Commissioner of Police (NSW) v Ritson (No. 2)
[2020] FCCA 3035
•2 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMISSIONER OF POLICE (NSW) v RITSON (No.2) | [2020] FCCA 3035 |
| Catchwords: PRACTICE AND PROCEDURE – Recusal. |
| Cases cited: Johnson v Johnson (2000) 2001 CLR 488 |
| Applicant: | COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE |
| Respondent: | BRENDAN RITSON |
| File Number: | SYG 2114 of 2019 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 April 2020 |
| Date of Last Submission: | 2 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. F. Elliot |
| Solicitors for the Applicant: | Coleman Greig |
| The Respondent appeared in person |
ORDERS
The request for recusal be refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2114 of 2019
| COMMISSIONER OF POLICE (NSW) |
Applicant
And
| BRENDAN RITSON |
Respondent
REASONS FOR JUDGMENT
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.
The upshot of that disclosure has been that Mr Afshar has withdrawn from this proceeding and the applicant is now represented by new counsel, Mr Elliott.
The further hearing of Mr Ritson’s interim application was stood over to today. Earlier today Mr Ritson filed an affidavit and submissions. The submissions invite me to disqualify myself from further hearing this matter on the basis of an apprehension of bias.
Mr Ritson’s submissions contend that my use of the word “vexatious” on 10 March 2020 suggests prejudgment on my part. That issue relates to the following exchanges between Mr Ritson and me at the commencement of the hearing on 10 March 2020:
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 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 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.
Mr Ritson’s submissions also contend that the connection between Mr Afshar and myself was not fully disclosed and gives rise to an apprehension of bias on my part because, Mr Ritson submits:
The applicant’s solicitor and the Associate to Judge Cameron would not confirm the nature and extent of the connection between His Honour and Mr Afshar when requested to do so by the respondent.
Mr Ritson continues:
In the absence of further information about the nature and extent of the connection between Judge Cameron and Mr Afshar, the fair-minded lay bystander could reasonably conclude that His Honour 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 could well develop some level of friendship.
Proceeding on:
There is a real risk that Judge Cameron might, at least subconsciously, be sympathetic to Mr Afshar and (by extension to his client) the applicant. Although Mr Afshar may have withdrawn from this matter, His Honour has still heard submissions from Mr Afshar, including the oral submissions recorded in the transcript of the hearing before Registrar Ng on 18 February 2020.
The relevant test, as the parties agreed, is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide: Johnson v Johnson (2000) 201 CLR 488.
Dealing with the arguments in the order in which they were presented in Mr Ritson’s written submissions, it should first be observed that it was the application which Mr Ritson advised me that he had filed in the Federal Court which I described as something which “sounds like a vexatious application”. Although, as Mr Ritson has acknowledged today I was not describing him as vexatious, he nevertheless submitted that it might be inferred that describing the application as vexatious amounted to a negative reflection on him, with which he might be rightly concerned. However, a fair reading of the exchange which has been quoted indicates that nothing was said or implied about Mr Ritson and the comment was one concerned with a proceeding which, based on the little that I knew of it at the time, had effectively no prospects of success. If that was correct then it is likely to be properly characterised as vexatious, or at least an abuse of process. But whatever the case, that is a matter for the Federal Court, as I said on 10 March 2020. The hearing on 10 March 2020 then proceeded without any reason for the reasonable lay observer to think that any view that I had taken of the application Mr Ritson made in the Federal Court was of any consequence to the present proceeding, as indeed it is not, subject to any submissions that Mr Ritson has yet to make.
In relation to the comments in relation to Mr Afshar, the extent of my acquaintance with Mr Afshar is fairly summarised in the quotation which has been read. I do not believe that a reasonable lay observer would apprehend the possibility that I might take a view on this matter, particularly now that Mr Afshar is no longer appearing in it, because I made acquaintance with him a number of years ago when we were seated next to each other at a formal dinner, as I disclosed on 10 March 2020. Mr Afshar and I do not talk or spend any time together, although we do greet each other in the street, I suppose, though I cannot actually remember when that might have happened. But for a reasonable lay observer to think that a casual acquaintance of that sort might lead a judge to favour a particular party is to my mind drawing a very long bow, particularly in the present circumstances. I am not persuaded that a reasonable lay observer would draw the inference for which Mr Ritson contends.
I do not accede to the request that I disqualify myself from hearing this matter further.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 9 November 2020
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