct. Any restitutionary claim that Mr Ritson has in respect of the $89.30 is not an amount which affected the correctness of the statement in the bankruptcy notice of the amount owing under the judgment. Mr Ritson does not suggest that he has a counter-claim set off or cross-demand which equals or exceeds the amount of the judgment on which the bankruptcy notice is founded in accordance with ss 40(1)(g) and 41(7) of the Bankruptcy Act. This aspect of Mr Ritson’s argument, of course, does not deal with a question as to the validity or otherwise of the judgment debt. There is no reason to doubt the correctness of the judgment debt whatsoever.

53    There is no error with the way in which the primary judge dealt with ground 6.

G     Ground 7: The primary judge denied the appellant natural justice by not exercising the court’s accrued jurisdiction to determine the declaratory relief sought by Mr Ritson in respect of the $89.30

54    Ground 7 is related to ground 6. In his amended application dated 10 May 2019, Mr Ritson at [7] claimed a declaration that the amount of $89.30 was owing to him. Part of the reasoning in rejecting the sixth ground was set out by the primary judge at [80]-[81]:

The combination of the centrality of the judgment to a bankruptcy notice and the availability of an argument before the Court that there is a counter-claim set off or cross-demand against the judgment creditor compel the conclusion that the amount of such a counter-claim set off or cross-demand is not relevant to whether the bankruptcy notice is valid.

For those reasons, this ground must be rejected and it is unnecessary to deal with the arguments raised by [Mr Ritson] as to why it was beyond the [Commissioner’s] power to charge any amount in respect of the summons.

55    Based on the conclusion reached by the primary judge that there was no relationship between the counter-claim set off or cross-demand which was asserted by Mr Ritson, and the validity of the bankruptcy notice itself, his Honour did not proceed to deal with the claim for declaratory relief.

56    Accordingly, any claim that Mr Ritson may have for the $89.30 has not been determined. The question is essentially an academic one. Counsel for the Commissioner indicated to me during the course of oral submissions (T21. 15-30) that in the event the amount outstanding pursuant to the bankruptcy notice was tendered, less the amount of $89.30, then that would be regarded by the Commissioner as adequate satisfaction with the terms of the bankruptcy notice, meaning that there would be no act of bankruptcy. In these circumstances it is a little difficult to see why there is a justiciable issue relating to this matter of any consequence.

57    It is unnecessary for me to deal with the further complication that the appropriate relief for the sort of claim that Mr Ritson has outlined in his submissions would raise, as I indicated above, seeking relief in the form of an action for money had and received. A declaration being discretionary relief in the Court’s equitable jurisdiction is not the orthodox way of seeking to vindicate a claim of the type that Mr Ritson makes.

58    Having rejected the connexion between the alleged amount of $89.30 to the issue of the validity of the bankruptcy notice, the notion that I would remit a claim for a declaration that he is owed an amount of $89.30, in these circumstances, is not only contrary to the overarching purpose but would also bring the administration of justice into disrepute. Obviously enough, the primary judge felt it unnecessary to deal with this claim in circumstances where he had dealt with the issue of the invalidity of the bankruptcy notice. In my view, his Honour was perfectly entitled to treat the matter in this way.

H     Grounds 8 And 9: The failure of the primary judge to deal with the review and the interim application

59    These contentions relate to the fact that the primary judge dealt with the substantive application before him and did not separately deal with the First Interlocutory Application dated 26 May 2017 seeking review of the orders of the District Registrar dated 10 May 2017 (which had been the subject to the judgment of Robertson J), or the Second Interlocutory Application filed by Mr Ritson on 31 October 2017 seeking a declaration that neither Ms Hegarty nor Coleman Greig Lawyers has at any time been retained by the Commissioner in this proceeding.

60    There has been no denial of natural justice. The review was not referred to during the course of submissions before the primary judge, I am informed by the Commissioner (T41. 20-45), and it is hardly surprising in the circumstances, that the primary judge did not deal with the First Interlocutory Application. Matters had well and truly moved on. Although the determination of Robertson J that the question of review ought to be remitted to the Federal Circuit Court made, with respect, perfect sense given that Mr Ritson had not understood that the substantive application was due for hearing, this is an entirely different situation. A detailed interlocutory regime had been made to resolve all issues between the parties before the primary judge. There has been no relevant denial of procedural fairness.

61    Similarly, in relation to the Second Interlocutory Application, as explained above, this went to the retainer by the Commissioner of Ms Hegarty and Coleman Greig Lawyers. The issue as to the authority of Ms Hegarty and Coleman Greig Lawyers to take instructions from the Commissioner was expressly referred to at [2] of the amended application that was filed by Mr Ritson on 13 November 2017. His Honour dealt with those substantive issues at the same time as all other issues that were before him. There was no want of procedural fairness.

62    Before leaving this topic, however, I should make one further point. Mr Ritson raised the issue that it was necessary to deal with the First Interlocutory Application in order to determine whether or not he was entitled to his costs of such review. It is submitted by Mr Ritson at [8] of his written submissions that the failure to deal with the First Interlocutory Application has meant that an adverse costs order has been made against him which includes the costs of the review. The contention raised by Mr Ritson is that this operates inequitably in circumstances where those aspects of the costs ought not to have been visited upon him.

63    The difficulty with this submission is that the primary judge delivered a separate costs judgment (Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2018] FCCA 1941) and obtained submissions from the parties in relation to that costs argument. As Mr Ritson indicated during the course of his oral submissions (T47. 30), no submissions relating to the costs of the review were put to the primary judge. Accordingly, the primary judge did not fall into error in this regard.

I     Conclusion

64    None of the grounds advanced by Mr Ritson have any merit upon examination, and the appeal must be dismissed.

Associate:

Dated:    6 June 2019