Commissioner of Police (NSW) v Ritson
[2020] FCCA 1803
•7 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMISSIONER OF POLICE (NSW) v RITSON | [2020] FCCA 1803 |
| Catchwords: BANKRUPTCY – Application to rescind order – whether s.37 of the Bankruptcy Act 1966 applies to orders made by appeal court. PRACTICE & PROCEDURE – Application for summary dismissal – relevant considerations. PRACTICE & PROCEDURE – Request for production of documents referred to in affidavits – refusal to produce – considerations relevant to whether order to produce will be made. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A Bankruptcy Act 1966 (Cth), ss.37, 40, 41, 44, 306 Police Act 1990 (NSW), ss.5, 8 |
| Cases cited: Ritson v Commissioner of Police, New South Wales Police Force (2018) 332 FLR 182 Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853 Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125 Re Udowenko and Others; Ex parte Mitchell (1996) 69 FCR 299 |
| Applicant: | COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE |
| Respondent: | BRENDAN RITSON |
| File Number: | SYG 2114 of 2019 |
| Judgment of: | Judge Cameron |
| Hearing date: | 10 March 2020, 2 April 2020 |
| Date of Last Submission: | 8 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Afshar and then Mr DF Elliott |
| Solicitors for the Applicant: | Coleman Greig |
| The Respondent appeared in person |
ORDERS
The respondent’s interim application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2114 of 2019
| COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE |
Applicant
And
| BRENDAN RITSON |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 16 August 2019 the applicant presented a creditor’s petition seeking sequestration of the estate of the respondent, Mr Ritson, on the ground that he had failed to comply with a bankruptcy notice served on him. On 18 February 2020 Mr Ritson filed an interim application seeking various procedural orders and also the summary dismissal of the creditor’s petition. On 28 February 2020 he filed an amended interim application.
Mr Ritson’s amended interim application sought the following orders:
1.The creditor’s petition presented on 16 August 2019 be dismissed pursuant to r.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.[not pursued]
6.Order number 5 made on 21 February 2020 be vacated and in lieu thereof an order that the creditor’s petition no be heard until proceeding number NSD2091/2019 is determined by the Full Court of the Federal Court of Australia.
7.Further or other orders as the Court deems appropriate.
RESPONDENT’S EVIDENCE
Relevantly, Mr Ritson deposed to the following history:
a)the bankruptcy notice was based on a costs order against him made on 27 September 2013 in NSW Supreme Court proceedings (“Supreme Court Proceedings”) between him and the “Commissioner of Police”;
b)Andrew Scipione “occupied the office of Commissioner about that time” although someone else might have been acting in that role on that day;
c)the creditor’s petition was presented on 16 August 2019 by which time Michael Fuller “occupied the office of Commissioner” although someone else might have been acting in that role on that day;
d)he had not been notified of any assignment of the judgment debt or of leave having been obtained under r.39.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”);
e)he had applied to this Court for orders setting aside the bankruptcy notice and on 25 January 2018 Judge Smith ordered that time for compliance with the bankruptcy notice be extended until further order. On 20 April 2018 his Honour dismissed Mr Ritson’s application to set aside the bankruptcy notice: Ritson v Commissioner of Police, New South Wales Police Force (2018) 332 FLR 182 and also ordered on that day that time for compliance with the bankruptcy notice be extended until 11 May 2018;
f)he had unsuccessfully appealed Judge Smith’s decision to the Federal Court: Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853. In the Federal Court Lee J extended time for compliance with the bankruptcy notice until the publication of his Honour’s reasons for judgment which occurred on 6 June 2019;
g)he had then sought to file in the Federal Court a document entitled “Interlocutory Application” in which he sought orders setting aside Lee J’s orders as a miscarriage of justice;
h)the Federal Court registry rejected the “Interlocutory Application” document and he then unsuccessfully sought judicial review of that administrative action: Ritson v Registrar of the Federal Court of Australia [2019] FCA 1835;
i)he appealed that judicial review decision to the Full Court of the Federal Court and that appeal was pending;
j)on 16 February 2020 he unsuccessfully sought further and better particulars of the identity of the person who occupied the office of Commissioner of the New South Wales Police Force when the creditor’s petition was filed;
k)on 17 [recte 16] February 2020 he unsuccessfully sought documents which had been referred to in documents filed in this proceeding; and
l)on 17 February 2020 he also unsuccessfully sought confirmation of the dates on which certain payments had been made.
CONSIDERATION
The parties did not adduce copies of the pleadings in the Supreme Court Proceedings. However, this case proceeded on the basis that the defendant in those proceedings was the Commissioner of the New South Wales (“NSW”) Police Force and that the respondent in this proceeding is also the Commissioner of the NSW Police Force. I will refer to the holder of, or any person acting in, that office from time to time as “Commissioner”.
The creditor’s petition has no reasonable prospects of success
Section 17A of the Federal Circuit Court of Australia Act 1999 relevantly provides that the Court may give judgment for a respondent if it is satisfied that the applicant has no reasonable prospect of prosecuting their case. A proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
Rule 13.10 of Federal Circuit Court Rules 2001 (“Rules”) relevantly provides that the Court may summarily dismiss a proceeding if it is satisfied that the applicant has no reasonable prospect of prosecuting it.
The relevant principles were summarised by Perry J in Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473:
a)the respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding;
b)section 17A of the Federal Circuit Court of Australia Act will include cases:
i)in which the pleadings disclose no reasonable cause of action and their deficiency is incurable;
ii)in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment; and
iii)which is “frivolous or vexatious or an abuse of process”.
c)section 17A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless” but the discretion must still be exercised with caution;
d)an assessment of whether a proceeding has no reasonable prospects of success for the purposes of s.17A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court;
e)consistently with this, Reeves J said in Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at 271-272, [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
f)Reeves J explained at [47] that the moving party is more likely to succeed if he or she demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence but, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined.
The Bankruptcy Act 1966 (“Act”), relevantly provides:
40 Acts of bankruptcy
(1)A debtor commits an act of bankruptcy in each of the following cases:
…
(g)if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia—within the time specified in the notice; or
…
comply with the requirements of the notice …
…
41 Bankruptcy notices
…
(6A)Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:
(a)proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b)an application has been made to the Court to set aside the bankruptcy notice;
the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.
…
44 Conditions on which creditor may petition
(1)A creditor’s petition shall not be presented against a debtor unless:
…
(c)the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition.
…
Mr Ritson submitted that the petition should be summarily dismissed pursuant to r.13.10 of the Rules because it had been presented more than six months after the date of his act of bankruptcy and therefore did not meet the requirements of s.44(1)(c) of the Act. For reasons which will be discussed shortly, he contended that his act of bankruptcy occurred 21 days after 20 April 2018 and reasoned that as the creditor’s petition had been presented more than six months after that date, it was out of time and so invalid.
The starting point of Mr Ritson’s argument was the order made by Judge Smith on 25 January 2018 that the time for compliance with the bankruptcy notice be extended “until further order”. Mr Ritson observed that on 20 April 2018, after dismissing the 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. The orders his Honour made that day were:
1.The application be dismissed.
2.The time for compliance with the Bankruptcy Notice BN210799 be extended until 11 May 2018.
3.The respondent has leave to file and serve an affidavit dealing with the question of costs together with a short outline of submissions concerning costs by 27 April 2018.
4.The applicant file and serve any affidavit in reply to the respondent’s affidavit and a short outline of submissions concerning costs by 4 May 2018.
5.The question of costs is to be dealt with on the papers.
Mr Ritson annexed to his affidavit in this proceeding sworn 6 March 2020 a copy of the transcript of the listing on 20 April 2018 at which judgment on his application to set aside the bankruptcy notice was pronounced. It records that Judge Smith first pronounced his reserved judgment dismissing the application, published his reasons and then, after hearing from the solicitor for the Commissioner, relevantly ordered a further extension of the time within which to comply with the bankruptcy notice.
Mr Ritson submitted that Judge Smith did not have the power to extend the time for compliance with the bankruptcy notice when he ordered it be extended because:
a)his Honour’s reasons for judgment had not mentioned extending time for compliance with the bankruptcy notice;
b)the order extending time was made at the request of the Commissioner without the parties being given an opportunity to make submissions on the point;
c)the order was made without specific reference to the Court’s statutory power to extend time under s.41(6A) of the Act; and
d)the order was made after the application had already been dismissed and so:
… there was no longer any application satisfying the description of section 41(6A) to which an extension of time could be ancillary.
The first three points raised by Mr Ritson say nothing about his Honour’s power to order an extension of time on 20 April 2018. The first is related to the fourth, tending to show that his Honour had not considered the question of an extension of time before the Commissioner’s solicitor raised it with him. The transcript of the listing when judgment was delivered tends to bear that out. However, the first point rises or falls with the fourth point. The second point implies that Mr Ritson had been unable to make submissions on the question. Quite apart from the improbability that he would have opposed the order, the implication of the point seems to be that because he was not present on the day Mr Ritson was denied an opportunity to express his view. However, he did not suggest that he had not been notified of the listing and I infer that he chose not to be present in person or by solicitor or counsel. In those circumstances, no denial of procedural fairness is apparent. As to the third point, the effectiveness of an order is not dependent on its technical foundation being articulated.
The fourth and more substantial of the points was the contention that the time for compliance with the bankruptcy notice was not effectively extended on 20 April 2018. This said to have been so because the order of 25 January 2018 extending time to comply with the bankruptcy notice had been expressed to be on foot “until further order” but before the further extension was ordered on 20 April 2018 a “further order” was made, namely the order dismissing the application: Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258 at [6]-[7].
Mr Ritson’s position was that under s.41(6A) the Court could only extend the time for compliance with the bankruptcy notice if time for compliance had not already expired. He argued that the hiatus between the expiry of the order of 25 January 2018 when Judge Smith pronounced judgment dismissing the application and the making of the order of 20 April 2018 extending time meant that the latter order was ineffective.
The basis of Mr Ritson’s argument is the presumption that Judge Smith’s order dismissing his application to set aside the bankruptcy notice took effect when the judgment was given. However, the Court’s orders are not final until they are entered: r.16.05 of the Rules. The effect of that rule, whose applicability would not appear to be excluded by r.1.04(2) of the Federal Circuit Court (Bankruptcy) Rules 2016, is that until Judge Smith’s orders were entered, the Court was not functus officio as far as the application for substantive relief was concerned: cf. Cavanagh v Bank of New Zealand (1990) 22 FCR 124 at 125; Smith v NSW Bar Association (1992) 176 CLR 256 at 265; Re Edgar; Ex parte Davidson & Anor (1973) 2 ALR 649 at 656-657; Re L and B (children) [2013] 2 All ER 294 passim. That status necessarily comprehended the power to extend time for compliance with the bankruptcy notice.
In that regard, in Streimer v Tamas (1981) 54 FLR 253 it was held that, provided one of the two limbs of s.41(6A) is satisfied, the Court has power to extend time to comply with a bankruptcy notice even though time has already expired. Deane and Ellicott JJ said:
… It would, in our view, be contrary to the plain import of the words used by the Parliament to construe s. 41(6A) as requiring not only that one or other of the alternative express conditions precedent to jurisdiction be fulfilled within the time originally fixed for compliance but as also requiring that both the application for an order and any initial order be made within that time. ….
We do not accept the proposition that, in the absence of an independent power to annul an act of bankruptcy, an order extending the time for compliance with the requirements of a bankruptcy notice would be futile if it were not made within the time initially fixed for compliance or some persisting extension thereof. The power conferred by s. 41(6A) is a power to “extend” the previous period of time. It is not a power to establish a new, distinct and independent period of time for compliance. The effect of an order extending the time for compliance, which is made after the expiry of the time originally fixed and any previous extension thereof, will be to enlarge the overall time allowed for compliance with the result that what would otherwise have constituted an act of bankruptcy no longer does. … (at 258)
Even so, as Lockhart J stated in Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125 at 131, the power to extend time under s.41(6A) is in aid of the power to set aside a bankruptcy notice and so depends on the existence of proceedings seeking such an order. In Re Udowenko and Others; Ex parte Mitchell (1996) 69 FCR 299 Lindgren J held:
… the purpose of an extension of time under s 41(6A) is limited to that of supporting a proceeding or application, that is to say, one which was instituted or filed before expiration of the time for compliance with the bankruptcy notice. … (at 304)
The transcript of the relevant listing records that his Honour’s orders were not entered before all orders in the matter, including the extension of time, had been pronounced and the Court adjourned. In those circumstances, the Court was still seized of the matter and so its power to extend time for compliance with the bankruptcy notice had not ended prior to his Honour ordering it be extended.
Subject to what follows, the above discussion of Mr Ritson’s arguments concerning Judge Smith’s last order extending time also applies to the equivalent argument Mr Ritson made in relation to Lee J’s last order extending time, the Federal Court Rules 2011 having an analogue of r.16.05 of the Rules.
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 Lee J’s power to reverse that outcome by orders in the Federal Court appeal that ostensibly extended time to comply with the bankruptcy notice. Mr Ritson referred in that regard to what Sackville J had said in Shephard v Chiquita Brands (South Pacific) Ltd (2004) 1 ABC(NS) 610 at 623 [59]:
In the passage I have quoted from Guss v Johnstone, the High Court appears to regard the power in s 41(6A) of the Act as available to an appellate court in order to undo the effects of what otherwise would be an act of bankruptcy on the part of the debtor (the successful appellant). It seems to follow that s 41(6A) is available to a debtor who seeks an extension of time to comply with a bankruptcy notice in order to render effective the debtor’s successful appeal against an order by the trial Judge dismissing a challenge to a bankruptcy notice.
Mr Ritson argued that the power in question only existed if the appeal against the dismissal of the challenge to the bankruptcy notice was successful. He reasoned that because his appeal against Judge Smith’s orders had been unsuccessful, Lee J had never had power to extend time to comply with the bankruptcy notice. However, Mr Ritson’s contention misunderstands what Sackville J was saying, which was that the power exists in order that an appeal which is successful will be effective, not that it will only exist if an appeal is effective. That is made clear by his Honour’s reference to a passage in Guss v Johnstone (2000) 74 ALJR 884 in which Streimer v Tamas was cited.
Finally, it is not for this Court to question an order of the Federal Court, much less to say that a judge of that court lacked the power necessary to make an order that has in fact been made. Even if I were to agree with Mr Ritson’s submission in this connection, which is not the case, I must respect an order of the Federal Court as effective, particularly in an appeal from this Court, unless and until it is set aside by that court or the High Court. Consequently, 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.
For these reasons Mr Ritson has not persuaded me that the Commissioner’s case lacks reasonable prospects of success.
The applicant produce for inspection the documents requested in the respondent’s email dated 17 February 2020
Rule 14.10 of the Rules relevantly provides:
14.10Documents referred to in document or affidavit
(1)If a document or affidavit filed by a party refers to another document, another party may request the party in writing for a copy of the document or to produce it for inspection.
…
That form of words reflects the equivalent rule in the former Federal Court Rules, O.15 r.10.
In an email of 17 February 2020 to the Commissioner’s solicitors
Mr Ritson sought production of the following documents:
1.“documents in this matter” (referred to in the tax invoice from Express Mercantile dated 9 January 2017);
2.“final report” (referred to in the tax invoice from Express Mercantile dated 9 January 2017);
3.“documents 122 pages” (referred to in the tax invoice from Polo CPI dated 24 September 2019);
4.“Letter from Coleman Greig Lawyers dated 22 August 2019” (referred to in paragraph 1(a) of the affidavit of James Hodge sworn 11 November 2019);
5.“Letter from Coleman Greig Lawyers dated 22 August 2019” (referred to in paragraph 1(a) of the affidavit of Mark Mullen sworn 12 November 2019);
6.“photograph of Brendan Ritson” (referred to in paragraph 1 of the affidavit of Edwin Grainger sworn 12 November 2019);
7.“Letter from Coleman Greig Lawyers dated 22 August 2019” (referred to in paragraph 2(a) of the affidavit of Edwin Grainger sworn 12 November 2019);
8.“documents 134 pages” (referred to in the tax invoice from Polo CPI dated 2 January 2020);
9.“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).
The Commissioner’s solicitors replied to that request later that day saying:
·Items 1 to 7 relate to the documents our client filed in support of his substituted service application. This application has been dealt with by the Court and is not relevant to the determination of the creditor's petition. You have been provided with a copy of the substituted service application previously.
·Item 8 refers also to the documents that were served on you in accordance with the substituted service orders. We trust you have them.
·Item 9 is not a proper request under rule 14.10, as referring to books and records generally does not amount to referring to “another document”.
Although Mr Ritson responded to that reply, he did not contend then or in this interlocutory proceeding that the documents in question were anything other than what the Commissioner’s solicitors said they were. I accept that the documents referred to in paras.1-7 of Mr Ritson’s email of 17 February 2020 concerned the Commissioner’s application for substituted service filed on 26 November 2019 and that the documents referred to in para.8 were documents actually served on Mr Ritson.
I consequently find that the latter documents are already in his possession. As to the former documents, Mr Ritson has not demonstrated why they are material to the issues raised by the creditor’s petition. I am not persuaded that they are. Consequently, production of the documents referred to in paras 1-8 of Mr Ritson’s email will not be ordered.
The documents referred to in para.9 of Mr Ritson’s email of 17 February 2020 are best understood by quoting a larger part of the affidavit referred to in that email. 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)
Rule 14.10 appears to have its origins in the nineteenth century Judicature Act reforms in England. It is a form of discovery directed to the production of a document which is identifiable because it has been referred to in a pleading or an affidavit: Quilter v Heatly (1882) 23 Ch.D. 42 at 49-50 and 50-51; Rafidain Bank v Agom Universal Sugar Trading Co Ltd [1987] 1 W.L.R. 1606 at 1607 and 1613. Referring to the rewritten version of that test now found in the Civil Procedure Rules 1998 (Eng), which is echoed in r.20.31 of the Federal Court Rules 2011, Rix LJ said in Rubin v Expandable Ltd [2008] 1 WLR 1099 at 1108 [24], Jacobs and Forbes LJJ agreeing at 1115 [45], [46]:
I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection.
Rule 14.10 uses a form of words reflective of the English test under the rules which were in force before the introduction of the Civil Procedure Rules 1998. However, r.14.10 uses direct speech: “a document … refers to another document”, while the English rule, most recently O.24 r.10, used indirect speech: “pleadings or affidavits [in which] reference is made to any document”. The difference is one of style, not of substance.
Whether a document makes reference to another document was considered by the English Court of Appeal in Dubai Bank Ltd v Galadari & Ors (No 2) [1990] 2 All ER 738:
Rules of court substantially corresponding with Ord 24, r 10 and the rules ancillary to it have been in force for over 100 years. Lindley LJ in Quilter v Heatly (1883) 23 Ch D 42 at 50 drew a distinction between these rules and the general rules as to discovery of documents. He said:
‘These rules were evidently intended to give the opposite party the same advantage as if the documents referred to had been fully set out in the pleadings.’
While this statement explains the general purpose of the rules, it does not explain what test is to be applied in determining whether or not an assertion in a pleading or affidavit involves a ‘reference to [a] document’ within the meaning of Ord 24, r 10. Though the rule has existed for such a long time, there appears to be remarkably little authority on the point.
In Smith v Harris (1883) 48 LT 869 the plaintiff had stated in his statement of claim that during a certain period he and his father had used the word ‘Glenlivet’ on their letters and bill heads. In resisting an application by the defendant for production of these documents, the plaintiff argued that this was only a general reference to documents.
Chitty J., however, held, (at 870):
‘ ... that it is both a general reference and also a special reference to each and every bill head and each and every letter; because the plaintiff, instead of setting out each document separately refers to them compendiously, that is no reason why inspection should not be allowed.’
That decision is not binding on this court, but we see no reason to doubt its correctness. In our judgment, a compendious reference to a class of documents, as opposed to a reference to individual documents, is well capable of falling within the rule, provided that it is indeed a reference. (at 743-744)
Their Lordships went on to reject a submission that “reference to” a document meant reference by inference, such as inferring the existence of a written contract from an allegation that a parcel of land was sold, saying that the phrase “reference is made to” imports the making of a direct allusion to a document or documents.
The approach taken in Dubai Bank v Galadari concerning what amounts to a reference to a document in this context was followed by Moore J in King v GIO Australia Holdings Ltd [2001] FCA 1487 who was in turn followed by Brereton J in Welker v Rinehart [2012] NSWSC 588 and Yates J in Oztech Pty Ltd v Public Trustee of Queensland (No 10) [2016] FCA 970. See also the detailed discussion by Judge Lucev in Saje v Union for Progressive Judaism [2019] FCCA 847 at [22]-[25].
The Rules have been drawn in a stripped-down style and are not nuanced by many of the qualifications and items of detail found in the rules of other courts. Relevantly for present purposes, r.14.10 does not provide a mechanism for a party to object to producing documents requested under that rule. However, when presented with a contested refusal to accede to a request made under r.14.10, the Court would not compel production if to do so would serve no legitimate forensic purpose. In such a vein Gross LJ said of the new rule in the English Civil Procedure Rules:
…the right to inspect under CPR r 31.14 is not, however, unqualified; it is instead subject to CPR rules-based limits, which may be invoked by the party resisting inspection—the burden resting on that party to justify displacing the general rule. Thus, “proportionality” is part of the overriding objective in CPR
r 1.1(2)(c) and, in an appropriate case, it would be open to a party to oppose inspection on the ground that it would be “disproportionate to the issues in the case”: see CPR r 31.3(2). In determining any such issue of proportionality, a court would very likely have regard to whether inspection of the documents was necessary for the fair disposal of the application or action.
National Crime Agency v Abacha & Ors [2016] 1 WLR 4375 at 4384 [30], Hamblen LJ and Sir Colin Rimer agreeing at 4392 [61] and [62].
In the context of this Court, r.1.03 of the Rules states that the object of the Rules is the just, efficient and economical resolution of proceedings and that parties to proceedings must avoid undue delay, expense and technicality. However, the parties’ submissions did not refer to that issue.
In Oztech v Public Trustee (No 10) Yates J refused to order production of documents referred to in an affidavit saying that the court maintained control over its processes and that the relevance of the requested documents to the proceeding had not been demonstrated. The fact that the demand for production of the documents referred to in the affidavit had been made by way of a notice to produce, which was method prescribed by the Federal Court Rules 2011 for such a demand to be made, meant that his Honour’s consideration was based on tests associated with subpoenas and notices to produce and whether the demand had a legitimate forensic purpose in relation to the issues in the proceedings or required the production of documents which lacked apparent relevance to those issues.
Although r.14.10 speaks only of a request and not a notice to produce, such a request has the same effect as a notice to produce. For that reason, I will respectfully follow the approach taken by Yates J in the Federal Court in Oztech v Public Trustee (No 10).
The Commissioner submitted that Mr Ritson had not identified what relevance the documents he sought had to the facts in issue in this proceeding. That is certainly so in relation to the documents referred to in Mr Enright’s affidavit and it is far from apparent otherwise of what use they could be to the Court in deciding this case. In such circumstances, their production will not be ordered.
As a final point, I reject the Commissioner’s argument in his email responding to Mr Ritson’s request, that para.9 was not a proper request under rule 14.10 because it referred to books and records generally rather than to a specific document. It is apparent from Moore J’s reasons in King v GIO, that his Honour agreed with the reasoning in Dubai Bank v Galadari concerning requests and the production of documents identified by category. Consequently, had the relevance of the documents in question been demonstrated, their production would have been ordered.
Further and better particulars
Mr Ritson sought particulars in two emails he sent to the Commissioner’s solicitors.
16 February 2020 email
In the first, dated 16 February 2020, he wrote:
The applicant is named as “Commissioner of Police, New South Wales Police Force”.
The above name is a description of the office of Commissioner established by section 24 of the Police Act 1990 (NSW).
Please provide 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 Commissioner’s solicitors replied:
We refer to your email dated 16 February 2020.
We note the name of the natural person who occupied the office of Commissioner on 16 August 2019 is immaterial to these proceedings and is also a matter of public knowledge. Your query has no bearing on the creditor's petition hearing listed for tomorrow, 18 February 2020 at 2pm.
As his address to the Court on the first hearing date made plain, the issue to which this request for particulars was substantively directed was Mr Ritson’s contention that, if the person who was Commissioner at the time the costs order was made was not the same person as the one who was Commissioner at the time the Creditors Petition was presented, the petition is incompetent absent an assignment of the debt, of which there was no evidence.
The second issue to which the first request for particulars was directed was the contention that procedural fairness gave a party an entitlement to know who was suing them.
First issue – different Commissioners
In his written submissions, Mr Ritson observed that Mr Scipione had been Commissioner when the costs order was made and that Mr Fuller was Commissioner when the creditor’s petition was presented, although someone could have been acting in the role. He argued that:
In the absence of an assignment of the benefit of the costs order from Mr Scipione to Mr Fuller, the costs order still inheres in Mr Scipione. In other words, the debt claimed in the petition is not owed by the respondent to Mr Fuller, it is owed to Mr Scipione. Accordingly, Mr Fuller is not a “creditor” for the purposes of sections 43 and 44 of the Bankruptcy Act and had no standing to present the petition (assuming no other person was acting as Commissioner on 16 August 2019 when the petition was presented).
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A “creditor” for the purposes of section 40(1)(g) of the Bankruptcy Act must be a person who is a judgment creditor or some other creditor who is entitled to issue execution under the judgment; the creditor must be a person who had taken all steps which entitled him to reap the fruits of the judgment.
The question has already been considered and ruled upon in three earlier proceedings between the parties.
Mr Ritson’s position was that he needed to know who was Commissioner when the creditor’s petition was presented so he could be in a position to argue that that person was not Commissioner when the costs order was made. This appears to have been based on a statement by the NSW Court of Appeal in Mr Ritson’s appeal from Garling J’s decision at first instance, and referred to in his affidavit of 6 March 2020, that “an order in favour of the Commissioner would inhere in the person who held the position from time to time”: Ritson v Commissioner of Police NSW Police Force [2019] NSWCA 106 at [36].
Mr Ritson’s understanding of that statement was that an order in favour of the Commissioner would inhere in the person who was Commissioner at that time the order was made and, barring an assignment, only that person. However, that is not what the Court of Appeal said or meant.
The Police Act 1990 (NSW) relevantly provides:
5 Composition of NSW Police Force
The NSW Police Force comprises the following members—
(a) the Commissioner,
(b) NSW Police Force senior executives,
…
8 Commissioner to manage and control NSW Police Force
(1)The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force.
(2)The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force.
The post of Commissioner of the New South Wales Police Force is filled by an individual and the identity of that person changes from time to time. However, the role of Commissioner of the New South Wales Police Force involves duties and functions that endure and remain attached to the role regardless of periodic changes in the identity of the person who holds the post. That reality is reflected in s.48(2) of the Interpretation Act 1987 (NSW), which provides:
48 Exercise of statutory functions
…
(2)If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.
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.In his application to set aside the bankruptcy notice, Mr Ritson had argued that the costs orders and consequent judgment upon which the bankruptcy notice was based were irregular because the Commissioner of the New South Wales Police is a position, not a person. Judge Smith rejected that argument saying:
… the “Commissioner of Police”, named as such, was the correct respondent to the Supreme Court proceedings rather than the individual who held the office at the time: Brown v Rezitis (1970) 127 CLR 157 at 169; [1970] HCA 56; Kerr v Commissioner of Police [1977] 2 NSWLR 721 at 724; Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 191; [1998] FCA 1607. An order made against the Commissioner would bind the person who held that position from time to time. By parity of reasoning, an order in favour of the Commissioner in those proceedings would inhere in the person who held the position from time to time.
(Ritson v Commissioner of Police New South Wales Police Force at 187 [30])
On appeal from Judge Smith, one of Mr Ritson’s arguments was to the effect that there was no evidence that the solicitors acting for the Commissioner at the time the bankruptcy notice was issued and served were instructed by the new holder of that office, Mr Fisher, the implication being that their instructions had lapsed with the retirement of Mr Scipione. Justice Lee said in that connection:
These arguments need only to be stated, to be rejected. Such submission confuses the person who, from time to time, occupies the office of the Commissioner with the statutory office. The notion that the bankruptcy notice ceased to be valid because Mr Scipione, the only person capable of giving good discharge for the alleged debt, could not be found at the address expressed in the bankruptcy notice, is one which is entirely misconceived.
(Ritson v Commissioner of Police, New South Wales Police Force (No 3) at [38])
His Honour’s reasoning applies with equal force in the present situation.
The request for particulars of who was Commissioner at any particular moment is a red herring. Acceding to that request would be a waste of time and costs and would not advance the matter.
Second issue – right to know identity of other party
Relying on R v Sturt; Ex parte Ah Tack (1876) 2 VLR (L) 103, a criminal case based on an information in which the informant was not identified, Mr Ritson submitted that it was essential to the administration of justice that he know who the Commissioner was when the creditors petition was presented. However, R v Sturt; Ex parte Ah Tack is distinguishable from the present case, not least because it was Mr Ritson who initiated the proceedings in which the costs order the basis of this proceeding was made and this is only the most recent stage of that dispute.
Mr Ritson also relied on Vivian (Deputy Commissioner of Taxation (Superannuation)) v Fitzgeralds (2007) 69 ATR 834 but in that case Logan J observed that naming an office rather than an individual as a party was “an irregularity rather than a nullity” (at 836 [5]). In that regard, s.306(1) of the Act provides:
Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.
Given my conclusion on the first issue, I am not of the view that any irregularity in nomenclature in the creditor’s petition would cause Mr Ritson a substantial injustice.
In any event and more generally, this argument is based on the 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 this proceeding or to the presentation of the creditor’s petition. For the reasons already given, I have concluded that it is not.
Conclusion on particulars sought on 16 February 2020
For those reasons, the Commissioner will not be ordered to provide the particulars sought.
17 February 2020 email
Paragraph 1 of the creditor’s petition states:
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.
In the second request for particulars, which was dated 17 February 2020, Mr Ritson wrote:
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.
In his address to the Court at the first listing, Mr Ritson explained his concerns:
… In relation to reference to payments received from the respondent – and I note it’s payments, plural, and credit applied in the sum of $89.30, the issue, your Honour, is I understand the figure of $89.30. I don’t dispute what that’s in relation to. The issue is the reference to payments, plural. There were some other moneys that were owing to me from the New South Wales Police Force, and it’s not clear whether some of these other refunds have been applied in some way, whether the figure is incorrect, but also as to interest. When was this payment or the other payments, if there are others, when were they applied? And does that affect the overall amount claimed and also the question of interest.
Later he said:
Mr Afshar can indicate whether the payments is meant [to] read “payment”, singular, first of all, and if it is, then that’s that issue gone. And simply the date that the credit was applied.
The subject of the $89.30 payment was canvassed in some detail before Judge Smith and Lee J. The issue now appears to be that instead of there having been one payment or credit there might be more than one.
If the amount of the credit allowed to Mr Ritson and what it represents is not in issue, then this question is not relevant to the determination of the creditor’s petition. The issue of “some other moneys” said to be owing to Mr Ritson is, according to Mr Ritson’s own address to the Court, a separate question which is not presently in issue in this proceeding. Consequently, no purpose would be served by ordering the particulars sought on 17 February 2020.
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.
On 4 December 2019 orders for substituted service were made and order 7 made that day was that the costs of the application for substituted service be reserved.
The implication of this prayer is that the costs of the application for substituted service be determined sooner rather than later. No cogent argument was advanced in support of that proposal and in my view it would be inefficient for the Court as well as inconvenient for the parties, and a needless expense, if that costs question were determined in a separate hearing.
Adjourn the creditor’s petition pending the outcome of related proceedings in the Federal Court
The creditor’s petition had been listed for hearing on 3 April 2020 but that date was vacated on 2 April 2020. A new listing has not yet been fixed and awaits the outcome of this interim application.
Mr Ritson originally sought the postponement of the creditor’s petition hearing until the determination of his appeal from the decision to dismiss his application for judicial review of the registry’s rejection of his “Interlocutory Application” document, referred to earlier at [5(h)] and [5(i)]. However, at the hearing on 2 April 2020 Mr Ritson advised the Court that he no longer pursued that appeal and had commenced a new proceeding in the Federal Court on 31 March 2020, seeking orders under s.37 of the Act for rescission of Lee J’s orders extending time for compliance with the bankruptcy notice. He now seeks an adjournment of the hearing of the creditor’s petition pending the determination of that application.
Section 37 of the Act relevantly provides:
37 Power of Court to rescind orders etc.
(1)Subject to subsection (2), the Court may rescind, vary or discharge an order made by it under this Act or may suspend the operation of such an order.
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Annexed to an unsworn affidavit which Mr Ritson verified over the telephone at the hearing on 2 April 2020 was a copy of the statement of claim Mr Ritson deposed he had filed in the Federal Court on 31 March 2020. Relevantly, he pleaded in that statement of claim that Lee J had had no power to extend the time for compliance with the bankruptcy notice because:
a)Judge Smith’s order of 20 April 2018 ostensibly extending time was beyond power for the reasons discussed earlier;
b)the appeal proceeding before Lee J was not an application to set aside a bankruptcy notice which engaged s.41(6A);
c)however, even if it was, the power in s.41(6A) was not available to Lee J because the appeal was not successful; and
d)the various orders extending time, including the order made on 24 May 2019, took effect in a period when the application was no longer on foot.
The issues Mr Ritson will seek to raise in his most recent application to the Federal Court have been addressed in these reasons and do not, in my view, supply a sufficient reason to delay the hearing of the creditor’s petition. However, more importantly, Mr Ritson’s statement of claim discloses no reason why the ordinary appeal process ought not be followed and why the Federal Court, apparently in its original jurisdiction, could or should consider rescinding the orders of a judge exercising that court’s appellate jurisdiction. Further, there is authority to the effect that Lee J’s orders cannot be rescinded under s.37 of the Act because his Honour was exercising the Federal Court’s appellate jurisdiction under the Federal Court of Australia Act 1976, not its jurisdiction under the Bankruptcy Act, and s.37 applies only to decisions made under the latter Act: Australia & New Zealand Bank Group Ltd v Hubner [1999] FCA 1345 at [8]-[11].
CONCLUSION
I am not persuaded that any of the relief sought in Mr Ritson’s interim application should be granted.
Consequently, that application will be dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 7 July 2020
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