Commissioner of Police (NSW) v Ritson (No 6)
[2021] FCCA 1942
•5 AUGUST 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Commissioner of Police (NSW) v Ritson (No 6) [2021] FCCA 1942
File number: SYG 2114 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 5 August 2021 Catchwords: PRACTICE AND PROCEDURE – Implied undertaking not to use any document compulsorily disclosed in litigation for a purpose other than one related to the litigation in which it is disclosed. Legislation: Federal Circuit Court Rules 2001 (Cth), r.14.04 Cases cited: Ritson v Registrar of the Federal Court of Australia [2021] FCA 836
Ritson v Registrar of the Federal Court of Australia [2019] FCA 1835
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Number of paragraphs: 19 Date of hearing: 5 August 2021 Place: Sydney Counsel for the Applicant: Mr D. F. Elliott Solicitor for the Applicant: Coleman Greig 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:
5 AUGUST 2021
THE COURT ORDERS THAT:
1.The respondent have leave to reopen his case to rely on his affidavit of 30 July 2021, the documents entitled Second Further Bundle filed on 30 July 2021 and the valuation document annexed to his written submissions filed on 4 August 2021.
2.In all other respects, the respondent’s interim application filed on 30 July 2021 be dismissed.
3.The respondent pay half the applicant’s costs of and incidental to the interim application.
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
In this proceeding, the applicant (“Commissioner”) has filed a creditor’s petition seeking a sequestration order in respect of the respondent, Mr Ritson, who has filed a notice stating grounds of opposition to that petition, pleading:
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.Respondent’s 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.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.Alternatively, the extant legal proceedings constitute “other sufficient cause” to adjourn the hearing of the petition pending the hearing and determination of those proceedings.
In the Queensland District Court (“Qld DCt”) proceedings, Mr Ritson seeks damages against a Mr Ryan for malicious prosecution and abuse of process in relation to applications Mr Ryan made to the Melbourne Magistrates’ Court in June 2012 and December 2016 for personal safety intervention orders against Mr Ritson. In those applications Mr Ryan alleged, amongst other things, that he had received threatening telephone calls from Mr Ritson.
The trial on the creditor’s petition took place on 14 April 2021 and 5 May 2021 following which Mr Ritson filed further written submissions. Judgment is presently reserved.
INTERIM APPLICATION
Last Friday, 30 July 2021, Mr Ritson filed an interim application seeking the following orders:
1.The Respondent have leave to re-open his case to rely on the following evidence:
a.Affidavit of Brendan Ritson dated 30 July 2021; and
b.The documents produced to the Court pursuant to paragraph 2 below.
2.Pursuant to rule 14.04 of the Federal Circuit Court Rules 2001 the Respondent is ordered to produce to the Court the documents in his possession produced to him by Optus Mobile Pty Limited on 30 June 2021.
FURTHER TRIAL EVIDENCE
In his written submissions filed in support of the interim application, Mr Ritson has indicated that he also seeks leave to rely on a valuation document a copy of which was attached to those submissions. Further, it is implicit in the interim application and made explicit during the course of submissions today that Mr Ritson additionally seeks to rely on some other documents (“Second Further Bundle”) which were filed with the Court on 30 July 2021. The Second Further Bundle contains the following documents connected with the proceedings in the Qld DCt:
(a)notice of intention to defend;
(b)defence;
(c)request for further and better particulars of the defence;
(d)further and better particulars of the defence;
(e)order of the Qld DCt made 14 July 2021;
(f)notice of non-party disclosure issued to Optus Mobile Pty Ltd (“Optus”); and
(g)notice to admit documents.
The Commissioner has not objected to the Court granting Mr Ritson leave to read his affidavit dated 30 July 2021 and to tender the Second Further Bundle and the valuation document.
ISSUE
The matter that remains in issue on the interim application is the relief sought in its prayers 1(b) and 2, namely that Mr Ritson be ordered to produce to the Court and have leave to rely on the Optus documents produced to him the Qld DCt proceedings. Relevantly to that issue, r.14.04 of the Federal Circuit Court Rules 2001 (Cth) (“Rules”) provides:
14.04 Production of Documents to Court
The Court may order a party to a proceeding to produce to it a document in the possession, custody or control of the party.
It might be noted at this point that in his affidavit in support of the interim application, Mr Ritson has deposed that he now abandons the grounds in particular (a) of para.1 and in para.2 of his notice stating grounds of opposition. This follows the decision of Farrell J made on 19 July 2021 in Ritson v Registrar of the Federal Court of Australia [2021] FCA 836, refusing Mr Ritson leave to appeal the decision of Rares J made on 11 September 2019 in Ritson v Registrar of the Federal Court of Australia [2019] FCA 1835. Mr Ritson deposed that his only remaining ground of opposition to the petition is contained in particular (b) of para.1 of his notice stating grounds of opposition, which relies on his claim in the Qld DCt.
The subpoena-like process served on Optus in the Qld DCt proceedings required it to produce the following documents:
No
Date
Description
1
01.04.2012 - 04.04.2012
Network data showing incoming call records for all telecommunication services registered to Jonathan Laurence Ryan (DOB: … ).
2
17.04.2012 – 10.07.2012
Network data showing incoming call records for all telecommunication services registered to Jonathan Laurence Ryan (DOB: … ).
3
01.04.2012 - 23.09.2012
Records about alleged threatening or harassing calls to telecommunication services registered to Jonathan Laurence Ryan (DOB: … ).
4
18.11.2016 - 02.12.2016
Network data showing incoming call records for all telecommunication services registered to Jonathan Laurence Ryan (DOB: … ).
5
9 8.11.2016 - 21.12.2016
Records about alleged threatening or harassing calls to telecommunication services registered to Jonathan Laurence Ryan DOB: … ).
Mr Ritson has deposed as follows in that regard:
16.On 29 June 2021, I filed and served a notice of non-party disclosure on Optus Mobile Ply Ltd.
17.A copy of the said notice of non-party disclosure filed on 29 June 2021 is contained in the second further bundle of documents lodged with this affidavit.
18.On 30 June 2021, Optus Mobile Ply Ltd produced documents to me pursuant to the notice of non-party disclosure. As to points 1, 2 and 3 in the schedule of the said notice, Optus advised that incoming call records are not available prior to October 2015. As to point 4 in the schedule in the said notice, Optus produced incoming call reports for three mobile telephone numbers registered to Mr Ryan. As to point 5 in the schedule of the said notice, Optus advised that no details were found for the period requested.
19.The incoming call reports produced in response to point 4 in the schedule of the said notice are directly relevant to the particulars at paragraphs 36.2, 40.1.3, 45.2.3, 45.2.5, 48.2.1 and 48.2.3 of the further amended statement of claim filed on 15 March 2021 and are very important to my claim against Mr Ryan …
20.I understand the documents produced to me by Optus Pty Ltd are subject of an implied undertaking to the District Court of Queensland and that I cannot voluntarily produce them to this Court without an order to do so. As such, I seek an order for production of those documents to this Court in the event leave is granted to re-open my case.
The implied undertaking to which Mr Ritson referred in para.20 of his affidavit is commonly known as a Harman undertaking: Harman v Secretary of State for the Home Department [1983] 1 AC 280; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10.
SUBMISSIONS
Commissioner
The Commissioner opposed an order for production of the Optus documents. He submitted that:
(a)it was a matter for Mr Ritson to adduce the evidence he relied upon to establish his ground of opposition and it was not for the Court to compel him to do so via a novel use of r.14.04 of the Rules;
(b)Mr Ritson had clearly not sought of the Qld DCt release from his implied undertaking and would place himself in contempt of that court if he sought to tender the documents in this proceeding;
(c)he, the Commissioner, could not determine the relevance of the documents without first seeing them, which would involve him in reviewing documents provided in breach of the implied undertaking; and
(d)had Mr Ritson wished to rely on the Optus documents in this proceeding, he could have subpoenaed Optus to produce them to this Court and there was no explanation of why he had not.
Mr Ritson
Mr Ritson made submissions on the criteria for the reopening of a case which have largely been overtaken by the Commissioner's concessions concerning his affidavit, his Second Further Bundle and the valuation document. Further, the Commissioner's objection to an order for production is not based on when the application for it was made, but on the implied undertaking requiring Mr Ritson to maintain the confidentiality of the Optus documents outside the Qld DCt proceeding.
The burden of Mr Ritson's submission to the Court today was that the documents produced by Optus would be of significance to his argument in this Court that his action in the Qld DCt had merit and supplied sufficient cause for a sequestration order not to be made in this case. He submitted that in the Qld DCt proceedings Mr Ryan now alleged for the first time that he received threatening telephone calls from Mr Ritson in the period 1 April 2012 to 4 April 2012, having earlier given evidence in the Melbourne Magistrates’ Court and the Victorian County Court that he started to receive such calls only after 16 April 2012. Mr Ritson argued that Mr Ryan’s recent allegation completely contradicted his previous sworn evidence.
Mr Ritson further submitted that the words particularised as having been said by him during those calls were exactly the same as, and a combination of, the words Mr Ryan alleges he, Mr Ritson, had used in his telephone calls between 16 April 2012 and 10 July 2012 and in his calls in the last two weeks of November 2016. Mr Ritson pointed out that the documents produced by Optus related to the last two weeks of November 2016, which was a period significant to Mr Ryan’s second personal intervention safety order application to the Melbourne Magistrates’ Court.
Mr Ritson also argued that even if he had, as the result of an oversight, not issued a subpoena to Optus in this case, the Court should have regard to the significance to him of an adverse outcome in this proceeding. He argued that he would be severely prejudiced by refusal of the Court to order production of documents which he could provide quickly.
CONSIDERATION
Although in his submissions today Mr Ritson has emphasised the potentially great value that the documents Optus has produced to the Qld DCt might have for his arguments in this case, with respect to him that is not really the issue, which is one that turns on the propriety of the orders sought.
That concern directs attention to the nature of the order itself: should the Court, on the application of applicant A, order applicant A to produce documents? That seems to me to be a challengingly unorthodox approach to the management of a proceeding and plainly begs the question why applicant A could not bring the documents to court him or herself. The reason is apparent in this case, namely, the implied obligation of confidentiality that Mr Ritson owes in relation to the documents produced to the Qld DCt. It is true, as Mr Ritson has argued, that if someone else had served on him a subpoena requiring production of his copies of the Optus documents he would have been obliged to produce them. However, the fact that the undertaking must give way to compulsory processes engaged by a third party is quite different from a person seeking one court’s order so as to escape a confidentiality undertaking they owe to another court. The proper approach is to be relieved of the obligation by the second court so as to be free to use the documents in the first court. To do otherwise would seem to be a collateral attack on the implied undertaking of confidentiality because, amongst other things, it avoids appropriate scrutiny of the issue by the court in whose proceeding production has been made.
CONCLUSION
Consequently, although leave to reopen will be granted in order that Mr Ritson may rely on his affidavit of 30 July 2021 the Second Further Bundle and the valuation document, that leave will not extend to granting the relief sought in prayers 1(b) and 2 of the interim application.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 20 August 2021
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