Federal Court of Australia

Ritson v Registrar of the Federal Court of Australia [2021] FCA 836

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal be refused.

2.    Costs be reserved.

3.    The proceeding commenced by a notice of appeal dated 9 October 2019 is otherwise dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    There be no order as to costs.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    On 9 October 2019, Mr Ritson lodged a notice of appeal in relation to Rares J’s decision to dismiss as an abuse of process an originating application dated 26 July 2019 filed by Mr Ritson: see Ritson v Registrar of the Federal Court of Australia [2019] FCA 1835 (Ritson v Registrar). The originating application (judicial review application) sought judicial review of a decision of a judicial registrar to reject for filing an interlocutory application dated 27 June 2019 which Mr Ritson sought to file (rejected interlocutory application). This matter was referred to me on 10 March 2021 to determine whether leave to appeal was required and, if so, to determine the leave application.

2    A submitting notice was filed by the respondent.

3    The Commissioner of Police, New South Wales Police Force, appeared amicus curiae pursuant to an order which I made on 17 March 2021.

4    Following the receipt of written submissions filed by Mr Ritson and the Commissioner, I formed the view that Mr Ritson required leave to appeal Rares J’s decision. Following the receipt of further written submissions and a hearing on 19 July 2021, I made orders refusing leave and reserving judgment on costs. On 21 July 2021, the Commissioner advised chambers that he did not press an application for costs and I made an order that there be no order as to costs. These are my reasons for making those orders.

FCCA decision

5    On 20 April 2018, the Federal Circuit Court of Australia (FCCA) dismissed Mr Ritson’s application to set aside a bankruptcy notice: see Ritson v Commissioner of Police, New South Wales Police Force [2018] FCCA 916 (FCCA decision). The FCCA decision provided as follows at [32] and [42]:

Second ground: “The Official Receiver did not issue the Bankruptcy Notice on the application of the Commissioner of Police, NSW Police Force.”

32.     This ground is supported by the following particulars:

(a)    Rebecca Ann Hegarty of Coleman Greig Lawyers applied to the Official Receiver for the issue of the Bankruptcy Notice.

(b)    Neither Rebecca Ann Hegarty nor Coleman Greig Lawyers was duly authorised to apply to the Official Receiver for the issue of the Bankruptcy Notice on behalf of the Commissioner of Police, NSW Police Force.

…

42.    For those reasons, it was permissible for the Commissioner to act through an agent, Ms Keating, in giving instructions to Ms Hegarty to take steps to have the Bankruptcy Notice issued in respect of the applicant. There can be no question that, as a solicitor within the OGC, being part of the NSW Police Force under the control and management of the Commissioner, Ms Keating had at the very least ostensible authority to issue those instructions. She did so as an agent of the Commissioner. In light of that conclusion, all of the applicant’s arguments fall away and this ground is rejected.

Appeal of the FCCA decision

6    By an amended notice of appeal to this Court dated 10 May 2019, Mr Ritson sought to appeal the FCCA decision.

7    Justice Lee heard and determined that appeal: see Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853 (Lee J’s reasons). Lee J’s reasons relevantly provided as follows at [16]-[19]:

C GROUND 2: “THE OFFICIAL RECIEVER DID NOT ISSUE THE BANKRUPTCY NOTICE ON THE APPLICATION OF THE COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE”

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

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

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

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

Rejected interlocutory application

8    By the rejected interlocutory application, Mr Ritson sought to set aside the orders made by Lee J on 6 June 2019 “for miscarriage of justice pursuant to the implied power of the Court”. In his written submissions titled “Appellant’s Submissions on Setting Aside Judgement” dated 27 June 2019, which were also not accepted for filing, Mr Ritson submitted as follows:

1.    The amended notice of appeal filed in this Court on 10 May 2019 sets out ‘ground of appeal 2’ as follows:

“The primary judge erred at [42] of the judgment by finding that Ms Keating had authority from the Commissioner of Police to give instructions to Ms Hegarty to take steps to have the Bankruptcy Notice issued in respect of the appellant.”

2.    Sub-heading “C” in the reasons for judgment published on 6 June 2019 misidentifies ‘ground of appeal 2’ as follows:

“THE OFFICIAL RECEIVER DID NOT ISSUE THE BANKRUPTCY NOTICE ON THE APPLICATION OF THE COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE”.

3.    The ground quoted above is in fact ‘ground in support of application 2’ set out in the amended application filed in the Federal Circuit Court on 13 November 2017. That ground is different to ‘ground of appeal 2’.

4.    A miscarriage of justice has occurred in that his Honour Justice Lee proceeded according to a misapprehension of ‘ground of appeal 2’. Consequently, his Honour has failed to address the question whether Ms Keating had actual authority from the Commissioner of Police.

5.    The Federal Court has an implied power to set aside its own judgment after it has been entered where there has been a miscarriage of justice (Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 at [77]-[78]).

6.    His Honour’s misapprehension of ‘ground of appeal 2’ necessitates the reasons for judgment being recalled and the orders entered on 6 June 2019 being set aside to prevent a miscarriage of justice and in furtherance of the administration of justice (Dib Group at [82]-[84]).

7.    The appeal ought to be reheard according to law, including by reference to the actual ‘ground of appeal 2’ set out in the amended notice of appeal filed on 10 May 2019.

8.    The appellant seeks the orders set out in the interlocutory application dated 26 June 2019.

9    In a letter to Mr Ritson dated 5 August 2019, the Registrar explained his reasons for rejecting the rejected interlocutory application and related submissions for filing as follows:

1.4    In the Submissions, it is asserted that “a miscarriage of justice has occurred in that his Honour Justice Lee proceeded according to a misapprehension of ‘ground of appeal 2'’: see [4] of the Submissions. The basis for it, you say is because the subheading to “C” in [2019] FCA 853 substantively and erroneously refers to the “‘ground in support of application 2’ set out in the amended application filed in the Federal Circuit Court …”: see [3] of the Submissions. On this basis, and relying on Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57 (at [5] and [6] of your Submissions), you say that the Court should grant the orders sought in [the rejected interlocutory application].

1.5    I note the terms of Rule 2.26 of the Federal Court Rules 2011 (the Rules), which states:

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

     (a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

I refuse to accept the Document for filing under r 2.26 of the Rules for the following reasons.

1.6    The implied jurisdiction is given to the Court only for the furtherance of the administration of justice and not to allow a party after the Court’s reasons have been given and orders made to reagitate the matters upon which the Court has opined. In this respect, I refer to [16] of [2019] FCA 853, where His Honour makes clear that the ground 2 of the appeal is similar to the issue of retainer, which was dealt with under the identical subheading in Ritson v Commissioner of Police, New South Wales Police Force [2018] FCCA 916 (see commencing at [32] of those reasons), “but logically distinct contention that there was an error in the finding of the primary Judge that Ms Keating … had authority from the Commissioner …”. His Honour went to opine that there was no error to the primary judge’s finding at [42] of [2018] FCCA 916: see at [19] of [2019] FCA 853.

1.7    It is well established that a document is: an abuse of process if “it can clearly be seen to be doomed to fail” (SZQYP v Hannigan [2012] FCA 723 at [30]; and frivolous or vexatious, if it is “obviously untenable or utterly hopeless” (SZQYP at [30]). I am satisfied, based on the observations set out above at [1.6], the [rejected interlocutory application] can clearly be seen to be doomed to fail, and as such the Document is an abuse of process. It is for these reasons the Documents were rejected for filing on 28 July 2019.

1.8    I note that pursuant to s 25 of the Federal Court of Australia Act 1976 (Cth) (the Act), His Honour was exercising the appellate jurisdiction of this Court as a single Judge (see subs 25(1AA)(a) of the Act) in making the orders dated 6  June 2019. The appellate jurisdiction of this Court has now been exhausted and any further challenge to substantive rulings in that decision must be prosecuted by an application for special leave to appeal to the High Court.

Judicial review application

10    The details of the claim made in the judicial review application were:

The Applicant is aggrieved by the Decision because:

1.    A miscarriage of justice has occurred in that his Honour Justice Lee proceeded according to a misapprehension of ‘ground of appeal 2’. Consequently, his Honour has failed to address the question whether Ms Keating had actual authority from the Commissioner of Police.

2.    The Court has an implied power to set aside its own judgment after it has been entered where there has been a miscarriage of justice.

3.    Justice Lee’s misapprehension of ‘ground of appeal 2’ necessitates the reasons for judgment being recalled and the orders entered on 6 June 2019 being set aside to prevent a miscarriage of justice and in furtherance of the administration of justice.

4.    The appeal ought to be reheard according to law, including by reference to the actual ‘ground of appeal 2’ set out in the amended notice of appeal filed on 10 May 2019.

5.    The Applicant’s Interlocutory Application dated 27 June 2019 sought an order that the orders entered on 6 June 2019 be set aside for miscarriage of justice pursuant to the implied power of the Court.

11    There were four grounds of judicial review set out in the judicial review application but Mr Ritson only relied on two of them as follows:

1.    A breach of the rules of natural justice occurred in connection with the making of the Decision.

Particulars

(a)    The Registrar failed to give the Applicant adequate reasons for the Decision.

2.    The making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

Particulars

(a)    The Registrar took irrelevant considerations into account in the exercise of that power, namely:

(i)    The decision was made in the appellate jurisdiction; and

(ii)    The applicant has appeal rights in the High Court.

(b)    The Registrar failed to take a relevant consideration into account in the exercise of that power, namely that the Court has an implied power to set aside its own judgment after it has been entered where there has been a miscarriage of justice.

12    In support of the judicial review application, Mr Ritson relevantly made the following written submissions dated 9 September 2019:

Ground 1: A breach of the rules of natural justice occurred in connection with the making of the Decision

 13.    The Registrar failed to give the Applicant adequate reasons for the Decision.

14.    The Registrar’s reasons for decision are inadequate because they fail to explain how the Applicant’s contention of miscarriage of justice is wholly unarguable, thus doomed to failure, when it is indisputable that Lee J misidentified ‘ground of appeal 2’ in his reasons for judgment.

15.    The Registrar also failed to explain why the Court could not deem it appropriate to make “Further or other orders” such as an order correcting ‘ground of appeal 2’ in the reasons for judgment pursuant to rule 39.05(e), (g) and/or (h) of the Rules or implied power of the Court.

16.    The Registrar’s failure to give adequate reasons justifies the Court setting aside the Decision (Kennedy v Australia Fisheries Authority [2009] FCA 1485 at [61]; Baranski v Comcare [2012] FCA 925 at [92]).

Ground 2: The making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made

17.    The Registrar took irrelevant considerations into account in the exercise of the power under rule 2.26 of the Rules.

18.    The Registrar took into consideration the fact that the judgment of Lee J was made in the appellate jurisdiction. Whether the judgment was made in the appellate jurisdiction of the Court is irrelevant to the questions whether there has been a miscarriage of justice in the appeal or whether the implied power of the Court can be exercised.

19.    The Registrar initially took into consideration the erroneous view that the Applicant has “appeal rights in the High Court”. However, the Registrar subsequently acknowledged that the Applicant could only make “an application for special leave to appeal to the High Court”. Either way, whether there is recourse to the High Court is irrelevant to the question whether the implied power of the Court can be exercised.

20.    The Registrar took into consideration the erroneous view that the Applicant is seeking to “reagitate the matters upon which the Court has opined”. Lee J did not opine about ‘ground of appeal 2’ because that ground is not correctly identified anywhere in the reasons for judgment.

21.    The Registrar failed to take relevant considerations into account in the exercise of the power under rule 2.26 of the Rules.

22.    The Registrar initially failed to take into consideration that the Court has an implied power to set aside its own judgment after it has been entered where there has been a miscarriage of justice. However, the Registrar subsequently acknowledged that the Applicant relies on Dib Group Pty Ltd v Coolabah Tree Aust-Wide Pty Ltd [2011] FCAFC 57.

23.    The Registrar failed to take into consideration the “Further or other orders” sought in the interlocutory application which could include an order correcting ‘ground of appeal 2’ in the reasons for judgment pursuant to rule 39.05(e), (g) and/or (h) of the Rules or implied power.

Ritson v Registrar

13    On 11 September 2019, following a hearing, Rares J delivered reasons ex tempore. In Ritson v Registrar at [1]-[4], Rares J set out the background to the judicial review application and said the following at [4]:

Mr Ritson supported his [rejected] interlocutory application by a brief written submission, in which he asserted that the judge had wrongly put a heading above a section in his reasons for judgment that dealt with Mr Ritson’s argument that a Ms Keating, a senior solicitor in the Office of General Counsel, New South Wales Police Force, did not have authority to issue a bankruptcy notice on behalf of the Commissioner of Police. Mr Ritson relied upon an assertion that the Court had an implied power to set aside a judgment after it had been entered where there had been a miscarriage of justice, based on what Gray, Lander and Katzmann JJ had said in Dib Group Pty Limited v Coolabah Tree Australia-Wide Pty Limited [2011] FCAFC 57 at [77].

14    In Ritson v Registrar at [5]-[9] and [11] Rares J found as follows:

Consideration

5.    That argument was patently an abuse of the process of the Court. His Honour had dealt with the substance of the ground of appeal in his reasons. Even if he had not done so, that was an error within jurisdiction and was not a miscarriage of justice. Nonetheless, it is obvious on the face of his Honour’s reasons that he dealt with the actual ground of appeal, after summarising its effect, and did so entirely accurately.

6.    In Dib Group Pty Limited v Coolabah Tree Australia-Wide Pty Limited [2011] FCAFC 57 at [77] the Full Court referred to Taylor v Taylor (1979) 143 CLR 1 in support of the proposition that in cases where there had been a miscarriage of justice a court could set aside an earlier order. The High Court there held that a miscarriage of justice would occur where a party had had orders made against him or her where, without fault, the party had not known of the hearing and was therefore unable to appear. In such a situation, the court was not exercising its jurisdiction finally to determine a matter before it because the person was not present through no fault of him or her.

7    However, as Gummow ACJ, Hayne, Heydon and Crennan and Kiefel JJ made plain in Burrell v R (2008) 238 CLR 218 at 222-225 [13] - [24]. In particular they said at 224 [18]-[19]:

The formal recording of the orders of a superior court of record is often referred to as the “perfecting” of that order. Whether a court may reopen a proceeding and reconsider the order that has been pronounced is often described as hinging about whether the order has been “perfected”. This use of terminology must not be seen as giving form and procedure precedence over substance and principle. The questions that arise in this matter must depend for their answer not upon what forms and solemnities have been observed but upon how effect is to be given to the principle of finality. In particular, what is to mark the point at which a court concludes its consideration of a controversy?

The end of a court’s powers to consider and determine a controversy cannot depend upon whether one party asserts that the court has made some error in the conclusion it has reached. If allegation of error in the court’s orders were the criterion, there would never be an end to some disputes. And because one party’s assertion of error cannot provide a sufficient criterion, a court’s belief that it has recognised its own mistake can provide no useful criterion. Such a belief could provide no useful criterion because, in the end, the accuracy of the belief would have to be tested against the arguments of the parties. It follows therefore that no matter whether it is a party that alleges error, or it is the court itself which believes that it recognises its own error, a decision that an error had been made could be reached only after giving all parties an opportunity to be heard. And it is this reargument of issues that would constitute the departure from the principle of finality.

(emphasis added.)

8    In his rejected interlocutory application Mr Ritson sought to re-litigate an issue that was finally determined when the orders of 6 June 2019 were perfected. There is no jurisdiction in the Court to allow that to occur. His application to the judicial registrar was an abuse of the process of the Court because it was foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393, per Mason CJ, Deane and Dawson JJ.

 9    The present application is equally an abuse of the process of the Court.

…

Conclusion

11    I will order that the application be dismissed as an abuse of the process of the Court. That will mean that any attempt by Mr Ritson to try and re-agitate this decision will need leave.

Does Mr Ritson require leave to appeal?

15    Following consideration of written submissions from both Mr Ritson and the Commissioner, on 4 June 2021, I advised them that in my view Rares J’s decision in Ritson v Registrar was interlocutory in nature such that Mr Ritson requires leave to appeal it. The basis of that decision is explained below:

(a)    Contrary to the Commissioner’s submission, Rares J did not, without saying so, rely on r 26.01(1)(d) of the Federal Court Rules 2001 (Cth) to summarily dispose of Mr Ritson’s judicial review application. Rather, Rares J dismissed the judicial review application as an abuse of the Court’s process in exercise of the Court’s inherent power to prevent misuse of its procedures because that application was foredoomed to fail.

(b)    Rares J’s decision did not finally determine rights. As Lee J’s decision was in the appellate jurisdiction of this Court, Mr Ritson had the opportunity to seek appellate review of Lee J’s decision by an application for special leave to the High Court.

(c)    In any event, s 31A of the Federal Court of Australia Act 1976 (Cth) confers a power on the Court to make summary judgments and Rares J should be taken to have exercised that power. It relevantly provides as follows:

31A Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a)    hopeless; or

   (b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(d)    Section 24 of the Federal Court of Australia Act relevantly provides as follows:

24 Appellate jurisdiction

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

(a)    appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;

…

(1A)    An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

…

(1D)    The following are taken to be interlocutory judgments for the purposes of subsections (1A) and (1C):

…

(b)    a decision granting or refusing summary judgment under section 31A;

Should leave be given?

16    It is well-established in light of such cases as Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-399 that in considering whether the Court should grant leave to appeal, the Court must be satisfied that there is sufficient doubt as to the correctness of the judgment below and that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

17    Mr Ritson’s proposed grounds of appeal are as follows:

1.    The primary judge constructively failed to exercise jurisdiction by failing to consider, make findings or give reasons concerning the ‘grounds of application’ pleaded in the appellant’s originating application for judicial review dated 26 July 2019.

2.    The primary judge constructively failed to exercise jurisdiction by failing to respond to the appellant’s substantial, clearly articulated arguments relying upon established facts set out in his written submissions dated 9 September 2019.

18    In his written submissions dated 1 July 2021, Mr Ritson accepted that the principles in Decor Corporation Pty Ltd v Dart Industries Inc set out above apply to the determination of an application for leave to appeal. He relies on the material contained in the tender bundle which accompanied the Commissioner’s submissions filed on 13 April 2021. He submitted as follows (footnotes incorporated):

Proposed grounds of appeal

5.    Rares J failed to consider, make findings or give reasons concerning the ‘grounds of application’ pleaded in the applicant’s originating application for judicial review dated 26 July 2019. This amounted to a constructive failure to exercise jurisdiction. [Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81].]

6.    Rares J also failed to respond to the applicant’s substantial, clearly articulated arguments relying upon established facts set out in his written submissions dated 9 September 2019. This also amounted to a constructive failure to exercise jurisdiction. [Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]-[25].]

7.    A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. [Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [51].] The constructive failure of Rares J to exercise jurisdiction results in the conclusion that his Honour made no decision at all.

8.    The constructive failure to exercise jurisdiction also results in the conclusion that the applicant was denied natural justice in the proceedings before Rares J.

Leave to appeal

9.    In all of the circumstances, the decision of Rares J is attended with sufficient doubt to warrant its reconsideration on appeal and substantial injustice would result if leave to appeal were refused. [Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399.]

10.    The applicant ought to be given leave to appeal the decision of Justice Rares made on 11 September 2019.

19    In his oral submissions, Mr Ritson submitted that Lee J failed to appreciate that, by ground 2 of his appeal of the FCCA decision, he raised the issue of whether or not Ms Keating had actual, as opposed to ostensible, authority to cause the issue of the bankruptcy notice. He said that that issue was not addressed in Rares J’s reasons. He relied on his written submission filed in the proceedings before Lee J on 29 April 2019 at [15]-[25]. Notably, at [19]-[23] of those submissions, Mr Ritson said (footnotes omitted):

19.    Whether Ms Hegarty has been validly retained to act for the Commissioner of Police to take steps to have the bankruptcy notice issued, it is the actual authority of Ms Keating to give those instructions which is of importance, not the ostensible authority of Ms Keating.

20.    Agency depends upon authority, and only the agent or the principal is able to adduce the evidence necessary to establish this. An alleged agent cannot confer authority on himself/herself by his/her own acts.

21.    No evidence was adduced to establish that Ms Keating had actual authority from the Commissioner of Police. Only Ms Keating or the Commissioner of Police was able to adduce the evidence necessary to establish actual authority. Neither of those persons gave evidence and his Honour made no finding that Ms Keating had actual authority.

22.    His Honour failed to address the appellant’s submission that an unfavourable inference ought to be drawn from the failure to adduce evidence directly from Ms Keating responding to the question whether she was authorized by, or a delegate of, the Commissioner of Police to make an application for the issue of the bankruptcy notice.

23.    The only evidence adduced which was relied on to form a basis for his Honour’s finding that Ms Keating had ostensible authority was an email purportedly sent by Ms Keating to Ms Hegarty. However, an employee cannot acquire ostensible authority simply by acting as if she has that authority; there must be some representation by the alleged principal.

20    It is clear from Rares J’s reasons that he did not rehearse the grounds set out in the judicial review application or Mr Ritson’s submissions dated 9 September 2019. However, in my view there is no reason to doubt that Rares J correctly identified the substantive issues raised in the rejected interlocutory application. There is insufficient reason to doubt the correctness of Rares J’s conclusions in Ritson v Registrar at [5] and [8] which were, in effect:

(a)    That Lee J had dealt with the substance of ground 2 of Mr Ritson’s appeal in his decision at [17] (ostensible authority) and [19] (actual authority); and

(b)    If, indeed, Lee J did fail properly to appreciate the issues raised by ground 2 of the appeal, that was an error within jurisdiction, not an occasion on which the Court’s limited jurisdiction to set aside an order on the basis that a miscarriage of justice would otherwise occur was enlivened.

21    In those circumstances there is no merit to an argument that that there was a constructive failure by Rares J to exercise jurisdiction because he did not address directly the grounds of the judicial review application as formally set out.

22    In his oral submissions Mr Ritson also submitted that Rares J failed to take into account that Mr Ritson had sought further or other orders in the rejected interlocutory application and submitted that Rares J should have allowed the judicial review application at least to the extent that the rejected interlocutory application sought those orders. He suggested that the order which might have been made as a result would be amendment to the heading of Lee J’s decision at [15]-[19] to reflect ground 2 properly so that a reader could appreciate that the issue of actual authority had been raised. That issue does not appear to have been raised before Rares J and the remedy proposed has little or no utility. I am not satisfied that this is a sufficient basis on which to grant leave to appeal.

23    In the circumstances of this case, I am not satisfied that the refusal of leave works substantial injustice on Mr Ritson and I am satisfied that the grant of leave would perpetuate unmeritorious litigation.

Conclusion

24    The proposed grounds of appeal lack sufficient merit for the grant of leave. Leave should be refused and these proceedings, commenced by a notice of appeal dated 9 October 2019, should be dismissed. Having regard to the Commissioner’s advice that he does not seek costs, the Court should order that there be no order as to costs.

Associate:

Dated:    23 July 2021