Commissioner of Police (NSW) v Ritson (No.5)
[2021] FCCA 1835
•12 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COMMISSIONER OF POLICE (NSW) v RITSON (No.5) | [2021] FCCA 1835 |
| Catchwords: TORT – Malicious prosecution – elements of the tort – damage as an element of the tort. TORT – Collateral abuse of process – elements of the tort. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.43, 52 Personal Safety Intervention Orders Act 2010 (Vic), ss.35, 40, 61, 76, 111 Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), rr.4.04, 4.05, 4.06, 4.09 |
| Cases cited: Commissioner of Police (NSW) v Ritson [2020] FCCA 1803 Ritson v Registrar of the Federal Court of Australia [2019] FCA 1835 Totev v Sfar (2006) 4 ABC(NS) 325 |
| Applicant: | COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE |
| Respondent: | BRENDAN RITSON |
| File Number: | SYG 2114 of 2019 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 14 April 2021, 5 May 2021, 5 August 2021 |
| Date of Last Submission: | 5 August 2021 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. F. Elliott |
| Solicitors for the Applicant: | Coleman Greig |
| The Respondent appeared in person |
ORDERS
The estate of Brendan Ritson be sequestrated under the Bankruptcy Act 1966 (Cth).
| 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
The applicant (“Commissioner”) moves on a creditor’s petition filed on 16 August 2019 and again on 5 December 2019 seeking a sequestration order against the estate of the respondent, Mr Ritson, after he failed to comply with a bankruptcy notice (“Bankruptcy Notice”) served on him. On 7 July 2020 the period at the expiration of which the creditor’s petition will lapse was extended to 2 years commencing 16 August 2019. Mr Ritson opposed the petition on the basis that two then-pending proceedings constituted “other sufficient cause” to not make a sequestration order against him. Those proceedings were his:
a. …appeal from the judgment of Rares J delivered on 11 September 2019 in case number NSD1219/2019 to the Full Court of the Federal Court, being proceedings in connection with the setting aside of the bankruptcy notice.
b.…claim for damages against Jonathan Ryan for the torts of malicious prosecution and abuse of process in case number 3442/2019 in the District Court of Queensland, being a claim to funds sufficient to satisfy the creditor’s debt.
Mr Ritson alleged in the alternative that those proceedings:
…constitute “other sufficient cause” to adjourn the hearing of the petition pending the hearing and determination of those proceedings.
Since judgment was reserved, Mr Ritson has abandoned the ground based on the appeal from the orders of Rares J and the ground seeking an adjournment.
This is the 5th judgment published in this proceeding, the others being:
a)Commissioner of Police (NSW) v Ritson [2020] FCCA 1803 (“First Judgment”);
b)Commissioner of Police (NSW) v Ritson (No.2) [2020] FCCA 3035;
c)Commissioner of Police (NSW) v Ritson (No.3) [2020] FCCA 3512; and
d)Commissioner of Police (NSW) v Ritson (No.4) [2021] FCCA 333.
An appeal from the first three of those judgments was dismissed in the Federal Court of Australia by Markovic J on 15 February 2021: Ritson v Commissioner of Police, New South Wales Police Force (No 2) [2021] FCA 93.
RELEVANT LEGISLATION
The Court’s power to make sequestration orders is set out in s.43 of the Bankruptcy Act 1966 (”Act”), which relevantly provides:
Division 2—Creditors’ petitions
43 Jurisdiction to make sequestration orders
(1) Subject to this Act, where:
(a)a debtor has committed an act of bankruptcy; and
(b)at the time when the act of bankruptcy was committed, the debtor:
(i)was personally present or ordinarily resident in Australia;
…
the Court may, on a petition presented by a creditor, make a sequestration order against the estate of the debtor.
Section 52 of the Act relevantly provides:
52Proceedings and order on creditor’s petition
(1) At the hearing of a creditor’s petition, the Court shall require proof of:
(a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b)service of the petition; and
(c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
…
(2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:
(a)that he or she is able to pay his or her debts; or
(b)that for other sufficient cause a sequestration order ought not to be made;
it may dismiss the petition.
APPLICANT’S CASE
According to annexure E to the affidavit of search of Laura Bazouni sworn 21 August 2019, on 30 October 2015 the Commissioner recovered judgment against Mr Ritson in the Local Court of NSW for $43,966.79 and on 22 March 2017 Mr Ritson was served with the Bankruptcy Notice. The Bankruptcy Notice was addressed to him that had been issued on 7 December 2016 in the amount of $47,782.64, being the judgment sum plus interest of $3,815.85. According to the affidavit of Michael Enright sworn 8 August 2019 verifying the creditor’s petition, Mr Ritson failed to comply with the Bankruptcy Notice on or before 6 June 2019, a date effectively set by Lee J in his reasons for judgment in Ritson v Commissioner of Police, New South Wales Police Force (No 3) [2019] FCA 853 on 24 May 2019: see [9] – [21] and [69] of the First Judgment. Ritson v Commissioner of Police (No 3) concerned an appeal from Judge Smith’s decision in Ritson v Commissioner of Police New South Wales Police Force (2018) 332 FLR 182 not to set the Bankruptcy Notice aside.
Mr Enright also verified the allegations in the creditor’s petition that Mr Ritson still owed the Commissioner a total amount of $56,334.04, being the judgment debt plus interest of $12,456.55 less a credit of $89.30, that the Commissioner did not hold security over any of Mr Ritson’s property and that when the act of bankruptcy was committed Mr Ritson was personally present and ordinarily resident in Australia.
According to the affidavit of debt of Tina Jones sworn 14 April 2021, the debt remained unpaid as at that date, which was the day the trial in this matter commenced.
Ms Bazouni’s affidavits of search of 21 August 2019 and 13 April 2021 addressed the matters required by rr.4.04 and 4.06(3) of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (“Rules”) respectively.
By a declaration filed on 16 August 2019, Sean Magnus Wengel and Anthony Castley, who identified themselves as registered trustees, made known their consent to act as joint and several trustees of Mr Ritson’s bankrupt estate were he to become bankrupt “pursuant to a court sequestration order”.
RESPONDENT’S CASE
The remaining ground of Mr Ritson’s notice stating grounds of opposition to petition is:
1.There is “other sufficient cause” to not make a sequestration order, pursuant to section 52(2)(b) of the Bankruptcy Act 1966.
Particulars
The following extant legal proceedings constitute “other sufficient cause” to not make a sequestration order:
a.…
b.Respondent’s claim for damages against Jonathan Ryan for the torts of malicious prosecution and abuse of process in case number 3442/2019 in the District Court of Queensland, being a claim to funds sufficient to satisfy the creditor’s debt.
2.…
It is to be noted that Mr Ritson does not allege that he is presently able to pay his debts.
In relation to the malicious prosecution and abuse of process proceedings in the Queensland District Court (“Qld DCt”) Mr Ritson deposed that:
a)he had commenced the proceedings on 23 September 2019 and sought “general, aggravated and exemplary damages” against a Jonathan Ryan for malicious prosecution and abuse of process;
b)his allegations in the Qld DCt proceedings were true and correct;
c)the documents that had been admitted into evidence in this matter as ex.R1 and ex.R2 proved the matters he alleged in the Qld DCt proceedings; and
d)if successful, the claim for damages against Mr Ryan would provide funds sufficient to satisfy the debt upon which the creditor’s petition is founded and Mr Ryan had assets sufficient to satisfy a judgment.
Mr Ritson annexed to his affidavit sworn on 25 March 2021 a copy of a further amended statement of claim that he had filed in the Qld DCt proceedings. It alleged that there had been two actions in respect of which he was entitled to relief. The first was brought in the Melbourne Magistrates’ Court in which Mr Ryan had obtained an interim and then a final personal safety intervention order (“PISO”) against Mr Ritson. The second was another proceeding brought in the Melbourne Magistrates’ Court in which Mr Ryan again obtained an interim and then a final PISO against Mr Ritson, although that was later set aside and a rehearing ordered, following which Mr Ryan withdrew his application.
In relation to the first PISO application, Mr Ritson has alleged in the Qld DCt proceedings that:
Consumer law litigation
a)he had commenced a proceeding in this Court in 2012 under the Australian Consumer Law (sch.2 to the Competition and Consumer Act 2010) (“ACL action”) alleging that a company which Mr Ryan operated (“PATS Consulting”) had engaged in misleading and deceptive conduct and that before that proceeding was commenced Mr Ryan had sent an email to Mr Ritson saying that he needed to be “fully aware of the possible financial and ‘other consequences’ of initiating legal action”;
b)in the ACL action, on 9, 10, 24 and 31 July 2021, 27 August 2021, 4 October 2012 and 13 November 2012 Mr Ryan knowingly gave “false information” to this Court to the effect that, amongst other things, Mr Ritson had threatened him with violence and had demanded money from him;
c)on 4 December 2012 this Court declared that PATS Consulting had engaged in misleading or deceptive conduct and awarded Mr Ritson damages, interest and indemnity costs;
Mr Ryan’s complaint to the police
d)on 4 June 2012 Mr Ryan made a knowingly false complaint to the NSW Police that between 1 April 2012 and 4 June 2012 Mr Ritson had made at least 6 telephone calls to him threatening violence;
e)the following week Mr Ryan made a further false complaint to the NSW Police that since the 4 June 2012 complaint Mr Ritson had made further telephone calls to him threatening violence and murder;
First interim and final PISOs
f)on 6 June 2012 Mr Ryan made a knowingly false application to the Melbourne Magistrates’ Court for a PISO against Mr Ritson, based on allegations that Mr Ritson had made threatening telephone calls to him in the period after 16 April 2012;
g)an interim PISO was made by the Melbourne Magistrates’ Court on 6 June 2012;
h)on 29 August 2021 and 26 and 27 September 2021 Mr Ryan knowingly gave “false information” to the Melbourne Magistrates’ Court to the effect that Mr Ritson had threatened him with violence and had demanded money from him;
i)a final PISO was made by the Melbourne Magistrates’ Court on 27 September 2012 in Mr Ritson’s absence;
PISO appeal
j)on 23 and 24 September 2013 in Mr Ritson’s appeal from the final PISO, Mr Ryan knowingly gave “false information” to the County Court of Victoria (“County Court”) to the effect that Mr Ritson had threatened him with violence and had demanded money from him;
k)on 24 September 2013 the County Court set aside the final PISO and dismissed Mr Ryan’s application;
Other proceedings or processes (bankruptcy notice, assignments in favour of Mr Ritson) initiated by Mr Ritson against Mr Ryan
l)on 30 November 2015, 27 July 2016,1 March 2017, 24 March 2017, 28 March 2017, 29 March 2017, 26 April 2017, 16 May 2017, 13 September 2017, 29 March 2019, 15 May 2019, 16 May 2019 and 22 January 2020, Mr Ryan gave false information or false evidence concerning the PISOs the Melbourne Magistrates' Court had made against Mr Ritson to, variously, this Court, the Victorian Civil and Administrative Tribunal (“VCAT”) and the Queensland Civil and Administrative Tribunal (“QCAT”);
m)on 26 August 2016, Mr Ryan gave false sworn evidence to VCAT in support of his application to re-open an order made in favour of a third party that “had been assigned to” Mr Ritson;
Malicious prosecution and abuse of process
n)in bringing the first PISO action, Mr Ryan had acted:
i)without reasonable and probable cause; and
ii)maliciously, by bringing the proceedings for purposes other than the proper invocation of the system of PISOs provided for under the Personal Safety Intervention Orders Act 2010 (Vic); namely:
·because of personal animus Mr Ryan had towards Mr Ritson;
·to punish Mr Ritson for initiating the proceedings against PATS Consulting;
·to dissuade Mr Ritson from maintaining the proceedings against PATS Consulting;
·to discredit Mr Ritson in the proceedings against PATS Consulting;
·to cause Mr Ritson economic harm in responding to the proceedings in the Melbourne Magistrates' Court; and
·to use the first PISO as a bargaining chip in negotiations with Mr Ritson in the proceedings against PATS Consulting
such that the first PISO application amounted to malicious prosecution and abuse of process.
In relation to the second PISO application, Mr Ritson has alleged that:
Background to second PISO application
a)in September 2016 Mr Ryan was ordered to pay Mr Ritson’s costs of an interlocutory application in the Melbourne Magistrates’ Court and of an application in this Court. In November 2016 Mr Ritson garnished those sums from an account Mr Ryan held with Westpac;
Second interim and final PISOs
b)on 2 December 2016 Mr Ryan made a knowingly false application to the Melbourne Magistrates’ Court for a further PISO against Mr Ritson;
c)on 5 December 2016 the Melbourne Magistrates’ Court made another interim PISO against Mr Ritson;
d)on 21 December 2016, Mr Ryan knowingly gave false evidence to the Melbourne Magistrates’ Court in support of his application for the second PISO, including information to the effect that Mr Ritson had fraudulently removed money from Mr Ryan’s Westpac account, had caused persons who looked like members of outlawed motorcycle gangs to visit Mr Ryan’s home and, in the preceding fortnight, had threatened to kill Mr Ryan;
e)on 21 December 2016 the Melbourne Magistrates’ Court made a final PISO against Mr Ritson;
f)on 1 February 2017 the Melbourne Magistrates’ Court set aside the second PISO and granted Mr Ritson a rehearing of the second PISO application;
g)on 22 February 2017 Mr Ryan knowingly gave false information to the Melbourne Magistrates’ Court in support of his application for a PISO against Mr Ritson, including information to the effect that Mr Ritson had made threatening telephone calls to him and was stalking and harassing him;
h)on 28 March 2017, Mr Ryan knowingly gave false information to the Melbourne Magistrates’ Court in support of his application for a PISO including information to the effect that Mr Ritson had threatened him;
Withdrawal of PISO application
i)on 9 August 2017 Mr Ryan withdrew his second PISO application;
j)on 8 December 2017 Mr Ryan knowingly gave false information to the Melbourne Magistrates’ Court in response to Mr Ritson’s application for costs following the withdrawal of the application for a PISO, including information to the effect that Mr Ritson had lied in his application for a garnishee order and had threatened and harassed Mr Ryan; and
Malicious prosecution and abuse of process
k)in bringing the second PISO application Mr Ryan had acted:
i)without reasonable and probable cause; and
ii)maliciously, by bringing the proceedings for purposes other than the proper invocation of the system of personal safety intervention orders provided for under the Personal Safety Intervention Orders Act, namely:
·because of personal animus Mr Ryan had towards the Mr Ritson;
·to punish Mr Ritson for issuing the garnishee order;
·to discredit Mr Ritson in the QCAT proceedings;
·to cause Mr Ritson economic harm in responding to the proceedings in the Melbourne Magistrates' Court; and
·in retaliation for being ordered to satisfy the costs orders in respect of which the garnishee order was issued
such that the second PISO application amounted to malicious prosecution and abuse of process.
Mr Ritson has further alleged that Mr Ryan:
i)was arrested on 17 August 2017 for;
ii)pleaded guilty on 4 December 2018 to;
iii)was convicted on 4 December 2018 of; and
iv)was sentenced at the Melbourne Magistrates’ Court on 11 December 2018 for
perjury in the VCAT proceedings involving the assignment of an order.
Mr Ritson also relied on four exhibits comprising documents that he relied on to support the allegations in the further amended statement of claim and his submissions in this proceeding. To the extent that those documents are material to these reasons, they will be cited in the discussion of Mr Ritson’s arguments in favour of his contention that sufficient cause has been shown for the Court to decline to make a sequestration order in his case.
RELEVANT AUTHORITIES
Malicious prosecution
In A v State of New South Wales (2007) 230 CLR 500 at 502 [1] it was stated that to succeed in an action for damages for malicious prosecution a plaintiff must establish that:
a)proceedings of the kind to which the tort applies, generally criminal proceedings, were initiated against the plaintiff by the defendant;
b)the proceedings terminated in favour of the plaintiff;
c)the defendant, in initiating or maintaining the proceedings acted maliciously; and
d)the defendant acted without reasonable and probable cause.
In relation to the first element, to incur liability the defendant must play an active role in the conduct of the proceedings, such as by instigating or setting them in motion: A v State of New South Wales at 512 [34]. In Coleman v Buckingham’s Limited (1963) 63 SR (NSW) 171 at 179 and 180 Herron CJ and Walsh J noted that malicious false swearing in a proceeding that causes damage is not, of itself, actionable and, relevantly, does support an action for malicious prosecution.
It has been said in New South Wales that it is not settled whether, subject to certain well-established civil exceptions, the tort is restricted to criminal proceedings: Eliezer v The Owners – Strata Plan No 51682 [2017] NSWSC 278; Frigger v Banning (No 8) [2019] FCA 1319. However, it is to be noted that in this case the issue arises in the context of proceedings in Queensland. In Beach Club Port Douglas Pty Ltd v Page (2005) 143 LGERA 180, it was said by the Queensland Court of Appeal that:
… if you are prosecuted without reasonable and probable cause … you may have an action for damages for malicious prosecution against your tormentor; but only if the proceedings brought against you are criminal and terminate in your acquittal, and not if they are simply penal, administrative or disciplinary: see Gregory v Portsmouth City Council [2000] 1 AC 419. (at 185 [14] per McPherson JA, Jerrard and Chesterman JJA agreeing)
However, the Queensland Court of Appeal has commented more recently on the issue in Bradshaw & Anor v Secure Funding Pty Ltd [2012] QCA 52, albeit in obiter dicta. The trial judge was quoted at [53] as having said in the context of a possible allegation of malicious prosecution of a civil proceeding that:
… The tort of malicious prosecution can be brought in relation to a civil proceeding that has been dismissed where the party who brought and continued the proceedings acted maliciously and without reasonable and probable cause …
The Court of Appeal considered that statement without questioning its correctness and said:
The tort of malicious prosecution is committed when a person maliciously and without reasonable and probable cause initiates a proceeding against another which terminates in favour of the other and which results in damage to the other’s reputation, person, freedom or property. (at [54] per Margaret Wilson AJA, McMurdo P and Chesterman JA agreeing)
That statement of the law reflects what the Full Court of the Victorian Supreme Court said in Little v Law Institute of Victoria (No 3) [1990] VR 257 at 266-267.
The second element of the tort does not need elaboration other than to note that in the context of a criminal prosecution it was observed in Beckett v State of New South Wales (2013) 248 CLR 432 at 439 [7] that what a plaintiff relevantly requires for his or her malicious prosecution action is not a judicial determination of innocence but merely the absence of any judicial determination of guilt.
As to the third and fourth elements, each case will turn on its own facts. In a case such as the present, the following statement by the High Court in A v State of New South Wales concerning what amounts to absence of reasonable and probable cause is apposite:
… the proposition that absence of reasonable and probable cause is demonstrated by proving that the prosecutor “does not at least believe that the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted” finds ready application in a case, like Sharp v Biggs, where the defendant prosecutor had charged the plaintiff with giving perjured evidence about what the plaintiff alleged he had seen the defendant doing. (at 524 [69]) (reference omitted)
In relation to the issue of malice, the High Court went on to say:
What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique motive”. That improper purpose must be the sole or dominant purpose actuating the prosecutor.
… because there is no limit to the kinds of other purposes that may move one person to prosecute another, malice can be defined only by a negative proposition: a purpose other than a proper purpose. (at 531 [91], [92]) (references omitted)
Even if the four elements of the tort are proved, however, no action lies unless the plaintiff has suffered damage of a form that falls within the three heads of damage laid down by Holt CJ in Savile v Roberts (1698) 91 ER 1147: Little v Law Institute of Victoria (No 3) at 265 per Kaye and Beach JJ. In Savile v Roberts Holt CJ said:
… that there are three sorts of damages, any of which would be sufficient ground to support this action. 1. The damage to a man's fame, as if the matter whereof he is accused be scandalous. … 2. The second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty … 3. The third sort of damages, which will support such an action, is damage to a man’s property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused …(at 1149-1150)
I recognise that in Odeh v State of NSW [2019] NSWSC 1424, Rothman J reached a different conclusion, saying:
On the authorities, in my view, seemingly supported by that statement of the elements by the High Court in A v State of New South Wales, proof of damage may be an element of collateral abuse of process but not malicious prosecution, where damage is presumed. (at [13])
However, in State of New South Wales v Landini [2010] NSWCA 157 at [19] and [20], Macfarlan JA said, Tobias JA and Sackville AJA agreeing:
The elements of the tort of malicious prosecution were summarised in the joint judgment of six members of the High Court in A v New South Wales (2007) 230 CLR 500 as follows:
“[1] … (1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause” (citation omitted) (at [1]).
To these elements should be added proof of damage, as malicious prosecution is an action on the case (Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 284, 285 per Isaacs ACJ and Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552 at 557 per Jordan CJ with whom Halse Rogers and Street JJ concurred).
The costs of defending a malicious criminal prosecution are recoverable: State of New South Wales v Cuthbertson (2018) 99 NSWLR 120 at 130 [47] per Beazley P. The costs of defending a malicious civil proceeding are also recoverable if they could not have been awarded in that proceeding, although if there has been a costs order in the civil proceeding it provides a complete indemnity for costs properly incurred: Coleman v Buckingham’s at 175ff; Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 375; Ratcliffe v Evans [1892] 2 QB 524 at 527-528, 531, 532. To seek additional costs would amount to a collateral attack on that costs order: Willers v Joyce [2016] 3 WLR 477 at 498 [58] per Lord Toulson JSC; Baroness Hale DPSC, Lord Kerr, Lord Clarke and Lord Wilson JJSC agreeing.
Collateral abuse of process
In Coleman v Buckingham’s the differences between an action for malicious prosecution and an action for abuse of process were noticed. The latter was described by Herron CJ and Walsh J as “the perversion and misuse of legal process to achieve a collateral and improper purpose such as extortion or oppression” (at 179). Their Honours continued:
The latter action is different from the action for malicious prosecution or malicious arrest, as is explained in Grainger v Hill and in Varawa v Howard Smith Co Ltd per O'Connor J at p. 70 and per Isaacs J at p. 91. Those cases show that in a declaration founded on this cause of action the plaintiff would not allege the absence of reasonable and probable cause, but would allege that the proceedings were instituted not for the purpose of recovering judgment for a debt claimed to be due, but for some ulterior and improper purpose. (at 179) (citations omitted)
In Williams v Spautz (1992) 174 CLR 509, the tort of collateral abuse of process was described in the following terms:
The tort of collateral abuse of process differs from the older action for malicious prosecution in that the plaintiff who sues for abuse of process need not show: (a) that the initial proceeding has terminated in his or her favour; and (b) want of reasonable and probable cause for institution of the initial proceeding.
Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers. … (at 522-523 per Mason CJ, Dawson, Toohey and McHugh JJ)
The existence of an unworthy or reprehensible motive for bringing the action is not enough. It must appear that the purpose sought to be effected by the litigant in bringing the proceedings was not within its scope and was improper, although it is sufficient that the improper purpose be the predominant rather than the sole purpose: Williams v Spautz at 525, 529. It does not matter that the allegation in the proceeding is arguable if the purpose of the litigation was to achieve something other than the vindication of that right. In Dr Spautz’s case, he had commenced proceedings for criminal defamation when his real goal had been to achieve his reinstatement as a university lecturer: Flower & Hart (a Firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134. In Rock v Henderson [2021] NSWCA 155, citing Williams v Spautz, Brereton JA said, Bell P agreeing:
There will not be a collateral abuse of process where the plaintiff institutes and maintains the proceedings with the intention of prosecuting them for the purpose of obtaining the remedy claimed in them, even if there are collateral or ulterior motives and benefits. If a plaintiff sues to redress a genuine grievance, no object which the plaintiff may seek to obtain in the proceedings can be condemned as a collateral advantage, and to that extent improper, if it is reasonably related to the provision of redress for that grievance. If a plaintiff with a genuine cause of action, which the plaintiff would wish to pursue in any event, can be shown also to have an ulterior purpose as a by-product of the litigation, the plaintiff cannot be debarred from proceeding. On the other hand, a plaintiff’s pursuit of an ulterior purpose unrelated to the subject matter of the litigation which, but for the ulterior purpose, the plaintiff would not have begun, is an abuse of process. (at [37]) (references omitted)
In Rock v Henderson, the plaintiff had sued his former wife in the NSW District Court (“NSW DCt”) for malicious prosecution of an apprehended domestic violence order against him. The former wife argued in the New South Wales Court of Appeal that it was open to find that her former husband’s NSW DCt proceedings had been brought for an improper collateral purpose, namely, to affect negotiations in pending family law proceedings. Justice Brereton said:
… there is nothing inappropriate about one spouse bringing a claim for damages against the other in parallel with proceedings for property adjustment, and receiving a judgment on that claim, to be satisfied out of the other’s entitlement under s 79 [of the Family Law Act 1975]. That cannot depend on the accident of who is the applicant in the property adjustment proceedings. The necessary corollary is that a claim for property adjustment by one spouse against the other may be offset by a claim for damages by the other. As with any cross-claim, that may give the cross-claimant some leverage for negotiation. That does not make it improper. (at [40]) (emphasis added)
Nature of an application for an order under the Personal Safety Intervention Orders Act
A PISO under the Personal Safety Intervention Orders Act is civil in nature: ss.35, 40, 61 and 76 of the Personal Safety Intervention Orders Act; Critchley v Magistrates’ Court of Victoria [2019] VSC 435 at [43], [71].
In New South Wales, it has been held that proceedings for the equivalent local order, an apprehended violence order (“AVO”), can support an action for malicious prosecution. In Li v Deng (No. 2) [2012] NSWSC 1245 Ball J said:
Although the tort of malicious prosecution normally involves criminal proceedings, it is also available in relation to civil proceedings if those proceedings could give rise to the types of damage for which the tort provides compensation - in particular, damage to reputation. An example is bankruptcy proceedings: Johnson v Emerson (1871) LR 6 Ex 329; 40 LJ Ex 201; 25 LT 337; see also Little v Law Institute of Victoria (No 3) [1990] VR 257 at 267-8. In my opinion, the tort would extend to an application for an AVO. Proceedings of that type are obviously capable of damaging the reputation of those against whom such an order is sought. (at [169])
See also Clavel v Savage [2013] NSWSC 775 at [45]. In Rock v Henderson Brereton JA at [34] and Wright J at [110] noted without criticism that a number of New South Wales cases have held, or at least assumed, that an application for an apprehended domestic violence order is in the class of civil cases that may found a claim for malicious prosecution.
Other sufficient cause
In Totev v Sfar (2006) 4 ABC(NS) 325 Allsop J said, citing Cain v Whyte (1933) 48 CLR 639:
On proof of the matters in s 52(1) of the Act, the Court will generally proceed to make an order for sequestration. It is for the debtor to persuade the Court that the public interest in the dealing with the insolvent debtor and the rights of individual creditors are outweighed by other considerations … (at 333-334 [37])
In order to establish that a claim against a third party or a counter claim against the petitioning creditor amounts to “other sufficient cause” a debtor must establish that that claim is likely to succeed, not merely that it is arguable: ICM Agriculture Pty Ltd v Young (2009) 7 ABC(NS) 397 at 414 [85]; Dart v Singer [2015] FCA 1353 at [57]; B Pty Ltd v Sutton [2020] FCCA 3068 at [63]-[64]. The former would support the refusal of a sequestration order while the latter would only support an adjournment of the petition: Liang v LV Property Investments Pty Ltd [2015] FCA 1057 at [59]-[60].
Whatever the case, creditors should not be expected to wait long for the outcome of the claim to be known. In Re Maddestra; Ex parte Penfolds Wines Pty Ltd, [1993] FCA 15 the debtors were guarantors of an unpaid trading debt that Retail Equity Pty Ltd (“Retail Equity”) owed to Penfolds Wines Pty Ltd (“Penfolds”) and judgment for a large sum had been entered in favour of Penfolds against them on that basis. The debtors failed to comply with bankruptcy notices served on them that demanded payment of the unsatisfied judgments and creditor’s petitions based on those failures were presented on 10 October 1991. The debtors opposed the petitions on the basis that there was “other sufficient cause” why sequestration orders ought not to be made, namely that Retail Equity had brought proceedings in the Supreme Court of Western Australia seeking substantial damages against a third party which had such prospects of success that in due course the petitioner could expect Retail Equity to discharge its indebtedness to it, which would relieve the debtors’ liabilities as guarantors. In that regard, Lee J said:
If collateral litigation is well advanced and likely to bring a beneficial result to a debtor, there may be good cause for the Court not to make a sequestration order and it may be satisfied that such an order ought not to be made.
The petitions were listed for hearing on 8 May 1992 but were adjourned so that the debtors’ cases could be clarified for the benefit of the petitioner. On 28 August 1992 the petitions again came on for hearing, at which time they were adjourned by consent to 28 October 1992 for mention and the period at the expiration of which they would lapse was fixed at 18 months from 10 October 1991. After two further adjournments the matters were heard on 3 February 1993. Justice Lee observed that by 3 February 1993, only two months remained to run before the petitions lapsed. In considering whether the debtors had shown sufficient cause why sequestration orders ought not be made in their cases his Honour said:
… Nine months have passed since the hearing of the petition was adjourned without the Supreme Court litigation being any closer to resolution and, indeed, if it were to go to trial it could not expect to be heard within fifteen months. Furthermore, I am satisfied, as counsel for the petitioners submits, that the litigation does not have on its face a real appearance that it is capable of satisfying the demands of the petitioner and other creditors in the short term, a matter to be borne in mind when assessing the willingness of other creditors to await the outcome of this litigation and the public interest in these petitions.
His Honour had observed earlier that there was a public interest in the due administration of businesses and in the examination of the debtors’ affairs, saying:
The balance must fall more heavily in favour of the public interest as time passes between the act of bankruptcy and disposal of the petition.
His Honour concluded that sufficient cause had not been demonstrated and so made sequestration orders. On appeal, no error in his Honour’s approach was found: Maddestra v Penfolds Wines Pty Ltd (1993) 44 FCR 303 at 309.
In Ling v Enrobook Pty Ltd (1997) 74 FCR 19, the respondent had obtained a judgment against the applicant upon which a subsequent bankruptcy notice was based. The applicant did not comply with the bankruptcy notice and a creditor’s petition was presented. A sequestration order was made at first instance notwithstanding, relevantly, the respondent’s allegation that he had demonstrated sufficient cause for it not to be because he had an action on foot against the Commonwealth which, if successful, would enable him to pay his debts in full. The Full Court of the Federal Court said:
The authorities also show that satisfaction that the debtor is well advanced with litigation likely to result in the debtor being in a position to pay his or her debts may well provide a basis for a finding that there is a “sufficient cause” for a sequestration order not to be made … . But the authorities do not suggest that it is in the public interest to allow insolvent debtors to prosecute litigation generally. They only recognise that it is not in the public interest for a debtor to be forced into bankruptcy by reason of a state of insolvency likely to be of only short duration. (at 26)
CONSIDERATION
Creditor’s petition
Based on the facts rehearsed earlier in these reasons under the heading “Applicant’s case”, I am satisfied that Mr Ritson committed the act of bankruptcy alleged in the petition and I am satisfied that the other matters of which s.52(1) of the Act and rr.4.04, 4.05 and 4.06 of the Rules require proof have been proved. I also note that Messrs Wengel and Castley have consented to be the trustees of Mr Ritson’s estate in the event that a sequestration order is made. Absent “other sufficient cause” not to, I am satisfied that it is appropriate to make the sequestration order sought by the Commissioner.
Before moving from this topic it should be noted that in his address to the Court Mr Ritson repeated an argument he had raised in earlier interlocutory proceedings, that the creditor’s petition relied impermissibly on a claim for interest that had accrued after the date of the act of bankruptcy, 6 June 2019. As recorded earlier, the creditor’s petition claimed a total sum of $56,334.04 made up of the $43,966.79 judgment debt and accrued post-judgment interest of $12,456.55 less a credit of $89.30. In the context of that earlier argument Mr Ritson submitted unsuccessfully that the Commissioner should amend the petition. At the hearing of the unamended petition he submitted that because the interest amount had not accrued at the time of the bankruptcy notice or the act of bankruptcy it could not be claimed in the creditor’s petition. That contention is not correct. It was also not raised in the notice of grounds of opposition.
The claim for interest is only incidental to the judgment debt, which is the foundation of the creditor’s petition, but that does not prevent it from being included in the petition and taken into account: see Inre A Debtor; Ex parte The Debtor v Scott and the Official Receiver [1954] 1 WLR 393, where taxed costs were added to a judgment debt pleaded in a creditor’s petition and were taken into account. In General Motors Acceptance Corporation Australia v Marshall (2002) 124 FCR 210 at 221 [34] Gyles J stated that the fact that the proven debt is less than the amount pleaded in the creditor’s petition is of no consequence, his Honour having earlier noted at 220 [31] that the statutory requirement in s.44 of the Act is that there be a debt in excess of the statutory minimum, rather than a debt of any particular amount. A subsequent appeal was decided on other issues but this part of his Honour’s reasons enjoyed the agreement of Spender and North JJ: Marshall v General Motors Acceptance Corporation Australia (2003) 127 FCR 453 at 461 [35] and 473-474 [96].
In any event, the creditor’s petition is similar to a pleading: Australia and New Zealand Banking Group Ltd v Coutts (2003) 201 ALR 728 at 736 [21]; Australian and New Zealand Building Group Limited v James [2021] FCA 768 at [37]; and even if the interest amount were incorrectly included in it, a decision could be based on the judgment debt less the small credit. They provide sufficient basis for a sequestration order, subject to proof of the other matters to which reference has already been made.
Other sufficient cause
The issue remaining to be determined is whether the public interest in dealing with the insolvent debtor and the rights of individual creditors is outweighed by other considerations which, in this case, may be demonstrated by the existence of a claim against a third party that is likely to succeed and has on its face a real appearance that it is capable of satisfying the demands of the Commissioner in the short term. The existence of other creditors and what such creditors might be owed was not raised as an issue in this case.
Mr Ritson submitted that the documentary evidence he had adduced was sufficient to show that his claim against Mr Ryan was likely to succeed and justified the dismissal of the petition. The Commissioner submitted that Mr Ritson had not led evidence that was sufficient for the Court to comfortably form a view as to his prospects in the Qld DCt proceedings.
Malicious prosecution
As noted earlier, subject to the question of damage, to make out the tort of malicious prosecution Mr Ritson must prove that:
a)proceedings of the kind to which the tort applies were initiated against him by Mr Ryan;
b)the proceedings terminated in Mr Ritson’s favour;
c)Mr Ryan, in initiating or maintaining the proceedings acted maliciously; and
d)Mr Ryan acted without reasonable and probable cause.
To make out the third and fourth elements of the tort Mr Ritson must prove that Mr Ryan brought one or both of the PISO actions with a purpose other than the proper invocation of the Personal Safety Intervention Orders Act and did not believe that Mr Ritson was guilty of conduct justifying the bringing of the actions.
Proceedings were brought by Mr Ryan
Mr Ritson alleges in his further amended statement of claim in the Qld DCt proceedings that bringing and maintaining the first and the second PISO actions amounted to malicious prosecution. The pleading also refers to a number of other proceedings and the Commissioner submitted that Mr Ritson could not bring a claim of malicious prosecution in relation to them as he, not Mr Ryan, had been their instigator. Those other proceedings should be understood to provide the background circumstances on which Mr Ritson relies to show that the two PISO actions amounted to malicious prosecution, rather than being examples of malicious prosecution themselves
Mr Ritson submitted that Mr Ryan had admitted in the County Court appeal and elsewhere that he had initiated the PSIO proceedings against Mr Ritson and the Commissioner accepted in very general terms that the two PISO actions had been commenced as Mr Ritson alleged in the further amended statement of claim. Those submissions were supported by the documents adduced by Mr Ritson.
I accept that Mr Ryan initiated the two PISO actions. I also find that the authorities support the view that actions of that sort are amongst the classes of proceedings in respect of which an action for malicious prosecution can lie.
Proceedings terminated favourably to Mr Ritson
Mr Ritson further submitted that the PISO proceedings had been terminated in his favour, the first order being set aside by the County Court on 24 September 2013 and the second being terminated in his favour because Mr Ryan withdrew his application subsequent to the second final PISO being, on Mr Ritson’s allegation, set aside and a rehearing ordered.
The documentary evidence before the Court supports that submission and I am satisfied that the two PISO actions did terminate favourably to Mr Ritson.
Mr Ryan acted maliciously
For this element of the tort to be made out, it must be proved that Mr Ryan’s dominant purpose in bringing the PISO actions, or either of them, was something other than the securing of the protection provided by a PISO.
At the heart of Mr Ritson’s case against Mr Ryan is a contention that he is not guilty of the conduct which Mr Ryan has alleged against him in the PISO actions and elsewhere and that Mr Ryan made “knowingly false” PISO applications and “knowingly gave false … evidence” in support of those applications, which he had brought “for purposes other than the proper invocation of the system of personal safety intervention orders under the Personal Safety Intervention Orders Act… ”. Those pleadings allege serious misconduct on Mr Ryan’s part.
The degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved, although it does not ever need to rise to “that degree of certainty which is indispensable to the support of a conviction upon a criminal charge”: Rejfek v McElroy (1965) 112 CLR 517 at 521-522. The matters a court must take into account can be found in Dixon J’s discussion of the common law principles, which will apply in the Qld DCt proceedings, in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour said:
No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. (at 361-362)
Submissions were made that Mr Ryan’s evidence in the County Court hearing was peppered with examples of alleged poor recollection which smacked of evasion. However, the transcript, which is limited to Mr Ryan’s evidence, does not suggest that Mr Ryan was a defensive or argumentative witness and the occasions of lack of specific recall cited by Mr Ritson included matters of no real relevance to the matters in issue in the proceeding, such as a trade mark question and a subpoena dispute in the ACL action. Overall, and even apart from the limited nature of the evidence submitted and upon which Mr Ritson invites the Court to agree with his assessment of Mr Ryan’s credit, the particular matters to which attention was drawn do not compel me to agree that Mr Ryan was being evasive in his evidence to the County Court or to conclude that the Qld DCt is more likely than not to believe that he was.
Further, although this Court has had the benefit of Mr Ritson’s affidavits filed in this proceeding, he has not been cross-examined on them and the Court has not heard from Mr Ryan at all. The determination of whose account is to be believed will depend on an assessment of the credibility of the two versions of events and of Messrs Ritson and Ryan themselves, which this Court cannot essay with any confidence in light of the nature of the evidence led in this proceeding. Put another way, any attempt by me to determine which and who is more likely to be believed in the Qld DCt would be not much better than speculation.
No doubt appreciating the significance of those circumstances, and also appreciating that if malice cannot be proved out of Mr Ryan’s own mouth it can be proved by showing that the circumstances were such that the PISO actions could only be accounted for by imputing some wrong or indirect motive to Mr Ryan: Nye v State of New South Wales [2003] NSWSC 1212 at [23]; Mr Ritson has relied on the surrounding circumstances to propose the following as possible illegitimate motives:
a)the first PISO was intended as a bargaining chip in negotiations to settle proceedings involving PATS Consulting;
b)the second PISO was retaliation for the garnishee order;
c)the PISOs were expressions of Mr Ryan’s spite or ill will towards him;
d)the PISO actions were intended to discredit Mr Ritson in various other proceedings; and
e)the PISO actions were intended to cause Mr Ritson to incur expense.
Mr Ritson argued that the malicious motivation behind the bringing of the PISO actions was demonstrated at the very earliest point by Mr Ryan’s response to the foreshadowing of the ACL action. In an email to Mr Ritson of 16 April 2012, Mr Ryan had said:
You need to be fully aware of the possible financial and other consequences of making unjustified threats and initiating vexatious legal action.
Mr Ritson submitted that he took this as a veiled threat that proceedings would be met with some form of retaliation. However, that sentence ought to be seen in context. The email read:
Dear Mr Ritson
We note your email.
In our view the document your [sic] have produced is quite frankly bizarre.
We will defend with the utmost vigour any legal action you may commence.
You need to be fully aware of the possible financial and other consequences of making unjustified threats and initiating vexatious legal action.
Regards
Mr Ryan seems to have been saying there something similar to what Mr Ritson is now saying in the Qld DCt proceedings, namely that malicious prosecution and abuse of process can result in a tort claim.
In support of his submission that the first PISO action had been sought and/or maintained in order to use it as a bargaining chip, Mr Ritson referred to negotiations that took place between his then-solicitor, Mr Mitchell, and Mr Ryan’s sister who was assisting her brother. Without objection, but subject to the Commissioner’s caveat that tendered documents be relevant, Mr Ritson adduced documents relating to those negotiations in ex.R1. Amongst the documents was an affidavit of Mr Mitchell who deposed to the content of without prejudice negotiations he had had with Mr Ryan’s sister in February and March 2013. The ACL action had been determined in Mr Ritson’s favour by a default judgment of this Court on 4 December 2012. It appears from the copy of a letter from Mr Ryan to Mr Mitchell of 19 February 2013 which is included in ex.R1, and it was conceded by Mr Ritson that the without prejudice negotiations concerned a subsequent application to wind up PATS Consulting that Mr Ritson had made in the Supreme Court of New South Wales. A winding up order was made on 19 March 2013.
If the first PISO action had been brought or maintained so it could be used as a bargaining chip, one would have thought that it would have been used as such before default judgment was entered against PATS Consulting in the ACL action. However, the Court has not been taken to any evidence that points to Mr Ryan having used the first PISO action, which was commenced in June or July 2012 (the evidence is not clear on the point), in that way, although he had months to do so.
Moving to the next point, the second PISO was sought shortly after Mr Ryan was made aware that his bank accounts had been garnished. Upon learning that news he wrote to Westpac to remonstrate. In his 30 November 2016 letter to the bank he complained that the funds had been garnished from his personal account rather than the business’s account and that he had received advice that “Westpac have breached the Court Order”.
It appears from the documents in evidence that Mr Ryan sought the second PISO on 2 December 2016. In the application for it he stated, after complaining about internet stalking and defamation, telephone threats of violence and murder, publication of personal details and instructing “unknown people who look like outlaw motorbike gang members to deliver” legal documents, that:
… LAST WEEK THE RESP REMOVED $32 HUNDRED DOLLARS FROM MY WESTPAC BANK VIA SOPHISTICATED FRAUD. I HAVE MADE A FORMAL REPORT TO THE NSW POLICE WHICH IS UNDER INVESTIGATION. I BELIEVE THE RESP IS DEEPLY DISTURBED AND DANGEROUS AND THISIS [SIC] STRONGLY SUPPORTED BY PUBLIC RECORD DOCUMENTS. I SEEK AN ORDER TODAY BECAUSE IT'S TIME TO SAY "ENOUGH IS ENOUGH" OVER THE PAST FEW YEARS OF HARASSMENT VIA BASELESS LEGAL ACTIONS, INTERNET STALKING, THE POSTINGS ON THE INTERNET, BIKERS SENT TO MY PREMISES, AND LASTLY A THEFT/FRAUD. MY FAMILY AND I NEED PROTECTION.
The second interim and final PISOs were expressed to protect Mr Ryan and his son and ordered Mr Ritson not to:
1.Stalk the protected person(s) …
2.Commit prohibited behaviour towards the protected person(s). …
3.Attempt to locate, follow the protected person(s) or keeping him/her/them under surveillance.
4.Publish on the internet, by email or other electronic communication any material about the protected person(s).
5.Contact or communicate with a protected person by any means.
6Approach or remain within 5 metres of a protected person.
7.Go to or remain within 200 metres of [Mr Ryan’s home] or any other place where a protected person lives, works or attends school/childcare.
8.Get another person to do anything the respondent must not do under this order.
It is not possible in this proceeding to determine the truth of the allegations Mr Ryan made to the Melbourne Magistrates’ Court in support of the second PISO application. However, his complaint in that application regarding the garnishee reflected the concerns he had already voiced to Westpac and was expressed to be the last straw, which suggests that its occurrence was indeed what led Mr Ryan to commence the second PISO action. Although it was a response to the garnishment of funds in his account, Mr Ryan’s understanding of the lawfulness of that action as expressed in his email to Westpac, and irrespective of whether that was correct or not, is suggestive of the second PISO action having been commenced in good faith to secure an order under the legislation and not with an oblique motive.
In relation to spite or ill will, Mr Ritson submitted in addresses:
Mr Ryan’s repeated false statements are evidence of animus or ill will or malice and the fact that he continuously uses the fact of the intervention order proceeding in other unrelated legal proceedings in other matters is evidence of his motives and the purpose by which – or for which he commenced those proceedings, that is, to use them as some sort of weapon against me and hence why he in almost every correspondence from him you will see a repetition of allegations and the fact that he sought an intervention order.
That analysis does not identify how the PISOs were employed by Mr Ryan in any fashion that was relevant or material to the various actions he cited such that Mr Ryan might be thought to have brought the PISO actions with an illegitimate or oblique motive. If the allegations Mr Ryan made against Mr Ritson were true, it seems open to conclude that Mr Ryan’s conduct was not inconsistent with him genuinely desiring the relief sought in the PISO actions.
For the reasons I have given, those circumstantial matters do not persuade me that Mr Ritson is more likely than not to persuade the Qld DCt to the degree of satisfaction appropriate to the allegations that Mr Ryan acted maliciously in bringing and maintaining the PISO actions or either of them.
Mr Ryan acted without reasonable and probable cause
Proof that Mr Ryan lacked reasonable and probable cause to bring the PISO actions depends, in general terms, on Mr Ritson being able to show that Mr Ryan did not believe the allegations he made against him in one or both of those cases. Absent some admission by Mr Ryan, it is a matter to be proved by inference: A v New South Wales at [61]. The discussion earlier in these reasons at [52]-[55] also applies to this issue.
On the question whether Mr Ryan had a belief in his allegations against him, Mr Ritson referred to the terms of the settlement negotiations referred to earlier, specifically to the fact that there had been negotiations over whether as part of a settlement of the winding up application Mr Ryan might withdraw the first PISO application and make a statement exonerating Mr Ritson. In the further amended statement of claim in the Qld DCt Mr Ritson alleges that:
a)on 14 February 2013, Mr Ryan’s sister acknowledged on his behalf that the allegations made against Mr Ritson in the Melbourne Magistrates’ Court proceedings had no factual basis;
b)on 5 March 2013, Mr Ryan’s sister on his behalf informed Mr Ritson that Mr Ryan would be willing to revoke the personal safety intervention order if Mr Ritson withdrew the proceedings against Mr Ryan’s company;
c)Mr Ryan did not believe that Mr Ritson engaged in or would engage in prohibited behaviour or stalking as defined in the Personal Safety Intervention Orders Act or fear for his safety or for the safety of his property;
However, settlement was not reached and it can be inferred that the proposed exoneration did not occur. Moreover, no material admissions were made in the negotiations between Mr Miller and Mr Ryan’s sister and so the evidence relating to the allegations does not really advance Mr Ritson’s case against Mr Ryan. Further, given that the evidence in question is found in without prejudice correspondence, if Mr Ryan participates in the Qld DCt proceedings, as now seems likely, it is probable that such evidence would be the subject of objection and so its admission is not guaranteed in any case.
Mr Ritson also referred to the perjury proceedings brought against Mr Ryan in 2017 in which Mr Ryan pleaded guilty to one charge. In his address after reopening his case on 5 August 2021, Mr Ritson submitted that the guilty plea amounted to an admission by Mr Ryan that he had lied on oath and that this would be material to an assessment of his credibility. However, the terms of the relevant charge have not been led in this proceeding except to the extent that the investigating officer advised Mr Ritson on 6 September 2018:
The OPP have accepted an offer made by defence to plea [sic] guilty to charge 1 being perjury committed at VCAT (application to re-open an order) and they will withdraw charge 2 being perjury committed at the Melbourne Magistrates Court in the IVO application hearing (stating you removed $3200 from his account via a sophisticated fraud.
It is not apparent from that how any admission by Mr Ryan is specifically relevant to the Qld DCt proceedings.
It is also important to keep in mind that in this proceeding the plea is only an informal admission and may be explained by further evidence, in which case it will be a matter for the Qld DCt to determine what weight to attach to it. In that connexion, also in evidence is an extract from the register kept by the Melbourne Magistrates’ Court which states that no conviction was recorded against Mr Ryan, which suggests the existence of some extenuating circumstance.
An additional argument advanced by Mr Ritson was that Mr Ryan’s allegations had evolved and grown over time. He referred in that regard to, amongst other evidence:
a)Mr Ryan’s statement in his 4 June 2012 complaint to the NSW Police that he had received “at least six phone calls” from Mr Ritson;
b)Mr Ryan’s statement in his 6 June 2012 PISO application that he had received “several phone calls” from Mr Ritson;
c)the 29 August 2012 further and better particulars that Mr Ryan provided in the ACL action which stated that Mr Ritson had started by making 4 to 6 calls per week in the first couple of weeks after which the rate increased to at least 10 phone calls per day; and
d)Mr Ryan’s evidence in the County Court appeal that for the first month or so he had probably received 4 to 6 calls per week which from the end of May or early June 2012 increased to perhaps 10 per week.
Mr Ritson also referred to the evidence Mr Ryan gave to the County Court regarding his record-keeping in relation to Mr Ritson’s calls to him.
Mr Ritson argued that the falsity of Mr Ryan’s allegations of harassment and intimidation in the first half of 2012 was demonstrated by the fact that although on 4 June 2012 Mr Ryan alleged to the NSW Police that he had received threats from Mr Ritson in the two month period prior to that report, conduct of that sort was not mentioned in Mr Ryan’s email to Mr Ritson of 16 April 2012, quoted earlier at [57]. However, it may be observed that the two documents are not necessarily incongruent, as Mr Ritson implies.
It was also submitted that the combined effect of admissions made in Mr Ryan’s defence in the Qld DCt proceedings and the assertions of fact advanced in his further and better particulars demonstrated Mr Ryan’s untruthfulness and thus the strength of the case for malicious prosecution. Mr Ritson referred in this regard to evidence Mr Ryan had given to the County Court concerning when he had had contact with Mr Ritson in April 2012 and submitted that it was inconsistent with the particularisation of the defence filed in the Qld DCt proceedings. Mr Ritson submitted:
… Mr Ryan’s allegations of telephone calls during the period 1 April 2012 to 4 April 2012 are now made for the very first time and are in complete contradiction to his previous sworn evidence.
The significance of the difference in the evidence is a matter for exploration at the trial in the Qld DCt proceedings. Without hearing from Mr Ryan I am unwilling to place great weight on it.
Mr Ritson also submitted that the quotations from the alleged threatening calls set out in the particulars of the defence were the same as those that had already been set out in particularisations of the alleged threatening behaviour that Mr Ryan had provided to the Melbourne Magistrates’ Court on 26 September 2012 and 20 February 2017. It seems that Mr Ritson’s argument is that this repetition indicates that the quotations are fabrications. That is one explanation but it is not, in my view, the most probable one.
More generally, Mr Ritson has made various criticisms of Mr Ryan’s allegations against him and of Mr Ryan’s account of their dealings in connection with the first PISO application, including his submissions recorded earlier at [72] and the criticisms made in submissions following a reopening of the case on 5 August 2021 concerning Mr Ryan’s objection to the inspection of documents produced on subpoena in the County Court appeal. I have had regard to those criticisms but the transcript of Mr Ryan’s evidence at that appeal hearing does not suggest that Mr Ritson is more likely than not to succeed on those issues in the Qld DCt action. Many of the matters Mr Ritson raised in his submissions to this Court were addressed in cross-examination in the County Court appeal and again in re-examination, in evidence led from Mr Ryan that might well be accepted by the Qld DCt.
Abuse of process
As noted earlier, central to the tort of abuse of process is the requirement that the party who has instituted the proceeding in issue has done so for a purpose or to effect an object beyond that which the legal process offers, although there will not be a collateral abuse of process where the plaintiff institutes and maintains the proceeding with the intention of prosecuting it for the purpose of obtaining the remedy claimed in it, even if there are collateral or ulterior motives and benefits.
Mr Ryan pressed on with each PISO action and obtained final orders in each, which points to his purpose in bringing them being to obtain the protections available under those orders. That possibility seems greater in the case of the second PISO application because, by that time, Mr Ryan would have been aware that Mr Ritson might be expected to contest that order as he had the earlier one, although the fact that it was later withdrawn should not be overlooked. The question of what motivated Mr Ryan to file the second PISO application is likely to turn on the credibility of the parties and of their accounts, which indicates that the discussion set out earlier at [52]-[55] is also relevant to this issue. For the reasons given in those paragraphs, I am not persuaded that Mr Ritson is more likely than not to succeed in proving to the necessary standard in the Qld DCt proceedings his allegation of collateral abuse of process.
Damage
Damage is an essential element of the torts of malicious prosecution and collateral abuse of process and in relation to the former must meet the test set out in Savile v Roberts, which Mr Ritson’s claims do. In the further amended statement of claim in the Qld DCt proceedings, Mr Ritson claims special, general, aggravated and exemplary damages. The presently relevant issue is whether, if Mr Ritson is successful in the Qld DCt proceedings, he will recover damages greater than the $56,334.04 debt cited in the creditor’s petition.
Mr Ritson was not awarded his costs in the PISO actions. I infer that that outcome resulted from s.111 of the Personal Safety Intervention Orders Act which provides that each party to a proceeding for a PISO must bear their own costs of the proceeding. In those circumstances, Mr Ritson would not be barred from claiming his costs of those proceedings as damages in the Qld DCt proceedings. In his affidavit sworn 25 March 2021 Mr Ritson deposes to having incurred legal expenses of $42,106.96 in defending the first PISO action and of having incurred other expenses of $3,029.94 in defending the second PISO action. In his affidavit sworn 21 April 2021 Mr Ritson deposes to having incurred additional out-of-pocket expenses of $783.28 in defending the first PISO action. Those costs total $45,920.18.
In the further amended statement of claim filed in the Qld DCt proceedings Mr Ritson particularises his allegation of loss and damage as follows:
71.1Financial loss;
71.2Embarrassment;
71.3Humiliation;
71.4Mental anguish;
71.5Distress;
71.6Inconvenience;
71.7Damage to reputation.
In the event that Mr Ritson makes out his allegations of malicious prosecution and collateral abuse of process, it can reasonably be anticipated that he will be awarded some amount for general damages in addition to the special damages associated with the PISO actions and that those general damages will exceed the difference between his special damages claim and the $56,334.04 figure pleaded in the creditor’s petition. To that aggravated damages and exemplary damages might be added: New South Wales v Ibbett (2006) 229 CLR 638 at 646-648 [31]-[36]; State of New South Wales v Zreika [2012] NSWCA 37 [60], [61]. Those considerations lead me to conclude that if Mr Ritson were to obtain a verdict in the Qld DCt proceedings, he would be awarded damages totalling more than the amount cited in the creditor’s petition.
Based on the valuation of Mr Ryan’s home which is ex.R4, I accept that he is likely to be able to satisfy so much of any judgment that might be awarded to Mr Ritson as would cover the debt cited in the creditor’s petition.
Prospects of success in the short term
In the event that I am wrong in my assessment of Mr Ritson’s prospects in the Qld DCt proceedings, I should consider whether success by him in that case would be sufficiently prompt such that the Court would be justified in declining to make a sequestration order in his case. In that connexion I have regard to the fact that the creditor’s petition was presented nearly two years ago and yet the Qld DCt proceedings remain on foot and one cannot be confident that they will be resolved in the short term. It is almost impossible to conceive of them concluding in Mr Ritson’s favour in such a time frame absent a capitulation by Mr Ryan and there is no cogent evidence that that is a likely eventuality. It seems probable that the Qld DCt proceedings will proceed to a contested hearing, given that Mr Ritson’s affidavit sworn 30 July 2021 deposes to Mr Ryan having filed a defence.
I conclude that, even if he is ultimately successful in the Qld DCt proceedings, the likelihood that Mr Ritson will receive a damages payment in a suitably short time is no better than remote. In those circumstances, I would not be satisfied that it was appropriate to decline to make a sequestration order.
CONCLUSION
I make a sequestration order against the estate of Brendan Ritson.
I note that Sean Magnus Wengel and Anthony Castley, registered trustees, have consented to be the trustees of this estate in the event that a sequestration order is made.
I also note that the Commissioner must give a copy of this order to the Official Receiver in Sydney within 2 working days under s52(1A) of the Act and r.4.09 of the Rules.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 12 August 2021
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