Ritson v Leighton
[2015] NSWCA 62
•23 March 2015
|
New South Wales |
Case Name: | Ritson v Leighton |
Medium Neutral Citation: | [2015] NSWCA 62 |
Hearing Date(s): | 16 March 2014 |
Date of Orders: | 23 March 2015 |
Decision Date: | 23 March 2015 |
Before: | Ward JA |
Decision: | First respondent’s notice of motion for security for costs dismissed with costs |
Catchwords: | PROCEDURE – costs – security for costs – pending hearing of judicial review application – whether reason to believe failure to provide residential address is with intent to deceive – Uniform Civil Procedure Rules 2005, r 42.21 – whether exceptional circumstances justify order for security for costs Uniform Civil Procedure Rules 2005, r 59.11 – discretionary considerations |
Legislation Cited: | Civil Procedure Act 2005 (NSW) |
Cases Cited: | AWA v Independent News Auckland [1996] 2 NZLR 184 |
Category: | Costs |
Parties: | Brendan Ritson (Applicant) |
Representation: | Counsel: |
File Number(s): | CA 2014/00329234 |
Publication Restriction: | Nil |
Decision under appeal: | |
Court or Tribunal: | District Court of New South Wales |
Jurisdiction: | Civil |
Date of Decision: | 08 August 2014; 29 August 2014; 12 September 2014; 31 October 2014 |
Before: | Balla DCJ and Gibson DCJ |
File Number(s): | 2014/80894 |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
JUDGMENT
WARD JA: Before me in the referrals list on 16 March 2015 was a notice of motion filed on 25 November 2014 on behalf of the first respondent, Ms Leighton, seeking an order pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for the provision of security for her costs of the proceedings in this Court and an order that the proceedings be stayed until such security is provided. The amount sought by way of security for costs is $17,000 or such other amount as the Court thinks fit.
Background
The proceedings in this Court involve an application by Mr Ritson for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of a series of decisions in defamation proceedings commenced by him in the District Court on 17 March 2014 against the first respondent. In those proceedings, Mr Ritson, a former police officer, has sought damages, including aggravated damages, for defamation arising out of certain “blogs” apparently posted on a website in 2008 by Ms Leighton.
In both the initial originating process and an amended statement of claim filed in the District Court by Mr Ritson on 19 June 2014, his address is stated as a post office box number and his address for service is nominated as premises in Market Street, Sydney, at which it is not disputed there are a number of serviced offices. Mr Ritson’s contact details, on the coversheet of the originating process, include the provision of an email address.
In July 2014, the first respondent moved to have the amended statement of claim struck out pursuant to UCPR r 14.28(1)(b) or set aside pursuant to s 63(3) of the Civil Procedure Act 2005 (NSW) on the basis that Mr Ritson had not complied with UCPR r 4.2(1)(g) because he had not included his residential address in the originating process. That application was heard by Balla DCJ on 8 August 2014. On that occasion a solicitor appeared for Mr Ritson. No evidence was adduced by him.
Her Honour accepted the submissions put for the first respondent on that occasion. Her Honour was satisfied that the word “address” in the rules meant a party’s residential address, noting the three reasons given by the Victorian Supreme Court in Sheen v Burke [1993] 1 VR 584 for the requirement that a plaintiff be required to divulge his or her place of residence. Beach J, as his Honour then was, referred in Sheen to the deterrence of fraudulent or mischievous claims and the relevance of the provision of a residential address to enable the assessment of a party’s means to satisfy an adverse judgment and to enable enforcement of adverse costs orders.
Balla DCJ found that Mr Ritson had failed to comply with the rules and that this was not a de minimis irregularity. Her Honour stayed the proceedings until there was compliance by Mr Ritson with the rules by the filing of a further amended statement of claim which includes his residential address as well as his address for service. Mr Ritson was ordered to pay Ms Leighton’s costs of the motion.
On 29 August 2014, the matter came back before the District Court on an application by the first respondent, invoking the liberty to apply that had been given by Balla DCJ, for summary dismissal of the proceedings in view of the fact that Mr Ritson had not filed a further amended statement of claim. There was no appearance by Mr Ritson on that occasion. Gibson DCJ dismissed the proceedings with costs on the basis of a failure by Mr Ritson to comply with a specific order of the court following contested proceedings and a judgment by Balla DCJ. Her Honour noted that no explanation had been given for the continued failure to provide the proper address required by the rules and that there was no appearance before the court on that day by Mr Ritson (see [12] of her Honour’s reasons).
On 12 September 2014, Gibson DCJ heard an application by Mr Ritson to set aside both the orders made by Balla DCJ on 8 August 2014 and the orders made by Gibson DCJ dismissing the proceedings with costs on 29 August 2014. Among other relief, Mr Ritson’s notice of motion sought an order dispensing with the requirement that he include his residential address in the amended statement of claim and leave to file and serve a further amended statement of claim.
In his affidavit in support of that application, Mr Ritson, who gave his occupation as a licensed commercial agent, deposed to his concerns about the disclosure of his residential address (see [2] - [11] of his affidavit affirmed 12 September 2014) and to the risk he perceived that his residential address would be published on the internet if it was contained in the originating process (see [12 ]- [20] of that affidavit). Paragraphs two - 11 of his affidavit were admitted on the basis that the evidence was restricted to evidence relevant to what was or was not before the Court on 8 August 2014 (see T15-16).
In that affidavit, Mr Ritson deposed (at [10]) that “[d]ue to ongoing concerns about the safety and welfare of both my family and myself” he had moved residential addresses three times within the past two years and that he had recently moved away from Sydney.
Argument on the application occupied the whole of the afternoon on 12 September 2014. In the course of argument, her Honour indicated that she was not satisfied that the material set out in [2] - [11] of Mr Ritson’s affidavit provided an adequate explanation for the non-disclosure of Mr Ritson’s residential address and informed Mr Ritson (T 50.1) that he could tell her his residential address “now for the transcript” or she would hear from the first respondent’s solicitor as to why orders should not be made dismissing the claim. It appears that her Honour was considering doing so by reason of non-compliance with Balla DCJ’s order, although that order did not in terms require Mr Ritson to disclose his residential address or to file any further originating process. Rather, it stayed the proceedings until he did so.
After some debate, her Honour informed Mr Ritson that she wanted to know what his residential address was “for the purpose of the transcript so that we have it on the transcript”. Mr Ritson then specified an address in Federal, New South Wales. Her Honour accepted that as sufficient, at least for the time being, to amount to compliance with UCPR r 4.5 (see [22] of her Honour’s reasons) and the first respondent did not in those circumstances press for an order for the dismissal of the proceedings.
Gibson DCJ dismissed the application by Mr Ritson for the setting aside of Balla DCJ’s orders of 8 August 2014 but did set aside the order she had made on 29 August 2014 dismissing the proceedings (O 4). Order 3 of the orders made on 12 September 2014 was expressed as follows:
(3) Set aside order (4) of the orders of 29 August 2014 conditional on the following:
(a) Such costs orders as are made in relation to the hearings before Balla DCJ and Gbson DCJ being determined (and if so ordered, paid);
(b) A continuation of the stay of the proceedings ordered by Balla DCJ pending that [presumably costs] hearing, and until further order.
Her Honour made directions for the filing of submissions and evidence on the question of costs and listed the matter for 31 October 2014 for directions.
On 31 October 2014, Gibson DCJ dismissed an application by Mr Ritson for her to disqualify herself from further hearing the proceedings, heard submissions as to costs, and ordered that Mr Ritson pay Ms Leighton’s costs of each of the hearings, including the hearing of 31 October 2014, on an indemnity basis, such costs to be assessable forthwith. Her Honour refused an application by the first respondent for a stay under s 67 of the Civil Procedure Act until payment of those costs.
The upshot of those orders was that, although Gibson DCJ had refused to stay the proceedings pending payment of the costs ordered on 31 October 2014, the stay of the proceedings that had been ordered by Balla DCJ on 8 August 2014 (pending filing by Mr Ritson of a further amended statement of claim including his residential address and address for service) remained in place. The District Court proceedings therefore remain the subject of a stay.
Judicial review application
On 7 November 2014, Mr Ritson filed his summons seeking judicial review of each of the decisions referred to above. In that summons, Mr Ritson also seeks declaratory relief, including declarations that “the Applicant’s [i.e., his] business address”, namely the Market Street premises contained in his amended statement of claim filed in the District Court proceedings, satisfied the requirement of an “address” in r 4.2(1)(g) of the UCPR and satisfied the requirement of an address for service in that rule. Orders in the nature of certiorari are sought quashing the orders made by both Balla DCJ and Gibson DCJ with the exception of O 3 (set out at [13] above) made by Gibson on 12 September 2014, to the extent that it set aside O 4 made on 29 August 2014 for the dismissal of the proceedings, and O 3 made by Gibson DCJ on 31 October 2014, to the extent that it refused the first respondent’s application for a stay under s 67 of the Civil Procedure Act until payment of the costs orders.
The grounds on which Mr Ritson seeks such relief include alleged errors of law on the part of the respective judicial officers (including, for example, an alleged error of law by Balla DCJ in admitting a particular document in evidence), as well as alleged denial of procedural fairness by both judicial officers by reason of various matters including, in the case of Gibson DCJ, an alleged apprehension of bias.
Unsurprisingly, given Mr Ritson’s contention that the Market Street address satisfies the requirement under the rules for his address to be specified in the originating process, the summons seeking judicial review does not specify a residential address. It identifies Mr Ritson’s address as being the Market Street address. That is also nominated as his address for service. A post office box address is included as well as an electronic service address.
Application for security for costs
The first respondent’s application for security for costs is made pursuant to UCPR r 42.21(1). Relevantly, that rule provides that the court may order the provision of security if it appears to the court:
(b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or
(c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings.
The first respondent accepts that r 42.21 is subject to UCPR r 59.11 which provides that a plaintiff is not to be required to provide security for costs in respect of judicial review proceedings except in exceptional circumstances. By contrast, UCPR r 51.50, which deals with security for costs of an appeal, uses the expression “special circumstances”.
The first respondent maintains that there is reason to believe both of the matters identified in sub-rules (1)(b) and (c) of r 42.21 and that the present case is one that satisfies the requirement of exceptional circumstances. She raises various matters going to the consideration of the exercise of the discretion to make an order for security for costs, such as the prospects of success of the judicial review proceedings. Mr Ritson resists the application and maintains that there is disentitling conduct on the part of the first respondent that should be taken into consideration against the grant of such an order.
Legal principles
The power to make orders for security for costs under sub-rules 42.21(1)(b) and (c) is enlivened only where there is “reason to believe” the matters stated in those respective sub-rules. The words “reason to believe” were considered in Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 in the context of the threshold test in sub-rule 42.21(1)(d), namely whether there is reason to believe that a plaintiff corporation will be unable to pay the costs of the litigation if ordered to do so. There, it was said that the threshold test that there be “reason to believe” in r 42.21(d) imposes a more demanding standard than an assessment as to whether there was a “risk” of the relevant event happening (see [15]–[17] per Macfarlan JA, with whom Tobias AJA and I agreed). The requirement that there be “reason to believe” the matters in either 42.21(1)(b) or (c) requires a rational basis for the requisite belief to be held but does not require that the belief be proven to be correct.
As to what is meant by exceptional circumstances, this was the subject of consideration in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290. There, Campbell JA (with whom Tobias JA and Handley AJA agreed) considered the meaning of exceptional circumstances in the context of the service of expert reports (pursuant to the then UCPR r 31.18). Campbell JA elicited various principles from the authorities as to how that expression was to be understood.
His Honour noted that exceptional circumstances are those that are “out of the ordinary course or unusual, or special, or uncommon”; that they need not be unique, or unprecedented or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered (referring to R v Kelly (Edward) [2000] 1 QB 1988 at 208); that exceptional circumstances can exist “not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors” (referring to R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913)); and that they can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance when taken together, are seen as exceptional (referring to Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26]).
Campbell JA also noted that, in determining whether there are exceptional circumstances, the rationale of the particular statutory provision must be taken into account (referring to Buckland at 1268; 912-913), as must the facts of the individual case (referring to AWA v Independent News Auckland [1996] 2 NZLR 184 (at 186)), and that the Court would need to bear in mind the explicit statement of objectives contained in ss 56-59 of the Civil Procedure Act.
Is there reason to believe one or both of the matters in r 42.21(b) or (c)?
The first point to note is that, on any view of the meaning of “address” in the relevant rules, the summons seeking judicial review does not state Mr Ritson’s address; rather, it states the business address of a company of which Mr Ritson is the director and secretary (i.e., the Market Street address). That this is so is clear from Mr Ritson’s own evidence.
On the present application Mr Ritson has filed two affidavits, the first an affidavit affirmed on 5 February 2015 and the second affirmed on 7 March 2015.
In his February affidavit, Mr Ritson identifies the Market Street address as the principal place of business address for an entity named Nevada Corporation Pty Limited, of which he is the director and secretary. Annexed to his affidavit is a copy of an ASIC company extract, which records Mr Ritson’s address as being a unit in Macleay Street, Potts Point. Mr Ritson deposes (at [18)] that:
In circumstances where I have moved residential premises several times within the past few years due to ongoing concerns about the safety and welfare of my family and myself, Level 26, 44 Market Street, Sydney NSW is my most reliable address.
The fact that the Market Street address is the “most reliable” address, which I interpret to mean the address at which documents would most likely or perhaps most quickly come to his attention, may provide a good reason why the Market Street address would be nominated as the address for service. It does not, however, answer the complaint by the first respondent that the summons does not disclose Mr Ritson’s address.
Similarly, on Mr Ritson’s own evidence he has changed addresses over the period since he commenced the District Court proceedings, although it is not clear that he has changed address since the commencement of the proceedings in this Court. Mr Ritson currently lives, he says, at an (undisclosed) address in Queensland. When cross-examined on the present application, Mr Ritson said that he moved to that address in late September 2014. If so, then there is no evidence that there has been any change of residential address since the commencement of these proceedings.
The relevant questions for present purposes are whether it appears that there is reason to believe either that the failure to state, or mis-statement, of his address in the summons was made with intention to deceive (for the purposes of sub-rule 42.21(1)(b)) and whether it appears (assuming for the moment that there has been a relevant change of address, though that has not been established if the relevant change is since the commencement of the judicial review proceedings) that there is reason to believe that Mr Ritson’s has changed address was with a view to avoiding the consequences of the proceedings (for the purposes of sub-rule 42.21(1)(c).
On the present application, I gave leave for Mr Goldsmith, solicitor for the first respondent, to cross-examine Mr Ritson on the limited issue of his residential addresses for the period from the filing of the amended statement of claim in the District Court proceedings on 17 March 2014 to the time he commenced residing at his current unidentified Queensland address.
Mr Ritson, who did not purport to provide precise dates, gave evidence to the effect that: for the period between about the start of 2014 to mid-2014, he was living at a unit in Crown Street, Darlinghurst; prior to that he had been living at a Tewkesbury Avenue address in Darlinghurst; from about mid-2014 until late September 2014 he did not have a fixed place of abode but was staying “on and off” with friends at an address in Federal, New South Wales and used or relied on that as his residential address; and he moved out of the Federal address in September 2014 to his current (unidentified) location. He made no mention of living at the Macleay Street, Potts Point address noted in ASIC’s records over this period.
In his February affidavit, Mr Ritson confirmed (at [21]) that in the past he had lived at the Macleay Street, Potts Point address which is disclosed on the ASIC company extract. However, he did not identify that in cross-examination as an address at which he had resided in the period from the commencement of the District Court proceedings.
As noted earlier, the address that Mr Ritson disclosed to Gibson DCJ, when the matter was before her Honour in September 2014, was a residential address at Federal in New South Wales. In Mr Ritson’s most recent affidavit in these proceedings, he deposes (at [12]) that at the time he filed his summons for judicial review in this Court (i.e., on 7 November 2014), he was no longer residing at the address in Federal.
In that regard, the first respondent argues that there is a blatant inconsistency disclosed in Mr Ritson’s evidence. The first respondent points to an email, a copy of which is annexed to Mr Ritson’s February affidavit, from Mr Ritson to the first respondent’s solicitor on 21 November 2014 in which Mr Ritson asked Mr Goldsmith to note that the residential premises at Federal “is no longer to be my residential address” (my emphasis), there confirming that Mr Goldsmith might continue to send documents to him by electronic mail, by service at his post office box number or by leaving documents for him at the Market Street premises. The first respondent says that the tense used in this email is inconsistent with Mr Ritson’s affidavit evidence that he was no longer residing at the Federal address some two weeks earlier when he filed his judicial review application.
The first respondent also submits that Mr Ritson was evasive when he deposes that he disclosed the Federal address “for the purposes of the transcript” in September 2014. The first respondent apparently infers from the use of those words that it was not, or may not have been, in fact Mr Ritson’s address as at the time Mr Ritson gave that as his address in court on 12 September 2014. The difficulty with that submission is that her Honour’s request was expressed in terms that Mr Ritson provide his address for the transcript. His description of what was done on that occasion is consistent with the manner in which the question was asked of him. I would not draw the inference from use of the words “for the purpose of the transcript” that Mr Ritson was providing a false answer to the District Court on that occasion.
The first respondent also points to the ASIC records which show an address for Mr Ritson that, on his evidence before me, is not his current address and has not been his current address at any time over the period from 17 March 2014 to date; and the lack of evidence from Mr Ritson that he has taken any steps to rectify the address in ASIC’s records. The first respondent notes that there is a provision under the Corporations Act2001 (Cth) for suppression of an address in certain circumstances but that there is no suggestion that Mr Ritson has attempted to invoke the requisite procedure.
Based on the above, the first respondent asserts that Mr Ritson has gone to considerable effort not only not to disclose his actual residential address but also to deceive people into believing (falsely) where he actually did reside ([23]). It is submitted that Mr Ritson’s evasiveness, in a cumulative way, amounts to deceit.
The first respondent maintains that the proper course, if (as Mr Ritson has deposed) Mr Ritson was seeking to suppress his residential address for security reasons, was for him to include his residential address in the court documents and then to apply for the equivalent of a suppression order. It must, however, be noted that Mr Ritson’s application to the District Court in September 2014 did include an application for dispensation with the requirement that he provide his residential address. While not a formal application under the Court Suppression and Non-Publication Orders Act 2010 (NSW), the purport of his application (which does not appear to have been separately addressed in her Honour’s reasons) was to that effect.
I am unable to conclude on the evidence before me that there is reason to believe that the failure by Mr Ritson to state his residential address (or, indeed, any personal address, as opposed to the business address of a company with which he is associated) on the summons seeking judicial review was with the intention of deceiving either the court or the first respondent as to his address.
It is true that Mr Ritson has refused to provide his current residential address on the court documents both in this Court and in the District Court. He maintains that the rules, properly construed, do not oblige him to provide a residential address. Whether or not his contention in that regard is ultimately found to be correct, the Market Street address is not, on Mr Ritson’s own evidence, “his” address. It is the business address of a company of which he is the director and secretary.
Relevantly, however, the filing of the summons for judicial review, which nominated the Market Street premises as his address was in circumstances where the issue as to his actual residential address had already been ventilated on more than one occasion in the District Court. The first respondent already knew that the Market Street address was not Mr Ritson’s residential address. It is not logical to conclude that Mr Ritson, by nominating the Market Street premises, was intending to deceive the first respondent into thinking that the nominated set of serviced offices had suddenly become his residential address when it had not been before. The fact that Mr Ritson has apparently not updated the statement of his address in ASIC’s records does not lead to any different conclusion.
As to whether there is reason to believe that Mr Ritson’s change of addresses over the period from 17 March 2014 was with a view to avoiding the consequences of the proceedings (assuming for the moment that for the purposes of r 42.21(1)(c) this is the relevant period), Mr Ritson deposed in his September 2014 affidavit in the District Court to a reason for his changes of address, namely his concern as to the safety and welfare of his family. Gibson DCJ considered this material to be unconvincing ([18]), referring to Mr Ritson’s evidence that on one occasion in 2006 he had received a death threat. Her Honour noted that he was a silent voter “like many former police officers and senior public servants” and that he had deposed to someone having damaged the front door of his home. Her Honour also noted that those events had nothing to do with the first respondent.
In the present proceedings Mr Ritson has deposed to a belief there is a real risk of his residential address being published on the internet by the first respondent in the absence of an undertaking to the contrary ([19] of his second affidavit); says he has previously had personal information about him improperly disclosed by the New South Wales Police Force to third parties and published on the internet that caused him injury, distress and humiliation (though he does not suggest that the first respondent was in any way connected with this) ([20] of his first affidavit); and says he does not want again to suffer injury, distress and humiliation if information is published about him on the internet including his residential address.
Even if one proceeds on the assumption that Mr Ritson’s stated safety concerns are unfounded, there is no basis to conclude that he does not have the concerns that he has expressed. The circumstance that Mr Ritson is a silent voter provides some support for his claimed concerns, in that it would have been necessary for him to satisfy the Electoral Commission for such status to be granted.
Mr Goldsmith has affirmed two affidavits in these proceedings detailing, among other things, four other judgments against Mr Ritson in which he was ordered to pay costs ([17]). Mr Goldsmith asserts that Mr Ritson is a serial and unsuccessful litigant, and has deposed to having sought instructions to request that an application be made for Mr Ritson to be declared a vexatious litigant. It was submitted by the first respondent that this Court should infer that Mr Ritson is a person committed to litigating “irrespective of the merits of the case” and to ensuring that the maximum legal costs are incurred (by his opponent). By way of example of the latter, the first respondent maintains that Mr Ritson’s request to serve the White Folder in these proceedings at her solicitors’ Brisbane office was an attempt (“another attempt”) financially to intimidate the first respondent.
Mr Ritson denies that he has deceived anyone; that he is a serial, unsuccessful or vexatious litigant; and that he has attempted financially to intimidate the first respondent.
The fact that Mr Ritson has commenced and been unsuccessful in a number of earlier proceedings does not enable the conclusion to be drawn that he is “committed to litigating irrespective of the merits of the case”. Such a conclusion could only be drawn after an investigation of the claims made in those cases and the basis on which Mr Ritson believed he had such claims, including an assessment of any legal advice he had at that time. Such an exercise is not appropriate on the current application. Nor can any conclusion be drawn on the current evidence as to whether an application to have Mr Ritson declared a vexatious litigant has any prospects of success.
I accept that changing addresses may make it more difficult later to effect service of court documents if, say, the first respondent were to seek to enforce costs orders against Mr Ritson. However, in light of the history of the matter it seems likely that substituted service orders would be available if as a practical matter personal service could not be effected. Knowledge of Mr Ritson’s present residential address may or may not assist in an assessment of his ability to meet any adverse costs orders, since that might well depend on whether he is the owner of the premises currently occupied by him.
Mr Ritson relies on Cox v Cox [2013] VSC 318 (at [32]) as authority for the proposition that a “mere change in address” does not provide grounds for security for costs to be ordered (Derham AsJ there referring to Knight v Ponsonby [1925] 1 KB 545). There, the court was not satisfied that the defendants had established that the plaintiff had changed his address in order to avoid the consequences of the proceeding as required under the equivalent rule in Victoria. There, however, it appears that the plaintiff had not only provided an explanation for the change in address but had provided an address in subsequent affidavits.
The fact that there are outstanding costs judgments (noting that costs of the District Court proceedings have not yet been assessed) does not, in my opinion, warrant a conclusion that there is reason to believe that Mr Ritson has changed addresses in the past and moved to Queensland in about September 2014 in order to avoid the consequences of either the District Court or judicial review proceedings. Moreover, in circumstances where what is sought is an order for security for costs in the judicial review proceedings, it would appear that r 42.21(1)(c) requires focus on whether there has been a change of address since the commencement of these proceedings, and if so whether there is reason to believe it was for the requisite intention. Here, there is no evidence that Mr Ritson has changed residential address since the commencement of the judicial review proceedings.
It follows from the above, that the threshold test to be satisfied in each of sub-rules 42.21(1)(b) and (c) has not been met and the power to award security of costs has not been enlivened. That is sufficient to dispose of the present application but for completeness I address below the question whether this is a case where there are exceptional circumstances for the purposes of r 59.11. I will also note the discretionary considerations raised by the respective parties.
Exceptional Circumstances?
Even had I reached a different conclusion above, I would not have ordered the provision of security for costs as I am not persuaded that the requirement for there to be exceptional circumstances has been satisfied in this case.
The first respondent maintains that there are exceptional circumstances. First, it is submitted that the grounds upon which the first respondent relies are themselves unusual or extraordinary. The first respondent contends that as a matter of common knowledge most applications for an order for security for costs are founded upon claims that the plaintiff is ordinarily resident outside Australia or, if a corporation, will be unable to pay the costs of the defendant, or, that there is reason to believe that the plaintiff has divested assets with the intention of avoiding the consequences of the proceedings. It is submitted that it is unusual for an application to be made on the grounds provided for under UCPR r 42.21(1)(b) and (c).
I have not attempted to carry out any exhaustive research to determine the infrequency or otherwise of applications for security for costs under rr 42.21(1)(b) and (c). Nor was it suggested that the submission of the first respondent was based on any such research on the part of her legal representatives. It was simply put as a submission based on common or assumed knowledge. The first respondent’s reference to Cox v Cox shows that on at least one occasion in the past two years there has been an application on a similar basis in Victoria.
Nevertheless, even accepting for the purposes of this argument that applications for security for costs are, as a matter of common experience, more commonly made on other bases than those for which sub-rules 42.21(1)(b) and (c) provide, I have difficulty in treating the mere fact of the ground under which the application is made as an exceptional circumstance. Had that been the intention, it might be thought that UCPR r 59.11 would itself contain an exception for cases where the application is brought under those sub-rules. It does not.
Second, it is submitted by the first respondent that Mr Ritson’s conduct throughout in relation to his residential address is unusual and extraordinary. I have difficulty accepting that proposition. Mr Ritson clearly has a firm belief that the rules do not require him to provide his residential address. He maintains that belief notwithstanding the District Court judgments against him on that issue and he is seeking a review of those decisions in the present proceedings. His view may or may not ultimately prove to be correct. However, it is by no means unusual or extraordinary for unsuccessful litigants at first instance to hold firm views that the court below was wrong. Moreover, Mr Ritson’s commencement of these proceedings without stating a residential address in the court process is explicable at least to the extent that the review application would presumably be moot if he were now to state the address he has been contending he is not required to state in the proceedings below.
As for the change of addresses, it does not strike me as extraordinary that someone may move residential addresses three times in a couple of years, particularly if that person has (whether well founded or not) concerns as to his or her safety or has encountered threats or harassment as part of his or her employment or former employment. On Mr Ritson’s evidence at least one of those addresses (the address at Federal, New South Wales) was one where he was staying with friends, as seems not unusual if at the time Mr Ritson was looking for accommodation elsewhere.
Reliance is placed by the first respondent on Mazzei v Industrial Relations Commission of New South Wales [2000] NSWCA 104; (2000) 97 IR 57. There, the Court dismissed an application for review of a decision by the deputy registrar that the claimants provide security for costs. The applicants were judgment debtors in Industrial Relations Commission proceedings and had sought to appeal in that tribunal without either complying with the judgment or obtaining a stay. The Full Bench of the Industrial Relations Commission stayed their application for leave to appeal, observing that default in compliance with the court order against them was prima facie in contempt of court. The deputy registrar had taken into account the failure to comply with the orders below when determining that there were special circumstances warranting an order for security for costs. Mr Ritson maintains Mazzei is distinguishable because there the claimant had failed to comply with orders to pay a liquidated sum in the proceedings below but that in the present case the costs that he has been ordered to pay have not yet been assessed. The circumstances that were considered in Mazzei are not of great assistance in determining whether the present circumstances are exceptional for the purposes of r 59.11, involving as they did an issue whether the proceedings involved a prima facie contempt.
The power to award security for costs protects the efficacy of the exercise of the jurisdiction to award costs. In Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744, Einstein J noted (at [52]) that the purpose of a security for costs order is to ensure that the primary purposes of having costs orders themselves can be achieved that, to the extent that it can be avoided, the court should not permit a situation to arise where a party’s success is pyrrhic.
In the present case, while there is doubt, on the application of well-established principles to which I refer below, as to the prospects of the application for judicial review because of the availability of an application for leave to appeal from the interlocutory decisions in question, and although there are other difficulties with the application to which the first respondent has pointed, those matters will fall to be determined in due course in what one would expect to be a relatively short hearing. The case management objectives in ss 56-59 of the Civil Procedure Act would seem to be best met by the parties focussing on the real issues in dispute, not interlocutory skirmishes of the present kind, particularly where there has now been made known to the first respondent a basis on which Mr Ritson would be prepared to disclose his residential address (to which I refer at [66] below) and the first respondent was not prepared to proffer an undertaking as to confidentiality in that regard.
I have therefore concluded that the present case is not one in which there are exceptional circumstances such as to permit an order for security for costs of the judicial review application.
Discretionary considerations
It is not necessary in light of the conclusions I have reached above to consider whether, had the power to award security for costs been enlivened and had this been a case where there were exceptional circumstances, the court’s discretion should be exercised in favour of the making of to make an order of the kind sought. However, for completeness I note the following discretionary considerations that were raised.
In his affidavit of 7 March 2015, Mr Ritson deposes (at [24]) that:
If the solicitors for the first respondent had given me a legitimate reason why the first respondent needs to know exactly where I am residing and an undertaking that my residential address would remain strictly confidential and not disclosed to third parties or published on the internet, I would have informed them of my residential address at all times in these proceedings and the proceedings below.
There is an impasse between the parties in this regard. On the one hand, Mr Ritson wants to know the “legitimate” reason for the first respondent wanting to know his residential address and an undertaking that it be kept confidential. On the other hand, the first respondent maintains that Mr Ritson is obliged to provide his residential address (an issue which has already been determined against Mr Ritson in the District Court but is the subject of his judicial review application).
Mr Goldsmith indicated that his client would have difficulty with the provision of an undertaking as to confidentiality in relation to Mr Ritson’s address because he said he would wish to liaise with other creditors in relation to enforcement proceedings in respect of costs. That suggests that the reason for the first respondents’ insistence on provision of a residential address may not simply be to facilitate the enforcement by the first respondent of existing or future costs orders in her favour (a matter going to the second and third of the reasons identified in Sheen as underlying the requirement for provision of a residential address) but also to facilitate the enforcement of other costs orders by other creditors in other proceedings (a matter that would not readily fall within the rationale for disclosure that was given in Sheen).
In any event, the circumstance that Mr Ritson was apparently prepared to contemplate the disclosure of his address on a confidential basis to the first respondent tells against the underlying reason for non-publication of the address being in order to deceive the first respondent or the court as to his address or to avoid the costs consequences of an adverse decision in these proceedings.
Additionally, by way of discretionary considerations, the first respondent submits that Mr Ritson’s summons is fundamentally flawed. It is noted that, at common law, the reasons do not form the part of the record for the purposes of certiorari (R v Northumberland Compensation Appeal Tribunal [ex parte Shaw] [1952] 1 KB 338 at 352). Reference is also made to what was said in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 by Brennan CJ, Gauldron and Gummow JJ (at 159) to the effect that, for certiorari to issue, it must be possible to identify a decision which has discernible or apparent legal effect upon rights, that being the effect which may be removed for quashing. It is submitted that the orders made in the District Court were not concerned with Mr Ritson’s rights; rather they were concerned with his obligation to provide a residential address.
Mr Ritson disputes the suggestion that his summons is flawed. He maintains that the decisions did affect his rights and refers to NRMA Insurance Ltd v Ainsworth [2011] NSWSC 344 in the context of the jurisdiction to make orders in the nature of certiorari. There, Rothman J said (at [18]):
By s 69(3) and s 69(4) of the Supreme Court Act, the Court’s jurisdiction to grant orders in the nature of certiorari include the jurisdiction to quash the ultimate determination, if that determination were to have been made on the basis of an error of law on the face of the record, which is defined to include the reasons expressed for that ultimate determination. In that respect, the provisions of s 69(3) and s 69(4) of the Supreme Court Act arguably broaden the jurisdiction to grant certiorari, or orders in the nature thereof, beyond that which was available under the common law: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163.
However, the decisions here sought to be reviewed were interlocutory decisions. The question whether the expression “ultimate determination”, in the context of the grant of orders in the nature of certiorari, includes interlocutory decisions was explored by White J in Re Frieda and Geoffrey [2009] NSWSC 133. Although his Honour accepted that interim care orders made in the Children’s Court, which did not comprise the ultimate determination by the Children’s Court, were amendable to the remedy of certiorari if the grounds for the remedy were established, ([35]) his Honour held that the Magistrate’s reasons were not taken to be part of the record. White J agreed with the reasoning of Kirby J, as his Honour then was, in Re Alistair [2006] NSWSC 411 to the effect that the decision under review was not the ultimate decision for the purposes of s 69(3) of the Supreme CourtAct. At [38] White J concluded:
I do not think that in s 69(3) the expression “ultimate determination” means any decision of the court or tribunal which affects the rights of subjects and is amenable to certiorari generally. But in any event, even if “ultimate determination” (s 69(3)) or “ultimate decision” (Hot Holdings Pty Ltd v Creasy) means a decision which affects rights, as distinct from reports or recommendations which do not, or a decision which is not binding, nonetheless s 69(3) refers to the quashing of “the ultimate determination of a court in any proceedings” not “an ultimate determination”. Accordingly, if, as I think is the better view, certiorari lies in respect of the interim care order, it is not established by pointing to errors or [sic; sicil of] law in the Magistrate’s reasons for making interim care orders as those reasons do not form part of the record.
Similarly, in Goldsworthy v Local Court of New South Wales [2013] NSWSC 459, Price J, as his Honour then was, held that a magistrate’s decision to disqualify himself was not an “ultimate determination” pursuant to s 69 Supreme Court Act and, also finding that there was no error on the face of the record, the power of the court under s 69 was not engaged.
The first respondent submits that there is no other arguable evidence of jurisdictional error (referring to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163); rather, on Mr Ritson’s version of events, there is simply an issue as to the correct interpretation of one of the UCPR rules. Mr Ritson takes issue with this.
In Re Alistair, Kirby J, referred (at [127]) to the distinction between jurisdictional error and error within jurisdiction – a distinction that Mr Ritson’s grounds of appeal fail to address. An incorrect decision made within the limits of the functions and powers conferred on the decision-maker (such as, for example, if there had indeed been an error in the admission of evidence by Balla DCJ on the first of the applications the subject of the present application) is not jurisdictional error.
There is therefore force to the criticisms made by the first respondent of the judicial review application in this regard.
Furthermore, insofar as Mr Ritson would, subject to the grant of leave, have a right of appeal pursuant to s 127 of the District Court Act 1973 (NSW), there is an issue as to whether the judicial review application will succeed (see Commissioner of Police v Gordon [1981] 1 NSWLR 675). Relief of the kind available under s 69 will not generally be granted if there is another equally effective and convenient remedy (NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; 53 NSWLR 559 at [16]).
As to other discretionary considerations, the first respondent complains that Mr Ritson has sought to intimidate the first respondent financially, and is committed to maximising the costs she will incur, “having regard to the applicant’s determination to avoid disclosing his residential address and no doubt any assets that he may own”. I would not draw that inference on the limited material available on this application.
Mr Ritson, for his part, has pointed to matters that he contends weigh against the grant of security. For example, in his February affidavit, he makes what is in effect a submission that an order for security for costs would have a stultifying effect on the litigation ([28]), there referring to a view expressed by Gibson DCJ as to the quantum of the costs at that stage of the proceedings. However, there is no evidence put forward by Mr Ritson as to his financial position and therefore I could not conclude that the imposition of security would be likely to have a stultifying effect on the litigation.
Mr Ritson has also complained of disentitling conduct by the first respondent, in summary that: the first respondent has engaged in disentitling conduct in: producing and using the article containing false and defamatory materials concerning him; that she has not been frank and candid with the Court about her employment status (see [29] of his first affidavit); that she authored the defamatory material complained of in the amended statement of claim ([32] of his first affidavit); that she has made a “very serious and unfounded” allegation that the applicant is a vexatious litigant and as to deceit. He points to the fact that the first respondent has not yet served a response (which he maintains is likely to reveal that she admits that errors of law were made by Gibson DCJ in respect of the judgment on 31 October 2014 in accordance with UCPR r 59.6). He complains that the solicitors for the first respondent have agitated technical or side issues and have confused him ([44] of his first affidavit). He asserts that the first respondent will not be exposed to any financial risk if security for costs is refused because she is publishing defamatory material about the applicant to procure donations for members of the public to fund the litigation (reference there being made to what is alleged at [9]–[12] of the amended statement of claim).
It is not necessary, in light of the conclusions reached above, to consider the matters raised by Mr Ritson in this regard.
Quantum
Finally, I should note that had I been persuaded to order security for costs I would not have been inclined to accept the estimate as to the quantum of the security for costs provided by Mr Goldsmith without any breakdown of those costs. Mr Goldsmith has estimated that the costs on a party and party basis of defending the judicial review proceedings will be between $15,000 and $17,000 (though making clear that if the proceedings are dismissed the first respondent will seek an order for costs upon the indemnity basis) (see [20] of his affidavit). Mr Goldsmith has identified that the proceedings will involve a detailed review of the four judgments (which presumably he has already undertaken for the purposes of this application), a review of the authorities and the preparation of detailed written submissions as well as preparatory work to be undertaken including a review of the appeal book and other steps including attending upon any directions hearings.
There has been no attempt to provide a breakdown of the estimated costs as between the various tasks identified. Had I been persuaded to order security for costs I would have been inclined to adopt a broad brush approach and to fix the amount at no more than say, $7,500 - $10,000 for the preparation and hearing of the judicial review proceedings, which should be relatively short and the preparation for which seems likely already to have been largely completed.
Conclusion
For the reasons set out above, I dismiss the first respondent’s motion for security for costs. In the circumstances I see no reason why costs should not follow the event. I will order the first respondent to pay the applicant’s costs of the notice of motion for security for costs.
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