Ritson v Australian Building and Construction Commissioner

[2019] FCCA 1238

FEDERAL CIRCUIT COURT OF AUSTRALIA

RITSON v AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER & ANOR [2019] FCCA 1238

Catchwords:
COSTS – Whether a lump sum amount should be substituted for “costs to be taxed” – application granted.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: BRENDAN RITSON

First Respondent: AUSTRALIAN BUIDLING AND CONSTRUCTION COMMISSIONER

Second Respondent: COMMONWEALTH OF AUSTRALIA

File Number: BRG 21 of 2016

Judgment of: Judge Vasta

Hearing date: 11 March 2019

Date of Last Submission: 11 March 2019

Delivered at: Brisbane

Delivered on: 11 March 2019

REPRESENTATION

By there being no appearance by or on behalf of the Applicant

Counsel for the Respondent: Ms R. Walsh

Solicitors for the Respondent: Ashurst Australia

ORDERS

1. That the application be dealt with pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

2. That the Applicant pay the First Respondent a lump sum of $250,000.00 in full satisfaction of the costs order made in the First Respondent’s favour on 2 December 2016 within forty-five (45) days of the date of this Order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 21 of 2016

BRENDAN RITSON

Applicant

And

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

(As Corrected)

1. After the trial of these proceedings concluded on 1 November 2016, I delivered Judgment on 22 November 2019 and dismissed the applications filed 12 January 2016 which were amended on 6 June 2016 and 1 November 2016.

2. There was an application for costs made before me in 2016.  On 2 December 2016, I ordered that the Applicant pay the costs of the First Respondent on an indemnity basis and the Second Respondent on a party/party basis. 

3. Those costs on an indemnity basis have yet to be paid.  The Applicant in the original application, Mr Ritson, has made no payments at all regarding the costs, notwithstanding that his appeal to the Federal Court has been dismissed and his application for leave to appeal for the High Court was also refused.

4. The evidence before me indicates that the quantum of such costs would be in the vicinity of $440,000.  That amount would most probably be argued by Mr Ritson and there would be both time consuming and expensive taxing hearings before the taxing Registrar. 

5. The application before me today, which was filed on 21 December 2018, seeks to quantify the amount to be sought.  There are good reasons for doing so.  They include the avoidance of the expense, delay and aggravation involved in protracted litigation arising out of taxation. 

6. There is also the reason that the expense of an assessment of costs would be disproportionate and unwarranted in this case.  Thirdly, that such an order would further the objects of the Federal Circuit Court of Australia in that it is trying to ensure that proceedings are not protracted.  Fourthly, when one has a look at all of the circumstances in this case, a fixed costs order or a lump sum order would be appropriate.  And, finally, it is irrelevant as to whether there is any hardship on the party when making such an order.

7. I am well and truly familiar with the history, not only of this matter but of many other matters in which Mr Ritson has engaged in litigation, having regard to the evidence that was adduced during the hearing before me.  That sum of nearly $440,000, though, has been significantly reduced by the Commissioner who has said to this Court that he is prepared to have a lump sum of $250,000 substituted or awarded in full satisfaction of the costs order.  This is a saving, at the very least, for Mr Ritson of $190,000.

8. It is extremely reasonable and, in my view, quite generous.  Given that I can look at all of the circumstances as to whether I ought make a lump sum order, the generosity of the Commissioner in this matter causes me also to militate towards making that decision. 

9. Mr Ritson has not appeared today and I have read into the record his email sent to my associate at 10 minutes before the hearing was to commence I reads as follows:

   Mon 11/03/2019 2:06 PM

   From:Brendan Ritson

   RE: Brendan Ritson v Director of Fair Work Building Industry Inspectorate; BRG21/2016

   Dear Associate,

   I refer to your email at 11:43 am on 5 March 2019 (which only came to my attention over the weekend).

   Your email states that his Honour will deal with this matter at 2:15 pm on 11 March 2019.

   I note that this matter had been transferred to the docket of Judge Jarrett and was listed before the Court on 1 April 2019. However, that listing was amended at the request of Mr Dominic Fleeton who is the solicitor for the respondent. Mr Fleeton communicated directly with his Honour's chambers without my knowledge or consent. In particular, Mr Fleeton has exchanged a number of emails with you and made informal requests to have this matter removed from the docket of Judge Jarrett because they want Judge Vasta to hear their application and to be listed at times/dates convenient to them. Mr Fleeton also invited you to contact him by telephone for a private discussion about these informal requests. These informal requests have been granted without any proper application having been made, without any supporting evidence having been filed and without any prior consultation with me.

   I also note that his Honour has previously made strong adverse findings of credit against me. Furthermore, it has come to my attention that his Honour has not disclosed to me a personal relationship that gives rise to a conflict of interest in hearing this matter.

   In the circumstances, I propose to file and serve an application, together with supporting evidence and written submissions, seeking an order that his Honour disqualify himself from further involvement in this proceeding on the ground of actual bias or apprehended bias.

   I request that his Honour not determine the respondent's application dated 21 December 2018 and provide me with an opportunity to file and serve my proposed application, supporting evidence and written submissions.

   Regards,

   Brendan Ritson

10. In all of the circumstances, I am satisfied that I should proceed to deal with the matter pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) and hear the matter on the merits.

11. For the reasons I have already gone through, I will order that the Applicant pay to the First Respondent a lump sum of $250,000 in full satisfaction of the costs order made in the First Respondent’s favour on 2 December 2016. 

12. I will order that it be paid within 45 days.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  24 June 2019

Corrections

1. This judgments has been corrected to amend the name of the First Respondent from Director of Fair Work Building Industry Inspectorate to Australian Building and Construction Commissioner.