Commissioner of Police (NSW) v Ritson (No.4)
[2021] FCCA 333
•24 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Commissioner of Police (NSW) v Ritson (No.4) [2021] FCCA 333
File number: SYG 2114 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 24 February 2021 Catchwords: PRACTICE & PROCEDURE – Recusal.
PRACTICE & PROCEDURE – Amendment of timetabling orders.
Legislation: Federal Circuit Court of Australia Act 1999, s 74
Bankruptcy Act 1966, s 52
Federal Circuit Court Rules 2001, r 16.05
Cases cited: Commissioner of Police (NSW) v Ritson [2020] FCCA 1803
Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2021] FCA 93
Ritson v Commissioner of Police, New South Wales Police Force [2021] FCA 5
Johnson v Johnson (2000) 201 CLR 488
Number of paragraphs: 26 Date of last submissions: 19 February 2021 Date of hearing: 19 February 2021 Place: Sydney Counsel for the Applicant: Mr D. Elliot Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: The Respondent appeared in person ORDERS
SYG 2114 of 2019 BETWEEN: COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE
Applicant
AND: BRENDAN RITSON
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
24 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The respondent have leave nunc pro tunc to file his interim application dated 15 January 2021 and filed on 2 February 2021.
2.Compliance with the requirement that the respondent file an affidavit setting out why leave to file the interim application should be granted be dispensed with.
3.Orders 1, 2, 3 and 4 made on 27 November 2020 be vacated.
4.The respondent file and serve by 4pm on 10 March 2021:
(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.
5.The applicant file and serve by 4pm on 24 March 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.
6.If the respondent does not comply strictly with order 4, 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 to be supported by an affidavit setting out the reasons for any delay.
7.The matter be listed for final hearing on a date in April 2021 to be fixed.
8.In all other respects the interim application filed on 2 February 2021 and amended on 19 February 2021 be dismissed.
REASONS FOR JUDGMENT
JUDGE CAMERON:
INTRODUCTION
On 16 August 2019 the applicant (“Commissioner”) 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 that had been served on him. By an amended interim application filed on 28 February 2020, Mr Ritson sought summary dismissal of the creditor’s petition. The Court dismissed that application on 7 July 2020 (Commissioner of Police (NSW) v Ritson [2020] FCCA 1803) (“Summary Dismissal Judgment”) and Mr Ritson’s 20 July 2020 application for leave to appeal that outcome was, in turn, dismissed in the Federal Court by Markovic J on 15 February 2021 (Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2021] FCA 93) (“Leave to Appeal Judgment”).
On 27 November 2020 this Court relevantly made the following orders:
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.
In the course of his application for leave to appeal from the Summary Dismissal Judgment, Mr Ritson applied to Markovic J for an order staying those 27 November 2020 orders. However, her Honour was unpersuaded by the arguments advanced by Mr Ritson in support of a stay and dismissed that interlocutory application on 12 January 2021 (Ritson v Commissioner of Police, New South Wales Police Force [2021] FCA 5). In the course of doing so, her Honour also observed that the interlocutory application was premature because Mr Ritson had not first taken other more appropriate steps, such as applying to this Court for a variation of its orders or seeking the Commissioner’s consent to their amendment.
Mr Ritson has now applied to this Court for the setting aside of the orders made on 27 November 2020, on the basis they were made in his absence (r.16.05(2)(a) of the Federal Circuit Court Rules 2001), and a further order that I disqualify myself from further hearing the proceeding, on the ground of apprehended bias. In his written submissions Mr Ritson has also sought the appointment of a particular timetable for the preparation and hearing of this proceeding and an order that the Commissioner amend the creditor’s petition.
On 7 July 2020 it was ordered that:
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.
I grant leave to Mr Ritson to file the present interim application and dispense with the requirement that he file an affidavit setting out the reasons why such leave should be granted.
RESPONDENT’S EVIDENCE
Relevantly, in his affidavit in support of the present interim application sworn on 1 February 2021, Mr Ritson deposed to the following recent events:
(a)between 13 and 19 January 2021, the Commissioner’s solicitors and he exchanged emails in relation to a variation of the orders made on 27 November 2020. Mr Ritson proposed the following timetable but the Commissioner was not prepared to delay the hearing of the creditor’s petition:
1.[The commissioner] file and serve any amended creditor's petition by 9 February 2021.
2.[Mr Ritson’s] grounds of opposition, evidence and submissions to be filed and served by 2 March 2021.
3.[The Commissioner’s] evidence in response and submissions to be filed and served by 23 March 2021.
4.[Mr Ritson’s] evidence and submissions in reply to be filed and served by 6 April 2021.
5.The creditor's petition [be] listed for hearing on a date after 6 April 2021;
(b)in that correspondence he made the following argument in relation to the 27 November 2020 orders:
I was entitled to make submissions to the Court in relation to a timetable. I was denied that opportunity on 27 November 2020. Consequently, a timetable which disadvantages me was made in my absence. I object to that unfair timetable remaining in place.
I have been unable to commence preparation of my material due to the fact that I have been required to prepare material in the proceedings in the Federal Court and also in other legal proceedings between the parties in the NSW Civil and Administrative Tribunal. I have further material due to be filed and served in those proceedings in the coming weeks. Your client has deliberately co-ordinated the various timetables to overlap so as to disadvantage me and put me in a position whereby I am overwhelmed and simply cannot comply.
Furthermore, I have documents in storage in NSW which I had planned to collect in early January this year and are necessary for this matter, however I was unable to do that due to the COVID-19 outbreak in NSW over the Christmas period last year. Those documents still need to be collected from storage in NSW when I am able to do so;
(c)on 15 January 2021, he attempted to file the present interim application but was unsuccessful for want of an affidavit in support. Mr Ritson deposed that he had been unable to file such an affidavit because he was preparing submissions in compliance with directions in proceedings between him and the Commissioner in the NSW Civil and Administrative Tribunal and in the Federal Court.He identified those documents in the following terms:
… The following is a list of material prepared for each of those proceedings:
NSW Civil and Administrative Tribunal
a. Submissions dated 6 December 2020;
b. Statement dated 14 December 2020;
c. Submissions dated 22 January 2021
d. Application dated 24 January 2021;
Federal Court of Australia
e. Amended application for leave to appeal dated 17 December 2020;
f. Amended draft notice of appeal;
g. Affidavit dated 21 December 2020;
h. Interlocutory application dated 23 December 2020;
i. Submissions dated 3 January 2021;
j. Submissions in reply dated 29 January 2021.
(d)in relation to the Commissioner’s conduct at the directions hearing on 27 November 2020, when the relevant orders were made, he deposed:
17.The applicant knew that I was required to prepare the material in compliance with directions made by the NSW Civil and Administrative Tribunal and Federal Court during December 2020 and January 2021. The applicant also knew that I would be travelling interstate during the Christmas/New Year period because I informed Justice Markovic to that effect at the case management hearing in the Federal Court on 19 November 2020.
18.I note from reading the transcript of the hearing before his Honour Judge Cameron on 27 November 2020 that the applicant failed to disclose the matters in paragraph 17 above, which are matters I would have relied upon to oppose the applicant's proposed orders.
(e)with the COVID-19 borders restrictions between NSW and Queensland having been relaxed, he intends to travel to New South Wales “in the coming weeks” to collect documents in storage relevant to this proceeding.
Mr Ritson also relied on the following paragraphs of his affidavit sworn 21 December 2020 and filed in the proceeding before Markovic J:
15.On 21 October 2020, his Honour Judge Cameron made orders by consent that the hearing be adjourned to 10 December 2020 and the parties have liberty to apply on 2 days' notice.
16.…
17.On 27 November 2020, I received an email from the Associate to his Honour Judge Cameron. The email attached a letter advising that the hearing on 10 December 2020 has been vacated and the matter has been listed for hearing on 8 March 2020. The email also attached a sealed copy of an order made that same day in my absence.
18.…
19.I was unaware the listing before his Honour Judge Cameron on 10 December 2020 had been brought forward to 27 November 2020. I was denied natural justice in that regard.
20.I searched my email account and located emails between the respondent and the Associate to his Honour Judge Cameron (copied to me) between 20 November 2020 and 27 November 2020. I was unaware of these emails because they were archived in a separate email folder with other emails that had already been read, and therefore did not come to my attention. I note the emails between the respondent and the Associate had been included in an email trail (conversation) that commenced on 8 September 2020 in relation to previous hearing dates. In other words, the respondent has responded to an old email trail rather than commencing a new one. That old email trail had been archived by me shortly after receiving the last email from the Associate on 21 October 2020.
21.…
22.The respondent made the request to the Associate to his Honour Judge Cameron for the proceeding to be re-listed without having given me 2 days' notice (or any notice at all) in compliance with the order made on 21 October 2020. As such, I was not expecting the email from the respondent on 21 November 2020 and had no reason to search for those emails, especially when the next listing for that proceeding was nearly 3 weeks away.
23.I obtained a copy of the transcript of the directions hearing before his Honour Judge Cameron on 27 November 2020. I note from reading the transcript that his Honour made a complementary remark to Mr Elliot (counsel for the respondent) about him being appointed silk, namely “we look forward to that day”. His Honour made no enquiry with Mr Elliot as to whether the respondent gave me the 2 days' notice in compliance with the order made on 21 October 2020. However, his Honour went on to make an order that requires me (not the respondent) to “comply strictly” with another order made that day.
24.…
DISCUSSION
The arguments that Mr Ritson pursued in the present interim application were set out in his written submissions filed 19 February 2021. I observe that, in relation to the application for disqualification, these are less expansive than the arguments made in his January 2021 email correspondence with the Commissioner’s solicitors.
Disqualification
In support of his prayer that I disqualify myself, Mr Ritson argued that the cumulative effect of the following matters might cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of this case (Johnson v Johnson (2000) 201 CLR 488):
…
a.His Honour denied the respondent natural justice, or acted in a way that was at the least imbalanced or unfair to the respondent, in that:
i.His Honour did not comply with section 74(1) of the Federal Circuit Court of Australia Act 1999 by significantly delaying the formalisation of the order made on 2 April 2020, namely the reasons for the decision were not provided until 9 November 2020 and the order was not entered until 16 November 2020;
ii.His Honour failed to give reasons that address the respondent’s arguments at [44]-[53] of the respondent’s submissions dated 9 March 2020 in considering prayer 1 of the amended interim application dated 28 February 2020;
iii.His Honour failed to give reasons for making the order under section 52(5) of the Bankruptcy Act 1966 on 7 July 2020;
iv.His Honour brought forward the listing on 10 December 2020 at the request of the applicant and without the respondent’s knowledge, and subsequently made orders in the respondent’s absence on 27 November 2020;
b.His Honour made a complimentary remark to Mr Elliott (counsel for the applicant) about him being appointed silk, namely “we look forward to that day”, in the respondent’s absence on 27 November 2020, indicating that his Honour might have some undisclosed connection or ongoing interest in Mr Elliott.
4.His Honour’s connection to the applicant’s former counsel (Mr Afshar) through his Honour’s “old friend” and his Honour’s complimentary remark to the applicant’s current counsel (Mr Elliott), together with the less than transparent decision making process, provides the logical connection with the feared deviation from the course of deciding the case on its merits.
The principal argument, that there had been a denial of natural justice on 27 November 2020, is sufficiently clear. However, Mr Ritson made no attempt to identify what, in the circumstances, “imbalance” or “unfairness” to him amounted to. In his address to the Court on 19 March 2021 he submitted in relation to (a)(ii) of his written submissions that even if that matter “did not [give] rise to a denial of procedural fairness in the legal sense, it would still be unfair or imbalanced which is sufficient enough to still give rise to the apprehension of bias”, but the argument was not developed further and lacks meaningful substance.
It is useful to address in turn each of the paragraphs of Mr Ritson’s written submissions just quoted.
First, as to (a)(i), the fact that by clerical omission an order pronounced in the presence of the parties was not engrossed does not amount to a denial of natural justice. Nor is it apparent how that omission in this case might have been “imbalanced” or “unfair” to Mr Ritson. He was present and heard the reasons for decision and the outcome of his first application for disqualification. It should also be recorded that the order was entered following Mr Ritson’s request for written reasons and was subsequently considered by Markovic J when dismissing Mr Ritson’s application for leave to appeal.
Secondly, as to (a)(ii), Mr Ritson might have ground for complaint if the Court’s reasons for dismissing his application for summary dismissal had not been provided, but they were. Mr Ritson was entitled to know why his application was unsuccessful and the Court’s reasons disclosed that. The fact that those reasons did not address a particular allegation has been found by Markovic J in the Leave to Appeal Judgment at [86]-[91] to have not amounted to a substantial injustice to Mr Ritson because the arguments raised in connection with it were considered elsewhere in the Summary Dismissal Judgment and rejected. To the extent that there was a denial of natural justice it was not one that worked a practical injustice on Mr Ritson, a matter of which the fair-minded lay observer is taken to be aware. In the circumstances, it is also not apparent how the circumstance complained of might have been “imbalanced” or “unfair” to Mr Ritson.
Thirdly, as to (a)(iii), no denial of natural justice to Mr Ritson arises out of the absence of stated reasons for an order made under s.52(5) of the Bankruptcy Act on 7 July 2020 in circumstances where the order was proposed in open court in the presence, by telephone, of Mr Ritson, who advanced no argument against it. In the absence of any opposition to the order it was open to the Court to conclude that the proposal enjoyed Mr Ritson’s approval and so no commentary on it was necessary. Mr Ritson has not identified why that outcome was “imbalanced” or “unfair” to him.
Fourthly, as to (a)(iv), as the evidence, in particular Mr Ritson’s Federal Court affidavit of 21 December 2020, makes clear, the relisting of this matter on 27 November 2020 involved no denial of natural justice. The creditor’s petition was listed for hearing on 10 December 2020 but the application for leave to appeal from the 7 July 2020 orders had not been determined at that point. The Commissioner proposed that the hearing be adjourned and wrote to the Court, copied to Mr Ritson, on 20 November 2020 seeking an amended timetable. That occurred a week before the matter was listed in response to that request. My associate wrote to the parties by email later that day asking whether Mr Ritson was available to attend a directions hearing on 27 November 2020 at 9:30am. No reply having been received from Mr Ritson, my associate wrote again to the parties on 24 November 2020 saying that failing advice from Mr Ritson by 5pm the following day that the proposed listing was unsuitable to him, the matter would be listed at that time. No response being received by that time or at all, the matter was listed accordingly. The listing was confirmed by a further email from my associate to the parties on 26 November 2020 in which a change in teleconference contact details was advised. The relevant duty was to afford Mr Ritson an opportunity to make his arguments to the Court. The Court did that by writing to him at his email address. The fact that he did not appear does not mean that the Court denied him natural justice. In any event, Mr Ritson’s 21 December 2020 Federal Court affidavit demonstrates that the emails were received by him but were automatically filed in a folder which he was not inspecting at that time. The fact that he did not read the correspondence is entirely the result of his own decisions, not of any failure on the part of the Court. Moreover, it should be recorded that the orders of 27 November 2020 did no more than remake timetabling orders that had already been made on 7 July 2020 and 7 August 2020. It is not apparent that it was unfair to Mr Ritson to be given a second extension of the time within which to complete necessary interlocutory steps or that that was in some way an “imbalanced” outcome.
Fifthly, as to (b), the relevant exchanges between the bench and Mr Elliott at the telephone hearing on 27 November 2020 were:
HIS HONOUR: This is Judge Cameron. Could I have an appearance for the applicant, please, the Commissioner.
MR D. ELLIOTT: Yes. Elliott of counsel for the Commissioner.
HIS HONOUR: Thank you. Mr Elliott, have you been appointed silk in the meantime?
MR ELLIOTT: No.
HIS HONOUR: No. I just got a note of silk next to your name in my ..... book. Anyway, it’s just a matter of time, I’m sure.
MR ELLIOTT: An early elevation, your Honour.
HIS HONOUR: Anyway, and we look forward to that day.
MR ELLIOTT: Yes. Thank you.
HIS HONOUR: Mr Ritson, are you on the line? No. We will call the matter outside.
…
In his January 2021 email correspondence with the Commissioner’s solicitors Mr Ritson raised an objection to my further involvement in this matter by reference to that exchange saying:
His Honour made a complimentary remark to Mr Elliott (counsel for the applicant) about him being appointed silk, namely "we look forward to that day", in my absence on 27 November 2020, indicating his Honour might have some undisclosed connection or ongoing interest in Mr Elliott;
The Commissioner’s solicitors responded:
Counsel briefed has never met Judge Cameron and has never appeared before Judge Cameron save for in respect of these proceedings.
To the best of my knowledge that statement is correct. The comment to which objection has been taken should be understood for what it was, a jocular pleasantry of no materiality.
The first, third and fourth contentions advanced by Mr Ritson have not been made out and the second and fifth lack any real substance. The issue concerning Mr Afshar has already been considered and disposed of by Markovic J in the Leave to Appeal Judgment at [69]-[71]. I am not persuaded that the cumulative effect of those insubstantial matters might be to create in a fair-minded lay observer a reasonable apprehension that I might not bring an impartial mind to the resolution of the proceeding.
Application to set aside orders
In his written submissions, Mr Ritson advanced the following arguments in support of his prayer for the setting aside of the orders made on 27 November 2020:
7.His Honour brought forward the listing on 10 December 2020 at the request of the applicant and without the respondent’s knowledge, and subsequently made orders in the respondent’s absence on 27 November 2020.
8.The respondent refers to and relies on [15]-[24] of his affidavit sworn 21 December 2020 and the entirety of his affidavit sworn 1 February 2021.
9.The applicant did not cross-examine the respondent in respect to this issue (or at all) in the proceeding in the Federal Court nor has the applicant filed and served any evidence in this proceeding in respect to this issue. In any event, the applicant would be estopped from now disputing such evidence.
The evidence Mr Ritson relies on in those paragraphs provides no basis to reconsider the orders made on 27 November 2020. The fact that the orders were made in his absence because of his own mistake is an insufficient reason to set them aside, particularly as he has been aware of them for months now and they do no more than postpone an obligation that was first imposed over half a year ago. I note that Mr Ritson has deposed that he has had to prepare a lot of other court documents and that he has been unable to access material which is stored in New South Wales, he living in Queensland. The latter two points are ostensibly significant but Mr Ritson has not identified what he did in the period since the relevant orders were first made on 7 July 2020 to comply with the timetable ordered in this matter. Further, in his affidavit of 1 February 2021 he has deposed that he proposes to travel to New South Wales “in the coming weeks”. The present application was heard on 19 February 2021 but Mr Ritson did not tell the Court that he had done anything in the intervening time to access the documents to which he has referred.
Although I appreciate that Mr Ritson has been involved in other litigation, he has had many months to prepare his opposition to the creditor’s petition. The impression I have gained is that Mr Ritson taken no meaningful steps to comply with this Court’s orders. If he had, he would have told the Court of progress he had made in preparing his documents. Instead, the Court is left to infer that there is nothing that could have been usefully be said on that topic. That is no proper basis for the Court to grant yet one more extension of time. It is also to be noted that the creditor’s petition will lapse in August and the matter must be heard and determined before then.
Notwithstanding Mr Ritson’s failure to prepare his defence, the Commissioner advised the Court on 19 February 2021 that he would agree to an adjustment of the timetable as far as it dealt with the filing and service of documents, but wished to keep the hearing date. Unfortunately, that is not practical. There is merit in permitting Mr Ritson to file documents notwithstanding order 3 made on 27 November 2020, so that his arguments may be presented properly but, given the proximity of the hearing, an adjustment to the timetable of preparatory steps will be of illusory value unless some more time is allowed than would be available if the current hearing date were confirmed. As a consequence, although the idea of delaying the final hearing is unattractive, the hearing date will be vacated and the timetable adjusted in terms to be set out shortly.
Amendment to creditor’s petition
Mr Ritson submitted:
11.The creditor’s petition relies on an impermissible claim for interest after the asserted date of the act of bankruptcy, that is, after 6 June 2019. As a model litigant, the respondent ought to amend the petition to correct the irregularity.
Subject the law and the rules of Court, the Commissioner is entitled to bring the proceeding as he reasonably sees fit. Mr Ritson has not demonstrated that the Commissioner must not plead his case as he has or that he has, in fact, failed to act as a model litigant. In those circumstances Mr Ritson must simply meet the Commissioner’s case and, if he can, defeat those elements of it which he contends are flawed.
Timetable
Mr Ritson has sought, in the event that the 27 November 2020 orders are set aside, a fresh timetable for the filing and service of documents and a postponed hearing date. As stated earlier, the timetable will be adjusted.
CONCLUSION
For the reasons I have given, orders 1, 2, 3 and 4 made on 27 November 2020 will be vacated and the following orders made instead:
(1)The respondent file and serve by 4pm on 10 March 2021:
(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 file and serve by 4pm on 24 March 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 [the first order], 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 to be supported by an affidavit setting out the reasons for any delay.
(4)The matter be listed for final hearing on a date in April 2021 to be fixed.
(5)In all other respects the interim application filed on 2 February 2021 and amended on 19 February 2021 be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 24 February 2021
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