Federal Court of Australia

Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2021] FCA 93

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to rely on the amended application for leave to appeal filed on 17 December 2020 (Leave Application).

2.    The Leave Application be dismissed.

3.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    On 20 July 2020, Brendan Ritson commenced this proceeding by filing an application for leave to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 7 July 2020. The respondent to the proceeding is the Commissioner of Police, New South Wales Police Force (Commissioner).

2    By amended application for leave to appeal, filed on 17 December 2020 (Leave Application), Mr Ritson seeks leave to appeal from “the judgments and all of the orders of the Federal Circuit Court of Australia given on 2 April 2020, 7 July 2020 and 27 November 2020”. The Commissioner did not oppose Mr Ritson’s application to rely on the Leave Application and the hearing proceeded on the basis of that application.

3    Insofar as the Leave Application is concerned, relevantly:

(1)    on 2 April 2020, the Federal Circuit Court refused Mr Ritson’s application for the primary judge to recuse himself from further hearing proceeding SYG2114/2019 between the Commissioner as applicant and Mr Ritson as respondent (Creditor’s Petition Proceeding). The primary judge published his reasons for doing so on 9 November 2020 (see Commissioner of Police (NSW) v Ritson (No 2) [2020] FCCA 3035 (Ritson (No 2)) and an order entered on 16 November 2020 records that the date of making the order refusing the request for recusal is 9 November 2020;

(2)    on 7 July 2020, the Federal Circuit Court made an order dismissing Mr Ritson’s amended interim application (Amended Interim Application) filed in the Creditor’s Petition Proceeding: see Commissioner of Police (NSW) v Ritson [2020] FCCA 1803 (Ritson (No 1));

(3)    on 7 July 2020, the Federal Circuit Court also made orders requiring the parties to file and serve evidence and submissions in readiness for the hearing of the Creditor’s Petition Proceeding, listed that proceeding for final hearing on 10 September 2020 and ordered, pursuant to s 52(5) of the Bankruptcy Act 1966 (Cth) (Act), that the period at the expiration of which the creditor’s petition filed by the Commissioner on 16 August 2019 (Creditor’s Petition) will lapse will be 24 months commencing 16 August 2019, i.e. on 16 August 2021; and

(4)    on 27 November 2020, the Federal Circuit Court made further case management orders for the preparation of the Creditor’s Petition Proceeding for hearing including extending the time by which Mr Ritson and the Commissioner were to file, in the case of Mr Ritson, his grounds of opposition in relation to the Creditors Petition and, in the case of both parties, their evidence and submissions.

background

4    There is a long history of proceedings between Mr Ritson and the Commissioner which I do not propose to set out in detail. Summarised below are the key events which are relevant to the Leave Application.

5    On 27 September 2013, orders were made by Garling J in proceeding no 2012/337024 in the Supreme Court of New South Wales (Supreme Court) including an order that Mr Ritson pay the Commissioner’s costs of the proceeding (Costs Order): see Ritson v Commissioner of Police [2013] NSWSC 1396.

6    A costs certificate was subsequently issued which the Commissioner filed as a judgment in the Local Court of New South Wales.

7    On 7 December 2016, Bankruptcy Notice BN210799 (Bankruptcy Notice) was issued at the request of the Commissioner based on the judgment of the Local Court and was served on Mr Ritson.

8    An application by Mr Ritson to set aside the Bankruptcy Notice was dismissed by the Federal Circuit Court, as was an appeal from that order: see Ritson v Commissioner of Police [2018] FCCA 916 (Judge Smith) (Ritson BN); Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853 (Lee J) (Ritson Appeal).

9    In Ritson Appeal, Lee J made orders and delivered ex tempore reasons but, at the time of doing so, also made an order that the time for compliance with the Bankruptcy Notice be extended until the time of publication of his Honour’s reasons, which were published on 6 June 2019. That was then the date on which the Bankruptcy Notice expired.

10    Mr Ritson did not comply with the Bankruptcy Notice by 6 June 2019 and accordingly committed an act of bankruptcy.

11    On 16 August 2019, the Commissioner, upon presentation of the Creditor’s Petition, commenced the Creditor’s Petition Proceeding in the Federal Circuit Court.

12    On 28 February 2020, Mr Ritson filed the Amended Interim Application in the Creditor’s Petition Proceeding seeking the following orders:

1.    The creditor's petition presented on 16 August 2019 be dismissed pursuant to rule 13.10 of the Federal Circuit Court Rules 2001.

2.    The applicant produce for inspection the documents requested in the respondent's email dated 17 February 2020 pursuant to rule 14.10 of the Federal Circuit Court Rules 2001.

3.    The applicant provide the respondent with the further and better particulars requested in the respondent's emails dated 16 and 17 February 2020.

4.    Order number 7 made on 4 December 2019 be vacated and in lieu thereof there be no order as to costs of the applicant's interlocutory application filed on 26 November 2019.

5.    Mr Pouyan Afshar of counsel is restrained from acting for the applicant in the proceeding.

6.    Order number 5 made on 21 February 2020 be vacated and in lieu thereof an order that the creditor's petition not be heard until proceeding number NSD2091/2019 is determined by the Full Court of the Federal Court of Australia.

7.    Further or other orders the Court deems appropriate.

(Underlining omitted.)

13    The Amended Interim Application came before the primary judge for hearing on 10 March 2020 but was adjourned part heard to 18 March 2020. In the course of the hearing on 10 March 2020 Mr Ritson pressed an application that counsel appearing for the Commissioner, Mr Afshar, be prevented from further appearing in the proceeding. The Commissioner thereafter briefed new counsel in place of Mr Afshar and the hearing, which had been scheduled to resume on 18 March 2020, was adjourned to 2 April 2020.

14    On the morning of 2 April 2020, Mr Ritson served submissions in support of an application that the primary judge recuse himself from further hearing the Creditor’s Petition Proceeding on the basis of an apprehension of bias (Recusal Application) together with a draft affidavit.

15    On 2 April 2020, the primary judge heard and refused the Recusal Application. His Honour delivered an ex tempore judgment but did not, it seems, pronounce orders. His Honour then proceeded with the hearing of the Amended Interim Application, at the conclusion of which his Honour reserved judgment and made orders for the parties to file supplementary written submissions and standing over the hearing listed for 3 April 2020 to a date to be fixed.

16    As set out above at [3(2)] above, on 7 July 2020 the primary judge made orders dismissing the Amended Interim Application: see Ritson (No 1). The primary judge also ordered Mr Ritson to pay the Commissioner’s costs of and incidental to the Amended Interim Application: see Commissioner of Police (NSW) v Ritson [2020] FCCA 3512. In addition, on that day the primary judge made the following further orders:

3.    The respondent file and serve by 4:00pm on 4 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.

4.    The applicant file and serve by 4:00pm on 1 September 2020:

a.    all of its evidence in response to the respondent's evidence in support of the respondent's grounds 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 grounds of opposition.

5.    lf the respondent does not comply strictly with order 3 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 by an affidavit setting out the reasons for any delay.

6.    The parties may not without leave file or serve any further interim application in this proceeding and any application for leave to file a further interim application shall be supported by an affidavit setting out the reasons why leave ought to be granted.

7.    The creditor's petition be listed for final hearing at 10:15am on 10 September 2020 before Judge Cameron.

8.    The parties have liberty to apply on 3 days' notice.

9.    Pursuant to s.52(5) of the Bankruptcy Act 1966 (Cth) the period at the expiration of which the creditor's petition filed in these proceedings will lapse will be 24 months commencing 16 August 2019.

17    On 31 July 2020, Mr Ritson filed his application for leave to appeal from orders made in Ritson (No 1) in this Court. On that date Mr Ritson also served an interim application, which he intended to file in the Federal Circuit Court, seeking that Orders 3, 4, 5 and 7 made on 7 July 2020 be vacated pending the hearing and determination of the application for leave to appeal and, if leave is granted, the appeal.

18    On 7 August 2020 the following orders were made in the Creditor’s Petition Proceeding:

1.    The respondent have leave to file the interim application lodged on 31 July 2020.

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 grounds 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 grounds 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 by an affidavit setting out the reasons for any delay.

5.    The cost of the interim application be the costs in the cause.

6.    The parties have liberty to apply.

19    The Creditor’s Petition Proceeding was fixed for hearing on 10 September 2020. However, on 9 September 2020 the primary judge vacated the hearing date and listed the Creditor’s Petition Proceeding for hearing on 22 October 2020.

20    On 21 October 2020, an order was made by consent in the Creditors’ Petition Proceeding adjourning the hearing to 10 December 2020.

21    On 9 November 2020, the primary judge published his reasons for refusing the Recusal Application and made an order to that effect: see Ritson (No 2).

22    On 20 November 2020, Laura Bazouni, a solicitor in the employ of Coleman Greig Lawyers, the solicitors for the Commissioner, sent an email to the associate to the primary judge, copied to Mr Ritson, in the following terms:

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 has been provisionally listed for hearing on 1 February 2020. Markovic J noted that if 1 February 2020 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.

23    Subsequent emails were exchanged between Ms Bazouni and the associate to the primary judge, which in each case were copied to Mr Ritson, resulting in the listing of the Creditor’s Petition Proceeding before the primary judge on 27 November 2020 for directions. At that time there was no appearance by or on behalf of Mr Ritson. The following orders were made:

1.    Extend time until 4pm on 15 January 2021 for the respondent to file and serve:

(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.

2.    The applicant is to file and serve by 4pm on 5 February 2021:

(a)    all of his evidence in response to the respondent's evidence in support of the respondent's grounds 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 grounds of opposition.

3.    If the respondent does not comply strictly with order 1 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 by an affidavit setting out the reasons for any delay.

4.    The creditor's petition be listed for final hearing at 10:15am on 8 March 2021 before Judge Cameron.

5.    Liberty to the parties to apply on 3 days' notice.

6.    Costs be reserved.

24    On 31 December 2020, Mr Ritson filed an interlocutory application in this Court seeking, among other things, an order staying the orders made by the primary judge on 27 November 2020 pending the hearing and determination of the application for leave to appeal and, if leave is granted, the appeal. That application was dismissed: see Ritson v Commissioner of Police, New South Wales Police Force [2021] FCA 5 (Ritson Stay).

the primary judge’s reasons

Ritson (No 1)

25    In his amended interlocutory application Mr Ritson sought the relief set out at [12] above but ultimately did not press paragraph 5. The primary judge addressed each prayer for relief in turn.

26    The first order sought was that the Creditor’s Petition be dismissed pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Rule 13.10 permits the court to summarily dismiss a proceeding if it is satisfied that the applicant has no reasonable prospects of prosecuting it. Mr Ritson submitted that the Creditor’s Petition should be summarily dismissed pursuant to r 13.10 of the FCC Rules because it had been presented more than six months after the date of his act of bankruptcy and thus did not meet the requirements of s 44(1)(c) of the Act. He said that his act of bankruptcy was committed 21 days after 20 April 2018 and that, as the Creditor’s Petition had been presented more than six months after that date, it was out of time and thus invalid.

27    The starting point for Mr Ritson’s argument was an order made by Judge Smith in the Federal Circuit Court on 25 January 2018 extending the time for compliance with the Bankruptcy Notice “until further order”. Mr Ritson pointed out that on 20 April 2018, after dismissing his application to set aside the Bankruptcy Notice, Judge Smith ordered that the time for compliance with the Bankruptcy Notice be extended until 11 May 2018.

28    The primary judge referred to the transcript of the listing before Judge Smith on 20 April 2018 and observed that it recorded that Judge Smith first pronounced judgment in Ritson BN, dismissing the application to set aside the Bankruptcy Notice, published his reasons and then, after hearing from the solicitor for the Commissioner, ordered a further extension of time in which to comply with the Bankruptcy Notice.

29    Mr Ritson submitted that Judge Smith did not have the power to extend the time for compliance with the Bankruptcy Notice because:

(1)    his Honour’s reasons for judgment in Ritson BN had not addressed extending time for compliance with the Bankruptcy Notice;

(2)    the order extending time was made at the request of the Commissioner without the parties being given an opportunity to make submissions;

(3)    the order was made without specific reference to the court’s statutory power to extend time under s 41(6A) of the Act; and

(4)    the order was made after the application had already been dismissed such that there was no longer any application satisfying the description of s 41(6A) of the Act to which an extension of time could be ancillary.

30    The primary judge briefly addressed and dismissed Mr Ritson’s first three submissions. His Honour noted that the first submission would rise or fall with the fourth submission; as to the second submission, which amounted to a denial of an opportunity to be heard, his Honour noted that Mr Ritson was not present at the time the order was made but he did not suggest that he had not been notified of the listing. His Honour inferred that Mr Ritson had chosen not to be present in person or by a solicitor or counsel on that day and, in those circumstances, there was no denial of procedural fairness; and as to the third submission his Honour observed that the effectiveness of an order is not dependent on its technical foundation being articulated.

31    The primary judge then addressed the fourth submission. His Honour recorded Mr Ritson’s submission that the time for compliance with the Bankruptcy Notice was not effectively extended on 20 April 2018 because, by the time the relevant order was made, there had been a “further order”, namely the order dismissing the application to set aside the Bankruptcy Notice. The primary judge observed that the basis for Mr Ritson’s argument was the presumption that Judge Smith’s order dismissing the application to set aside the Bankruptcy Notice took effect when judgment was given. However, his Honour observed that the court’s orders are not final until they are entered and thus, until the orders made by Judge Smith were entered, the court was not functus officio. The primary judge said that the transcript of the hearing before Judge Smith records that the orders were not entered before all orders in the matter, including the order extending time, had been pronounced and the court adjourned. His Honour found that in those circumstances the court remained seized of the matter such that its power to extend time for compliance with the Bankruptcy Notice had not ended prior to Judge Smith making the relevant order: see Ritson (No 1) at [15]-[17].

32    The primary judge then addressed Mr Ritson’s next submission which concerned the orders made in this Court by Lee J extending time for compliance with the Bankruptcy Notice consequent on the filing by Mr Ritson of an appeal of the orders made in Ritson BN. Mr Ritson submitted that if he had committed an act of bankruptcy as a consequence of the sequence in which Judge Smith had pronounced orders on 20 April 2018, it had been beyond power of this Court to reverse that outcome by orders made in the appeal in this Court extending time to comply with the Bankruptcy Notice, relying on Shepard v Chiquita Brands (South Pacific) Ltd (2004) 1 ABC (NS) 610 (Shepard) at [59]. Mr Ritson submitted that the power to extend time in s 41(6A) of the Act only existed if a debtor’s appeal against an order dismissing the bankruptcy notice was successful and, because his appeal against the orders in Ritson BN had been unsuccessful, Lee J had never had the power to extend time to comply with the Bankruptcy Notice.

33    The primary judge considered that Mr Ritson’s contention misunderstood the decision in Shepard. His Honour noted that in that case the Court said that the power in s 41(6A) of the Act exists so that an appeal which is successful will be effective, not that it will only exist if an appeal is effective: see Ritson (No 1) at [18]-[20].

34    The primary judge also noted that it was not for the Federal Circuit Court to question an order of this Court, much less to say that a judge of this Court lacked the power necessary to make an order that has been made, and that the Federal Circuit Court must respect an order made by this Court as effective, particularly in an appeal, unless and until it is set aside by this Court or the High Court of Australia: see Ritson (No 1) at [21].

35    Accordingly the primary judge concluded that Mr Ritson had not persuaded him that the Commissioner’s case lacked reasonable prospects of success such that the Creditor’s Petition Proceeding should be summarily dismissed.

36    The second order sought by Mr Ritson in the Amended Interlocutory Application was for the Commissioner to produce for inspection nine categories of documents requested in Mr Ritson’s email dated 17 February 2020 pursuant to r 14.10 of the FCC Rules. That rule permits a party to request another party to produce a copy of a document that is referred to in a document or affidavit filed by a party for inspection. Mr Ritson’s email dated 17 February 2020 sought production of relevantly, for the purposes of this application, at paragraph 9 the “[Commissioner’s] accounting and banking records relating to [Mr Ritson]” referred to in paragraph 5 of the affidavit of Michael Enright sworn 3 February 2020.

37    The primary judge noted that the documents sought in paragraph 9 of Mr Ritson’s email of 17 February 2020 were best understood by referring to a larger part of Mr Enright’s affidavit sworn 3 February 2020. At [27] of Ritson (No 1) his Honour relevantly said:

…In his affidavit of 3 February 2020, Mr Enright relevantly deposed that he was employed by the Commissioner as “Manager of Account Services”, had access to the Commissioner’s books and records and had verified the creditor’s petition (“Earlier Affidavit”). He continued:

5.    I have checked the applicant creditor's accounting and banking records relating to the respondent debtor and have found that no payments have been made by the respondent debtor since the date of the Earlier Affidavit and since the date of presentation of the Creditor's Petition in this matter.

6.    The respondent debtor is still justly and truly indebted to the applicant creditor in the amount of $56,334.04, being the sum referred to in the Creditor's Petition. (emphasis added)

(Original emphasis.)

38    The primary judge accepted the Commissioner’s submission that Mr Ritson had not identified the relevance of the documents he sought to the facts in issue in the proceeding and that the use they could be to the court in deciding the case was far from apparent. In those circumstances the primary judge refused to order their production: see Ritson (No 1) at [36].

39    The third prayer for relief in the Amended Interlocutory Application was for the Commissioner to provide Mr Ritson with the further and better particulars he had sought in his emails dated 16 and 17 February 2020.

40    In his email dated 16 February 2020, Mr Ritson sought “the name of the natural person who occupied the office of Commissioner on 16 August 2019, being the date the [Creditor’s Petition] was presented”. The primary judge observed that the issues to which this request for particulars was directed were Mr Ritson’s contentions first, that if the person who was the Commissioner at the time the Costs Order was made was not the same as the person who was the Commissioner at the time the Creditor’s Petition was presented, then, absent an assignment of the debt, the Creditor’s Petition is incompetent; and secondly, that procedural fairness gave a party an entitlement to know who was suing them: see Ritson (No 1) at [41]-[42].

41    The primary judge referred to Mr Ritson’s submissions in which he contended that without an assignment of the benefit of the Costs Order from the person who occupied the role of Commissioner when the Costs Order was made, Mr Scipione, to the person who occupied that position when the Creditor’s Petition was presented, Mr Fuller, the Costs Order inheres in Mr Scipione; the debt claimed in the Creditor’s Petition is not owed by Mr Ritson to Mr Fuller, but to Mr Scipione; and accordingly, Mr Fuller is not a creditor for the purposes of s 43 and s 44 of the Act and had no standing to present the Creditor’s Petition.

42    The primary judge pointed out that this issue had already been considered and ruled upon in three earlier proceedings between Mr Ritson and the Commissioner. After referring to the Police Act 1990 (NSW) the primary judge held that, as had already been determined in a number of proceedings, the right to receive payment of the costs of the Supreme Court proceeding was vested in whosoever was the Commissioner and discharging the functions of that role from time to time; in 2015 it was Mr Scipione; and in 2020 it was Mr Fuller. His Honour also observed that the right is not a personal one but an incident of the office which, because of the nature of the office, can only be exercised by the person who occupies it at any particular time. His Honour concluded that it would be a waste of time and costs and would not advance the matter to accede to the request for particulars.

43    The primary judge noted that Mr Ritson’s argument, based on his asserted right to know the identity of the party suing him and thus the identity of the Commissioner at the time the Creditor’s Petition was presented, relied on a presumption that the identity of the person who is the Commissioner from time to time is relevant to the enforceability of the debt the subject of the proceeding or to the presentation of the Creditor’s Petition. His Honour concluded, for the reasons he had already given, that this was not so.

44    Accordingly the primary judge declined to order the Commissioner to provide the particulars sought in Mr Ritson’s email dated 16 February 2020: see Ritson (No 1) at [39]-[57].

45    In his email dated 17 February 2020, Mr Ritson made a request for particulars in the following terms:

Paragraph 1 of the Creditor's Petition refers to “payments received from the respondent debtor and credit applied in the sum of $89.30”. Please confirm the date of each of the payments and the date on which the credit was applied.

46    Paragraph 1 of the Creditor’s Petition provides:

The respondent debtor owes the applicant creditor the amount of $43,966.79 being the amount due under the final judgment recovered in the Local Court of New South Wales at Sydney, in proceedings number 2015/00319847 on 30 October 2015, plus interest accrued on the outstanding judgment debt from the date after judgment to 22 July 2019 at the rate prescribed pursuant to section 101 of the Civil Procedure Act 2005 (NSW) as per the attached Schedule which amounts to $12,456.55 less payments received from the respondent debtor and credit applied in the sum of $89.30 making a total amount payable of $56,334.04.

Mr Ritson’s request was concerned with the amount of $89.30 and the use of the plural “payments” in paragraph 1 of the Creditor’s Petition. He was concerned to know whether there were other monies that were owing to him by the New South Wales Police Force which had been applied by way of refund and whether the figure claimed in the Creditor’s Petition was incorrect. He was also concerned about the interest claimed based on when the payment of $89.30 or other payments were applied.

47    The primary judge noted that the subject of the $89.30 payment had been canvassed before Judge Smith in the Federal Circuit Court and in this Court in Ritson Appeal but the issue now appeared to be that, rather than there being one payment or credit, there might be more than one. His Honour concluded that if the amount of the credit allowed to Mr Ritson and what it represents is not in issue then the question is not relevant to the determination of the Creditor’s Petition. His Honour noted that the issue of “some other monies” said to be owing to Mr Ritson was, according to Mr Ritson’s own submissions, a separate question not presently in issue in the proceeding and, consequently, no purpose would be served by making an order that the Commissioner provide the particulars sought in the email dated 17 February 2020.

48    The next prayer for relief in the Amended Interim Application concerned order 7 made on 4 December 2019, which was an order that the costs of the Commissioner’s application for substituted service be reserved. As Mr Ritson does not include a proposed ground of appeal challenging this part of the primary judge’s reasons and his refusal to make the order sought in the Leave Application, I do not set out his Honour’s reasons in relation to it.

49    The final prayer for relief in the Amended Interlocutory Application was that the Creditor’s Petition be adjourned pending the outcome of related proceedings filed in this Court. The relevant proceeding was an application under s 37 of the Act for rescission of the orders made in Ritson Appeal extending the time for compliance with the Bankruptcy Notice. The primary judge noted that in the statement of claim which Mr Ritson said he had filed in this Court on 31 March 2020 he alleged that Lee J had no power to extend the time for compliance with the Bankruptcy Notice.

50    The primary judge observed that the issues which Mr Ritson would seek to raise in the most recent proceeding filed in this Court had been addressed by his Honour in connection with his consideration of the Amended Interim Application and did not provide a sufficient reason to delay the hearing of the Creditor’s Petition. His Honour said that the statement of claim on which Mr Ritson proposed to rely disclosed no reason why the ordinary appeal process ought not be followed or why the Federal Court of Australia (Federal Court), apparently in its original jurisdiction, could or should consider rescinding the orders of a judge exercising the Court’s appellate jurisdiction. His Honour observed that there is authority to the effect that the orders made in Ritson Appeal cannot be rescinded under s 37A of the Act because Lee J was exercising the Federal Court’s appellate jurisdiction under the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), not its jurisdiction under the Act: Ritson (No 1) at [70].

Ritson (No 2)

51    In Ritson (No 2) the primary judge gave reasons for refusing the Recusal Application.

52    First, the primary judge set out a brief history of the facts which led to the application. At [1] his Honour said:

[1]    This is a proceeding involving a creditor’s petition. The respondent, Mr Ritson, has filed an interim application seeking the summary dismissal of that creditor’s petition. His application is presently part heard and the first hearing day was 10 March 2020. During the course of that hearing Mr Ritson made an application, the effect of which was to seek to prevent the applicant’s counsel, Mr Afshar, from appearing further. The nature of Mr Ritson’s allegations against Mr Afshar struck me as I was hearing them to become quite personal against him individually. That caused me to make the following disclosure.

I’m sorry for the lengthy pause, but something has occurred to me which has caused me to reflect, given the nature of the allegations you are making against Mr Afshar which are very pointed and very personal. I don’t know Mr Afshar very well, but I do know him. He was a pupil to an old friend of mine and we sat next to each other at a dinner – at a formal dinner a number of years ago, I can’t remember [when], we had a long conversation, and we know enough – each other well enough to greet each other in the street, though we don’t talk or spend any time together. I’m reflecting on whether that dinner all those years ago disqualifies me from making a decision on such pointed and personal allegations.

53    The primary judge then referred to Mr Ritson’s submissions that use of the word “vexatious” on 10 March 2020, which was the first day of the hearing of the Amended Interim Application, suggested prejudgment on his Honour’s part and that the connection between the primary judge and counsel for the Commissioner who had appeared up to and including 10 March 2020 in the proceeding was not fully disclosed. Insofar as Mr Ritson relied on the primary judge’s use of the word “vexatious”, at [3] his Honour set out the relevant exchange which occurred on 10 March 2020 as follows:

Mr Ritson:    It’s simply to the effect that I have lodged an application, an interim application, in a Federal Court proceeding seeking an order under there (sic) Federal Court Rules, rule 39.05, subrule (c), for orders extending time for compliance to be set aside. And the purpose of that affidavit is simply to put something before the court demonstrating that I’ve actually taken that step. It is referred to in my written submissions that I had done that. I’ve sent the applicant a copy by email.

His Honour:    Sorry. So this is an order made by Lee J you’re talking about.

Mr Ritson:    Yes. That’s correct.

His Honour:    Right. Yes. Well, it sounds like a vexatious application, I have to say, sir. The court’s functus officio surely – well, I mean, I understand you have an issue in relation to Rares Js (sic) decision, but, anyway, I don’t think that one is going to go very far.

Mr Ritson:    Your Honour, the court has a power to set aside an interlocutory order after it has been entered, so the Federal Court Rules - - -

His Honour:    Mr Ritson - - -

Mr Ritson:    provide for that situation.

His Honour:    I think you will find in due course that the Federal Court disagrees with you, but let’s move on.

(Emphasis added.)

54    The primary judge then referred to the relevant test, namely whether a fair minded lay observer might reasonably apprehend that, in this case, the primary judge might not bring an impartial and unprejudiced mind to the resolution of the question his Honour was required to decide.

55    Insofar as his Honour’s use of the term “vexatious” to describe a proceeding brought by Mr Ritson was concerned, the primary judge said that it was the application which Mr Ritson had informed the court he had filed in the Federal Court which he described as something which “sounds like a vexatious application”, and not Mr Ritson. His Honour said that a fair reading of the exchange with Mr Ritson indicated that nothing was said or implied about Mr Ritson and the comment was one which concerned a proceeding which, based on what the primary judge knew at the time, had “effectively no prospects of success”. His Honour noted that whatever the case, the outcome of that proceeding was ultimately a matter for this Court and that the hearing on 10 March 2020 proceeded without any reason for the reasonable lay observer to think that any view the primary judge had taken of Mr Ritson’s application to this Court was of any consequence to the proceeding before the primary judge.

56    As to the second matter raised by Mr Ritson, that is the primary judge’s disclosure about his acquaintance with the former counsel for the Commissioner, the primary judge concluded that a reasonable lay observer would not apprehend the possibility that he may take a view on this matter because his Honour had made acquaintance with former counsel for the Commissioner a number of years ago when they were seated next to each other at a formal dinner. His Honour said that for a reasonable lay observer to think that a casual acquaintance of the sort he had described might lead a judge to favour a particular party was, to his Honour’s mind, drawing a very long bow particularly in the circumstances of the case before him. His Honour was not persuaded that a reasonable lay observer would draw the inference for which Mr Ritson contended: see Ritson (No 2) at [7].

the application for leave to appeal

57    As set out at [2] above, Mr Ritson relies on the Leave Application in which he seeks leave to appeal from “the judgments and all of the orders of the [Federal Circuit Court] given on 2 April 2020, 7 July 2020 and 27 November 2020”. The single ground on which leave to appeal is sought is that:

Leave to appeal should be granted because this application involves an injustice which is reasonably clear, issues of general public importance, issues of principle and a denial of natural justice.

58    In the draft notice of appeal lodged with the Court on 17 December 2020, Mr Ritson raises five grounds of appeal as follows (save for ground 1, particulars are omitted):

1.    The primary judge is disqualified from further hearing the proceeding on the ground of apprehended bias.

Particulars

a.    On 10 March 2020, towards the end of the hearing, the primary judge disclosed a connection between his Honour and Mr Afshar (counsel for the respondent), namely that his Honour knows Mr Afshar who was a pupil to his Honour’s old friend and his Honour sat next to Mr Afshar at a dinner a number of years earlier;

b.    On 17 March 2020, the applicant sent an email to the Associate to the primary judge (copied to the respondent’s solicitor) requesting confirmation of the nature and extent of the connection between his Honour and Mr Afshar. Neither the Associate nor the respondent’s solicitor responded to the applicant’s email;

c.    The primary judge denied the applicant natural justice by reason of the following:

i.    On 10 March 2020, at the start of the hearing and without having heard any submissions from the applicant, the primary judge pre-judged the applicant’s application under rule 39.05(c) of the Federal Court Rules 2001 in proceeding number NSD773/2018 as “a vexatious application”;

ii.    On 2 April 2020, the primary judge refused the applicant’s request that his Honour recuse himself. The primary judge did not formalise the order until 9 November 2020, did not provide written reasons for the decision until 9 November 2020 and did not enter the order until 16 November 2020. The reasons for the decision does not address the applicant’s evidence or submission that the Associate to the primary judge would not confirm the nature and extent of the connection between his Honour and Mr Afshar;

iii.    On 7 July 2020, after delivering the judgment, the respondent sought an order pursuant to section 52(5) of the Bankruptcy Act 1966 without having made a formal application for the order or otherwise notified the applicant that the respondent would seek the order. The primary judge made the order without having afforded the applicant a reasonable opportunity to obtain legal advice and/or make submissions in opposition to the order;

iv.    On 27 November 2020, the primary judge made orders proposed by the respondent at a directions hearing in the applicant’s absence. The listing on 10 December 2020 had been brought forward at the request of the respondent and without the applicant’s knowledge. The primary judge made a complementary remark to Mr Elliott (counsel of the respondent) about him being appointed silk, namely “we look forward to that day”;

2.    The primary judge erred by not finding that the act of bankruptcy on which the creditor’s petition is founded was committed more than 6 months before the presentation of the petition.

…

3.    The primary judge erred by not finding that Mr Michael Fuller, Commissioner of Police, is not a “creditor” for the purposes of sections 43 and 44 of the Bankruptcy Act 1966.

…

4.    The primary judge erred by refusing to order the provision of the further and better particulars requested in the appellant’s email to the respondent on 16 February 2020.

…

5.    The primary judge erred by refusing to order the production of the “applicant creditor’s accounting and banking records relating to the respondent debtor” referred to in paragraph 5 of the affidavit of Michael Enright sworn 3 February 2020.

…

legal Principles

59    Mr Ritson requires leave to appeal as the orders made on 7 July 2020, 9 November 2020 and 27 November 2020 are interlocutory: see s 24(1A) of the Federal Court Act; Chan v Harris (No 3) [2011] FCA 341 at [24].

60    In determining whether leave to appeal should be granted the Court will have regard to two matters: first, whether, in all the circumstances, the primary judge’s decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court; and secondly, assuming the decision is wrong, whether substantial injustice would be suffered by the applicant if leave to appeal were refused: see Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

61    In Waters v Commonwealth of Australia (Australian Taxation Office) [2015] FCAFC 46 at [8] a Full Court of this Court (North, Flick and Katzman JJ) said:

… In respect to interlocutory decisions affecting matters of practice and procedure it is further recognised that “if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice”: Re the Will of F B Gilbert (1946) 46 SR (NSW) 318 at 323 per Jordan CJ. The Chief Justice there went on to observe that if a “tight rein” were not so exercised the “disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal”. Appl’d: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ; National Mutual Holdings Pty Ltd v Sentry Corp (1988) 19 FCR 155 at 161 per Bowen CJ, Woodward and Lockhart JJ. The risk to the proper administration of justice is not only posed by those with “a long purse”. In respect to decisions involving the exercise of a discretionary judgment, a Court will not intervene unless there is some error of the kind identified in House v R (1936) 55 CLR 499, 10 ALJR 202. Appl’d: Welsh v Digilin Pty Ltd [2008] FCAFC 149 at [16], (2008) 250 ALR 13 at 19 per Tamberlin, Greenwood and Collier JJ.

62    At [9] their Honours also observed that, as an application for leave to appeal is not the hearing of the appeal, such an application should not, without good reason, be transformed into a de facto appeal and should not itself be conducted as though it is a preliminary hearing of the appeal, referring to Samsung Electronics Co Limited v Apple Inc. [2013] FCAFC 138 at [50] and Food Channel Network Pty Ltd v Television Food Network, G.P [2009] FCA 1446 at [26] where Reeves J said:

… a court should be careful to avoid converting a leave application of this kind into a preliminary hearing of the appeal. I should therefore avoid making any detailed analysis of the issues raised, or expressing any concluded views on them. I consider my assessment of the issues should be more akin to the “rough and ready” approach suggested by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516 at [9].

Consideration

63    Having considered Mr Ritson’s proposed grounds of appeal including Mr Ritson’s written and oral submissions I am not satisfied that, in all the circumstances, the decisions of the primary judge are attended by sufficient doubt to warrant their being reconsidered by this Court on appeal or that, supposing the decisions to be wrong, substantial injustice would result if leave was refused. I set out below my reasons for reaching that conclusion having regard to the proposed grounds of appeal.

Proposed ground 1

64    In the first proposed ground of appeal Mr Ritson contends that the primary judge should be disqualified from further hearing the proceeding on the ground of apprehended bias. In the particulars to this ground Mr Ritson refers to the first day of the hearing of the Amended Interim Application on 10 March 2020, an email he sent to the primary judge’s associate, copied to the Commissioner’s solicitors, on 17 March 2020, the refusal of the Recusal Application on 2 April 2020 and the subsequent publication of reasons and making of the order on 9 November 2020. He also refers to events which took place when the Creditor’s Petition Proceeding was listed before the primary judge on 7 July 2020 and 27 November 2020.

65    While not framed with precision, I take the ground to be one in which Mr Ritson contends that the primary judge erred in refusing the Recusal Application and that he seeks leave to appeal from the order made on 9 November 2020 to that effect.

66    Mr Ritson submits that his Honour “did not formalise the order until 9 November 2020 and did not enter the order until 16 November 2020” and that the reasons for decision do not address his evidence or submission “that the Associate to the primary judge would not confirm the nature and extent of the connection between his Honour and Mr Afshar” and that the primary judge denied him natural justice by failing to provide reasons which address that evidence and submission.

67    In relation to the first basis on which Mr Ritson brought the Recusal Application, the description of a proceeding filed in this Court as a “vexatious application”, Mr Ritson contends that by prejudging the application, or at least describing it as a “vexatious application”, without having heard submissions from him, the primary judge denied him natural justice. In relation to the second basis on which Mr Ritson brought the Recusal Application, the primary judge’s association with former counsel for the Commissioner, Mr Ritson contends that by failing to respond to his email and confirming the nature and extent of the connection between the primary judge and Mr Afshar, the primary judge did not allay the fair minded lay bystander’s concerns that there may be additional relevant information which should be disclosed to him. In the absence of further information about the nature and extent of the connection between the primary judge and Mr Afshar, the fair minded lay bystander could reasonably conclude that the primary judge and Mr Afshar sat next to each other, or remained seated next to each other, at a dinner because they liked each other’s company or developed some level of friendship, a conclusion supported by the primary judge’s comments that he greets Mr Afshar in the street.

68    Mr Ritson submits that the primary judge failed to consider the cumulative effect of the matters about which he complained. He says that the logical connection between these matters and the feared deviation from the course of deciding the case on its merits is that the primary judge might deviate from deciding the case on its merits because of his concern that a person who made a vexatious application has made serious allegations that could adversely affect the professional reputation of the pupil of his Honour’s old friend or a person with whom his Honour has developed some level of friendship. He contends that there is a real risk that the primary judge might, at least subconsciously, be sympathetic to Mr Afshar and, by extension, to his client, the Commissioner. Mr Ritson says that although Mr Afshar has now withdrawn from the proceeding the primary judge has clearly taken into consideration and been persuaded by Mr Afshar’s submissions.

69    In considering the Recusal Application the primary judge recorded the test for assessing an application for recusal on the basis of apprehended bias. His Honour’s reasons for refusing that application are summarised at [51]-[56] above. In reaching his conclusion, the primary judge addressed both bases on which Mr Ritson contended that he should recuse himself, that is, because of his Honour’s description of an application filed in this Court as “a vexatious application” and because of his Honour’s disclosure about his association with the (former) counsel for the Commissioner.

70    Mr Ritson contends that the primary judge did not address the evidence and the submission that his Honour’s associate would not confirm the nature and extent of the connection between the primary judge and Mr Afshar. His Honour recorded that submission, found that the extent of his acquaintance with Mr Afshar was fairly summarised in the disclosure he made on 10 March 2020 and went on to give some further content to their association: see Ritson (No 2) at [7]. Putting to one side whether it was appropriate for Mr Ritson to make the inquiry that he did by email to the primary judge’s associate, implicit in that finding is the primary judge’s rejection of the submission made by Mr Ritson about the absence of further information as to the nature and extent of the acquaintance between the primary judge and Mr Afshar.

71    The test for apprehended bias is as summarised by the primary judge. The primary judge was required to consider whether a fair minded lay observer would apprehend that he may not bring an impartial mind to the resolution of the issue he was required to decide. His Honour applied that test and gave reasons for reaching his conclusion that he was not satisfied that was so, taking into account each of the bases raised by Mr Ritson. He rejected each one. In the circumstances, he was not required to consider them cumulatively. Mr Ritson has not demonstrated any arguable error in the reasoning or conclusions reached by the primary judge.

72    As I explained to Mr Ritson at the hearing of the Leave Application, to the extent that he relies on events that took place after 2 April 2020 when the Recusal Application was determined, they cannot bear upon his Honour’s reasoning in Ritson (No 2) or the order made by his Honour refusing the Recusal Application and are not relevant to a consideration of whether leave to appeal should be granted in relation to that order.

Proposed ground 2

73    By proposed ground 2 of the draft notice of appeal Mr Ritson contends that the primary judge erred by not finding that the act of bankruptcy on which the Creditor’s Petition is founded was committed more than six months before its presentation.

74    As set out above, by paragraph 1 of the Amended Interim Application, Mr Ritson sought summary disposal of the Creditor’s Petition pursuant to r 13.10 of the FCC Rules. It was in the context of that application that Mr Ritson contended first, that his act of bankruptcy occurred 21 days after 20 April 2018 and thus not within six months of the date of filing of the Creditor’s Petition, 16 August 2019; and secondly, that the power in s 41(6A) of the Act was only available to an appeal court to undo the effects of what otherwise would be an act of bankruptcy on the part of a debtor. According to Mr Ritson this meant in Ritson Appeal there was no extant application satisfying the description in s 41(6A) of the Act to which an extension of time could be ancillary. Mr Ritson argued that the power to extend time was only available to an appeal court if a debtor’s appeal against an order dismissing an application to set aside a bankruptcy notice was successful.

75    In proposed ground 2 Mr Ritson focuses on the finding by the primary judge at [21] of Ritson (No 1) that “[c]onsequently, for the purposes of this proceeding the final and conclusive time for Mr Ritson to comply with the bankruptcy notice, 6 June 2019, was determined by Lee J’s last order on that subject, which was made on 24 May 2019”. In confining ground 2 in that way, Mr Ritson does not challenge the primary judge’s findings in relation to the order made on 20 April 2018 by Judge Smith in the Federal Circuit Court extending the time for compliance with the Bankruptcy Notice.

76    Insofar as Mr Ritson contends that the primary judge erred in finding that Lee J had power to make orders extending time for compliance with the Bankruptcy Notice, he, in effect, repeats his submissions made to the primary judge. The primary judge dealt with those submissions in the context of Mr Ritson’s application to summarily dismiss the Creditor’s Petition: see [26]-[35] above.

77    The primary judge set out the principles applying to summary dismissal applications and then summarised and addressed Mr Ritson’s arguments. In doing so, his Honour identified that Mr Ritson had misunderstood the decision in Shepard, being the decision on which Mr Ritson relied, and explained why that was so. Mr Ritson has not identified any arguable error in the primary judge’s reasons and I cannot discern any such error.

78    Mr Ritson also submits that the primary judge was entitled to disregard Lee J’s order made in Ritson Appeal extending time for compliance with the Bankruptcy Notice because the order was interlocutory and plainly wrong. In the alternative, Mr Ritson contends that the primary judge had power under s 37(1) of the Act to rescind the orders made by Lee J in Ritson Appeal because his Honour made them in the exercise of the “concurrent jurisdiction in bankruptcy” under s 27 of the Act rather than in the appellate jurisdiction and such action by the Federal Circuit Court “would be in aid of and auxiliary to the Federal Court under s 29 of that Act”. I will refer to this alternative argument as the power to rescind argument.

79    The primary judge had no power to disregard the order made in Ritson Appeal. Those orders were made by a judge of this Court exercising the appellate jurisdiction of the Court. As his Honour observed, it was not for the Federal Circuit Court to question an order made in this Court.

80    The power to rescind argument was not argued before the primary judge, at least in the context of the application to summarily dismiss the Creditor’s Petition Proceeding. As can be seen from [50] above, it was touched upon in the context of Mr Ritson’s application for an adjournment of the hearing of the Creditor’s Petition Proceeding pending the determination in this Court of a proceeding in which, it seems, Mr Ritson wished to raise an argument based on s 37 of the Act. There was no evidence before me as to whether that proceeding was in fact pursued by Mr Ritson and, if so, the outcome.

81    Mr Ritson would need leave to raise this new argument for the first time on appeal. Putting that to one side, the submission cannot be sustained in any event. First, s 37(1) of the Act is clear in its terms: subject to subsection (2), the Court may rescind, vary or discharge an order made by it under the Act or may suspend operation of such an order. That is the Federal Court can rescind, vary or discharge an order made by it and/or the Federal Circuit Court can rescind, vary or discharge an order made by it. Section 29(1) does not empower the Federal Circuit Court to rescind an order made by this Court. Secondly, the Federal Circuit Court has no power to deal with an order made in this Court by a judge exercising the appellate jurisdiction of the Court or otherwise. The primary judge correctly recognised that to be so (see [34] above).

82    It follows that, in my opinion, the primary judge’s reasoning is not attended by sufficient doubt to warrant it being reconsidered by an appeal court.

83    Further, as the Commissioner submits, substantial injustice would not result if leave was refused supposing the decision to be wrong. The primary judge considered Mr Ritson’s arguments in the context of his application for summary dismissal, where Mr Ritson was required to demonstrate that the Commissioner’s case lacked reasonable prospects of success. Mr Ritson is not shut out from making his argument about the time at which he says he committed his act of bankruptcy as a ground of opposition to the Creditor’s Petition, in addition to any other grounds he may wish to raise.

Proposed ground 3

84    By proposed ground 3 of the draft notice of appeal Mr Ritson contends that the primary judge erred by not finding that Mr Fuller, who is the Commissioner, is not a creditor for the purposes of s 43 and s 44 of the Act.

85    In support of his application that the Creditor’s Petition Proceeding be summarily dismissed, Mr Ritson had argued that Mr Fuller, who currently holds the office of Commissioner, was not a creditor for the purposes of s 43 and s 44 of the Act. In particular, in his written submissions filed in support of the Amended Interim Application Mr Ritson had, in summary, submitted:

(1)    that the Costs Order was made at the time when Mr Scipione occupied the office of Commissioner; the Costs Order inhered in Mr Scipione, relying on Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 (Ritson NSWCA); Mr Scipione was succeeded by Mr Fuller as Commissioner but, to date, Mr Ritson has not received any notice of an assignment of the benefit of the Costs Order; and in the absence of an assignment the Costs Order still inheres in Mr Scipione, the debt claimed is not owed to Mr Fuller and Mr Fuller is not a creditor for the purposes of s 43 and s 44 of the Act and had no standing to present the Creditor’s Petition; and

(2)    the fact that Mr Fuller had not obtained leave to issue a writ of execution as envisaged by r 39.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) was indicative that no assignment had been effected or, in the event that the court found that there had been an assignment of the benefit of the Costs Order, it was another reason why Mr Fuller is not a creditor for the purposes of s 43 and s 44 of the Act. As to the latter, Mr Ritson submitted that a “creditor” for the purposes of s 40(1)(g) of the Act is a person who is a judgment creditor or some other creditor entitled to issue execution under the judgment and who has taken all steps entitling him to reap the fruits of the judgment. He said that as creditor is not defined for the purposes of s 43 and s 44 of the Act this definition should equally apply to those sections and, having not sought leave under r 39.1 of the UCPR, Mr Fuller was not a creditor.

86    The primary judge’s reasons do not address the above argument, which I will refer to as the creditor argument, in considering prayer 1 of the Amended Interim Application, namely whether the Creditor’s Petition Proceeding should be summarily dismissed pursuant to s 17A of the Federal Circuit Court Act 1999 (Cth) and r 13.10 of the FCC Rules. However, his Honour did consider the creditor argument in the context of prayer 3 of the Amended Interim Application, that is, whether the Commissioner was required to provide the further and better particulars sought by Mr Ritson in his emails dated 16 and 17 February 2020. The transcript of the hearing before the primary judge on 10 March 2020 shows that, in oral argument, Mr Ritson raised the creditor argument in support of both prayers 1 and 3 of the Amended Interim Application.

87    In considering prayer 3 of the Amended Interim Application the primary judge rejected the creditor argument. His Honour considered Mr Ritson’s submission that, in the absence of an assignment of the Costs Order from Mr Scipione to Mr Fuller, he does not owe the debt claimed in the Creditor’s Petition to Mr Fuller. The primary judge observed that the creditor argument had already been considered and ruled upon in three earlier proceedings between Mr Ritson and the Commissioner: Ritson BN at [22]-[31]; Ritson Appeal at [40]-[42] and Ritson NSWCA at [32]-[34]. In particular, the primary judge rejected Mr Ritson’s understanding of Ritson NSWCA, which Mr Ritson interpreted as supporting the proposition that an order in favour of the Commissioner would inhere in the person who was Commissioner at the time the order was made and, absent an assignment, only that person. His Honour, in my view correctly, noted that this involved a misunderstanding of what the Court of Appeal said or meant. His Honour observed at [49] that:

The burden of the Court of Appeal’s judgment, which was reflected in subsequent judgments when Mr Ritson raised the issue in one form or another, was that at any particular time (“from time to time”) the right to receive payment of the costs of the Supreme Court Proceedings was vested in whoever was the Commissioner and so discharging the functions of that role. In 2015 it was Mr Scipione. In 2020 it is Mr Fuller. The right is not a personal one but only an incident of the office which, because of the nature of the office, can only exercised by the person who occupies it at any particular time.

88    In that way the primary judge considered the creditor argument. Having rejected the notion that, absent an assignment the Costs Order inhered in Mr Scipione, the applicability or otherwise of r 39.1 of the UCPR would not arise for consideration.

89    There is no arguable error in the primary judge’s consideration of the creditor argument. Mr Ritson is not assisted by his reliance on Coulter v Chief Constable of Dorset Police [2005] EWCA Civ 1113 which, contrary to Mr Ritson’s submissions, did not raise or address the creditor argument and which, in any event, concerned a different statutory regime.

90    Despite it being raised, the primary judge did not address the creditor argument in the context of the summary dismissal application. However, his Honour addressed and rejected it in considering whether to grant the relief sought in prayer 3 of the Amended Interim Application. The creditor argument was raised in the same terms in support of both prayers 1 and 3 of the Amended Interim Application. That being so, had it been addressed in the context of the summary dismissal sought in prayer 1, it could not have affected the outcome of that application. It would not have changed the conclusion reached by the primary judge that he was not persuaded that the Commissioner’s case lacked reasonable prospects of success.

91    Even if I am wrong about that and the failure of the primary judge to consider the creditor argument in the context of the summary dismissal application raises a sufficient doubt in the primary judge’s reasons to warrant its reconsideration on appeal, I am not satisfied substantial injustice would be suffered by Mr Ritson if leave to appeal were refused. This is because first, as can be seen the primary judge did address the creditor argument in any event; and secondly, Mr Ritson is not precluded from raising the argument again as a ground of opposition to the Creditor’s Petition, should he wish to do.

Proposed ground 4

92    By proposed ground 4 of the draft notice of appeal Mr Ritson contends that the primary judge erred by refusing to order the provision of the further and better particulars requested in his email dated 16 February 2020. His Honour’s reasons for refusing to do so are summarised at [40]-[44] above.

93    Mr Ritson relied on two arguments before the primary judge. The first was the creditor argument. I have considered his Honour’s reasons in relation to that argument at [87]-[89] above. The second argument concerned Mr Ritson’s right to know the identity of the Commissioner at the time of issue of the Creditor’s Petition. The primary judge rejected that argument for the same reasons as he did the creditor argument and held that the identity of the person who is the Commissioner does not affect the enforceability of the Costs Order or the presentation of the Creditor’s Petition. No error has been shown in the primary judge’s reasons.

94    Nor, contrary to Mr Ritson’s submission, would he suffer substantial injustice should leave to appeal be refused. In this case, Mr Ritson is not entitled to “know the name of the person suing him”. That matter is simply not relevant. As the Court of Appeal said in Ritson NSWCA at [34] “an order in favour of the Commissioner would inhere in the person who held the position from time to time. There is no merit in Mr Ritson’s contention that a costs order cannot be enforced by the Commissioner”.

Proposed ground 5

95    By proposed ground 5 of the draft notice of appeal Mr Ritson contends that the primary judge erred by refusing to order the production of the Commissioner’s accounting and banking records relating to him referred to in paragraph 5 in Mr Enright’s affidavit sworn 3 February 2020.

96    Mr Ritson submits, as he did before the primary judge, that the accounting and banking records are relevant to the statement at paragraph 1 of the Creditors Petition that “payments received from the respondent debtor and credit applied in the sum of $89.30”. He says that they would enable him to verify the date on which the credit was actually applied and thus to calculate the permissible amount of interest on the balance from that date to the date of the act of bankruptcy alleged in the Creditor’s Petition and, in that way, are “actually and directly referred to” in Mr Enright’s affidavit and relevant to an issue in the proceeding.

97    The refusal by the primary judge to order production of the documents in category 9 was a matter of practice and procedure in which the Court would not lightly interfere. The primary judge undertook a careful analysis of the relevant rule pursuant to which the request for production was made, including the authorities which explained the operation of the rule. His Honour concluded that, although a proper request had been made under r 14.10 of the FCC Rules, the relevance of the documents sought had not been demonstrated and thus production was not ordered. That conclusion is hardly surprising given that, at the time the primary judge heard and determined the Amended Interim Application and, as I understand it, continuing, Mr Ritson has not filed his notice of opposition to the Creditor’s Petition. Accordingly, the grounds upon which Mr Ritson opposes the Creditor’s Petition are not known. The only grounds raised by Mr Ritson against which his Honour could assess the relevance of the documents in category 9 were those in support of his application to summarily dismiss the Creditor’s Petition Proceeding. Those grounds did not raise an issue about the amount referred to in the Creditor’s Petition.

98    Mr Ritson has failed to demonstrate that that the primary judge’s ruling is attended by sufficient doubt to warrant it being reconsidered on appeal or, supposing the decision to be wrong, that substantial injustice would be suffered by Mr Ritson if leave to appeal were refused.

Other proposed grounds

99    Mr Ritson raised two further proposed grounds of appeal. These matters were included in the draft notice of appeal as particulars to proposed ground 1. As was explained to Mr Ritson, events which took place after 2 April 2020 could not be relevant to the primary judge’s reasons for refusing the Recusal Application. In those circumstances, Mr Ritson was given leave to raise these matters as additional proposed grounds of appeal. The Commissioner did not object to that course.

Order made on 7 July 2020 pursuant to s 52(5) of the Act

100    Mr Ritson contends that:

On 7 July 2020, after delivering the judgment, the respondent sought an order pursuant to section 52(5) of the Bankruptcy Act 1966 without having made a formal application for the order or otherwise notified the applicant that the respondent would seek the order. The primary judge made that order without having afforded the applicant a reasonable opportunity to obtain legal advice and/or make submissions in opposition to the order.

…

101    Mr Ritson submits that the primary judge gave no reasons for making the order pursuant to s 52(5) of the Act and that his Honour denied him natural justice in making the order without notice and without giving reasons. Mr Ritson contends that at the case management hearing on 7 July 2020 the primary judge stopped him from speaking about the proposed order, he had no opportunity to say he opposed the order, seek its deferral or seek that it may be made by formal application and that, in circumstances where it was obvious that he was caught by surprise, the primary judge ought to have required the Commissioner to seek the order by way of a formal application or to defer consideration of the order for a short time.

102    Mr Ritson contends that, had he been afforded a reasonable time to make submissions, he could have argued that the proposed order was premature or that an extension of time for a shorter period was appropriate and that either submission could have made a difference to the outcome.

103    It was not in issue that Mr Ritson had not been given notice of the Commissioner’s intention to seek an order pursuant to s 52(5) of the Act extending the life of the Creditor’s Petition.

104    The hearing before the primary judge on 7 July 2020 proceeded by way of telephone. The transcript which was in evidence before me shows that his Honour first delivered judgment on the Amended Interim Application. Counsel for the Commissioner then sent by email proposed draft orders for the further conduct of the Creditor’s Petition Proceeding to the primary judge’s associate and Mr Ritson. However, Mr Ritson did not have a computer with him. The following exchange took place between the primary judge and Mr Ritson:

His Honour:    A further order that if you don't strictly comply with the first order in relation to you, dealing with when you are to do what you should do, if you don't comply with that you can't put on any evidence, or any grounds of opposition which you haven't already articulated, unless the court grants you leave; give you leave to appear electronically, and to extend the time of the effectiveness of the creditor's petition for 12 months. So it's a fairly standard set of orders in a situation like this. Apart from your desire to have enough time to get some legal advice, is there anything you would like to say about that proposal?

Mr Ritson:    Yes, thank you, your Honour. With regards to the order about compliance and not being in a position, or not being permitted to file material if I don't comply, my concern in that regard is, having sought legal advice, if I’m advised that there are issues that may be - warrant an appeal from your decision, then the timetable, I would ask that - consider that possibility. I don't know yet because I haven't read your reasons and I haven't sought legal advice. So my concern is being in a position where, if that situation was to eventuate, then the timetable should consider that outcome and that I should not be prejudiced if I was to pursue an appeal avenue, if it was available and I'm advised as such, and not be required to file material if I was to take that course.

His Honour:    Well, what we could do is add a paragraph for liberty to apply so that if you were going to pursue an appeal then you could come back to me and - well, really, what you would be wanting to do in that circumstance is to put off the listing of the creditor's petition and, you know, if the creditor's petition were - the hearing of the creditor's petition were to be adjourned then the timetable and orders would not really be relevant, and would have to be re-made for a future date, I think.

Mr Ritson:    Yes, thank you, your Honour. The - I think you've answered the question but just to make it abundantly clear that because, as an alternative to the dismissal, there was also issues about production of documents and also other particulars. I just want to make it clear that I would oppose having to do that if I was to pursue an appeal because that information, in my view, is necessary to prepare my case. So that it may not be a requirement at all to file material if that avenue was to be pursued, if available.

His Honour:    Yes. Well, my reasons set out why I think that those documents are not as significant as you think. So let's look at the diary. Mr Elliott, did you have any suggestions in relation to dates?

Mr Elliot:    I'm in the court's hands. I presume the parties would probably want four weeks each to get their material on. That looks like perhaps an October hearing date.

His Honour:    Four weeks - well, September really.

Mr Elliot:     Sorry, September, yes.

Mr Ritson:    Your Honour, I would ask that with the timetable - the proposed timetable not require me, at this stage, to file anything until an appeal period is elapsed. So that way, if that avenue was to be taken, there's no material required to be filed within that timeframe. Perhaps a short time after that period expires so that way I can seek advice and if I was not to pursue an appeal, based on advice, that I then have perhaps some short period after that window has closed to then put on my material.

His Honour:    Well, I think - I'm not certain but I think you only have 14 days, don't you, from an interlocutory decision and you - it wouldn't be an appeal, it would be an application for leave to appeal. You have no - - -

Mr Ritson:    I'm going to seek advice on those matters, your Honour.

His Honour:    Yes, well, I think if we were to set your timetable dates four weeks hence, or something like that, that would give you enough time to know whether or not you are appealing and to seek liberty- well, exercise the liberty.

Mr Ritson:    Yes, thank you.

Mr Elliott:    Perhaps if Mr Ritson gets his papers on by 7 August, your Honour.

His Honour:    Yes. I'm just - I work backwards from the hearing date, to be honest.

Mr Elliot:    Certainly.

His Honour:    Actually, no, why don't we do that. So we're at the 7th today. If we are going to do four weeks that takes us to 4 August. The date in order - proposed order 1 would be 4 August 2020. Four weeks from that 1 September, so order 2 will be 1 September 2020. We will do the 11th - 10 September. Why don't we do 10 September.

Mr Ritson:    That's convenient, your Honour.

105    Contrary to Mr Ritson’s submissions, the primary judge did not stop Mr Ritson from speaking about the orders, nor was anything said by Mr Ritson that would cause the primary judge to think that he was caught by surprise. The transcript shows that Mr Ritson was concerned by the order made dismissing the Amended Interim Application and the reasons delivered that day. Mr Ritson wanted to consider his appeal rights; indicated that if he pursued an appeal he would not wish to file his notice of grounds of opposition or evidence until his appeal was determined; and wanted to ensure that he was not shut out from doing so in that event. For that reason the primary judge indicated he would include an order that the parties have liberty to apply. In the course of the discussion at the case management hearing, Mr Ritson did not question or oppose the inclusion of the proposed order pursuant to s 52(5) of the Act, seek to have the Commissioner file a formal application or seek time to consider it and make submissions.

106    In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 at [58]-[59] a Full Court of this Court (Markovic, Derrington and Anastassiou JJ) summarised the principles to be applied when considering the question of relief in the face of an allegation of a denial of procedural fairness in the conduct of a proceeding:

58    A denial of procedural fairness must work a practical injustice on the appellant in order for the Court to exercise its discretion to grant relief: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [38] per Gleeson CJ. An appellant alleging a denial of procedural fairness need only demonstrate that they were deprived of the possibility of a successful outcome; to negate that possibility it is necessary to find that a properly conducted trial could not possibly have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141, 147. To put it another way, as framed by the Full Court in King v Delta Metallics Pty Ltd [2013] FCAFC 93 [59], “[i]f the denial of procedural fairness would have made no difference to the outcome of the proceeding, relief will not be granted”: see also Nobarani, 248 [39]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530, 544 [49].

59    Depending on the circumstances of the case, the onus may be on the appellant to demonstrate what they would have done, or what evidence they would have led, so as to establish they were in fact denied procedural fairness. As explained by Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 342–343 [59]–[60]:

There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

(Footnotes omitted). (Emphasis added).

107    Even if there was a breach of procedural fairness, it is difficult to see how any submission made by Mr Ritson would have made a difference to the outcome, namely that the order pursuant to s 52(5) of the Act would not be made or would be made for a period of less than 12 months. The order was made approximately 11 months after the Creditor’s Petition was presented. But for an order made under s 52(5) of the Act, the Creditor’s Petition would have lapsed on 16 August 2020.

108    As at the date of the making of the order pursuant to s 52(5) of the Act, Mr Ritson had not filed his notice of grounds of opposition or his evidence in support of those grounds, the primary judge had just delivered his judgment on the Amended Interim Application, Mr Ritson had flagged with the court that he wished to consider his appeal rights and the parties and the court were seeking to advance the Creditor’s Petition Proceeding in the context of the novel Coronavirus pandemic. The delays that had occurred could not be sheeted home to any party. The time it has taken for the Creditor’s Petition Proceeding to progress since 7 July 2020 bears out that an order for any shorter period would not be appropriate.

109    I am not satisfied that the making of the order pursuant to s 52(5) of the Act is attended by sufficient doubt to warrant its reconsideration on appeal or, supposing the decision to be wrong, that substantial injustice would be suffered by Mr Ritson if leave to appeal were refused.

Orders made on 27 November 2020

110    Mr Ritson contends that the primary judge, in making orders on 27 November 2020, denied him natural justice because the date for the case management hearing was brought forward without notice to him.

111    The circumstances in which the date for the case management hearing before the primary judge was changed, Mr Ritson’s explanation as to why he was unaware of the change in date and my findings in relation that issue were addressed in Ritson Stay at [13]-[20] and [39]-[43] in the context of Mr Ritson’s application for a stay of the orders made by the primary judge on 27 November 2020.

112    The orders made by the primary judge on 27 November 2002 were in the nature of case management orders made for the purpose of readying the Creditor’s Petition Proceeding for hearing in circumstances where there was a pending applicant for leave to appeal in this Court and the Creditor’s Petition will lapse on 16 August 2021. Putting that to one side, Mr Ritson has not said how he was denied natural justice in the change in listing date. He was copied into emails notifying of that change. Nor does he say what he would have done had he known about the change in date. As I said in Ritson Stay there is no evidence that Mr Ritson has made any attempt to have the matter relisted before the primary judge to seek to vary the orders that were made.

113    Mr Ritson has not demonstrated that the making of the orders on 27 November 2020 is attended by sufficient doubt to warrant their reconsideration on appeal and, in any event, there is no substantial injustice to him in circumstances where it was and is open to him to seek to have those orders varied.

conclusion

114    For those reasons the Leave Application should be dismissed. As Mr Ritson has been unsuccessful he should pay the Commissioner’s costs.

115    I will make orders accordingly.

Associate:

Dated:    15 February 2021