Ritson v Commissioner of Police, New South Wales Police Force
[2017] FCCA 1204
•6 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RITSON v COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE | [2017] FCCA 1204 |
| Catchwords: PRACTICE AND PROCEDURE – application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.27, 41. |
| Applicant: | BRENDAN RITSON |
| Respondent: | COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE |
| File Number: | SYG 1139 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 6 June 2017 |
| Date of Last Submission: | 6 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Ms N Mullee |
| Counsel for the Respondent: | Mr P Afshar |
| Solicitors for the Respondent: | Coleman Greig Lawyers |
ORDERS
The affidavit of Ms Rebecca Hegarty dated 10 May 2017 is treated as having been filed electronically.
The application to set aside the bankruptcy notice is dismissed
The applicant to pay the respondent’s costs of the proceedings as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1139 of 2017
| BRENDAN RITSON |
Applicant
And
| COMMISSIONER OF POLICE, NEW SOUTH WALES POLICE FORCE |
Respondent
REASONS FOR JUDGMENT
Background
This is an application to set aside a bankruptcy notice within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966 (Cth) ( “the Act”). The application was filed on 12 April 2017 to set aside a bankruptcy notice issued on 7 December 2016 in respect of a judgment obtained by the respondent in the Local Court on 30 October 2015. The affidavit in support identified that the bankruptcy notice was served on the applicant on 22 March 2017. The affidavit makes reference to a police bank account being debited with the amount of $89.30.
The applicant alleged that the bankruptcy notice failed to include the payment made on credit allowed in respect of the sum of $89.30 debited from the applicant’s police bank account. The applicant sent an email to the respondent on 11 April 2017, which referred to the bankruptcy notice and purported to give a notice under s.41(5) of the Act stating that:
“The validity of the notice is disputed on grounds that include misstatement, namely the sum specified in the bankruptcy notice as the amount due to the creditor exceeds the amount in fact due”.
Proceedings before a Registrar
On 13 April 2017, a Registrar made orders extending time for compliance with the bankruptcy notice. On 26 April 2017, a Registrar made a further order extending time for compliance with the bankruptcy notice and providing a timetable for the service of affidavit evidence to be completed by 9 May 2017. The respondent complied with those orders. On 10 May 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application and affidavit evidence with which the applicant did not comply. Those orders foreshadowed the proceedings being stood over to 16 June 2017.
On 26 May 2017, the applicant filed an application for review of the orders made by the Registrar on 10 May 2017, seeking to have those orders set aside, seeking to bring a challenge to the retainer of the solicitors on behalf of the respondent, seeking to have the applicant’s application decided separately, seeking an order for extension of time for compliance, and seeking an order for costs.
On 26 May 2017, a Registrar of the Court informed the parties that the application for review had been listed to be heard by the Court at 9.30 am on 1 June 2017. A communication was sent by counsel for the respondent to the registry, indicating that counsel was away and would not be available until 6, 7 or 8 June 2017. The parties were informed by the Registrar that the matter had been referred to a Docket Judge. The solicitor for the respondent then wrote to chambers identifying a request for the matter to be fixed for hearing on the 6th, 7th or 8th as counsel was overseas on the 1st.
Proceedings before this Court
On 29 May 2017, a communication was sent to the parties identifying that the matter remained listed for hearing on 1 June 2017 at 9.30 a.m. On 30 May 2017, a communication was sent by the applicant indicating that the applicant was currently overseas and had only just read the email chain, noting that the application for review had been listed for hearing on 1 June 2017. The email identified that the applicant requested the date for hearing be set for a convenient date, either on 6, 7 or 8 June 2017. On 30 May 2017, an email was sent enclosing a Court order. That email identified the matter had been fixed for hearing on 6 June 2017 at 9.30 am and that the hearing listed on 1 June 2017 had been vacated.
The order made by the Court on 30 June identified that the matter was fixed for hearing on 6 June 2017 at 9.30 am. On 5 June 2017, the applicant requested by email to appear by telephone at the hearing on the basis that the applicant resides in Queensland. That request to appear by telephone at the hearing was declined. At the commencement of the hearing today Ms Mullee, on behalf of the applicant, indicated that the applicant wanted to pursue a further timetable for putting on evidence and wanted an adjournment.
The Court order made on 30 May 2017 was clear and specific in identifying the matter was fixed for hearing. That was a hearing date that was identified by the applicant as being convenient to the applicant. Ms Mullee, on behalf of the applicant, said that the applicant had further issues the applicant wished to raise in relation to the certificates that gave rise to the judgment in the local Court, issues in relation to the bankruptcy notice, criticisms in relation to the address for service, as well as a desire to challenge the retainer of the solicitors for the respondent.
The Court indicated that it would not entertain any application to challenge the retainer of the solicitors of the respondent on the basis the Court was of the view that that that application was plainly vexatious and abusive and an abuse of process, which the Court would not entertain in circumstances where the issue before the Court is an application to set aside a bankruptcy notice and the scheme of the Act is one under which an application to set aside a bankruptcy notice should be dealt with expeditiously and there was no proper basis for the challenge.
The steps identified by Ms Mullee that the applicant wished to take were ones that the applicant had earlier had an opportunity to undertake pursuant to the orders made on 13 April 2017 and 26 April 2017, and had not done so. The desire of the applicant to re-agitate a timetable on a review application also on its face appears to be nothing more than a delay tactic. The applicant has had a proper opportunity to put on material, which the applicant has not done. Ms Mullee explained that the applicant has not done so because the applicant thought that it was only the application concerning the review identified in the application filed on 26 May 2017 that was fixed for hearing.
Nothing in the Order made by the Court conveyed a basis upon which that belief could have been formed.
Grounds of the application
The grounds identified in opposition to the bankruptcy notice are relevantly summarised in an affidavit as follows:
3. On 4 September 2016, the respondent debited $89.30 from my Police Bank account.
...
5. On 22 March 2017, the respondent served on me bankruptcy notice BN 210799 issued on 7 December 2016.
…
7. The bankruptcy notice fails to include the payment made or credit allowed in respect to the sum of $89.30 debited from my Police Bank account on 4 September 2016.
8. On 11 April 2017, notice was given to the respondent that the validity of the bankruptcy notice is disputed on grounds that include misstatement, namely the sum specified in the bankruptcy notice as the amount due to the respondent exceeds the amount in fact due, pursuant to section 41 (5) of the Bankruptcy Act 1966 (Cth).
…
Consideration of claims
The Court was not satisfied that an adjournment of the matter fixed for hearing was warranted in the interests of the administration of justice. The Court was not satisfied that this is an appropriate matter in which to entertain a challenge to the retainer of the solicitors for the respondent has filed and served evidence that identifies that the payment of the $89.30 was not in reduction of the indebtedness the subject of the bankruptcy notice.
The affidavit of Ms Hegarty of 10 May 2017 identifies the applicant’s correspondence in relation to the desire to challenge the retainer of the solicitors. Those communications identified no proper basis upon which any such challenge could be advanced.
On the evidence before the Court there was no misstatement in the bankruptcy notice. On the evidence before the Court there is no set-off, cross-claim, or cross-demand that could support a challenge to the bankruptcy notice.
On the face of the material before the Court the bankruptcy notice complied with the statutory requirements of the Act. Whilst I accept the applicant paid the $89.30, that did not give rise to the bankruptcy notice amount being overstated by that amount. I also accept the respondent’s submission that the email did not, in any event, constitute a valid notice under s.41(5), although that is not a matter of any consequence in the circumstances where there is no misstatement on the evidence before the Court.
Conclusion
No ground to set aside the bankruptcy notice has been made out. I regard the application for a review of the Registrar’s orders in respect of the timetable to reflect an endeavour by the applicant to protract hopeless proceedings. The applicant has had a proper opportunity to identify any basis upon which the bankruptcy notice should be set aside. He has failed to do so. The application to set aside the bankruptcy notice is dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 22 June 2017
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