Federal Court of Australia

Ritson v Commissioner of Police, New South Wales Police Force [2021] FCA 5

ORDERS

THE COURT ORDERS THAT:

1.    Dismiss paragraph 2 of the interlocutory application filed by the applicant on 31 December 2020.

2.    The applicant pay the respondent's costs as agreed or taxed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    By interlocutory application filed on 31 December 2020, Brendan Ritson, the applicant, seeks, among other things, an order staying the orders made by Judge Cameron in the Federal Circuit Court of Australia (Federal Circuit Court) in proceeding no SYG2114 of 2019 (FCC Proceeding) on 27 November 2020 (27 November 2020 Orders) pending the hearing and determination of the application for leave to appeal filed by Mr Ritson in this Court on 23 July 2020 and, if leave is granted, the appeal. The FCC Proceeding was commenced by the presentation of a creditor’s petition against Mr Ritson in that court by the respondent in this proceeding, Commissioner of Police, New South Wales Police Force (Commissioner).

2    The application for a stay has come before me for hearing today on an urgent basis. That is because Order 1 of the 27 November 2020 Orders requires Mr Ritson to take the following steps in the FCC Proceeding:

(1)    file and serve all of his grounds of opposition in relation to the creditor’s petition;

(2)    file and serve all of his evidence in support of his grounds of opposition in relation to the creditor’s petition; and

(3)    file and serve any written submissions on which he wishes to rely in relation to his grounds of opposition in relation to the creditor’s petition.

Those steps must be completed by 4 pm on 15 January 2021.

3    The 27 November 2020 Orders also:

(1)    provide that if Mr Ritson does not strictly comply with Order 1 he may not lead any further evidence served after 4 pm on 15 January 2021 or rely on any ground not specified in any grounds of opposition without leave of the court, with such application for leave to be supported by an affidavit setting out the reasons for any delay;

(2)    require the Commissioner to file and serve all of his evidence in response and any written submissions upon which he proposes to rely by 4 pm on 5 February 2021;

(3)    set down the FCC Proceeding for final hearing at 10.15 am on 8 March 2021 before Judge Cameron; and

(4)    grant liberty to the parties to apply on three days’ notice.

Background

4    Before I proceed further to consider the application that is now before me, it is convenient to set out the relevant background.

5    As noted above, the FCC Proceeding was commenced by the presentation of a creditor’s petition in that court by the Commissioner on 16 August 2019 by which the Commissioner seeks sequestration of Mr Ritson’s estate on the ground that he failed to comply with a bankruptcy notice served on him.

6    On 28 February 2020, Mr Ritson filed an amended interim application seeking various procedural orders and summary dismissal of the creditor’s petition and thereafter filed an amended interim application. That application came before Judge Cameron for hearing on 10 March 2020 and 2 April 2020. On 7 July 2020, orders were made in the FCC Proceeding dismissing Mr Ritson’s amended interim application.

7    It seems that in the course of hearing the amended interim application, Mr Ritson made an application inviting Judge Cameron to disqualify himself from further hearing the matter on the basis of apprehension of bias. That application was considered by his Honour on 2 April 2020 who, at that time, refused to disqualify himself from further hearing the matter. An order to that effect was subsequently entered.

8    As noted above, on 23 July 2020 Mr Ritson filed his application for leave to appeal from the judgment and orders made in the FCC Proceeding on 7 July 2020.

9    On 19 November 2020, the application for leave to appeal came before me for case management hearing. At that time, I made a number of orders, including an order granting leave to Mr Ritson to file and serve any amended application for leave to appeal, with the amendment to be limited to the orders made by the Federal Circuit Court on an application for recusal by the trial judge in that court, being the application made on 2 April 2020, for the filing and service of written submissions by the parties and for the provisional listing of the application for leave to appeal for hearing on 1 February 2021. The application for leave to appeal is in fact listed for hearing before me on 2 February 2021.

10    At the time of the filing of the application for leave to appeal, Mr Ritson did not seek a stay of the FCC Proceeding nor has he sought a stay of that proceeding since that time. The application he now makes is limited to a stay of the 27 November 2020 Orders. In the meantime, the case management of the FCC Proceeding has continued.

11    On 7 August 2020, Judge Cameron made orders in the FCC Proceeding, including that:

2.    The respondent file and serve by 4:00pm on 18 August 2020:

(a)    all of his grounds of opposition in relation to the Creditor’s Petition;

(b)    all of his evidence in support of his grounds of opposition in relation to the Creditor’s Petition; and

(c)    any written submissions on which he wishes to rely in relation to his grounds of opposition in relation to the Creditor’s Petition.

3.    The applicant file and serve by 4:00pm on 8 September 2020:

(a)    all of its evidence in response to the respondent’s evidence in support of the respondent’s ground of opposition in relation to the Creditor’s Petition; and

(b)    any written submissions on which the applicant wishes to rely in relation to the respondent’s ground of opposition.

4.    Order 5 of orders made on 7 July 2020 be vacated, and in lieu thereof, order that if the respondent does not comply strictly with order 2 above, the respondent may not:

(a)    lead any further evidence served after that time/date; or

(b)    rely on any ground not specified in any grounds of opposition,

without leave of the Court, such application for leave is to be support[ed] by an affidavit setting out the reasons for any delay.

12    On 9 September 2020, Judge Cameron made the following orders by consent in the FCC Proceeding;

1.    The matter listed for hearing on 10 September 2020 be vacated.

2.    The matter be listed for hearing on 22 October 2020 at 10:15am.

3.    The parties have liberty to apply on 2 days’ notice.

13    On 21 October 2020, Judge Cameron made the following orders by consent in the FCC Proceeding:

1.    The hearing be adjourned for 6 weeks, being 10 December 2020.

2.    Liberty to apply on 2 days’ notice.

3.    Parties be excused from appearing tomorrow, 22 October 2020.

14    Commencing on 20 November 2020 and up until 27 November 2020, there was a series of emails between the solicitor for the Commissioner, Ms Bazouni of Coleman Greig Lawyers, Mr Ritson and the associate to Judge Cameron. In the first of those emails sent on 20 November 2020 at 10 am, Ms Bazouni wrote:

Dear Associate,

We act for the Commissioner and refer to the above matter. The Creditor’s Petition is listed for hearing on 10 December 2020

Mr Ritson’s application for leave to appeal has been provisionally listed for hearing on 1 February [2021]. Markovic J noted that if 1 February [2021] is not available, it will be fixed another date that week.

In view of the above, the Commissioner seeks that the matter be re-listed at the earliest convenient time before his Honour so that a revised timetable and hearing date for the Creditor’s Petition can be set.

Counsel is unavailable on 24, 26, 30 November, and 3 December.

Mr Ritson is carbon copied into this email.

15    On the same day, 20 November 2020, the associate to Justice Cameron responded querying whether Mr Ritson was available at 9.30 am on Friday, 27 November 2020. On 24 November 2020, the associate to Judge Cameron followed up on his earlier email noting that:

Failing advice from Mr Ritson by 5.00pm AEDT 25 November 2020, that that time is unsuitable, the matter will be listed for directions at that time.

16    There was then a further email from the solicitor for the Commissioner querying whether the matter would be listed at the proposed time, that is, 9.30 am on 27 November 2020. On 26 November 2020, the associate to Judge Cameron confirmed that the matter was to be listed for directions before Judge Cameron at 9.30 am on Friday 27 November 2020 by teleconference, and provided dial-in details. The final email in the exchange is that timed at 8.06 am on Friday 27 November 2020, by which Ms Bazouni provided the associate to Judge Cameron and Mr Ritson with a copy of the orders that the Commissioner proposed to seek at the directions hearing listed that morning.

17    The matter was, in fact, listed before Judge Cameron on 27 November 2020, and his Honour made the orders set out at [2]-[3] above.

18    Mr Ritson says that he was unaware that the listing before Judge Cameron on 10 December 2020 had been brought forward to 27 November 2020. He says that he became aware of the 27 November 2020 Orders upon receiving an email from the associate to Judge Cameron on that date. That email attached a letter dated 27 November 2020 co-addressed to the solicitor for the Commissioner and Mr Ritson, informing the parties that the hearing on 10 December 2020 had been vacated and that the matter was listed for hearing at 10.15 am on 8 March 2020, and providing the parties with a copy of the 27 November 2020 Orders.

19    Mr Ritson says that he searched his email account, and located the emails between the Commissioner and the associate to Judge Cameron, which were copied to him, dated between 20 and 27 November 2020. His evidence is that he was unaware of these emails because they were archived in a separate folder with other emails that had already been read and therefore did not come to his attention. Mr Ritson observes that the emails between the Commissioner and the associate to Judge Cameron had been included in an email trail that commenced on 8 September 2020 in relation to previous hearing dates. That is, the solicitor for the Commissioner responded to an old email trail rather than commencing a new one. Mr Ritson explains that that old email trail had been archived by him shortly after receiving the last email in that trail from the associate to Judge Cameron on 21 October 2020.

20    As I understand Mr Ritson’s evidence, he says that because he had archived what he referred to as the last email received on 21 October 2020, he did not become aware of the subsequent emails that were sent. That is, those dated between 20 and 27 November 2020, because they too were archived and I infer did not enter his inbox.

21    As a final matter, I note that the life of the creditor’s petition which, as set out above, was presented on 16 August 2019 has been extended pursuant to s 52(5) of the Bankruptcy Act 1966 (Cth). I understand from counsel appearing for the Commissioner that an order was made by the Federal Circuit Court extending the life of the creditor’s petition to 16 August 2021.

Mr Ritson’s submissions

22    Mr Ritson also sets out in his affidavit sworn on 21 December 2020 and relied on in support of his application for a stay of the 27 November 2020 Orders the reasons why, in his view, the Court should order a stay. That part of his evidence was also repeated by Mr Ritson in his submissions in support of the application for a stay.

23    First, Mr Ritson submits that the 27 November 2020 Orders require him to file and serve all of his grounds of opposition in relation to the creditor’s petition, all of his evidence in support of those grounds and any written submissions on which he wishes to rely in relation to his grounds of opposition by 4 pm on 15 January 2021 and that if he does not strictly comply with those orders, he may not file any further evidence or rely on any ground not specified in his grounds of opposition without leave of the Federal Circuit Court. Mr Ritson points out that Judge Cameron made no equivalent orders requiring strict compliance by the Commissioner. This, he submits, raises a concern that Judge Cameron has held, and will continue to hold, him to a higher standard than the Commissioner.

24    Secondly, Mr Ritson submits that to ensure that he complies with the 27 November 2020 Orders he will need to conduct legal research and commence preparation of the relevant documents during the Christmas and New Year period at which time he would be visiting his family in other parts of Australia. Mr Ritson submits that whilst visiting his family, who he has not seen for most of this year due to the border restrictions imposed by the COVID-19 pandemic, he could not be isolated in a room reading case law and typing up legal documents instead of spending valuable time with his family. He also notes that he would not have access to any of his documentary records whilst interstate.

25    I understand that Mr Ritson resides in Queensland, although I note he provides an address in New South Wales in his affidavits. In the course of his oral submissions, Mr Ritson indicated that he did undertake some visits to his family, but has been back in Queensland since about 2 January 2021.

26    Thirdly, Mr Ritson submits that there have been a number of examples of denials of natural justice in the FCC Proceeding that he has particularised in his amended draft notice of appeal which give rise to an apprehension of bias on the part of Judge Cameron. He submits that if he is granted leave to appeal and his appeal is upheld on the basis that his Honour was wrong not to recuse himself, then any orders made by Judge Cameron would be set aside. As I understand it, that submission also comprehends the 27 November 2020 Orders.

27    Fourthly, in response to a query from me as to why he had not sought to relist the matter before Judge Cameron and seek to have the 27 November 2020 Orders amended, Mr Ritson submitted that his difficulty was that he had raised an apprehension of bias on the part of Judge Cameron and, if he was to relist the matter, he could be seen to be waiving his rights to raise that matter. Further, he said that to do so would be inconsistent with his claim of apprehended bias. Mr Ritson also submitted that if steps were taken to relist the matter before Judge Cameron, he would immediately need to file a further application before his Honour seeking to have him recuse himself which, he submitted, would require him to spend further resources at further cost rather than pursuing his application for a stay.

28    Fifthly, Mr Ritson submits that the prejudice he suffers by reason of the 27 November 2020 Orders is: the timing of the orders, that is, they were made just prior to Christmas; the effect of the orders, that is, that they are self-executing (if they are not complied with he is prevented from filing further evidence or grounds of opposition without leave of the Federal Circuit Court); the fact that he is required to attend to the filing of evidence and other material at the same time as he is required to attend to the filing of material in his application for leave to appeal; and a denial of procedural fairness in that he was unaware of the listing on 27 November 2020.

29    Finally, Mr Ritson submits that if he is required to file his evidence, grounds of opposition and submissions prior to the resolution of his application for leave to appeal and, if successful, his appeal, then some of the orders sought may be otiose or redundant. He is also concerned that the Commissioner will use any attempt by him to file some of his material by 15 January 2021 as a basis to argue that the orders sought in the alternative in this proceeding, are otiose. That is said to be because, by the order made on 7 July 2020 in the FCC Proceeding, his amended interim application was dismissed. That application, in turn, sought a number of orders, including that the creditor’s petition be dismissed pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth), that the Commissioner produce for inspection certain documents which Mr Ritson had requested by email and that the Commissioner provide Mr Ritson with further and better particulars sought by him in certain emails.

30    Mr Ritson says that if he is ultimately successful in having the order made by Judge Cameron on 7 July 2020 dismissing his interim application set aside then, I infer, he will be entitled to the provision of the documents and particulars he seeks and/or may be successful in having the creditor’s petition set aside. In those circumstances, he submits that he ought not be required to file the material on which he proposes to rely as either, in his view, the creditor’s petition may be dismissed or, alternatively, the Commissioner may be required to provide documents and/or further and better particulars which would assist him in the preparation of his material or cause him to file and serve other material which might be different to that which he would otherwise file and serve.

Legal principles

31    The power to grant a stay is found in s 29 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) which relevantly provides:

(1)    Where an appeal to the Court from another court has been instituted:

(a)    the Court or a Judge of that other court (not being the Federal Circuit Court or a court of summary jurisdiction), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and

(b)    the Court of a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.

(2)    This section does not affect the operation of any provision made by or under any other Act or by the rules of this Court for or in relation to the stay of a proceeding.

32    Rule 36.08 of the Federal Court Rules 2011 (Cth) is titled “Stay of execution or proceedings under judgment appealed from”. Rule 36.08(1) provides that:

(1)    An appeal does not:

(a)    operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal; or

(b)    invalidate any proceedings already taken.

33    Rules 36.08(2) permits an appellant to apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined.

34    In Dubow v Fitness First (Australia) Pty Ltd [2010] FCA 660, Flick J summarised the principles relating to the grant of a stay on an appeal. At [21] his Honour observed that the Court retains a discretion to grant or refuse a stay and that the usual principle is that “a successful party is entitled to the fruits of his judgment” and that there must be “sound reasons” to justify a suspension of that right, citing McBride v Sandland (No 2) (1918) 25 CLR 369 at 374. At [22] his Honour said:

Considerations relevant to the exercise of that discretion include whether there is an arguable point to be resolved on appeal and whether the balance of convenience favours the granting of a stay: Freeman v National Australia Bank Ltd [2002] FCA 427 at [4] per Spender J; Reynolds v Aluma-Lite Products Pty Ltd [2010] FCA 322 at [10] per Spender J. In Australian Competition and Consumer Commission v BMW (Australia) Ltd (No. 2) [2003] FCA 864, Finkelstein J summarised the principles which govern the exercise of the discretion as follows:

[5]    The principles which govern a court’s discretion in granting a stay pending the determination of an appeal are well known: see generally Alexander v Cambridge Credit Corp Ltd (Receivers Appointed) (1985) 2 NSWLR 685. Although it is not possible to state exhaustively the considerations that may be taken into account in the exercise of this discretion, it is appropriate that I mention those that bear on this application. The general rule is that a stay will be granted where there is a likelihood that a successful appeal will be rendered nugatory: Wilson v Church (No.2) (1879) 12 Ch D 454, 458. A court will also consider the balance of convenience and the competing rights of the parties as well as whether either party will be prejudiced by the stay: The Marconi's Wireless Telegraph Company Limited v The Commonwealth [No3] (1913) 16 CLR 384, 386; Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281 at [17]. Even though a judge will generally not be required to speculate about the appellants prospects of success, it is well established that a stay will not be granted in the absence of arguable grounds of appeal, or if the appeal is not bona fide: J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No. 1) [1983] 2 Qd R 243, 248; Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) [1985] 2 NSWLR 685, 695. It necessarily follows that a stay will not be granted if an appeal has no prospect of success: Australian Workers’ Union v Pilkington (Aust) Ltd (2000) 101 FCR 35, 43.

These principles were applied in Harbour City Real Estate Pty Ltd (t/as Re/Max Harbour City Real Estate) v Cargill [2008] FCA 1382 at [11] per McKerracher J.

Consideration

35    Having considered Mr Ritson’s submissions and had the benefit of raising issues that arose with him, I have reached the conclusion that it is not appropriate to grant the stay sought by him. My reasons for reaching that conclusion follow.

36    The 27 November 2020 Orders in relation to which Mr Ritson seeks his stay are orders in the nature of case management orders. They were made in the context of the ongoing case management of the FCC Proceeding which remains in the docket of the primary judge.

37    The history of the proceeding set out above demonstrates that, on a number of occasions, the Federal Circuit Court has made orders for the preparation of the FCC Proceeding for hearing. It is apparent that those orders were last extended by the 27 November 2020 Orders. That was not the first occasion on which that court made orders in the nature of what I have previously termed self-executing orders. That is, if there was a failure to comply with them on the part of Mr Ritson, he would be precluded, without leave of the court, from filing further evidence or grounds of opposition to the creditor’s petition.

38    The 27 November 2020 Orders were made in the context not only of an ongoing proceeding but in circumstances where the creditor’s petition will expire on 16 August 2021. I would infer that his Honour was conscious of that matter and concerned to set a hearing date that would permit resolution of the creditor’s petition by that date, having regard to the need for the parties to file their evidence and submissions and the need for this Court to resolve Mr Ritson’s application for leave to appeal and presumably, if he is successful in that application, his appeal.

39    Mr Ritson contends that he was not aware of the listing on 27 November 2020. However, the emails by which that listing was arranged were copied to him and, on Mr Ritson’s evidence, they were received at his email address but did not come to his attention because they were archived in a separate email folder. While Mr Ritson may not have been aware of the date of the case management hearing, the fact is that he did receive the emails.

40    Mr Ritson complains that there was a failure to comply with the order made on 21 October 2020 because he was not given two days’ notice or any notice at all of the relisting of the FCC Proceeding on 27 November 2020. But that is clearly not so. Putting to one side that Mr Ritson did not become aware of the emails, the first email sent by the solicitor for the Commissioner seeking to have the matter relisted, which Mr Ritson was copied into, was sent on 20 November 2020. The matter was not relisted until 27 November 2020. Both the court and Mr Ritson were given more than two days’ notice before the matter was restored to the list in the Federal Circuit Court.

41    Mr Ritson has not made any attempt to approach the Commissioner seeking further time for him to file his grounds of opposition, evidence and submissions, and thereby seeking by consent a variation of the 27 November 2020 Orders. In submissions today, counsel for the Commissioner indicated that his client would be amenable to accommodating an extension of time, whilst maintaining the hearing date of 8 March 2021. Such an extension would meet the prejudice that Mr Ritson says he would or has otherwise encountered by reason of the timing of and timeframes in the 27 November 2020 Orders, that is, that they were made just prior to the Christmas and New Year period, covered a time when he was visiting family interstate and did not have his material with him, and crossed over with the period during which he was required to file material in this Court. Nor did Mr Ritson take steps to approach the Federal Circuit Court seeking such an extension of time.

42    Mr Ritson’s asserted reasons for not approaching the Federal Circuit Court, because he has asserted apprehended bias on the part of the primary judge, are, in my view, not a sufficient basis for Mr Ritson not to have taken those steps. In this Court, Mr Ritson seeks leave to appeal from the order made by the primary judge refusing to recuse himself from further hearing the matter. The fact that that order is the subject of an application for leave to appeal does not preclude Mr Ritson from approaching the Federal Court Circuit seeking a variation of case management orders that have been made, nor would taking such steps have any effect on that application for leave for appeal which will ultimately be determined having regard to the principles applicable to such applications.

43    Taking steps such as seeking either to have the matter relisted for variation of the 27 November 2020 Orders or agreeing a variation of those orders with the Commissioner would, in my view, be a complete answer to the prejudice that Mr Ritson says he has suffered by reason of those orders. As the Commissioner submitted, in the absence of having taken those steps, this application is premature.

44    As set out above, Mr Ritson also submitted that he should not be required to file his material in the FCC Proceeding as required by the 27 November 2020 Orders and that those orders should be stayed because otherwise the orders ultimately sought by him on appeal may be otiose. That is, because, if he is successful in his application for leave to appeal, and ultimately his appeal, in relation to the orders made in the FCC Proceeding on 7 July 2020, he may, as set out above, either be entitled to further and better particulars and/or further documents which may affect the material he wishes to put before the Federal Circuit Court in the FCC Proceeding, or he may be successful in striking out the FCC Proceeding.

45    In the case of the former, if Mr Ritson is successful in obtaining further material because he is ultimately successful on appeal in this Court, then any need for Mr Ritson to file further material could be accommodated by the making of further case management orders in the FCC Proceeding. In the case of the latter, Mr Ritson is required to file material in the FCC Proceeding which ultimately would not need to be relied on. However, requiring Mr Ritson to file material in the FCC Proceeding would not, in the event of either of those outcomes, or those possible outcomes, render the appeal nugatory.

46    Having regard to the competing rights of the parties and the status of the FCC Proceeding, Mr Ritson has not satisfied me that a stay should be granted. At the very highest, if Mr Ritson is ultimately successful on appeal in this Court, he may have been required to file evidence and other material in the FCC Proceeding in circumstances where that proceeding will no longer proceed. On the other hand, if Mr Ritson is unsuccessful in his application for leave to appeal, or alternatively, his appeal, should leave to appeal be granted, the FCC Proceeding will need to proceed to hearing and will need to do so in a tight timeframe having regard to the fact that the creditor’s petition will expire on 16 August 2021.

Conclusion

47    For those reasons Mr Ritson is not entitled to the relief he seeks, and I do not propose to grant a stay of the 27 November 2020 Orders.

Associate:

Dated:    15 January 2021