Ritson v Australian Building and Construction Commissioner

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FEDERAL COURT OF AUSTRALIA

Ritson v Australian Building and Construction Commissioner [2017] FCA 888

Appeal from: Ritson v Director of Fair Work Building Industry Inspectorate [2016] FCCA 2923
File number: QUD 928 of 2016
Judge: COLLIER J
Date of judgment: 7 August 2017
Catchwords: PRACTICE AND PROCEDURE – interlocutory application for security for costs – s 56 Federal Court of Australia Act 1976 (Cth) and r 36.09 Federal Court Rules 2011 (Cth) – relevant principles when security for costs sought in appeal – poor prospects of success in appeal – appellant of limited financial means – outstanding costs debt in court below
Legislation:

Fair Work Act 2009 (Cth) ss 44, 50, 570

Federal Court of Australia Act 1976 (Cth) s 56

Freedom of Information Act 1982 (Cth)

Federal Court Rules 2011 (Cth) sch 3, r 36.09

Anti-Discrimination Act (NT)

Cases cited:

Allied Environmental Solutions Pty Ltd v North Burnett Regional Council [2016] FCA 713

Brundza v Robbie [No. 2] [1952] HCA 49; (1952) 88 CLR 171

Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224

Health Information Pharmacy Franchising Pty Ltd v Khoo [2010] FCA 438

Ritson v Director of Fair Work Building Industry Inspectorate [2016] FCCA 2923

Ritson v Director of Fair Work Building Industry Inspectorate (No.2) [2016] FCCA 3466

Date of hearing: 22 March 2017
Registry: Queensland
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 43
Counsel for the Appellant: Mr J Williams
Counsel for the Respondents: Mr TJ Bradley QC with Ms R Walsh
Solicitor for the Respondents: Ashurst Australia

ORDERS

QUD 928 of 2016
BETWEEN:

BRENDAN RITSON

Appellant
AND:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

7 AUGUST 2017

THE COURT ORDERS THAT:

1.The appellant give security for the costs of the appeal in the amount of $25,000, such amount to be paid by 4.00 pm on 6 September 2017 by way of electronic funds transfer into the trust account of the respondents’ legal representatives.

2.The appeal be stayed until security is given, in accordance with order 1.

3.The appeal be dismissed in the event that the appellant fails to comply with order 1.

4.The appellant pay the respondents’ costs of this application on a party-party basis.

5.The matter be listed for case management at 9.30 am on 12 September 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

  1. In Ritson v Director of Fair Work Building Industry Inspectorate [2016] FCCA 2923 (Ritson No.1) the Federal Circuit Court of Australia dismissed an application for judicial review brought by Mr Brendan Ritson against the first respondent (then the Director of Fair Work Building Industry Inspectorate, now known as the Australian Building and Construction Commission (ABCC)) and the second respondent (the Commonwealth of Australia). Mr Ritson sought judicial review of a decision of the first respondent to dismiss him from…

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Details
Case
[2017] FCA 888
Decision Date

CaseChat Overview and Summary

The case of Ritson v Australian Building and Construction Commissioner concerns an interlocutory application for security for costs. The applicant, Mr Ritson, seeks to appeal against a decision of the primary judge that dismissed his claims against the first respondent, the Australian Building and Construction Commissioner. The legal issues before the court were whether Mr Ritson, who is of limited financial means, has poor prospects of success in his appeal, and whether he has an outstanding costs debt in the court below. The court considered the relevant principles when security for costs is sought in an appeal and held that an order for security in the amount of $25,000 would be appropriate. The court also held that the costs of the application should follow the event and be borne by Mr Ritson.

The court's reasoning was based on the fact that Mr Ritson was given a reasonable timeframe to respond to the concerns of the first respondent, and that he was dishonest when he completed the nomination form. The court further held that the decision-maker had authority to make the decision dismissing Mr Ritson, and that there was no evidence that he was unfit or unable to respond to the matters to which he was required to respond by the deadline. The court noted that the standard fees set out in the Federal Court of Australia National Guide to Counsel Fees and sch 3 of the Federal Court Rules 2011 (Cth) are a relevant guide for any consideration of the quantum of an order for security for costs. The court held that the appeal should be stayed until security is given and that the appeal be dismissed in the event that the appellant fails to comply with the order. The court also ordered that the appellant pay the respondents' costs of this application on a party-party basis.

Orders

Orders of the court

1. The appellant give security for the costs of the appeal in the amount of $25,000, such amount to be paid by 4.00 pm on 6 September 2017 by way of electronic funds transfer into the trust account of the respondents’ legal representatives.

2. The appeal be stayed until security is given, in accordance with order 1.

3. The appeal be dismissed in the event that the appellant fails to comply with order 1.

4. The appellant pay the respondents’ costs of this application on a party-party basis.

5. The matter be listed for case management at 9.30 am on 12 September 2017.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The background facts were set out comprehensively by the primary Judge in Ritson No.1. It is useful to recite them, as well as more recent events, in order to understand the proceedings currently before the Court.Background Mr Ritson was a police officer with the New South Wales Police Force (NSW Police Force) for several years. Materially, during that time he was the subject of numerous complaints and investigations. In Ritson No.1, the primary Judge summarised these matters as follows:P060148810.It was alleged that on 19 March 2006, the Applicant assaulted a prisoner by the name of Christopher McEvoy whilst he was in custody at the city Central police Station. This complaint was investigated and found to be “sustained”. The Applicant, in his affidavit, said that he had been told by the investigating officer that there was no unreasonable force used but that he was somehow overruled.P060462711.It was alleged that on 24 September 2006, the Applicant, together with another police officer, disclosed the personal information of Ms Bridget Fell to Garrick Jacobsen who was then a prisoner in custody. In short, it was alleged that the Applicant knew that Jacobsen was in a sexual relationship with Ms Fell. The Applicant knew that Ms Fell was a transgender person but that the prisoner, Jacobsen, did not know this. To prove what he said, the Applicant allegedly printed out a police profile of Ms Fell to prove that she had been born a male. It was alleged that the Applicant taunted Jacobsen about his relationship with someone who was, genetically, a male. Upon Jacobsen’s release from custody, it is alleged that he seriously assaulted Ms Fell.12.On 13 March 2007, the Applicant was charged with an offence of contravening the Privacy and Personal Information Protection Act 1998 (NSW). He was suspended from the Police Force on that date as well. In addition to facing the criminal charge, the Applicant was also subject to a show cause notice from the Commissioner of Police.13.As will become evident later in these reasons, the Applicant was convicted of the criminal offence before the Magistrate but that conviction was overturned on appeal by the District Court of New South Wales. This acquittal occurred on 30 July 2010.14.The Applicant answered the show cause letter from the Commissioner of Police and refused to go into details, quite properly, because the criminal proceedings had not yet been finalised. He did however issue denials of any wrongdoing and provided the Commissioner with a number of character references. 15.In a letter dated 18 April 2008, the Police Commissioner recorded that he had not lost faith in the Applicant but had issued him a warning. In his statement of reasons, the Commissioner determined that the Applicant had breached the New South Wales Police Code of Conduct and Ethics and the Code for Best Practice for Information Management.16.The Applicant gave evidence that he did not receive those letters until after he had been acquitted by the District Court; that is, over two years after the letters had been signed by the Commissioner of Police. I have to accept the Applicant on this issue but it does expose some extremely shoddy management practices by the New South Wales Police Force.P070208717.It was alleged that on 19 April 2007, whilst off duty (and under suspension) the Applicant improperly interfered with an investigation and failed to treat persons with respect courtesy and fairness. These two allegations were found to be “sustained”. Four other offences, investigated at the same time and related to the same incident, were not found to be sustained.P080360318.It is alleged that on 21 May 2007 (again whilst on suspension), the Applicant fraudulently obtained $8,000.00 travel insurance by submitting a false travel claim. It was also alleged that he failed to comply with a direction by a senior officer to participate in an interview and that he failed to comply with the Code of Conduct and Ethics when he did lodge that claim. All of those allegations were investigated and found to be “sustained”.P080263119.It is alleged on 8 June 2008 (again whilst on suspension), the Applicant did not comply with a lawful and reasonable direction and that he acted inappropriately and unprofessionally. These offences were investigated and were both found to be “sustained”.The Applicant leaving the NSW Police Force20.There were other complaints made about the Applicant during his time with the New South Wales Police Force. Those investigations concluded with a finding of “not sustained”. There was one further complaint that had not reached any conclusion by March 2011.21.On 3 August 2010, the suspension from duty was lifted and the Applicant was to return to duty on full pay. However, he was still certified as unfit for work due to a psychological ailment. He remained on sick leave. He said in evidence that it was after this time that he received the Commissioner’s warning notice and statement of reasons.22.Around the same time, he was notified as to the findings in relation to all of the other complaints made. The matters for which there was a finding of “sustained” were sent to management for appropriate action. In September 2010, the Applicant asked what management action was being taken for the sustained findings.23.It seems that the Applicant and the Police Force made a mutual decision that the Applicant would retire from the Police Force because of his medical condition. Nevertheless, in October 2010, the Applicant was promoted to the rank of Senior Constable.24.On 3 December 2010, Superintendent Fitzgerald informed the Applicant that the original Commissioner’s warning notice would be the only action taken in regards to complaint P0604627. With regard to the other five complaints of which there was a “sustained” finding, the superintendent recommended that no further management action take place. He wrote, “I have made this decision following a review of each matter, the time that has elapsed since the incidents in question and the fact that you will not be returning to duty before being medically discharged in March 2011”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Further, the estimate was prepared on the basis that Mr Ritson would remain self-represented and conduct himself in an obstructive or unco-operative manner. Mr Williams of Counsel informed me at the hearing that he would represent Mr Ritson at the appeal. Counsel’s first duty is to the Court, and to that extent I expect that the pre-hearing liaisons between the parties will be conducted with greater efficiency than in circumstances where one of the parties is inexperienced and/or unrepresented. I would also expect the hearing to be completed within half to one day, a proposition with which Mr Williams agreed.Conclusion The Court should adopt a “broad brush” approach to determining the quantum of an order for security for costs, by reference to all relevant circumstances. The Court is not required to engage at this stage in a taxing of costs exercise, however the standard fees set out in the Federal Court of Australia National Guide to Counsel Fees and sch 3 of the Federal Court Rules 2011 (Cth) are a relevant guide for any consideration. In this case, and taking into account the circumstances I explained earlier in this judgment, I consider that security in the amount of $25,000 would be appropriate. The costs of this application should follow the event and be borne by Mr Ritson.

Ratio Decidendi

Legal Principle Established

As the primary Judge noted, Mr Ritson began employment with the first respondent on 20 July 2015. On his first day of employment, he filled out a form nominating himself for appointment as a Fair Work Building Industry Inspector. The following prompt was on the front page:if you have any queries in relation to this form or the declaration contained in this form, please contact your current manager (EL 1 or above) prior to completing the form.(Original emphasis.) In the nomination form Mr Ritson signed a declaration which was in the following terms:a) I have not been subject to disciplinary action;b)I am not aware of any other matter which would bring my good character into question or compromise the activities of Fair Work Building Industry Inspectorate. In November 2015, the first respondent became aware of media reports relating to the $7,500.00 defamation payout, the quashing of the conviction by the New South Wales District Court and the decision by the NSW ADT to refuse Mr Ritson access to police records. On 14 December 2015, Mr Ritson attended a meeting with Ms Pina Busato, a senior officer of the first respondent. Ms Busato informed Mr Ritson that it had come to her attention that he may not have completed the nomination form with honesty and integrity, and that as a result the first respondent was considering terminating his employment. There followed email correspondence between Mr Ritson and Ms Busato, including requests by Mr Ritson for additional time in which to prepare his response and an application for sick leave. On 16 December 2016, the first respondent terminated Mr Ritson’s employment by letter signed by Mr Bernie O’Keeffe, the Chief Operating Officer of the first respondent.Substantive proceedings In the Federal Circuit Court proceedings Mr Ritson claimed, in summary, that:·There was a breach of the rules of natural justice;·There was an improper use of power because the decision-maker (Mr O’Keeffe) took into account irrelevant considerations and failed to take into account relevant considerations;·The exercise of power was so unreasonable that no reasonable person could have so exercised the power;·The decision-maker did not have the power to make the decision;·There was no evidence or other material to justify the making of the decision; and·The first respondent contravened the Fair Work Act 2009 (Cth) (FW Act) by failing to allow the Mr Ritson sick leave as requested. In Ritson No.1 the primary Judge dismissed Mr Ritson’s application. In summary his Honour found:·Mr Ritson was ultimately given 48 hours to respond to the concerns of the first respondent, which was a reasonable timeframe in circumstances where he was familiar with relevant facts and material;·Mr Ritson was dishonest when he completed the nomination form. At the very least, his knowledge should have been sufficient for him to approach Ms Busato when filling out the form;·Mr Ritson did not identify any mandatory matter that was not considered by Mr O’Keeffe, or any prohibited matter that was considered by Mr O’Keeffe;·Mr O’Keeffe had authority to make the decision dismissing Mr Ritson; and·Notwithstanding that Mr Ritson was on sick leave, there is no evidence that he was unfit or unable to respond to the matters to which he was required to respond by 16 December 2015. Mr Ritson failed to so respond. Whether he was on sick leave or not was irrelevant. In any event, Mr Ritson was not deprived of his entitlement to sick leave.